Tsarnaev’s Appeal Possibilities, Part 2: The State of Massachusetts Kicks In

by Mary W Maxwell, LLB  

In 1776, our nation was founded, conceptually, by way of a Declaration of Independence from England. Eleven years later, the nation was structurally set up at the Philadelphia Convention by means of a constitution. Fifty-five delegates from the 13 states met in that year, 1787, and handed over to a new federal government a list of powers that could be exercised by three branches – a legislature, an executive, and a Supreme Court.

Well, that was all very exciting, but those 13 states retained sovereign power for themselves in every area except the 18 areas in which they ceded power to the feds (such as the issuing of currency). All of the states, today numbering 50, have their own legislature, an executive, a supreme court, and a state constitution.

The media treats the federal government as more real than the states — “the White House” being sexier than the governor’s mansion, and US Supreme Court decisions being more titillating than what state judges have to say. But this is an illusion. The states are more real for people’s lives. Watch and I’ll show you what the state of Massachusetts could do.

The state of Massachusetts could knock the world for a loop – and it should do so – by elbowing the feds out of the Marathon trial of Dzhokhar (Jahar) Tsarnaev, a 25-year-old US citizen who was wrongfully convicted of the Marathon bombing and is presently “doing time” in a – pardon the phrase – federal “correctional facility” in Colorado.

Appeal Possibilities

I am producing this series of GumshoeNews articles, about what can happen at Jahar’s appeal, in order to make a point. The point has little to do with Jahar Tsarnaev or the Marathon bombing and everything to do with your attitude towards your government. I wish to show that all folks do not have to fall down and worship the federal government.  There are ways for various individuals and cultural institutions – and states — to stick their nose into the matter.

Part 1 showed that the appellate judges at the Moakley Courthouse could take the unusual step of ordering a stay in the proceedings, based on the abuse of legal process that characterized the prosecution of Jahar. (Basically, the DoJ knew that Jahar had nothing to do with it.) Justice Catherine Bruce of Canada was wise enough to do it in the Korody case. Some commentators called her “brave” for so doing.  In the US I would find it disgusting to hear anyone call a judge “brave” for applying the principles of our law.

Note: Any two of the three appellate judges can, of course, alter Jahar’s fate in a more traditional manner. They can remand the case to the federal district court for a re-trial based on some point of law.  Less often, they rule against a conviction.  An appeals judge at the Moakley, Justice Mark Wolf, threw out the conviction of Vincent Ferreira a few years ago, on the grounds that the prosecution had withheld exculpatory evidence — specifically evidence showing that someone else had confessed to the crime. Mr Ferreira, also known as “Vinnie the animal” went home that very day.

What Can Massachusetts Do?

This series is cataloguing oddball ways to get around the Powers That Be.  Luckily, there’s oodles of spare room within the law itself to do creative things.

In Part 1, all eyes were on the Moakley. (“Moakley” is the name of the courthouse of the First Circuit of the United States Court.) But the action does not have to take place there.  The state of Massachusetts could, and should, wrest power away from the feds. All eyes should be on Beacon Hill.

Let me name five ways the state could do the needful without starting a revolution.

First, it could see to it that the state coroner, Mindy Hull, MD does her job properly under state law by investigating the much-lied-about death of Jahar’s brother Tamerlan Tsarnaev. At that point, I’m sure everyone would find out that the FBI killed Tamerlan while it had him in custody in the wee hours of April 19, 2013. See my Open Letter to Mindy Hull about this. The famous shootout, IED, and brother-driving-over-brother scene is false.

Second, Massachusetts could bring a new charge against the prisoner, Jahar, which would require that he be “extradited” from Colorado to Beantown to stand a new trial. I wouldn’t mind if the state wholly made up a charge (after all they do this at the drop of a hat, you know). They could accuse Jahar of anything, for the purpose of habeasing his corpus.  How about loitering?  In my day there were signs in Park Street T station “Spitting is against the law” but I don’t know if it still is.  Anyway, I am on record recommending that the state try Jahar for treason. A man who bombs a public place – and I don’t think it was Jahar – commits treason for sure.  He “levies war against the state.”  Massachusetts Attorney General Maura Healey can start the prosecution now.

