Recover the Law, Part 3: The Right to Counsel – Is Jahar Another Scottsboro Boy?

by Mary W Maxwell, LLB

Cogitate upon this:

“To no one will we sell, to no one will we deny or delay right or justice.”

Imagine living in a society where that sort of thing was in force. You wouldn’t worry about a delay in justice, never mind a denial of it.  Wow, what a beautiful situation.

That amazing statement from the Magna Charta was “normal.” Which is not to say that we took it for granted. I felt blessed to be American especially as I knew that in other countries people could have sleepless nights – for years on end – worrying about that knock on the door.

Here in Part 3 we look at a phrase from the Sixth Amendment – the accused person’s “right to have the assistance of counsel.” The Group of Three amici, of which I am honored to be a member, is concerned not that Jahar got left without counsel but the opposite – he got saddled with the services of Public Defenders whom he did not want.

Incredibly, his lawyer, Judy Clarke, at the 2013 trial, did not convey to the jury that Jahar had pleaded not guilty to each of the 30 charges. Ms Clarke got up there on the first day and said “It was him.”

This is too, too shocking. It was brushed over, in law websites and business magazines by a theory of “strategy.” Judy knew her business – she had saved others from the death penalty by admitting her clients’ guilt and then appealed to the jury for lenience.

In Boston, she would supposedly “win” not by getting her client Jahar off entirely (as he should be), but only get him off the lethal injection. Ms Clarke would appeal to the jurors by saying Jahar was unduly influenced by his older brother Tamerlan. (Even now at the Appeal level, that is the thing being emphasized by the Public “Defenders.”)

McCoy v Louisiana

In 2018, the US Supreme Court ruled on a very similar case. Robert McCoy was accused of murder. The state prosecuted him and provided a public defender. McCoy rejected that person after a while and obtained a private lawyer, Larry English.  Mr English insisted on using a strategy that aimed for the juror’s sympathy.

After McCoy was found guilty he appealed on the grounds that the strategy had been foisted on him – as it was on Jahar.  Justice Ruth Bader-Ginsberg wrote the opinion in a 6-3 ruling, saying McCoy must be given a new trial.

How Will Jahar Find Out About the McCoy Case?

My sense of Jahar’s awareness of what’s going on will be explained below — I think he is kept in the dark. If I am right he has not heard that a person with a desire like his — to plead not guilty and be defended on that basis – has won the endorsement of the US Supreme Court.

This is terrible. So why don’t I pen a letter to him and tell him? Because he is not allowed to receive mail. The trial judge, Judge George O’Toole, Jr, put Jahar under “SAMs”  — Special Administrative Measures. He is basically incommunicado.

“Jahar Asks”

On February 17, 2016, WBUR radio channel, associated with Boston University, printed on its website wbur.org the headline  “Boston Marathon Bomber Asks For New Lawyers To Handle Appeal”.

Of course in legalese it is always said that the party said or did such and such, even when it is the lawyer acting as the party’s agent. Here is WBUR’s text:

“Tsarnaev’s lawyers filed a motion Wednesday asking the 1st U.S. Circuit Court of Appeals to replace most of the lawyers who defended him during his trial. That’s a standard practice in death penalty appeals.

Tsarnaev was sentenced to death for the 2013 bombing that killed three people and injured more than 260.

Tsarnaev’s motion asks to replace the federal public defenders of Boston with their counterparts in New York. It also asks to appoint Boulder, Colorado, attorney Gail Johnson and to keep Judy Clarke on Tsarnaev’s legal team during the transition.”

As far as I know, none of those “requests” came from the lips of the prisoner.

The Brief of the Three Amici

US citizens Cesar Baruja, James Fetzer, and Mary Maxwell were given the green light, in November 2017, by the US First Circuit Court of Appeal, to present an amicus brief in support of the appellant, Jahar.  The brief lists errors of law that were made in the verdict.

Our brief attaches and affirms the affidavit by Jahar’s aunt, Maret Tsarnaeva.  In it, she says Jahar attempted to reject the services of the original team. That team included attorneys Miriam Conrad, Judy Clarke, and William Fick.

Jahar’s Relatives in the Old Country

Jahar Tsarnaev was born in Kyrgystan, one of the Socialist Republics that became independent. His father Anzor Tsarnaev is Chechnyan. Both father and mother Zubeidat are US citizens (as is Jahar). Before the 2013 Marathon the parents went back, from Cambridge, Massachusetts to live in Dagestan.

Anzor’s sister, Maret Tsarnaeva, had immigrated to Canada and obtained a Master of Laws degree at Manitoba. At the time of the Marathon she lived in Toronto and still lives there, but in 2013-2015, she was traveling in Chechnya and Dagestan. That fact has given Jahar his best hope of freedom, in my opinion.

Aunt Maret was present at the first meeting between the public defenders, Judy Clarke and Bill Fick on the one hand, and Jahar’s parents on the other. That’s how Maret found out that the defenders refused to listen to evidence the family could give them. She herself had an extremely exculpatory video in her hand (the Potstava video) but Fick would not even look at it.

The Affidavit Maret Sent to Judge O’Toole

I said early in this article that it was a blessing to grow up in the US and know that there wasn’t even a chance of the dreaded knock on the door. But that has changed.  I now show you a report on the stand-over tactics that were – allegedly – used by Bill Frick on Jahar’s parents (and maybe on Judy!).

