Dishonorable to the United States: The Prosecution of Jahar Tsarnaev

by John Remington Graham of the Minnesota Bar

Editor’s Note: This was published on the Fourth of July, 2018 in Denmark.  Not very many American publishers want to know about the Boston Marathon case, so it was printed in the Danish periodical “Radians and Inches.” Bolding added by Gumshoe.

Over fifty years of practicing law, largely in criminal justice and forensic science and medicine, I have had reason to distrust the FBI.  When I was a young lawyer, I defended hundreds of young men who refused to be drafted into the armies of the United States in Vietnam.

I used an argument against the constitutionality of such conscription which had been successfully used by Hartford Convention in New England in bringing the War of 1812 to an end.  For those interested in details, I refer my readers to United States v. Crocker, (8 Cir. 1970), and Kneedler v. Lane, 45 Pa. St. (1863).

All of my clients were eventually acquitted or pardoned.  Yet in those days, while I was teaching at an accredited law school, my Congressman called me from Washington, D. C., to warn me that the FBI had a dossier on me.  The FBI considered me a probable criminal because I defended my generation successfully, according to strict standards of law.

A little over twenty-five years ago, I was suspended from the practice of law for sixty days, because an FBI investigation memorandum put words in the mouth of a key witness who later gave a live deposition, completely clearing me of any suspicion of wrongdoing.

When the deposition was published by a veteran journalist, the people of my county put my name on the ballot by citizens’ petition, and elected me as their general counsel and chief public prosecutor.  I can provide details from the public record on request.

It came to me as no surprise, therefore, when I learned that, in the Boston marathon case, Dzhokhar Tsarnaev could not have detonated a pressure cooker bomb on Boylston Street in Boston on April 15, 2013, for which he was indicted, convicted, and sentenced to death, and that the FBI’s own evidence, of which counsel on both sides and the major news media of the United States were fully aware, conclusively proves that the accused was not guilty.

The trial in Boston was a giant hoax, a show trial produced by the FBI and major media in a flagrant abuse of the First Amendment, and most Americans are still not aware of the critical facts.  Probably tens of millions have read the internet-accessible report by Dr. Paul Craig Roberts, a former assistant secretary of the treasury of the United States, about the prosecution of Mr. Tsarnaev, drawing heavily from the judicial record, and published widely in the United States, Canada, Europe, and Russia on and after August 17, 2015.

During the trial, after I had looked into the case, I wrote an opinion, stating that, in light of known FBI-gathered evidence, there was no probable cause to charge Dzhokhar.  Drawing from fragments at the scene of the explosions, the FBI crime lab and the indictment against Mr. Tsarnaev, and also the major news media, stated that the culprits were carrying black backpacks, filled with heavy pressure cooker bombs, at the time of the explosions, yet Dzhokhar in particular who was charged, not to mention his deceased brother Tamerlan, was shown in a still-frame photo from a street surveillance video used by the FBI to identify the suspects, carrying a light-weight white or silvery bag over his right shoulder only minutes before the explosions.

It so happens that there were widely published photos at the time; these still available, showing men in paramilitary gear, wearing black backpacks which perfectly matched the black backpacks projected by the FBI crime lab, but these individuals were not questioned by the FBI.

The backpacks did not match, which in itself proves that Mr. Tsarnaev was not guilty as charged in the indictment.  In an ordinary criminal investigation, Dzhokhar would have been eliminated as a suspect, and the men in paramilitary gear would have been approached and questioned, but the FBI let them all go.

Shortly before I released my opinion, Dr. Lorraine Day, who had for twenty-five years been chief trauma surgeon at the general hospital in San Francisco, came forward with an internet-accessible opinion, in which she unmistakably pointed out that, in news photos of the scene, no blood was visible when it would have been visible if there had been actual explosions, severing limbs as claimed, and that, when the pretense of blood did appear, the color was a bright orange-red Hollywood color, not the sober maroon color of human blood in real-life situations.

