Tsarnaev’s Appeal Possibilities, Part 1: Staying the Proceedings for Abuse of Process

by Mary W Maxwell, LLB

A girl who barely scraped through law school should probably refrain from suggesting to a panel of judges the approach they should take in a federal criminal case. However, I am interested in cataloguing what’s available in the upcoming appeal of United States v Tsarnaev. So in this series I’ll rehearse any approach I can find.

An appeal is not a fresh trial.  New evidence cannot be proffered. Since Jahar was convicted by a jury, that jury’s verdict is sacred, so to speak. What is usually brought up in appeal is a claim that the law was wrongfully applied.

On July 18, 2018, Jahar Tsarnaev’s defense team – and I use the word defense in the most cavalier manner – asked for an extension of time until November 18, 2018 so they could study the situation. It has been granted.

Their appeal is based on notions that I cannot “relate” to.  For instance, they will challenge the venue, saying that Boston was too hot to handle, thanks to media coverage of the Marathon bombing.  I say the Moakley Courthouse, only a few miles from the Finish Line, was the perfect place in which honest attorneys could have sorted out the nonsense stories provided by the media.

They are also going to try to air the wrongness of certain aspects of the jury selection.  Personally, I don’t believe in jury selection. A jury of your peers means a jury of 12 people selected at random.

Also, the “D” team plans to object to Jahar’s un-Mirandized confession. [All gasp.]  This apparently refers to Jahar talking to the Gitmo team – remember that one? – at Beth Israel Deaconness Hospital. It was based on FBI Form 302, which is a deliberate means of creating a confession that never took place. That whole episode is a fantasy and even to discuss a Miranda aspect shows bad faith, in my opinion.

The Staying of Proceedings Because of Entrapment

Part 1 of this series looks only at one aspect of law, namely the staying of proceedings by a judge. For a local court, staying is covered in Rule 18 of the (unbelievably boring) Federal Rules of Criminal Procedure, the FRCP. During a trial either party can move for the judge to order a stay.  For appeals courts, the guidance is found in the FRAP – Federal Rules of Appellate Procedure.

Naturally, I would like the appeals judges to stay the proceedings based on the fact that the whole case was a travesty, an insult to the Court, and an insult to America, but let’s go for more modest grounds. I am going to refer to the grounds of abuse of process.

The Nuttall/Korody Case

The reason I am using this approach is that a judge in the Supreme Court of British Columbia, Canada, used it effectively in a case where two Muslims, a husband and wife, had been convicted of terrorism. She, Justice Catherine Bruce, saw that the whole thing should never have come before the lower court or her appellate court.

She ordered a stay of proceedings, accusing the Royal Canadian Mounted Police of abusing the legal process by entrapping the accused persons, John Nuttall and Amanda Korody. (In a Gumshoe article in 2016 I wrote about the case, misspelling Amanda’s surname as Kolody. Forgive me.)

This is not to say that I think the Tsarnaevs suffered “entrapment.”  No, not at all. I don’t think the FBI entrapped them into committing a crime, as I don’t believe they committed any crime. Heck, I even think Jahar and Tamerlan weren’t present at the 2013 Marathon race in Boston — the photos of them were probably photoshopped.

So, I shan’t be paralleling Justice Bruce’s statement that that “Mr Big” pushed or frightened John and Amanda to do this or that.  But I am using her argument that when the RMCP did what they did – namely, they engineered a terrorist crime that almost came to fruition – they did so in disrespect of the law.  She specifically says they abused the process of the law.

American Law Invokes “Entrapment” As a Defense

As far as I know, Justice Bruce’s approach, which followed the precedent of the Canadian case of Mack, is not found in the federal law of the United States or of any of the 50 states. Granted, we do have the concept of abuse of process (e.g., I think all SLAPP suits should be thrown out as blatant abuse of process), but it has not been applied in the matter of entrapment.

Rather, if an accused can show that she was entrapped by the police or other person to commit a crime that she otherwise would not have committed, her defense attorney can offer “entrapment” as a defense and presumably get her acquitted thereby.

As I said, I won’t be using the entrapment approach. As I argue in my book Marathon Bombing: Indicting the Players, Tamerlan probably obeyed a directive from his handler (CIA? FBI?) to show up in Watertown in the wee hours of April 19, 2013. Once there, he got captured. They had not involved him in the exploding of a bomb or the making of a bomb or anything else. He was a classic patsy.

Jahar, too, was probably captured by police at the same moment as his brother, and then was drugged and placed into a boat to await his death by firing squad — 228 bullets, by official count. Note: parallels to Martin Bryant’s intended death in the fire at Seascape are glaring, if you know the Port Arthur massacre story.

I Do Not (Yet) Ask the Appellate Judges To Whisk Out a Bench Warrant

As I will now describe, I consider the US Department of Justice to be the party that committed abuse of process. The DoJ includes both the FBI and the US Attorneys who run the prosecution when a federal crime such as terrorism is to be tried. I say both are equally culpable. Both have offended the law. (Ah, law.  Remember law? Remember its majesty?)

As far as I know, abuse of process is not a crime. It can result in the judge making an order of contempt of court, including writing a warrant for the arrest of the contemner.   You may go to prison but you won’t get a criminal record (as South Australian Fredrick Toben discovered when he was held in contempt over a matter related to Holocaust denial).

