1.Waltham Murder Evidence Hearing
33 linesP R O C E E D I N G S
COURT CLERK: All rise.
(The Court enters the courtroom at 10:04 a.m.)
COURT CLERK: For a motion hearing, United States versus Dzhokhar Tsarnaev, 13-10200. Will counsel identify yourselves for the record, please.
MR. WEINREB: Good morning, your Honor. Bill Weinreb for the United States.
MR. CHAKRAVARTY: Aloke Chakravarty.
MS. PELLEGRINI: Good morning, your Honor. Nadine Pellegrini.
MR. MELLIN: Good morning, your Honor. Steve Mellin.
MR. BRUCK: Good morning, your Honor. David Bruck for the defendant with Judy Clarke and Bill Fick.
THE COURT: Good morning.
All right. So we're going to have argument on some of the pending motions relating to evidence in the penalty phase. Let's start with the government's motion regarding evidence of the Waltham murders.
MR. WEINREB: Your Honor, the defendant's opposition to the motion makes clear that their argument is purely a -- essentially a 403(b) type of argument, that it's an argument that Tamerlan Tsarnaev had a propensity to commit violent crimes and to rope others into committing them with him, and the jury should infer from that that he is the type of person who does this and that he acted in conformity with that trait or that character when he -- in this case as well.
Putting aside for a moment the relevance of that kind of argument, which as the Court knows is quite suspect and problematic under the law, a condition precedent to that kind of evidence every time it's ever offered is that there is enough evidence for the jury to believe that the prior bad act, in this case Tamerlan Tsarnaev's committing of the murders in Waltham, actually happened. And that evidence is completely lacking in this case. The only thing that the defense has to offer is the uncross-examined and uncross-examinable statement of someone who was clearly somewhat unbalanced, if not deranged at the time he made it, Abraham Todashev. And I say that because right after making it, as he was writing it down, he attacked a Massachusetts state police officer with the intent to kill him and, as the Court knows, was shot dead in the course of doing that.
It's important to take a look at just how unreliable that statement by Mr. Todashev is. He was interviewed several times about Tamerlan Tsarnaev after the marathon bombings. Three or four at least. In the first of those interviews he never said anything about Tamerlan Tsarnaev being involved in the Waltham triple homicides; in fact, he said that he and Tamerlan Tsarnaev were never close, that they had had a falling-out in 2010 after which they essentially stopped talking.
It was not until agents asked Mr. Todashev about his own potential involvement in the Waltham triple homicides that he first implicated Tamerlan Tsarnaev in them and tried to blame the whole thing on Tamerlan Tsarnaev. He did that at a time when he knew that Tamerlan Tsarnaev had been implicated as a murderer in the Boston Marathon bombings and, therefore, it was plausible to blame the whole thing on Tamerlan Tsarnaev, but he did it when he also knew that Tamerlan Tsarnaev was dead and therefore could not deny his involvement in the Waltham triple homicides. And before saying anything about Tamerlan Tsarnaev at all, he first asked for a deal that would protect him from his own liability in connection with those homicides.
The first time he told the story of what happened that night in Waltham, he blamed the entire thing on Tamerlan Tsarnaev. He said that he personally wasn't even there, that he was there beforehand and that he learned about the murders the next day afterwards. When the police confronted him with evidence suggesting that they could prove differently, that he himself, Todashev, had personally participated in the homicides, he took back everything he had just said, admitted that it was all a lie, and then admitted that he did, in fact, participate in the homicides. But he still tried to blame everything on Tamerlan Tsarnaev, saying that Tamerlan had masterminded it, Tamerlan had actually committed the murders, that Todashev was actually, you know, a somewhat passive participant who just went along.
Even then his story was internally inconsistent. He made statements during it which contradicted each other. When they were pointed out to him, he just took them back and said other things. He said things that seemed fairly, if not wildly, implausible, such as that Tamerlan Tsarnaev proposed the crime at a mosque during Ramadan despite the fact that Tsarnaev had just become very religious. He also said that Tamerlan Tsarnaev had a gun, even though we know that during the marathon bombings he had to use his brother's gun and was very much in search of a gun, and all of the evidence points to the fact that Tamerlan Tsarnaev did not own a gun.