Not long afterwards, I was introduced to Maret Tsarnaeva, a Russian aunt of Dzhokhar, a lawyer who had served as a public prosecutor in the Kyrgyz Republic which had at one time been part of the Russian Empire and the Soviet Union.  Maret and I spoke by skype and corresponded by internet and regular mail.  The court-appointed lawyers for Dzhokhar had pressured Dzhokhar’s family to accept a defense that Dzhokhar was merely following the lead of his elder brother in the commission of the crime on marathon Monday.

They had overwhelming proof that Dzhokhar was not guilty, but would not defend him with the powerful exculpatory evidence they possessed, and thereby save his life.

As things finally turned out, the chief counsel for the accused, appointed and paid by the United States, appeared at trial, admitted the guilt of her client in her opening statement, did not use the decisive evidence of innocence in her hands, and did not even ask for a verdict of not guilty in her final summation.

Maret knew that Dzhokhar was not guilty as charged, and wanted him defended on the merits.  She later submitted an affidavit to the federal district court in Boston, executed on April 17, 2015, and sent from the Russian Federation, in support of her effort to appear as a friend of the court for Dzhokhar, wherein she explained the circumstances.  Students of this prosecution will be interested in the details revealed by Mme Tsarnaeva, and so I attach of copy of her affidavit which stands uncontroverted on the judicial record [as printed on Paul Craig Roberts website].

Maret decided to make an appearance as a friend of the court to present available exculpatory evidence in behalf of her nephew Dzhokhar.  I should note here that I had to seek the assistance of local lawyers in Massachusetts to move my admission to the bar of the federal district court in Boston on special occasion so I could represent Maret in her amicus petition.

The help of countless lawyers, including the American Civil Liberties Union, was solicited and refused, because the major news media had created such a forbidding atmosphere that local counsel were afraid of loss of reputation or livelihood if they were known to have assisted anybody seeking to help Mr. Tsarnaev.

I had practiced in Massachusetts before, and had never before encountered such difficulty. Boston was the last place in the world where a fair trial of Mr. Tsarnaev could be held.  On advice of the bar liaison officer of the federal district court in Boston, Maret represented herself in her amicus petition, with me at her side as “of counsel” so the court would know she had legal guidance. At her request, I prepared Maret’s motion and argument, and filed the documents for her. Her submission was left unanswered, and so the particulars were admitted.

For those who want the facts from the judicial record, I attach[ed] her argument which lays down the law and the facts, including four exhibits at the end (designated Tsarnaeva exhibits 1, 2, 3, and 4) which prove conclusively that the projections of the FBI crime lab and paragraph 7 of the indictment (especially Tsarnaeva exhibit 3) are contradicted by a third still-frame photo from the Whiskey Steak House video (Tsarnaeva exhibit 4), and that, therefore, Dzhokhar was not guilty.

This evidence, though offered and not contradicted, was ignored, and no hearing was held upon it.  The trial jury was never made aware of this evidence, which was also hidden from the general public. On June 24, 2015, Dzhokhar was sentenced to death.  The proceedings were legal theater, a game of smoke and mirrors.

But at least we secured a legal record made by the Russian aunt seeking to appear as friend of the court, including the argument and exhibits she offered.  On motion, these items were made a visible part of the court record by the presiding judge.

“But Jahar Openly Confessed”

I have heard from citizens exasperated that I have not believed the confessions attributed to Mr. Tsarnaev.  One fellow insisted I was not a lawyer, because I would not accept those confessions, but he learned from the Minnesota Supreme Court that I am a lawyer in good standing, and have been in practice for a half century.

Why should nobody believe the confessions in the boat and at sentencing?  Because, as Sir William Blackstone said, and as all good criminal lawyers know, “[E]ven in cases of felony at common law, [confessions] are the weakest and most suspicious of all testimony, ever liable to be obtained by artifice, false hopes, promises of favour, or menaces, seldom remembered accurately, or reported with due precision, and incapable in their nature of being disproved by other negative evidence.” — 4 Commentaries at 357.

The alleged confession in the boat in Watertown required a special writing instrument, which Dzhokhar did not have in his possession.  At sentencing the words of the prisoner were plainly scripted for him: no Americanized youth, as Dzhokhar was, says his lawyers were “lovely companions,” or speaks of “Mohamed, peace be unto him,” etc.

