On January 23, 2018 I gave a public lecture in the public library of Watertown Massachusetts, called “The Tsarnaev Trial.” I role-played a “replacement Defense attorney” for Dzhokhar (“Jahar”) Tsarnaev, whose case in now in Appeal. Every person on Death Row has an automatic right to appeal.
In the lecture I had no trouble at all showing how the evidence against Jahar was so flimsy that his conviction was a disgrace. I also noted that his Public Defender, Judy Clarke, had said, in her opening speech, in 2015, “It was him.” This made every Bostonian, including myself, assume that Jahar had admitted guilt.
Well, no he hadn’t. He had always pleaded Not Guilty to each of the 30 charges related to the Marathon bombing and the related murder of an MIT campus police officer, Sean Collyer.
At one point during my lecture, I mentioned that there was a case pending in the US Supreme Court of a Louisiana state prisoner, Robert McCoy, who was convicted of a triple murder in 2008. McCoy had sought an appeal on the grounds that his attorney insisted on “conceding guilt” – supposedly to win a sentence less than the death penalty. The Louisiana appeal court turned him down.
During the break between my lecture and the Open Mic that followed, a member of the audience brought me his cell phone and read to me that the Supreme Court had denied McCoy’s demand for a new trial. I was truly shocked. The right to plead innocent has been in business since Runnymede, in 1215. Eight centuries with no one challenging that basic right.
Anyway, good news — the guy with the cell phone was mistakenly reading from the denial by Louisiana’s Supreme Court. Whew!
Subsequently, on May 14, 2018, the US Supreme Court, handed down its ruling in McCoy v. Lousiana. Justice Ruth Bader Ginsburg wrote the opinion.
“Held: The Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Pp. 5–13.”
That does not mean Mr McCoy walks free. He walks back to the district court and gets a new trial.
In the title of this article I herald Jahar’s “walking,” and I do mean walking out the door. His case will at the very least fall under the McCoy ruling, that is, Jahar has to be entitled to a new trial. But once the appellate judges – en banc, three of them – get a load of what has gone on they will surely see that this was a false trial and the accused was a classic patsy.
Strategy Is As Strategy Does
Let’s concentrate first on the very issue of the mode of plea-ing. Did Judy Clarke, and her team really intend that the “strategy” of conceding guilt would spare Jahar from the death penalty? As widely discussed in the media, the strategy was for the Defense Team (budget for the defending of this case: $5 million) to say Jahar was pushed into it by his older brother, the late Tamaerlan Tsarnaev. “Yeah, sure, Jahar planted one of the two bombs but he didn’t think it up himself.”
A major effect of The Boston Globe and other media discussing the strategy was, of course, to allow the “story” – and I do mean story – of Tamerlan’s “Islamic extremism” to get air time, ad nauseum.
Why choose this path anyway? It is known that strategies don’t usually impress a jury, and this jury was being fed quite a meal of terrorism, including fatal harm to a little boy named Martin Richard, and numerous fans at the Marathon finish line having to undergo amputations of a leg, or in one case, both legs. “Boston Strong” tee shirts were everywhere.
And who do these lawyers think they are, anyway, overriding the accused’s unambiguous Fifth Amendment right? I think I know who they are. They are part of the whole thing – they never intended to defend Jahar in any way – you can see that at a glance in their failure to vigorously cross-examine even the most dubious witnesses, such as Jahar.
Great Carjackings of the Western World
Of course when you have a “strategy” you take the word of a witness like Dun Meng to be correct, so who needs to beat him down? Dun Meng gave an extraordinary tale but that’s OK. He said he had pulled over to read a text message (and/or he was tired) and Tamerlan’s car just happened to pull up behind his. Out of that car gets a perfectly confident carjacker, Tamerlan.
By “confident” I mean Tamerlan did not worry that the driver might dial 911 or might not let him in the car, or might have a gun and shoot Tamerlan – you can think of more possibilities. Nope, the carjacking went smoothly and even included a stop at an ATM where Brother Jahar would conveniently chalk up an additional charge of robbery and get his mug photo’d for posterity.
Note: I love to remind Americans of a court trial that was distinctly worse than that of Jahar Tsarnaev. Namely, that of Brian Nicholls in Atlanta Georgia. He was said to have shot Judge Roland Barnes dead right there in the courtroom where Nicholls was being tried for rape. (Date rape, to be exact.) Nicholls then fled out onto the street and did five carjackings in a row whilst police chased him.
And at 2am he ended up, randomly, in the home of a lady – single, of course, who talked him into turning himself in by reading to him from The Purposeful Life. Works every time.
Australia’s biggest patsy case, the Port Arthur massacre, also involved a carjacking. It was a BMW. Dun Meng’s was a Mercedes. None of your Volkswagen stuff for writers of a dramatic false-flag script.
The Role of Attorney William Fick
Back to the matter of the accused’s right to decide on his plea.
The timeline here is that Jahar was arrested on April 19, 2013, having been nearly killed on a dry-docked boat, into which the police pumped 228 bullets. (You have to worry about their competence.) Oh by the way at the post-lecture Open Mic when I raised the issue of the boat-attack, the Watertown officer who has been in charge that night, Sgt John McClennan, distanced himself from the whole thing and said “That never should have happened” – and it was “other agencies” that did it.
