First post-trial hearing

by Woody Box


The first hearing after Dzhokhar Tsarnaev's sentencing took place on December 1 and was about four subjects: the penalty phase, the SAMs/attorney privilege, the restitution bills and the unsealing of certain sealed filings. Nothing spectacular has been reported: finger-wrestling between prosecution and defense, in between a judge reserving decisions - business as usual, so to say.

Because Jane24 has attended the hearing BBN is in the lucky position to convey information about the "vibrations" in the courtroom. These are most valuable to obtain hints on the defense strategy. After the trial and sentencing, many observers have suspected and accused the defense team of "foul play", i. e. not fighting for him and neglecting to address weak points in the prosecution's narrative. Which is quite understandable given their passive role in the guilt phase. However, Jane24 and I have always dismissed attempts to undermine the defense's integrity and insisted that the restraint is presumably only tactical and temporary. 

The demeanor of the actors in the courtroom seems to confirm the latter theory. According to Jane24, Miriam Conrad delivered an awesome and forceful performance. When responding to Weinreb, she appeared angry and outraged. She stressed that "the litigation is far from over", "there will be appeals", "the defense function is alive and well" and disclosed that there are quite a few experts who visited Dzhokhar but were not called to trial. The prosecution demanded to learn the identity of these experts.

Judy Clarke was also attendant, but said little. Quite obviously she's not the leader of the defense team or the chief strategist. Her main job was to get Dzohkhar off the death penalty.

Combined with an irritable, mumbling judge who apparently felt very uncomfortable the hearing seems to have been underlaid by a subliminal but strong tension. This trial is far from over.

The fact that the guilt question was not touched at the hearing doesn't mean that it will not arise in the future. On August 17th the defense filed a "motion for judgment notwithstanding verdict (judgment NOV) and new trial" (docket nr. 1506). This is basically killing two birds with one stone. The request for a new trial is self-explanatory. It corresponds to Rule 33 for federal criminal procedures. The judgment NOV (Rule 29) goes one step further: it is the post-trial version of a judgment for acquittal and demands to overturn the jury's guilt verdict into a "not guilty" and acquit the defendant instantly without appointing a new trial.

The judgment NOV is based on the claim of evidentiary insufficiency. Margo Schulter concisely explains that the concept of "evidentiary insufficiency" as claimed by Dzhokhar's attorneys applies to the guilt phase, and it means that the government's evidence does not suffice to provide a reasonable juror with a basis for finding him guilty beyond a reasonable doubt. An example is when the defense succeeds in proving that the government's evidence is tainted, as it has happened here. The result was an acquittal.

The motion is a legal routine operation, but it's worthwhile to have a look at the details. In DE 1506, the defense writes: The government failed to prove each and every element of each and every charged offense beyond a reasonable doubt, and failed to prove each and every fact required to warrant the death penalty beyond a reasonable doubt. In other words, the defense attacks every single count Dzhokhar is accused of.

In particular, the defense requests an acquittal in the so-called 924(c) points of conviction. This issue was also discussed at the hearing with regard to the penalty phase. The counts in question are 3, 5, 8, 10, 13, 15-18, 20, 22, 24, 26, 28, and 30. However, to stress it again, the defense has requested an acquittal in each and every point. Count #4 for instance (Use of a weapon of mass destruction (Pressure Cooker #2), and aiding and abetting) led straight to the death penalty, but the defense has not backed up the request for an acquittal here with any rationale. So the rationale has either yet to come or it is hidden in the many sealed motions. If the defense succeeds in reaching an acquittal in each and every point, Dzhokhar Tsarnaev not only avoids the death penalty, but has to be released from the prison as a free and innocent man.