Third, the state of Massachusetts could sue, in civil court, for economic harm done by the FBI’s fake manhunt in the days after the bombing. This led, unbelievably, to a shut-down of businesses and, stunningly, of public transport. A citizen, too, can sue for money that he or she lost that week, but in this article we are talking about initiatives by the state. Remember the pre-1787 heyday of the sovereign state? At Philadelphia, Massachusetts and the others gave up only 18 particular powers. The states reserved all their other powers.

Fourth, relatedly, the state can prosecute all the wrong-doers of April 15, 2013, by which I mean the FBI.  (See my dossier on the FBI.) Surely that agency arranged and carried out the whole episode at the Finish Line and at Watertown. It’s well known that shadowy government agencies do this – see the research by Elias Davidsson of Germany on various events in Europe. Since October 23, 2015 I have been urging Governor Baker to arrest the FBI for murder.  I spelled out for the Governor, in a Youtube video, the specific provisions in the Massachusetts state constitution by which he is authorized, nay mandated, to do this.

Have you seen the video?  I was standing in front of the Sydney Opera House which is one of my hang-outs. I also noted that Baker can call out the state militia, inaccurately named the National Guard, to protect his people from invasion.  However, as I said above, this list is a list of things Massachusetts can do without a revolution, and admittedly it would smack of revolution for the Guv to call out the Guards against the feds.  Perfectly legal, mind you, but a bit too drastic at the moment.

Fifth, Massachusetts human rights organizations (are there any genuine ones?) can converge on Beacon Hill and demand of either the executive or the legislature that they procure a fundamental protection for a Massachusetts citizen who happens to be stuck in Colorado, namely, Jahar Tsarnaev. They can demand that he be accorded his right to free speech.  The human rights group would be asking the Commonwealth of Massachusetts to come down heavily on the feds for allowing the US Attorney General to impose Special Administrative Measures – SAMs –on “terrorists.”

The effect of SAMs in Jahar’s case is that is the prisoner cannot convey his knowledge about the Marathon day to anyone. This is absolutely anathema to due process. Have you ever heard of such a silencing in America?  I bet not. The anti-terrorist legislation began in 1996 – all part of the game of getting us ready for 9-11. It does seem reasonable that restrictions be placed on a person convicted of violence against the population if there’s reason to believe he/she would organize more of same from behind bars.  Pretty unlikely but possible. However, SAMs cannot be allowed to thwart due process.

The said human rights organizations can file a suit in local court to get a restraining order against the imposition of those unconstitutional “special administrative measures” for which there was apparently no specific enactment by Congress.  That’s the sort of thing human rights groups do every day. Why not today?

Do I hear you say the state can’t invoke law against Washington, DC?  Boy, do you need to have a peek at the Parchment.

The Floor

The Floor is now open for anyone who’d care to submit an article about additional appeal possibilities in the Tsarnaev case (or just make a comment below).

I’m reluctant to delve further into the Marathon case myself (beyond my book Marathon Bombing, and our amicus curiae brief),  as it infuriates me that so many people who should be active about this are sitting on the sidelines.  Where do they think this-all will end up? It will be one disaster after another if we don’t get the ol’ grey matter into gear.

Here is the best Tee-shirt message I have seen since entering the US (at Hawaii) on July 17, 2018:

COMMON SENSE

Got an app for that?

— Mary W Maxwell (the W is for Whalen, St Gregory’s High School, Dorchester, Class of 1964) is absolutely shocked at Massachusetts folks’ lack of lust for a good fight.  Bring back the Minutemen! Bring back Abigail Adams! Bring back Thoreau!  Bring back Sister Corita painting the gas tanks. Bring back Ted Williams. Bring back Max Stackhouse and Public Theology. Bring back Beverly Sils in the Siege of Corinth. Come on, Everybody, we’re under siege right now. Do something!