The next item to note is an August 2013 imposition of SAMs on the prisoner. These Special Administrative measures are purportedly aimed at stopping a terrorist in jail from causing even more mayhem in the outside world.
In fact their effect – and thus I suspect their real purpose – is to gag the man. Jahar’s Aunt Maret has been wanting to speak to him ever since he was in hospital with major wounds, but “no can do.”
Was it a judge that ordered the SAMs? No, the judge in this case, Judge George O’Toole, had not enter the picture yet. The trial began in February 2015. The SAMs decision was made in August 2013 by Loretta Lynch, the US Attorney General. The Bureau of prisons was under her command. That command is now held by Jeff Sessions and he should stop this criminal obstruction of justice.
The Mind-Boggling Affidavit
I’ll now quote from the affidavit that Jahar’s aunt, Maret Tsarnaeva, wrote – with the assistance of Minnesota attorney Jack Graham, a copy of which is attached to, or really incorporated into, the amicus brief filed by myself and two other US citizens.
You really need to get angry, and scared, at the “standover” tactics seen in the home of Jahar’s parents in Russia. (Technically, the Russian Federation.)
The aforementioned defense team in the case, spending wildly the $5 million taxpayer-funded budget, made 14 trips from Boston to Russia.
William Fick, known as Bill Fick, had lived in Moscow in the 1990s. His job? “He designed and managed an array of projects to develop access to the Internet,” after the collapse of Communism. I recall that no sooner had the Berlin Wall fallen in 1989 than Rupert Murdoch was in Poland, under an assumed name, modernizing the telephone system. Almost as if he anticipated the fall of the wall.
On April 17, 2015 Maret Tsarnaeva signed the following, under penalty of perjury [All bolding is mine]:
On or about June 20-21, 2013, during their first trip to Russia, which lasted about ten days more or less, Judy Clarke and William Fick, lawyers from the federal public defender’s office in Boston, visited my brother Anzor Tsarnaev, and his wife Zubeidat, respectively the father and mother of Dzhokhar. The meeting was at the home of Dzhokhar’s parents in Makhachkala which is in the republic of Dagestan adjacent to the republic of Chechnya, and about three hours’ drive from Grozny. My mother, my sister Malkan, and I were present at this meeting. Zubeidat speaks acceptable English. Mr. Fick is fluent in Russian.
Laying aside other details of the conversation on June 20 – 21, 2013, I wish to note the following:
— The lawyers from Boston strongly advised that Anzor and Zubeidat 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; [To me, that sounds like a physical threat, as how else can you make things worse for a prisoner who already has no comforts-of-home? And no lawyer!]
— Mme Clarke and Mr. 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.
… Dzhokhar’s parents expressed willingness to engage independent counsel, since Dzhokhar did not trust his government-appointed lawyers. Mr. Fick reacted by saying that the government agents and lawyers would obstruct independent counsel;
In any event, I [Maret] am aware that, following the meeting on June 20-21, 2013, Mme Clarke and Mr. Fick continued to spend time with Anzor and Zubeidat, and eventually persuaded Zubeidat to sign a typed letter in Russian to Dzhokhar, urging him to cooperate wholeheartedly with the federal public defender’s office in Boston.
[Shades of Martin Bryant’s mother in Tasmania being pressured to tell her son she couldn’t visit him anymore if he did not plead guilty (Carleen Bryant, My Story, 2007).]
On or about June 19, 2014, during their visit to Grozny over nearly two weeks, three staff members from the public defender’s office in Boston visited my mother and sisters in Grozny. I am told that they also visited Dzhokhar’s parents in Makhachkala.
… My sister Malkan relates, and has authorized me to state for her that, during the conversation on June 19, 2014, in Grozny, Charlene the independent investigator 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.
What To Do
In sum, the Supremes have spoken. Jahar is in line for relief. Admittedly it’s a tad tricky as he has never been heard to say “Help me get a better lawyer.’ In fact he has never been heard to say anything. Exactly on a par with Martin Bryant in Australia. Not one word.
Surely it is within the American system (“Oh beautiful, for spacious skies,” etc) to open this thing up.
I phoned the aunt last week. She reports that at the Mahachkala meeting she suggested “We hear there is another suspect for the Marathon bombing. Why don’t you talk about him as a way of defending Jahar?” In response, Judy Clarke, God bless her, said “That’s a good idea. We could do this, Bill.” Whereupon Bill Fick got red in the face and angry and said “We are not going to do that.”
Why did the press tell us that Judy Clarke was the boss?
According to Fick’s website fickmarx.com:
“Bill has tried multiple federal cases and has obtained acquittals or dismissals of charges involving fraud, regulatory crimes, computer crimes, firearms, narcotics, immigration, bank robbery, child exploitation, and sex offender … and fought for fair sentences on behalf of clients who elected to plead guilty or were convicted at trial.”
Sounds like he could have done a better job defending Jahar. Even I did a decent job defending Jahar “in the library” – it was as easy as pie.
