Seven years on 'Death Row' for something you didn't do!
The Tsarnaev Case. One Can Only Try
(L) Dzhokhar Tsarnaev, pre-2013 (R) Justice Thomas, Photo: RubyRayMedia
by Mary W Maxwell, LLB
In March 2022, the US Supreme Court ruled against the First Circuit’s removal of the death penalty from Jahar Tsarnaev. The following letter was received at SCOTUS on December 15, 2022:
To Justice Clarence Thomas, United States Supreme Court
Urgently.
December 5, 2022
From Mary Maxwell, 175 Loudon Rd, Apt 6, Concord NH 03301 USA
Through attorney John Graham, I was one of three persons who filed an amicus curiae brief in the case United States v Tsarnaev that was decided by the US Supreme Court on March 4, 2022, No. 20-443. This letter is sent to you because you wrote the opinion.
Although your ruling concerned minor matters that the government brought up to challenge the First Circuit’s decision to vacate Dzhokhar Tsarnaev’s death sentence, you said “Dzhokhar did not contest his guilt and the jury thus returned a guilty verdict on all counts”. This is incorrect. Dzhokhar pleaded “not guilty”; he never waived that plea. He is still alive, age 29. It is not too late to save his life. But time is of the essence. He is slated for execution.
It is my hope, Justice Thomas, that once you believe he never waived his innocence plea, you will allow the lower court decision, to vacate the death penalty, to stand.
As my two fellow amici and I, and our counsel, believed our appeal brief (related principally to the color of Dzhokhar’ backpack) would suffice to counter the trial jury’s finding of guilt, we did not express other arguments. But now that I have seen that the US Supreme Court was working on the assumption that Dzhokhar “did not contest his guilt,” it has become important to present the truth to refute that assumption.
When the trial was completed, the prosecutor wrote a suggested wording for Judge George O’Toole, Jr to use in his instructions to the jury. It stated that the accused “pleaded not guilty to all charges.” But then the Federally appointed public defender, Judy Clarke, offered a change to that Jury Instruction.
In Motion 1101-1 on March 2, 2015, we see that Clarke crossed out those words. She suggested:
“Finally, the indictment alleges that the defendant carjacked and robbed an individual who has the initials D.M. The defendant is presumed innocent of all charges, and the Government bears the burden of proving each and every element of the charges beyond a reasonable doubt.
Judge O’Toole did then use Judy Clarke’s suggested wording without confirming the change of plea with Tsarnaev. Thus, the jury did not hear the most important words “has pleaded not guilty.” Dzhokhar must have heard this, as he was in open court. The Court was obligated to ask him if he agreed to change his plea but did not question him. No death penalty case may turn on a waiver of defense by a Federal Government appointed attorney.
Coincidentally, by the time Tsarnaev’s appeal was heard in 2019, the US Supreme Court had already ruled, in 2018, in McCoy v Louisiana, 2014–1449 (La. 10/19/16), 218 So. 3d 535, reversed and remanded. Justice Ginsburg delivered the opinion. I quote from it:
“a defendant has the right to insist that 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.”
Today Dzhokhar Tsarnaev cannot call for help to the outside world, nor can his lawyer-aunt get in touch with him, as he is under SAMs, special administrative measures, purportedly to
prevent his sharing some “terrorist” plans with others. He is incarcerated at Supermax Federal Prison in Florence, Colorado. He is allowed to phone only his parents in Russia. I believe they do not discuss “the case” with him, perhaps out of fear. I hereby offer to visit him, but I have no special interviewing skill. I hope the court will allow his aunt Maret Tsarnaeva, LLM, to phone the prisoner. Her email address is: marettsar@gmail.com
What happened was extrinsic fraud. Tsarnaev’s lawyer was serving the US Government rather than Tsarnaev. The 1878 case, Unites States v Throckmorton (98 U.S. 61) is applicable to admission of guilt by Tsarnaev’s attorney. Specifically, the finding from Throckmorton:
“There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgements…. There was in fact no adversary trial or decision of the issue in the case…. Where the unsuccessful party has been prevented from exhibiting fully his case… or where an attorney … assumes to represent a party and connives at his defeat… these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment … and open the case for a new and a fair hearing.”)
Throckmorton shows that a ruling doesn’t have to stand final if there was extrinsic fraud.
Tsarnaev’s 2015 trial judgement, now more than seven years old, must be annulled. The “admission” of Dzhokhar’s guilt by his attorney demands a new trial.
Tsarnaev deserves a new trial to allow him to put forth his innocence, supported by the existence of the different backpacks. We, as amici, provided sufficient evidence of his innocence. We showed how the backpack that housed the bomb, is in conflict with the evidence the FBI proffered to show Dzhokhar as carrying that backpack.
To wit, the FBI claimed that the bomb was housed in a distinctly black backpack, and yet the FBI offered as proof of the identification of Tsarnaev as the bomber, a photo of him, near the scene, wearing a backpack that was definitely not black.
The fact the Government submitted two separate backpacks and also supplied the defense, created a conflict of interest, I believe, in the quality of the Government’s evidence in this high-profile case. The trial court was obligated to take judicial notice of this conflict.
In addition, I mention an affidavit from Dzhokhar’s aunt Maret Tsarnaeva, a lawyer, who was living in Canada at the time. The affidavit was received in the US District Court in Boston before the sentencing. It was referred to by amici, and is in the case file. I quote it:
“The lawyers from Boston strongly advised that Anzor and Zubeidat [parents of Dzhokhar] 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. [They] 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 ….”
Clearly, Tsarnaev must not be executed, without his having his not-guilty plea, supported by his evidence, considered by the jury. This is America.
Very respectfully submitted,
Mary Maxwell
175 Loudon Rd, Apt 6, Concord NH 03301
E-mail address: MaxwellMaryLLB@gmail.com
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