Does The Marathon Trial Fit Judith Shklar’s Concept Of A “Show Trial”?

Judith Shklar

By Mary Maxwell, PhD (Politics), LLB

There are a few political scientists who understand law better than legal scholars do, as they are in the habit of seeing legal events and ideas in a broad context of life.

The late Judith Shklar (1928-1992) is one such political scientist. She had a way of seeing law as it related to personal psychology and culture, in her magnificent 1968 book, Ordinary Vices, and as it relates to politics in her 1978 book, The Liberalism of Fear.

Her earliest book, Legalism (1964), reflects her thinking about Stalinist Russia, and perhaps the Nazi Germany from which she had escaped as a child. In part of the book she discusses “political trials.” Soviet leader Josef Stalin famously held political trials known as show trials. These helped him remove any challengers, and set an example to all persons as to what the dictator might do to them if they did not conform.

Shklar writes:

“What distinguishes most, though not all, political trials is that they scorn the principle of legality, which, ideally, renders criminal law just. To some degree most political trials follow Goebbels’s famous dictum that trials should not begin with the idea of law but with the idea that this man must go. The judge will be subservient to the prosecution, the evidence false, the accused bullied, the witnesses perjured, and the rules of law and procedure ignored” (1964: 149).

The onlookers to such a case need not be concerned with “what really happened.”  The real happening is the dispatching of the accused person to his or her fate, or, more generally, the asserting of the right of the rulers to do as they are doing, whatever that may be.

The Boston Marathon Bombings

As of today, September 9, 2015, we do not know who planted the bombs that caused injuries at the finish line of the Boston Marathon on April 15, 2013. Most certainly we cannot know, from a jury verdict, that Dzhokhar Tsarnaev did it. For, while the jury convicted him, in April, 2015, the jurors had been deprived of much relevant evidence. Also they had been given much false testimony, some of which deserves the adjective “fantastic.”

Now we will discuss whether Tsarnaev’s trial, in the US District Court, was a show trial, according to the five characteristics named above by Judith Shklar. These will be dealt with here, reversing the order in which she listed them.

1. “The rules of law and procedure ignored”

The initial police complaint was laid by Officer Daniel Genck. The purpose of a complaint is to establish that there is a case to answer. Genck stated that he had compared the faces of two men as shown on an ATM video with their Massachusetts Registry of Motor Vehicles mug shots. Genck was entitled to claim that he had found a match.  But he went on to claim, in his initial report, that this shows that Tsarnaev brothers to have been the ones who had done a carjacking. Officer Genck is not qualified to know that. He thus did “ignore procedure.” He said to the court:

“I have reviewed images of two men taken at approximately 12:17 a.m. by a security camera at the ATM and the gas station/ convenience store where the two carjackers drove with the victim in his car. Based on the men’s close physical resemblance to [Massachusetts Vehicle Registry] photos of Tamerlan and Dzhokhar, I believe the two men who carjacked, kidnapped, and robbed the victim are Tamerlan and Dzhokhar Tsarnaev….”

2. (Shklar): “The witnesses perjured”

Watertown police officer Sergeant John MacLellan testified at the trial of Dzhokhar Tsarnaev that the accused had hurled a pressure cooker bomb at him, on Laurel Street, during confrontation with police, in the wee hours of April 19, 2013. MacLellean also said that the younger brother, Dzhokhar, got away by driving a Mercedes SUV and that Dzhokhar accidentally caught Tamerlan in the wheel, which led to Tamerlan’s death.

This cannot be true. No such confrontation, at which the Tsarnaevs were free to shoot at police, could have taken place. There is a video, known as the Podstava video, which has been posted on Youtube since May 11, 2013. It shows the older boy, Tamerlan, lying face down on the sidewalk, being frisked and then escorted to a police car. So he must have been in custody from that moment onward.

Is it a real video?  His family members in Russia have confirmed that the appearance and the voice are that of Tamerlan. The photographer of that video appears, from the text of the video, to be a resident of Watertown living on Mt Auburn Street (in an upper-level apartment from which some of the video was shot). There is also a CNN video showing a naked man in custody of police, which the family agrees is Tamerlan. That man shows no signs of having been wounded.