One wonders why these people have not been struck off the rolls. Partly it is because citizens are unaware of how easy it is to get a state board to call an attorney on the carpet. If you complain of unethical practice, the board must hold a hearing. This is superior to the Australian states’ “Law Societies” where the profession is able to protect its own.
In Massachusetts, the first step of complaining must go through the Board of Bar Overseers –MassBbo.org. They apply various rules of which the first violation they name is:
Serious neglect of a client’s case or a client. Examples would be an attorney’s failure to file papers or documents with the court within time periods prescribed by law, or unreasonable failure to communicate with clients on a timely basis.
If a serious violation is found (In Jahar’s case, I’d say how serious can one get!), the matter can be sent to the state’s Supreme Judicial Court.
Oh, and another violation of ethics on Massbbo.org’s list is: “conflict of interest.”
Think about this: Did Public Defenders Fick and Clarke work for the Defense or did they work for the Prosecution? Or, for that matter, did they work for the FBI?
Or…or…for, who knows?
— Mary W Maxwell has dedicated her book, Marathon Bombing: Indicting the Players, to “all aunts everywhere.”
Admissions Massachusetts D. Mass. 1st Cir. 6th Cir.
William ("Bill") Fick is a veteran trial and appellate attorney. Prior to founding Fick & Marx LLP, he represented hundreds of clients facing federal criminal charges over a decade working as an Assistant Federal Public Defender.
Bill was co-counsel for the defense in two of the biggest and most challenging criminal trials in recent Boston history: United States v. Tsarnaev (the Boston Marathon Bombing case) and United States v. O'Brien (racketeering charges based on so-called "patronage" hiring in the Massachusetts Probation Department).
Bill has tried multiple federal cases to verdict and has obtained acquittals or dismissals of charges involving fraud, regulatory crimes (FDA and Lacey Act), computer crimes, firearms, narcotics, immigration, bank robbery, child exploitation, and sex offender civil commitment. Bill also has negotiated favorable dispositions and fought for fair sentences on behalf of clients who elected to plead guilty or were convicted at trial. Finally, Bill successfully briefed and argued multiple appeals resolving a variety of novel legal issues.
Prior to working for the Federal Public Defender, Bill was an associate at Foley Hoag LLP, a premier Boston law firm, where his practice included civil litigation, white collar criminal defense, construction arbitration, appeals, and an active pro bono docket. Among other matters, he represented European investment bank affiliates in a pair of legal malpractice suits arising from the collapse of an investment vehicle for Russian assets. He also participated in a human and labor rights audit in Azerbaijan and Georgia on behalf of an international energy company. In 2006, he received the Detention Attorney Award from the Political Asylum and Immigration Representation Project (PAIR), recognizing his pro bono work on behalf of clients in immigration custody and removal proceedings.
Bill served as a law clerk to the Honorable Nancy Gertner, United States District Judge for the District of Massachusetts, who is now retired from the bench and of counsel to Fick & Marx LLP.
Bill earned his J.D. from Yale Law School, where he served as a Coker teaching fellow and was awarded the Francis Wayland Prize. He graduated with a B.A. magna cum laude from Yale College, where he received a Charles P. Howland Fellowship and was awarded the Von Staden Cup, conferred on the student who "most consistently challenged the social and intellectual conscience of the college" (Ezra Stiles). Bill was also Editor-in-Chief of The Yale Herald and a part-time student "stringer" for The New York Times.
For much of the 1990s, Bill lived in Moscow, Russia, where he designed and managed an array of projects to develop access to the Internet (still in its infancy at the time) across the former Soviet Union. He speaks fluent Russian.
Bill serves on the Board of Directors of the Massachusetts Association of Criminal Defense Lawyers.
On July 26, 2007, she ordered the federal government to pay a record $101.7 million for withholding evidence that could have exculpated four men wrongfully convicted of murder. The men had been falsely accused by mob hitman Joseph "The Animal" Barboza, with the help of corrupt FBI agent H. Paul Rico. The government appealed the award, which was upheld in 2009 by the U.S. Court of Appeals for the First Circuit.
Sean Hannity, Rush Limbaugh, Alan Dershowitz and others have asserted that Robert Muellerwas responsible for the improper imprisonment of four men when he was a federal prosecutor in Boston during the 1980s. In an opinion piece entitled Smearing Robert Mueller, Gertner, who presided over the matter, wrote "The record simply doesn’t support these assertions.
Gertner published her memoirs, In Defense of Women: Memoirs of an Unrepentant Advocate, in 2011. The book focuses on the period during which she worked as acriminal defenseandcivil rightslawyer before joining the Federal bench in 1994.
Gertner is married to John Reinstein, former Legal Director for the MassachusettsACLU.
In October 2015, Gertner became the subject of media attention in the Boston area when an escaped cockatoo did considerable damage to her Brookline residence, a historic Victorian home which also happened to be the birthplace of Robert F. Kennedy. After eluding capture for several months, the bird was caught on October 22.
See also: http://veaterecosan.blogspot.com/2018/06/rfk-assassination-jewish-israeli.html
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Question: Would Dzhokhar (“Jahar”) Tsarnaev agree I wonder?