If the Justice System is corrupt, what hope is there for mankind?
The Boston Tea Party and chucking every principle of justice overboard!
From: https://gumshoenews.com/2018/07/30/tsarnaevs-appeal-possibilities-part-1-staying-the-proceedings-for-abuse-of-process/#more-18468
Tsarnaev’s Appeal Possibilities, Part 1: Staying the Proceedings for Abuse of Process
by Mary W Maxwell, LLB
A girl who barely scraped through law school should probably refrain from suggesting to a panel of judges the approach they should take in a federal criminal case. However, I am interested in cataloguing what’s available in the upcoming appeal of United States v Tsarnaev. So in this series I’ll rehearse any approach I can find.
An appeal is not a fresh trial. New evidence cannot be proffered. Since Jahar was convicted by a jury, that jury’s verdict is sacred, so to speak. What is usually brought up in appeal is a claim that the law was wrongfully applied.
On July 18, 2018, Jahar Tsarnaev’s defense team – and I use the word defense in the most cavalier manner – asked for an extension of time until November 18, 2018 so they could study the situation. It has been granted.
Their appeal is based on notions that I cannot “relate” to. For instance, they will challenge the venue, saying that Boston was too hot to handle, thanks to media coverage of the Marathon bombing. I say the Moakley Courthouse, only a few miles from the Finish Line, was the perfect place in which honest attorneys could have sorted out the nonsense stories provided by the media.
They are also going to try to air the wrongness of certain aspects of the jury selection. Personally, I don’t believe in jury selection. A jury of your peers means a jury of 12 people selected at random.
Also, the “D” team plans to object to Jahar’s un-Mirandized confession. [All gasp.] This apparently refers to Jahar talking to the Gitmo team – remember that one? – at Beth Israel Deaconness Hospital. It was based on FBI Form 302, which is a deliberate means of creating a confession that never took place. That whole episode is a fantasy and even to discuss a Miranda aspect shows bad faith, in my opinion.
The Staying of Proceedings Because of Entrapment
Part 1 of this series looks only at one aspect of law, namely the staying of proceedingsby a judge. For a local court, staying is covered in Rule 18 of the (unbelievably boring) Federal Rules of Criminal Procedure, the FRCP. During a trial either party can move for the judge to order a stay. For appeals courts, the guidance is found in the FRAP – Federal Rules of Appellate Procedure.
Naturally, I would like the appeals judges to stay the proceedings based on the fact that the whole case was a travesty, an insult to the Court, and an insult to America, but let’s go for more modest grounds. I am going to refer to the grounds of abuse of process.
The Nuttall/Korody Case
The reason I am using this approach is that a judge in the Supreme Court of British Columbia, Canada, used it effectively in a case where two Muslims, a husband and wife, had been convicted of terrorism. She, Justice Catherine Bruce, saw that the whole thing should never have come before the lower court or her appellate court.
She ordered a stay of proceedings, accusing the Royal Canadian Mounted Police of abusing the legal process by entrapping the accused persons, John Nuttall and Amanda Korody. (In a Gumshoe article in 2016 I wrote about the case, misspelling Amanda’s surname as Kolody. Forgive me.)
This is not to say that I think the Tsarnaevs suffered “entrapment.” No, not at all. I don’t think the FBI entrapped them into committing a crime, as I don’t believe they committed any crime. Heck, I even think Jahar and Tamerlan weren’t present at the 2013 Marathon race in Boston — the photos of them were probably photoshopped.
So, I shan’t be paralleling Justice Bruce’s statement that that “Mr Big” pushed or frightened John and Amanda to do this or that. But I am using her argument that when the RMCP did what they did – namely, they engineered a terrorist crime that almost came to fruition – they did so in disrespect of the law. She specifically says they abused the process of the law.
American Law Invokes “Entrapment” As a Defense
As far as I know, Justice Bruce’s approach, which followed the precedent of the Canadian case of Mack, is not found in the federal law of the United States or of any of the 50 states. Granted, we do have the concept of abuse of process (e.g., I think all SLAPP suits should be thrown out as blatant abuse of process), but it has not been applied in the matter of entrapment.
Rather, if an accused can show that she was entrapped by the police or other person to commit a crime that she otherwise would not have committed, her defense attorney can offer “entrapment” as a defense and presumably get her acquitted thereby.
As I said, I won’t be using the entrapment approach. As I argue in my book Marathon Bombing: Indicting the Players, Tamerlan probably obeyed a directive from his handler (CIA? FBI?) to show up in Watertown in the wee hours of April 19, 2013. Once there, he got captured. They had not involved him in the exploding of a bomb or the making of a bomb or anything else. He was a classic patsy.
Jahar, too, was probably captured by police at the same moment as his brother, and then was drugged and placed into a boat to await his death by firing squad — 228 bullets, by official count. Note: parallels to Martin Bryant’s intended death in the fire at Seascape are glaring, if you know the Port Arthur massacre story.
I Do Not (Yet) Ask the Appellate Judges To Whisk Out a Bench Warrant
As I will now describe, I consider the US Department of Justice to be the party that committed abuse of process. The DoJ includes both the FBI and the US Attorneys who run the prosecution when a federal crime such as terrorism is to be tried. I say both are equally culpable. Both have offended the law. (Ah, law. Remember law? Remember its majesty?)
As far as I know, abuse of process is not a crime. It can result in the judge making an order of contempt of court, including writing a warrant for the arrest of the contemner. You may go to prison but you won’t get a criminal record (as South Australian Fredrick Toben discovered when he was held in contempt over a matter related to Holocaust denial).
