ACLU Files Brief Opposing Tsarnaev Prison Restrictions

By Jeralyn, Section Terror Trials
Posted on Tue Nov 05, 2013 at 05:43:58 PM EST
Tags: Dzhokhar Tsarnaev, Boston Marathon Bombings (all tags)

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Dzhokhar Tsarnaev is challenging the restrictive prison SAMS (special administrative measures) BOP imposed on his prison communications, including those with his attorneys. The ACLU filed this Amicus Brief today.

Among the restrictions: Defense attorneys have to pre-clear any documents they want to show Jahar with the Government. The Boston Herald reports:

In an affidavit attached to the filing, one of Tsarnaev’s lawyers stated that during a prison visit he was forbidden to show Tsarnaev photographs related to preparing his defense because they contained images of family members, which he is barred from seeing.

[More....]

The Government is not saying whether it will seek the death penalty. Its decision was due Oct. 31. In related news, the MA trooper who leaked Tsarnaev's photos has decided to retire.

State Police spokesman David Procopio said Murphy retired on Nov. 1, days after internal charges against him were upheld. They included unauthorized dissemination of information, insubordination, unsatisfactory performance and violation of departmental rules and regulation.

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ACLU Files Brief Opposing Tsarnaev Prison Restrictions | 26 comments (26 topical)

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"...because they contained images... (5.00 / 2) (#1)
by Dadler on Tue Nov 05, 2013 at 05:51:42 PM EST

"...of family members, which he is barred from seeing."

Whose family members are they talking about? His own? Those of the victims?

and either way, a righteous request (none / 0) (#2)
by Dadler on Tue Nov 05, 2013 at 05:52:28 PM EST

we must be better than this. Or we are, in fact, no better than any two-bit tyranny on earth.


his own (none / 0) (#3)
by Jeralyn on Tue Nov 05, 2013 at 06:01:48 PM EST

He can't see a photo of his own family? (5.00 / 3) (#4)
by Dadler on Tue Nov 05, 2013 at 06:17:29 PM EST

Under what "rationale?" And if you blogged about this months ago, forgive me. I've been out to lunch a lot this year. (And I also realize there isn't any rational in the rationale, but I still wonder what the hell is behind it but deprivation and despair and emotional abuse. I think I just answered my own question.)


Actually (none / 0) (#8)
by jbindc on Wed Nov 06, 2013 at 07:49:14 AM EST

According to the Defense Motion, footnote 8 (emphasis mine)

This is not merely a theoretical concern. For example, in early September, BOP personnel atFMC Devens prohibited defense counsel from showing photographs, some of which depicted family members, to Mr. Tsarnaev. After initial discussions between the government and defense counsel, the government maintained that family photographs were "non-legal materials." Ex. C.
After further consultations, the government reconsidered its position and acknowledged that family photographs could be shown "as long as they are related to his defense." Ex. D. While this particular issue was resolved, it highlights the chilling and uncertain environment in which the defense must operate under the SAMs, and the intrusions into attorney work product and privileged communications that result along the way.

I'm not saying it's theoretical (none / 0) (#9)
by Dadler on Wed Nov 06, 2013 at 11:21:43 AM EST

At all.


: Argue with defense counsel, then (none / 0) (#10)
by jbindc on Wed Nov 06, 2013 at 11:22:48 AM EST

Echoing Dadler (5.00 / 4) (#5)
by sj on Tue Nov 05, 2013 at 07:48:45 PM EST

What could the rationale possibly be for withholding photographs of his own family. They don't want to provide him with any sort of comfort whatsoever?

So I'm guessing that if he can't even see photographs of family members, that the living person is out of the question completely then?

That fills me sorrow. And shame.


Rationale? Round up the usual pretexts. (5.00 / 2) (#6)
by Mr Natural on Tue Nov 05, 2013 at 08:52:52 PM EST

"They" are afraid of secret messages in the family photos, for instance, coded terrorist fist bumps.

(- Running a Police State for Dummies, pp 1984-2013.)


: Sadly, this actually makes "sense" (none / 0) (#7)
by Dadler on Tue Nov 05, 2013 at 11:24:15 PM EST

And it makes me want to suck on a gas pipe.
Holy sh*t, can we return to sanity, please?

Judge has denied ACLU motion to file amicus brief (none / 0) (#11)
by TycheSD on Wed Nov 06, 2013 at 03:54:49 PM EST

Apparently, he denied the same thing in the Tarek Mehanna case.

Is defense admitting Tsarnaev wrote boat note? (none / 0) (#12)
by TycheSD on Wed Nov 06, 2013 at 04:33:42 PM EST

From the defense Reply motion to prosecution opposition to lifting of SAMs:

"The government's continuing and repeated references to Mr. Tsarnaev's alleged writings inside of the boat where he was hiding are ironic. On their face, Mr. Tsarnaev's alleged words simply state the motive for his actions, a declaration in anticipation of his own death. There is no express call for others to take up arms. While the government may view these words as an implied "clarion call" to other would-be radicals (Opp. at 7), it was law enforcement that originally leaked existence of the alleged boat writings to the press and it is the government that continues to broadcast the "clarion" by repeating, emphasizing, and attributing inspirational significance to these words in the SAMs implementation memorandum and public court filings.
See, e.g., Indictment at 4 (quoting alleged boat writings); Opp. at 6-7 (quoting additional language from alleged boat writings)."