3. (Shklar): “The accused bullied”

Judith Shklar did not indicate whether it was in court, or prior to trial, that an accused would be bullied.  We must assume both or either. Before his trial, the accused, Dzhokhar, was said to be in hospital, starting on April 19, 2015. Reportedly, he was injured, perhaps from gunshot. It is not clear why law enforcement would send bullets into a boat rather than find other ways to apprehend the suspect. (He was, of course, only a suspect, not a fugitive from justice, and perhaps not even properly a suspect.) The entire boat story invites skepticism.

Next, we look at the period of imprisonment to identify any bullying. The public and even the family has hardly seen Dzhokhar,  so we cannot really know what he may have endured. However, it was reported officially that he was in solitary confinement most of the time, and that is known to lead to mental derangement.

As for the accused being bullied in court, this did not happen, as he did not take the stand. No one interacted with him.

4. (Shklar): “The evidence false”

The United States has had, since 1921, a bureau, subordinate to the office of the Attorney General, called the FBI, Federal Bureau of Investigation. It has no police power and no authority to tell the citizens what to do. Yet in the wake of the Boston Marathon bombing, an FBI agent went on television to instruct the public not to use any photographs except “authorized” ones in the search for the suspects. FBI agent Richard DesLauriers said:

“Today, we are enlisting the public’s help to identify the two suspects. For clarity, these images should be the only ones, and I emphasize the only ones, that the public should view to assist us. Other photos should not be deemed credible, and they unnecessarily divert the public’s attention in the wrong direction and create undue work for vital law enforcement resources…. If you know anything about the bombings or the men pictured here, please call 1-800-CALL- FBI.

This startling announcement that some leads should be suppressed can only raise the suspicion that something illegal is afoot. Also, the mother of the boys stated, as soon as the manhunt for her sons began, that the FBI and CIA had often been in touch with them over a few years. This refutes the FBI’s proclaimed ignorance about the two Tsarnaev brothers.

A further piece of false evidence is the text of Dzhokhar’s “confession,” allegedly written by him on the wall of the boat. It included the following:

“I do not mourn because his [Tamerlan’s] soul is very much alive. God has a plan for each person. Mine was to hide in this boat and shed some light on our actions…. The U.S. Government is killing our innocent civilians but most of you already know that. As a M (bullet hole) I can’t stand to see such evil go unpunished, we Muslims are one body, you hurt one you hurt us all. …Now I don’t like killing innocent people it is forbidden in Islam but due to said (bullet hole) it is allowed.”

How would he have known that Tamerlan was dead? Even in the MacLellan version of a police shootout with Tamerlan caught in the wheel, the driver, Dzhokhar, would not know that death subsequently resulted.

5. (Shklar): “The judge will be subservient to the prosecution”

In a civil action, American courts run on an adversarial system, with each of the two private parties expected to “do its worst.” The judge is neutral and adjudicates the matter by applying law.  In a criminal case, one of the two parties is the state: there is a prosecutor and a defendant, rather than a plaintiff and a defendant. The prosecutor wields unusual power.  The judge should still be neutral as between the two parties but “equality” is hard to achieve. Even when a jury rather than a judge determines the verdict, the jurors have been treated only to what the judge will allow as admissible evidence. What if someone is leaning on the judge?

RECAP: Already in the above items it has been suggested that various state or federal authorities acted wrongly. 1. Officer Daniel Genck overstepped his power in saying he could vouch for the likelihood of Tsarnaevs having done a carjacking. 2. Sergeant MacLellan appears to have lied about Tamerlan being caught in the wheel of a car. 3. A form of physical bullying appears to have occurred, in that Dzhokhar looked injured. Also, nearly two years in solitary confinement and separation from all relatives and friends are harmful to  mental health. 4. The FBI’s request that people not use their photographs raises suspicion, and false evidence presented in court included a patently counterfeit confession on the wall of a boat.

Here we are attending to Judith Shklar’s fifth characteristic of a political trial, that “the judge will be subservient to the prosecution.” There always exists a tendency for a judge to be more state-friendly than accused-friendly – as can be seen in the fact that legislation to protect the accused is often enacted.