The reason why it changes things for me is not that this outlandish behavior happened, but that when it was reported to the Court it got no reaction.  It should have got a huge reaction, and of course it should have been front-page news. (Best not to get me started on the Boston Globe, thank you.)

The following is from Aunt Maret’s affidavit. I have not altered anything.

“I wish to note the following: The lawyers from Boston

strongly advised that Anzor and Zubeidat  refrain from saying in public that Dzhokhar and his brother Tamerlan were not guilty. They warned that, if their advice were not followed, Dzhokhar’s life in custody near Boston would be more difficult…

Mme Clarke and Mr. Fick also requested of Anzor and Zubeidat that they assist in influencing Dzhokhar to accept the legal representation of the federal public defender’s office in Boston. Mr. Fick revealed that Dzhokhar was refusing the services of the federal public defender’s office in Boston, and sending lawyers and staff away when they visited him in custody.”

So as I was saying, my upbringing was innocent. I honestly did not know that a member of government could say “if [our] advice were not followed, Dzhokhar’s life in custody [at Fort Devens] would be more difficult.”

Of course I knew the mafia could talk like that, but not the government.

The Right to Assistance of Counsel

There have been many SCOTUS (Supreme Court of the United States) rulings on the final phrase in the Sixth Amendment: “In all criminal prosecutions, the accused shall … have the assistance of counsel for his defence.”

At first the right to counsel was said to relate only to capital cases. It was gradually extended to other crimes.

The precedent case on the right of the accused, if indigent, to have a counsel appointed for him, is Gideon v Wainwright 1963. It contains a little homily from the 1932 case Powell v Alabama:

If charged with crime, [even the intelligent and educated layman] is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be … convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible…. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

Powell v Alabama is considered perhaps the most scandalous criminal case in US history. Eight of the nine accused black men were sentenced to death for allegedly raping a white woman. (The other woman recanted her testimony.)  The convicted men appealed to SCOTUS successfully. Justice Sutherland wrote:

“In the light of the … ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives—we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process.”

That wording would almost suit a future US Supreme Court decision for Tsarnaev. I predict Jahar’s federal trial  will become the all-time scandal of American trials.

Should Jahar Take the Stand?

One of the decisions every accused needs to make is whether to take the stand. So long as he refuses to take the stand, he is protected by the Fifth Amendment from incriminating himself. But once he decides to speak at his own trial, he has to answer any questions a cross-examiner puts to him.

Since Judy Clarke said “It was him” in her opening remarks, she apparently considered Jahar guilty.  If so, why not advise him to take the stand? She could have guided him through her desired theme about the influence of Tamerlan.

I do not think he was guilty. As argued in my book, The Soul of Boston and the Marathon Bombing, I believe the FBI did the Marathon bombing. I imagine Jahar’s defense team does know he is innocent. And that is why they made sure that he did not testify. He may, for example, have told how Tamerlan and he had been called out to Watertown to rendezvous with their FBI or CIA contact (if that is so).

Thus I claim, in regard to due process, that Jahar’s right to counsel was violated in four ways:

1. As ruled in McCoy v Louisiana, an accused has the right to decide if he will plead guilty or not guilty. Jahar’s defenders deprived him of that choice. They pled guilty for him, and did not even tell the jury that “He pleads not guilty.”
2. According to the scene described in Aunt Maret’s affidavit, Jahar was forced to accept the appointed team. His parents were pushed into writing him a letter that Judy could take back to the US instructing him to accept the Public Defenders.
3. If innocent he would have been an excellent candidate for taking the stand. But owing to the coercion of his defense team he had, I think, no way to know that testifying about his innocence would be a good choice. In effect he was prevented from testifying. (Frankly I suspect that Jahar was meant to “miss out” on testifying by being killed. The 228-bullet count is official and it seems a miracle that he survived.)
4. Because Jahar is under SAMs it is now impossible for him to learn of the McCoy decision and act on it if he wishes. The appeal has been running since February 2016 and there is not indication that the new defense team will argue that Jahar did not do the bombing.

Martin Bryant

Speaking of the Scottsboro boys, Australia has had the classic Scottsboro boy imprisoned since 1996 – Martin Bryant.

Here is a remarkable coincidence.  In Tasmania, solicitor John Avery admitted to the Hobart Mercury that it took him “13 or 14 visits” to Risdon Prison to get Martin Bryant to plead guilty to having shot approximately 20 people in the Port Arthur massacre.

On one of his visits, Avery told Martin that if he did not plead guilty, he would not be able to see his mother and sister again. Oops – from memory I think the mother, Carleen Bryant, said (in her autobiography, My Story) that it was she who made that announcement to her son, as instructed by Avery

Anzor and Zubeidat Tsarnaev had likewise instructed their son to “not to resist conviction.” But that threat is not the remarkable coincidence that I’m thinking of, between the Port Arthur case and the Boston Marathon case.  The much more amazing coincidence is the number of treks to Russia, by Jahar’s defenders, that were needed before the parents finally complied.

Guess how many visits it took.  Two or three?  Maybe five?

Answer: “13 or 14 visits.”