In any case, I am not going down that road today. Much less am I going down the road – though I have gone down it numerous times – of saying that prosecutor Carmen Ortiz and FBI Chief Richard Deslauriers have committed crimes of obstruction of justice in regard to Jahar’s case.
Federal law is clear that obstructing justice is felonious, whether it consist of suppressing evidence, tampering with a witness, or whatever. Sir William Blackstone in his 1769 Commentaries on the Laws of England was pleased to announce the harsh punishments available for such things. (Having your teeth pulled, or something like that.)
But not today, Folks. I have come to stay Caesar’s proceedings, not to bury him. And of course today is not the day on which I ask for the arrest of FBI personnel, or FEMA, the Transit Police, or any other suspect, for the crime of actually doing the Marathon bombing.
Canadian Judge Lamer’s Ruling in Mack
As noted, Justice Catherine Bruce, in staying the proceedings against Nuttall and Korody, employed the precedent in the Mack case. She quoted from that case at length. The paragraph numbers shown are from her legal opinion:
[543] Entering a stay of proceedings due to entrapment is not done to punish the police for their misconduct; however, the court is concerned with maintaining confidence in the integrity of the justice system by refusing to condone unacceptable conduct by state authorities. [P]olice… must be given substantial room to develop techniques that are necessary to combat crime in society. Nevertheless, when the police and their agents engage in conduct that offends basic values of the community, the doctrine of entrapment must apply….
[545] In Canada, the approach to entrapment is different from that adopted by American courts. In Mack, the Supreme Court of Canada articulated a more objective evaluation of the actions of the police or state agents and rejected an entirely subjective analysis of the impact of police conduct on a particular accused. It was the desire to avoid a predisposition analysis of the accused’s actions and motivations that led to … a model that focuses instead on the conduct of the police. Lamer J. said:
[580] In addition to entrapment, the defence argues that the police conduct in this case warrants a stay of proceedings because it amounts to an abuse of the Court’s process. The abuse of process claim includes allegations of illegal conduct by the police, violations of the defendants’ religious rights and freedoms, and overall abusive and coercive conduct during the undercover operation…. As a consequence, the authorities addressing these issues are relevant to the entrapment inquiry as well as the claim of abuse of process. [Emphasis added]
Justice Catherine Bruce’s Emphatic Words
At the end of her ruling Justice Catherine Bruce wrote the following:
[769] Based on the evidence before me, I am satisfied that the RCMP knowingly exploited the demonstrated vulnerabilities of the defendants in order to induce them to commit the offences. They adopted a multi-faceted approach that included most of the factors in favour of a finding of entrapment articulated in Mack, including the use of trickery, fraud and reward; the use of persistent direction to become more… focused …in their jihadist ideas; the use of persistent veiled threats to adopt the pressure cooker plan as their own…; the exploitation of the defendants’ social isolation and desperation for friendship with Officer A [posing as a terrorist], as well as their ongoing search for spiritual meaning in their lives; the creation of an elaborate ruse that led the defendants to fear for their lives if they failed to satisfy this sophisticated international terrorist organization….
[770] In addition, the police involvement … was overwhelming compared to the insignificant part played by the defendants, and … showed that it was the police who were the leaders of this plot. Not only did the police take over the leadership, but they committed illegal acts to enable the defendants to play their small part in the plan. Throughout the undercover operation Mr. Nuttall repeatedly demonstrated that he lacked the focus required to make the arrangements that were necessary…. The investigative team was exasperated with Mr. Nuttall’s failure to follow through with any of the jihadist objectives he talked about. Instead of viewing the project as a success because they had discovered the targets were incapable of taking any concrete steps…, the police decided they had to aggressively engineer a plan for Mr. Nuttall and Ms. Korody and make them think it was their own.
[775] This is truly a case where the RCMP manufactured the crime; this is not a situation where the police simply “instigated, originated or brought about” the offence. …Mr. Nuttall never brought up pressure cookers after the June 6 scenario. The police seized on this idea and it became their plan.
[776] The RCMP had to provide the explosive substance; they had to take the defendants shopping for the bomb parts [!!!] and give them continuous instructions and direction until they finally bought most of what they needed; they had to construct the devices and left only the gluing of nails to the pots and the construction of timers, which were never part of the RCMP’s plan, to the defendants. …Each day the police had to “babysit” the defendants to ensure they had their methadone. The police chose the date for the explosion…. The police essentially chose where the devices would be planted.
[781] I therefore enter a stay of proceedings on Counts 1 and 4 of the Indictment and an unconditional stay on Count 2 based on a finding of entrapment. [Emphasis added]
Who Inspired John Nuttall?
I end with a quote from Bruce’s paragraph #626 that may amuse readers of my recent article about the “Al-Qaeda” magazine Inspire:
“Mr. Nuttall had earlier referred to the Boston bombing and the use of pressure cookers as explosive devices during a shopping trip for a suit on April 26, 2013, but this idea took on significance for the police after June 6, 2013. During this scenario Mr. Nuttall provided Officer A with a hand drawn diagram of a rocket and an explosive device constructed with a pressure cooker container, both of which he had found on the Internet in Al Qaeda’s Inspire Magazine.”
Good God.
— Mary W Maxwell is a Bostonian by birth and an Australian by marriage, and is determined to stay on the Tsarnaev case until Bostonians start acing like Bostonians.
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 MarathonBombing, 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!
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