In any event, confessions must always in law be corroborated with the so-called corpus delicti: here the confessions cannot be true, because, if they were true, Dzhokhar would have carried a black backpack as projected by the FBI crime lab and charged the indictment, yet Dzhokhar carried a white bag over his right shoulder.  If there had been real explosions, as Dr. Lorraine Day said, there would have been blood, of which there was none when it should have appeared, and, when blood appeared, it would not have been a flashy orange-red in color.

False confessions are common in criminal practice, which is why the law has for years been absorbed in using Miranda warnings and other ways to prevent false confessions.  False confessions are a problem, especially for prosecutors, because if an innocent suspect is convicted, the guilty party remains at large, and public safety is imperiled.

The Appeal

A new team of court-appointed lawyers for Mr. Tzarnaev took an appeal in his behalf to the First Circuit.  “Counsel for the appellant” will submit their arguments, but I daresay we shall hear nothing from them about the backpacks that do not match, and nothing about the phony blood, which completely change the case from guilty to not guilty, and warrant at least a new trial, if not an acquittal as a matter of law.

Something had to be done for Dzhokhar by somebody other than his court-appointed counsel who had thus far done nothing for him. And that is why three distinguished Americans have appeared before the First Circuit as friends of the court.  Their motion refers to the record in the federal district court in Boston, including the exculpatory evidence and exhibits, and was filed on October 13, 2017.

If the First Circuit had wanted to continue the cover up of exculpatory evidence proving actual innocence, including proof that the backpacks do not match, the First Circuit could easily have denied the motion, because, never before in American jurisprudence, as far as I am aware, has a private amicus motion ever been allowed in a major public prosecution.

Three Distinguished Citizens

If the motion had been denied, nobody would have noticed. But, on November 9, 2017, the First Circuit granted the amicus motion of the three distinguished American friends of the court, including a retired professor of philosophy, an international scholar in political science, and a doctor of medicine with thirty-seven years of practice behind him. 

The appellate court will consider the decisive exculpatory evidence which had been kept from the attention of the trial jury and the attention of the general public, previously buried in the record as if not part of the judicial process.   

On November 24, 2017, argument in support of the amicus motion was filed as ordered by the First Circuit.  I attach a copy of the text of the argument before the First Circuit, without caption, tables, appendices, or addendum.  The motion and our argument are now visibly part of the judicial record, although the major media have continued to abuse the First Amendment by hiding this material from public attention in their game of intentional deception.

Not the Boston Globe

We have learned of this sad reality from an honest journalist associated with the Boston Herald, who interviewed me for about forty-five minutes on November 26, 2017, after she discovered our filings with the First Circuit two days beforehand.  As she expressed her impression in conversation with me, this material completely changes the story of the Boston marathon case as reported by major news media of the United States, and she was glad to have discovered the facts and to report them, as a good journalist should have been.

But her supervising editor blocked publication of the story.  She should have won the Pulitzer prize and seen her work published.  If the country does not find out what really happened in this case, Mr. Tsarnaev will die by lethal injection, and the United States will be disgraced in the eyes of history.   And those responsible will be answerable to God.  I have intervened, because I am an American lawyer, and I want to be proud of the law and proud of my country.  

The lawyers on both sides of this prosecution did not want the court to know of the decisive exculpatory evidence in the federal district court in Boston, but the First Circuit has reached out and demanded it.  Let us hope that the First Circuit will tell the country the truth, even though the major news and entertainment media of the United States have thus far failed us and let us all down.

I recall and remind others of the famous Pentagon Papers case, — New York Times v. United States (1971), which recognized the duty of the press to prevent deception of the people by their government.  In this case, however, it is clear from contemporary history that the New York Times, the Washington Post, CNN, and associated major media have shamelessly aided the government of the United States in hiding exculpatory evidence in the prosecution of a man whom they knew or should have known was not guilty of a heinous crime, and they were guilty of this breach of moral duty in order to mislead the American people.

Jack Graham is the author of A Constitutional History of Secession, 2002. He lives in Quebec.

Here is Gumshoe’s short video, translated into Catalan by Montse Alarcon Flix: