How Much Black Could a Backpack Pack, If a Backpack Could Pack Black?

(L) Richard DesLauriers, FBI Special Agent, now retired (R) Indiana’s execution chamber which Judge O’Toole has designated for Tsarnaev’s departure from this world

by Mary W Maxwell, LLB

Dear Bostonians, Adelaideans, and Other Interested Persons,

As you may know, I am a member of a group of three amici curiae in the appeal of the conviction, and death sentence, of Dzhokhar Tsarnaev. The guy who bombed the 2013 Boston Marathon — NOT.  Let me “share” what happened today when I was perusing the Oral History, so to speak, of that event. On Youtube, of course.

First, I should mention that a major pillar of our Amicus submission is that the FBI gave, as evidence of Jahar’s guilt, a photo of a back backpack that was destroyed by explosives.  Here it is:

But the video that was used by the FBI, and by federal prosecutors at trial, shows that Dzhokhar was carrying a light-weight white or whitish grey backpack.  It comes from the Whiskey Steakhouse video. That’s the same video used by the FBI to identify Dzhokhar.

As we three amici say in our 2017 submission, you can’t have your cake and eat it too. You can’t show a boy with a white backpack and then say the bomber was wearing a black one. Our counsel, Jack Graham, wrote (with bolding now added by me):

“Dr. Fetzer, Dr. Maxwell, and Dr. Baruja … all protest this prosecution as unfounded upon probable cause, and they verily believe, … that the prosecution of Mr. Tsarnaev is dishonorable to United States….  Dr. Fetzer, Dr. Maxwell, and Dr. Baruja maintain that, during the trial of Dzhokhar Tsarnaev, certain powerful exculpatory evidenceon this record, grasped by many astute observers, and sufficient to warrant outright dismissal or acquittal, or an order granting a new trial, went unused and unnoticed by counsel on both sides, including the principal trial lawyer for Mr. Tsarnaev who loudly proclaimed his guilt in her opening statement and did not even ask for a verdict of not guilty during her final summation….   [etc]”

I want to come quickly to the point about DesLauriers’ oral history.  He says (but this is not in sworn testimony) that the video shows Jahar carrying a black backpack which I will display below. DesLauriers says, “And he’s carrying a black backpack”.

That’s not true. Like inaccurate. Wrong. Mistaken. Lying to his teeth. Whatever.

In the said Whiskey Steakhouse video, Jahar features a white baseball cap and a whitish backpack. (Never mind my general doubts about the video; it IS the one used to nab Jahar and that is why we say it is exculpatory evidence that should have been used, rather than glossed over.  Will the Brady rule please stand up?)

Maret Tsarnaeva’s 2015 Amicus Statement:

An important feature of our amicus brief is that it calls attention to, and endorses, an amicus brief that Maret Tsarnaeva sent to the court near the end of the trial in 2015. She argues, inter alia, that the prosecution should have been brought by the State of Massachusetts, not the feds (with which I of course agree). But mainly we build on her claims about the unjustified ignoring of the exculpatory evidence, Jahar’s white backpack.

Maret Tsarnaeva (a lawyer who is an aunt of the then accused) pointed out that the Still Frame shown above — which is Exhibit #4 of her amicus — is suitable to be used as “judicial notice” under Federal Rule of Evidence Rule 201(b).

The following is what she wrote:

The central event for which Dzhokhar is alleged to have been responsible, according to the indictment, took place on Boylston Street, in front of the Forum Restaurant, near the finish line of the Boston marathon on April 15, 2013. The most important paragraphs of the indictment are numbered 6, 7, and 24 …. Paragraphs 6-7, read in themselves and in context, state that, acting in concert with his (now deceased) brother, Dzhokhar set down on the sidewalk and detonated one of two “black backpacks” which contained “improvised explosive devices,” these “constructed from pressure cookers, low explosive power, shrapnel, adhesive, and other materials.”

Paragraph 24 clarifies that the black backpack carried, and containing the pressure-cooker bomb … was placed in front of the Forum Restaurant and was associated with the second explosion…. [and that the explosion]  killed at least one person, and wounded scores of others.

On the morning after the explosions, i. e., on April 16, 2013, Richard DesLauriers, special agent in charge of the FBI in Boston, made a public statement at a press conference….

“. . . this morning, it was determined that both of the explosives were placed in a dark-colored nylon bag or backpack. The bag would have been heavy, because of the components believed to be in it.

“…we are asking that the public remain alert, and to alert us to the following activity … someone who appeared to be carrying an unusually heavy bag yesterday around the time of the blasts and in the vicinity of the blasts.”

Ms Tsarnaeva stated her grievance as follows:

“Itis impossible that federal prosecutors and counsel for the accused did not know of the exculpatory evidence which has just been identified and illustrated. Yet federal prosecutors went head without probable cause, as if decisive evidence of actual innocence, impossible to ignore in a diligent study of this case, did not exist.”

I myself (Maxwell) did not follow the mainstream media at the time, as I was in Adelaide. Still, I went along unthinkingly with the public’s assumption that the authorities “had the goods” on Suspect 1 and Suspect 2 (Tamerlan and Jahar). I did not learn till much later, and even now few folks realize, that the police did not even have enough “goods” to indict Jahar.

By the way, shouldn’t the police be looking for the real culprit — someone who was seen carrying “an unusually heavy, black backpack” near the site of the explosion?

The Corpus Delicti

I will now quote the part of the aunt’s affidavit (as amicus) that deals with Jahar’s purported confession. It was written on the wall of a boat where Jahar was found, though the handwriting on the wall was not immediately discovered.

Maret (assisted by Jack Graham) wrote:

“Paragraph 10 of the indictment recites a statement in the nature of a confession by Dzhokhar written on the inner walls of a boat in Watertown. But with respect to any and all evidence offered or treated as suggesting an extrajudicial admission of guilt in this case, amicus cites the penetrating observation by Sir William Blackstone in his Commentaries on the Laws of England, … 1765, Book IV, p. 357:

‘[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.‘

Ah, Blackstone. My buddy. Source of some great ideas on punishing those who engage in Obstruction of Justice. Ah.

I continue with Maret’s bold statement:

“Amicus and countless others suspect that the alleged confession in the boat was staged as artifice to suit the government’s case, and not authentic. But she stands on ancient wisdom which casts doubt on all extrajudicial confessions without adequate safeguards, including the rule that an extrajudicial confession is insufficient to convict, unless the corpus delicti be sufficiently proved up.

“The rule is defined with various degrees of rigor from jurisdiction to jurisdiction.  In federal courts … the corroborationrequired to sustain a confession or statement in the nature of a confession need only be independent, substantial, and reveal the words in question to be reasonably trustworthy, as appears, e. g., in  Opper v. United States,  348 U. S. 84 (1954).

“If such be the law here applicable, the required corroboration, in this case, must include evidence showing that Dzhokhar actually carried a large, heavy, black backpack …. Tsarnaeva exhibit 4,  a product of investigation by the FBI, shows plainly that Dzhokhar did no such thing, hence no required corroboration has been established. [Emphasis added]

DesLauriers Tells It Like It Isn’t

Now for the promised video of oral history. Richard DesLauriers quit the FBI in June 2013, two months after the marathon bombing. He went to join a Security firm in Michigan. I venture to guess that it would be worth finding out what that company is all about.

DesLauriers can be booked as an inspirational speaker. His ad says that he has qualities of leadership, teamwork, decision-making and — wait for it — empathy. If he speaks to your group, audience members will “come away moved, inspired, and armed with leadership and communication techniques applicable to any occasion.”

No doubt.

Now for the video:

The key phrase about the color of Jahar’s backpack occurs at 1.04 minutes.