It is in the strange behavior of Tsarnaev’s defense team that we see the biggest inking of “subservience of the judge to the prosecution.” That is to say, if the defense acts against its own client we suspect the prosecutor to be the cause of that. (Why else would it happen?) If the prosecution is thus “in charge” of the defense it probably controls the judge as well.

Federal District Judge George A O’Toole, in this Marathon bombing trial, did not noticeably rise above the fray and curtail any of the prosecutor’s moves, as he clearly has the legal power to do. The following are some of the items, other than those mentioned above, that may cause one to see this judge as subservient to the prosecution:

1. He rejected the defense’s request to hold the trial outside Boston.
2. He allowed every manner of emotional pitch to be made by the victims of the bombing, including references to patriotism.
3. He did not object to the pre-trial holding of Dzhohkar in solitary.
4. He never mentioned the state of bereavement the accused was in.
5. He did not take judicial notice of many issues that members of the public were talking about, such as the occurrence of a drill that day or the presence of members of a security company near the explosions.
6. His instructions to the jury did not warn of the pressures the jury would be under in such a public case.
7. He did not ask anyone to sort out the discrepancy between the color of the accused backpack (light grey) and the color of the backpack that exploded (black).

Most startling is Judge O’Toole’s refusal to deal with two amazing side events. One is the death of a friend of Tamerlan by the heavy hand of the FBI. As everyone knows, a man named Ibraghim Todashev, a Chechen immigrant, who trained with Tamerlan in the sport of boxing, was killed in his Florida home. Allegedly, Todashev was writing a confession to another crime (a murder in Waltham, Massachusetts) at the behest of the FBI visitor. He was shot dead.

This looks to many people as a way of getting rid of a person who could have pointed to the real bombers and thus helped Dzhokhar.

Indeed other friends were also taken out of circulation by threat of deportation. The FBI has exonerated the offending employee and even claims immunity for him.

The second event is the involvement of the Tsarnaev boys’ aunt, Maret Tsarnaeva. She sent an affidavit to Judge O’Toole, as a pro se motion. (Admittedly due to delays it did not come in to Boston until May 29, 2015 when the conviction had already taken place). A pro bono attorney from the Minnesota Bar, John Remington Graham, helped Maret to file this, though she herself has a Master of Laws degree from University of Manitoba, Canada.

John Remington Graham

Maret Tsarnaeva’s affidavit, which the court ordered into the electronic record, by Order 1469 of the presiding judge, says:

I wish to note the following: The lawyers from Boston strongly advised that Anzor and Zubeidat [parents of the accused] 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 [Judy] Clarke and Mr. [William] 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.

On or about June 19, 2014, three staff members from the public defender’s office in Boston visited my mother and sisters in Grozny. [including] one Charlene, who introduced herself as an independent investigator, working in and with the federal public defender’s office in Boston; another by the name of Jane, a social worker who claimed to have spoken with Dzhokhar;  I was not present but my sister Malkan, revealed to me then the details of the conversation. She … has authorized me to state for her that Charlene stated flatly that the federal public defender’s office in Boston knew that Dzhokhar was not guilty as charged, and that their office was under enormous pressure from law enforcement agencies and high levels of the government of the United States not to resist conviction.

Opinion of This Writer (Mary W Maxwell, PhD, LLB, author of Prosecution for Treason (2011) and Fraud Upon the Court (2015)

I will now offer an answer to the question posed above: Does the Boston Marathon bombing trial appear to be a show trial in the sense in which Judith Shklar described “political trials” in her 1964 book Legalism?  The reader may expect me to say Yes, based on the fact that Tsarnaev’s case accords with the five characteristics of a show trial.

However, in my opinion, No, this was not a show trial. I will first give logical reasons for this conclusion, and then I will speculate as to what this trial was all about.

Logically, for a case to be a show trial, the motive would have to be that the government wanted to teach a point. If a man in the Communist USSR refused to give up his property, say, he could be charged with a crime and humiliated and terrorized. Everyone would get the message “Don’t do what he did.” Another factor could be that a rival to the leader becomes popular. Should the leader just shoot him? Well, that would make the leader look bad. Better to drag him through the courts. Almost every human being sees an accused as having something to be ashamed of. Then the pest can be executed.