: No (none / 0) (#18)
by Peter G on Wed Nov 06, 2013 at 07:49:26 PM EST

What you quote shows the answer to your question is no.

What is defense strategy right now? (none / 0) (#13)
by TycheSD on Wed Nov 06, 2013 at 04:45:19 PM EST

From the pleadings that we've been allowed to read, it appears the strategy is to blame Tamerlan for as much as possible and to acknowledge that Dzhokhar participated? Why would they acknowledge guilty at this point? Why would they not challenge the alleged boat writings?

Also, when does defense file motions to suppress evidence or challenge its validity?

JMO (none / 0) (#14)
by jbindc on Wed Nov 06, 2013 at 04:59:42 PM EST

Why would they not challenge the alleged boat writings?

Well, the whole world saw him get out of the boat. The writings (I believe) are in his blood. There was no one else in the boat with him. And unless you would want to argue that those writings were there before he got there, and he just happened to pick the one place in Boston that had those writings, then it doesn't seem like that would be a viable strategy.


Writing not in blood, but in pen (none / 0) (#15)
by TycheSD on Wed Nov 06, 2013 at 05:19:50 PM EST

At least according to the documents filed with the court.

Some question whether the writings are legitimate. Their existence was not released to the public until there was talk of Tsarnaev's bedside "confession" likely would be ruled inadmissible because of his repeated requests to have an attorney. So, the announcement of their existence is suspicious.


Maybe (none / 0) (#16)
by jbindc on Wed Nov 06, 2013 at 05:24:17 PM EST

But I go back to:

And unless you would want to argue that those writings were there before he got there, and he just happened to pick the one place in Boston that had those writings, then it doesn't seem like that would be a viable strategy.

Nothing has been stipulated, as far as I know (none / 0) (#17)
by TycheSD on Wed Nov 06, 2013 at 05:32:58 PM EST

So, I am wondering why the defense appears to admit that their client confessed, when he pled not guilty at his arraignment, there has been no trial, and no plea deal.

I am not familiar with procedure in criminal cases, and I am not an attorney. I came here to get an opinion from Jeralyn, or another attorney who comments here, who is an expert defending criminal suspects.


A plea of "not guilty" (none / 0) (#19)
by Peter G on Wed Nov 06, 2013 at 07:54:18 PM EST

is not the assertion of a factual position. It is the formal mechanism for saying to the court, "The government has the burden of proof. I am innocent until proven guilty. Let's see how the process plays out." None of the quoted language concedes that the defendant confessed; it only points out that the prosecutors claim he did and that they seem to like to quote those statements and characterize the motive behind them.


: Thanks for the info (none / 0) (#20)
by TycheSD on Wed Nov 06, 2013 at 08:11:00 PM EST

Appreciate it.
The judge actually denied ACLU motion for leave to file amicus. Don't know if you saw that. Legal writer, David Frank, seems to think it's unusual.

Would be ridiculous for anyone to argue... (none / 0) (#21)
by gbrbsb on Fri Nov 08, 2013 at 07:22:55 AM EST

the alleged writings were present when DT entered the boat when it would be much easier to argue it was written after he left it. In any case it is surely the prosecution's burden to prove bard DT wrote them not for his defence to prove he didn't and considering that according to the police DT opened fire at them when I believe it is confirmed he had no gun, I for one prefer to wait and see how it all pans out.


Unles of course (none / 0) (#22)
by jbindc on Fri Nov 08, 2013 at 08:09:49 AM EST

The pictures of him coming out of the boat show the writings.


None of the pictures that I've seen (none / 0) (#23)
by sj on Fri Nov 08, 2013 at 10:41:21 AM EST

show any writings. Have you seen some that do?


No, (none / 0) (#24)
by jbindc on Fri Nov 08, 2013 at 10:49:37 AM EST

but I haven't really been paying attention to this case so far. I mean, I saw the coverage when it happened and a little of the aftermath, but it's dropped off my radar, so I was just asking.

From what I can remember, he admitted the same stuff that was written before he was Mirandized, so I googled this and found this story. But I didn't remember hearing this part:

The discovery of writings intensified tensions between the FBI and local police when FBI agents believed some Boston officers and state police had taken cell phone pictures of the writing.
Agents demanded the phones of all officers at the scene the night of the capture of Dzhokhar be confiscated to avoid the photos becoming public before being used as evidence at trial, according to two law enforcement officials.
A FBI spokesperson said agents cannot confiscate phones without a warrant and officials said none of the police approached would agree to turn over their phones to the FBI.

: I can only say the police apparently claimed... (none / 0) (#25)
by gbrbsb on Fri Nov 08, 2013 at 03:33:55 PM EST

.. .he was armed, when from what has later been disclosed, he wasn't, so I therefore believe anything reported with a pinch of salt.

Site violator (none / 0) (#27)
by fishcamp on Sun Nov 10, 2013 at 06:20:57 AM EST