Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The Supreme Court in Washington v. Texas:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

If the defendant is found to be indigent, like Dzhokar Tsarnaev, the cost is born by the Government.

More from the prosecutor:

The FBI is devoting 16 personnel full time to taking care of them, both guarding them as well as protecting them from the press and others,” Weinreb said, according to the transcript. “It’s currently the intention of the FBI to return the foreign witnesses to Russia on Friday, meaning that they need to testify this week. At that point they will have been in the country for a week.”

Why is the FBI involved at all? Is it because the only way the U.S. would let them enter the country was with the FBI a chaperones? It sounds like there was some kind of compromise agreement made (it's probably in the sealed motions and orders which we haven't seen) whereby the defense asked the witnesses be brought here and the Government, not wanting them here for security reasons, agreed but insisted on the FBI acting as babysitters.

If the Government insists on seeking the death penalty, it has to allow Tsarnaev to present his mitigation evidence, especially once they are already here. It can't have it both ways.

The defense said at the hearing they need more time to meet with the witnesses and go over their testimony. They are in court all day. The witnesses don't speak English. Prosecutors have no right to dictate the order in which the defense calls its witnesses.

The judge should have told Weinreb if the prosecutors and the FBI are tired of watching over the Tsarnaev relatives, they have the option to dismiss the death penalty notice so there's no need for their testimony. And if they aren't willing to do that, then stop whining. Unfortunately, the judge said the government's timetable (of removal Friday) sounded reasonable to him. If Tsarnaev is sentenced to death, I hope the appeals court finds it reasonable to throw out the death penalty for a violation of Tsarnaev's 6th Amendment right.

Since court doesn't meet on Friday, I suspect at least some of the Tsarnaev's relatives will take the stand today.

On a related note, two weeks ago I found and posted this photo of Jahar and Tamerlan.

I commented:

I think it effectively communicates more than the difference in age between the brothers. Tamerlan is just so dominant in the photo. Even the way he has his arm around Jahar seems controlling to me. Looking at it, it is hard to see how, even years later, Jahar would be his "equal partner" in anything.

I was glad to see the defense introduced it yesterday. The media present hadn't seen it before.

Also interesting: The victims' section of the courtrrom was mostly empty when the witnesses testified about Jahar growing up. His third grade teacher and some friends testified. They apparently weren't interested. That just invalidates their opinions about the outcome of the trial as far as I'm concerned. If the jury returns with a life verdict, the media shouldn't bother asking their opinion since they didn't hear all the evidence. They won't know if it was compelling enough to make a difference or not. Jahar started this trial with a clean slate at the guilt phase. The heinousness of the crime alone is never enough for the death penalty. The jury has to weigh the aggravating factors and the mitigating factors, not just one side's evidence. If they only heard the aggravating factors, their opinions are no different than the person on the street. I'd be interested in their comments if they heard all the evidence, but not if they just heard the evidence presented by the prosecutor.

During McVeigh's trial, you didn't get a choice. Once in the courtroom, you couldn't leave until the break. I hope whatever reporter interviews these victim family members after the trial is over, begins with this question: Did you see and hear the testimony from all the the defense witnesses? If they say no, the reporter should go find a different witness. You can't have a valid opinion of the penalty verdict in a death case without hearing the defense evidence should leave and find someone else to interview --someone who did hear hear it all.