I don’t see young Dzhokhar, a typical teenager on the famous day of the Marathon, as qualifying for either of those things. He was a nobody and hadn’t done any forbidden thing. So no need to parade him to the citizenry as a “negative model.” And of course by all accounts he was no rival to the political leaders of Massachusetts. Thus, I say, his was not a “show trial.”

What, Then, Was It?

Possibly the trial was an accident. It may be that the two brothers were scheduled to be killed and then “go down in history” as the Marathon bombers, the way the three deceased Muslims in London are now routinely named as the blower-uppers of three Tube stations (what a joke!). Recall also the dramatic Paris shooting of the Charlie staff – it was blamed on the Kouachi brothers, who couldn’t possibly have “escaped” from the scene in the way the press described. Days later, they conveniently died when police captured them in a warehouse.

Am I saying that Tamerlan was successfully killed by the authorities? Well, yes, that much is certain. And did they also intend to kill the young one? I am not sure. The boat scenario does not “jive.” The authorities boast of having used a helicopter with a thermal imagery detector to ascertain that there was a live person in the boat. Then they claim to have shot many bullets at him.  That’s peculiar. If they thought he was a terrorist they should want to capture him alive and get information from him. My feeble guess is that they intended him to die, right there, near his amazing written confession.

I conclude that the having of a trial was a nuisance rather than a useful showpiece. I note that Mr Fick’s revelation that Dzhokhar had been resisting his Boston lawyers indicates he was not completely mind controlled, as I had earlier imagined. So why did he tell the court at his April 2015 trial that he was guilty? In a part of the aunt’s affidavit not quoted above, she says that Clarke and Fick finally persuaded the Mother, Zubeidat to sign a letter to her son asking him to cooperate with the lawyers! I am now guessing that he figured he should do this to spare any more of the relatives in Russia or US from harm. (I can’t believe I am saying this.)

The Guilty Ones? Surprise, You’re Included!

It seems plain to me that the cops, the writers for CNN and The Boston Globe, the FBI, the defense team, the neighbor who said he went out for a smoke and noticed blood on his boat, the Chinese student Dun Meng who claimed to have been carjacked, were all primed to play their part. As was Governor Deval Patrick whose earlier career was as a US Attorney.

I assume that when Homeland Security man Richard Serrino gave a power-point presentation in 2008 about a bombing of the finish line at a Boston Marathon, he had a full-scale plan to arrange the bombing himself. His group also would have been licking their chops at the prospect of a lockdown of the city of Boston to give the military some practice on house-to-house searches.

Possibly they did not work everything out to a T. (They definitely failed to note the aunt!) I suppose the boxing friend, Todashev, unexpectedly got in the way, so had to be killed.  As for the confession he was writing about “the murders of three drug dealers in Waltham,” it’s possible that no such three persons even existed.  If they did exist, I speculate that the FBI killed them for purposed of taking out Mr Todashev. Robert Merritt reveals, in his book Watergate Exposed, that a switchboard operator overheard the initial plan for the Watergate break-in and so had to be gotten rid of. She was a drag queen, so to cover their tracks the hit men killed five other drag queens. That made her death “blend in.”

Now for the sad news about the law profession. That the city of Boston, not to mention the Great Republic, can shamelessly run a trial in which “The judge will be subservient to the prosecution, the evidence false, the accused bullied, the witnesses perjured, and the rules of law and procedure ignored” is not what the graduating class of 1969 was expecting, believe you me. That’s O’Toole’s class, Boston College. It’s my class, too, at Emmanuel College right there near Fenway Park. How have we come to where we are today? We are selfish, lazy, scared, and ignorant. We are cruel, too. The evidence is in, Folks. Fix things up soon or it’s going to be one great big house-to-house search all day forever.

I rest my case.

— Mary W Maxwell asks you to visit her website, ProsecutionForTreason.com and read her regular column at GumshoeNew.com.  She will do just about anything you ask of her to help stop the puerile nonsense described in the article at hand.