In any case, I am not going down that road today. Much less am I going down the road – though I have gone down it numerous times – of saying that prosecutor Carmen Ortiz and FBI Chief Richard Deslauriers have committed crimes of obstruction of justice in regard to Jahar’s case.

Federal law is clear that obstructing justice is felonious, whether it consist of suppressing evidence, tampering with a witness, or whatever.  Sir William Blackstone in his 1769 Commentaries on the Laws of England was pleased to announce the harsh punishments available for such things. (Having your teeth pulled, or something like that.)

But not today, Folks. I have come to stay Caesar’s proceedings, not to bury him. And of course today is not the day on which I ask for the arrest of FBI personnel, or FEMA, the Transit Police, or any other suspect, for the crime of actually doing the Marathon bombing.

Canadian Judge Lamer’s Ruling in Mack

As noted, Justice Catherine Bruce, in staying the proceedings against Nuttall and Korody, employed the precedent in the Mack case. She quoted from that case at length. The paragraph numbers shown are from her legal opinion:

[543] Entering a stay of proceedings due to entrapment is not done to punish the police for their misconduct; however, the court is concerned with maintaining confidence in the integrity of the justice system by refusing to condone unacceptable conduct by state authorities. [P]olice… must be given substantial room to develop techniques that are necessary to combat crime in society. Nevertheless, when the police and their agents engage in conduct that offends basic values of the community, the doctrine of entrapment must apply….

[545]  In Canada, the approach to entrapment is different from that adopted by American courts. In Mack, the Supreme Court of Canada articulated a more objective evaluation of the actions of the police or state agents and rejected an entirely subjective analysis of the impact of police conduct on a particular accused. It was the desire to avoid a predisposition analysis of the accused’s actions and motivations that led to … a model that focuses instead on the conduct of the police. Lamer J. said:

[580] In addition to entrapment, the defence argues that the police conduct in this case warrants a stay of proceedings because it amounts to an abuse of the Court’s process. The abuse of process claim includes allegations of illegal conduct by the police, violations of the defendants’ religious rights and freedoms, and overall abusive and coercive conduct during the undercover operation…. As a consequence, the authorities addressing these issues are relevant to the entrapment inquiry as well as the claim of abuse of process. [Emphasis added]

Justice Catherine Bruce’s Emphatic Words

At the end of her ruling Justice Catherine Bruce wrote the following:

[769]  Based on the evidence before me, I am satisfied that the RCMP knowingly exploited the demonstrated vulnerabilities of the defendants in order to induce them to commit the offences. They adopted a multi-faceted approach that included most of the factors in favour of a finding of entrapment articulated in Mack, including the use of trickery, fraud and reward; the use of persistent direction to become more… focused …in their jihadist ideas; the use of persistent veiled threats to adopt the pressure cooker plan as their own…; the exploitation of the defendants’ social isolation and desperation for friendship with Officer A [posing as a terrorist], as well as their ongoing search for spiritual meaning in their lives; the creation of an elaborate ruse that led the defendants to fear for their lives if they failed to satisfy this sophisticated international terrorist organization….

[770] In addition, the police involvement … was overwhelming compared to the insignificant part played by the defendants, and … showed that it was the police who were the leaders of this plot. Not only did the police take over the leadership, but they committed illegal acts to enable the defendants to play their small part in the plan. Throughout the undercover operation Mr. Nuttall repeatedly demonstrated that he lacked the focus required to make the arrangements that were necessary…. The investigative team was exasperated with Mr. Nuttall’s failure to follow through with any of the jihadist objectives he talked about. Instead of viewing the project as a success because they had discovered the targets were incapable of taking any concrete steps…, the police decided they had to aggressively engineer a plan for Mr. Nuttall and Ms. Korody and make them think it was their own.

[775]  This is truly a case where the RCMP manufactured the crime; this is not a situation where the police simply “instigated, originated or brought about” the offence. …Mr. Nuttall never brought up pressure cookers after the June 6 scenario. The police seized on this idea and it became their plan.

[776] The RCMP had to provide the explosive substance; they had to take the defendants shopping for the bomb parts [!!!] and give them continuous instructions and direction until they finally bought most of what they needed; they had to construct the devices and left only the gluing of nails to the pots and the construction of timers, which were never part of the RCMP’s plan, to the defendants. …Each day the police had to “babysit” the defendants to ensure they had their methadone. The police chose the date for the explosion…. The police essentially chose where the devices would be planted.

[781] I therefore enter a stay of proceedings on Counts 1 and 4 of the Indictment and an unconditional stay on Count 2 based on a finding of entrapment. [Emphasis added]

Who Inspired John Nuttall?

I end with a quote from Bruce’s paragraph #626 that may amuse readers of my recent article about the “Al-Qaeda” magazine Inspire:

“Mr. Nuttall had earlier referred to the Boston bombing and the use of pressure cookers as explosive devices during a shopping trip for a suit on April 26, 2013, but this idea took on significance for the police after June 6, 2013. During this scenario Mr. Nuttall provided Officer A with a hand drawn diagram of a rocket and an explosive device constructed with a pressure cooker container, both of which he had found on the Internet in Al Qaeda’s Inspire Magazine.”

Good God.

— Mary W Maxwell is a Bostonian by birth and an Australian by marriage, and is determined to stay on the Tsarnaev case until Bostonians start acing like Bostonians.