But most importantly, because Mr. Todashev is dead, he can't be cross-examined about any of this. It's little different than if the defense had just picked up a rumor that Tamerlan Tsarnaev had participated in these murders and wanted to put that in front of the jury and have them conclude on the basis of all of that that Mr. Todashev actually committed them -- I'm sorry -- that Tamerlan Tsarnaev committed them. So the Court should exclude the evidence to begin with on the grounds that even assuming that it was relevant and even assuming it was not more prejudicial than probative, which I'll address in a minute, that there simply is not enough evidence that Tamerlan Tsarnaev actually committed these murders. The only evidence again that they offer to propose is this single statement by a person who gave it under circumstances indicating that he had every motive to lie, to implicate somebody else, to cover up his own involvement in it, and he made an accusation against someone he knew was a murderer but who he also knew was dead and couldn't respond to it. And he then himself, immediately after giving it, engaged in an act of violence that resulted in his own death and he can no longer be cross-examined about it. That is about as unreliable a basis for the jury to conclude that this happened as it gets.
The government also moves to exclude it on the grounds that it is -- this type of argument in general about propensity and this particular argument is prone to confusing, misleading and distracting this jury. The first thing that will confuse, distract and mislead them is the need for them to determine whether Tamerlan Tsarnaev participated in the murders at all. This is going to require them to consider in detail a great deal of evidence about Mr. Todashev's credibility because if the defense is permitted to put into evidence the statement of Mr. Todashev, the government will be obliged to bring in all the evidence it has to show that Mr. Todashev is not credible. And there is a boatload of evidence. And the jury will be distracted into a sideshow of trying to figure out whether somebody -- whether Tamerlan Tsarnaev is guilty of some other crime entirely separate from the one that they are -- they just decided. They'll have to be debating or deciding the outcome of a murder case that has nothing to do -- or almost nothing to do with the sentencing of the defendant, which is the reason they're here today.
And even if they conclude that based on Mr. Todashev's statement there is reason to believe that Tamerlan Tsarnaev was involved in the triple homicides, they're still going to have to conclude that he was involved in it in the way that Mr. Todashev says that he was because, for example, if Mr. Todashev planned the robbery and just asked Tamerlan Tsarnaev to participate and Tamerlan Tsarnaev was the one who just went along and so on, then the information has zero relevance. There's no propensity argument that could even be made on the basis of it. And the government, therefore, will be obligated to offer evidence to that effect, that there is nothing to corroborate Mr. Todashev's account, at least as far as the government knows, of the respective roles that he says that he and Tamerlan Tsarnaev played in this.
So again, we will be having a mini trial on this that will get involved in forensic evidence, the scope of the investigation, what other witnesses have said about Mr. Todashev, about Tamerlan Tsarnaev, about their relationship with one another and so on.
Then even assuming we get past all of that, the jury still has to decide what weight to give propensity of evidence. And that's something they could also conceivably hear evidence on.
And then the fourth thing they would have to do is figure out what bearing all of this should have on the sentence of Dzhokhar Tsarnaev, which is the reason they're here in the first place. The connection between Tamerlan Tsarnaev's potential involvement in a murder, the circumstances of which will forever be murky and perhaps unknowable because Mr. Todashev, who was the one person who confessed to actually being involved in it, is dead, that is going to become part of the mix of this very difficult decision that the jurors have to make -- an individualized decision about the culpability of this defendant, Dzhokhar Tsarnaev, for these crimes. And it's simply too much of a distraction, it's too confusing, it has too much of a risk of misleading them for the Court to admit it given its very, very slim, if existent, probative value.
THE COURT: Mr. Fick?
MR. FICK: Thank you, your Honor.
On the question of reliability, I guess the first thing I would say is all of the things that Mr. Weinreb just said really go more to weight than to admissibility, particularly in a capital sentencing proceeding where the rules of evidence on this kind of thing are relaxed. And the government is, I think, overstating the extent to which the confession is unreliable. I mean, to hear everything the government says, if those arguments could be employed, for example, by a defendant whose admission is sought to be admitted into evidence, then I would suspect there would be many, many more excluded defendants' confessions in other cases and verdicts of acquittal. Essentially, all of these things are issues for the jury to decide: whether the confession is reliable and why or why not.
The government is also, I think, overstating the extent to which the confession is the only evidence of Tamerlan's involvement in this murder. First of all, you have the computer file that apparently Tamerlan was reading within weeks of the Todashev murder -- of the Waltham murders about stealing or taking or seizing the property of infidels. Within a couple of weeks of that the Waltham murders happened. It's characterized as a drug rip-off. And it would seem then that Tamerlan has found the ideological basis for what he's about to do and then goes about doing it with the assistance of his friend Mr. Todashev.
THE COURT: You have, I presume, thoroughly looked at Tamerlan's computers and his files. Is there any connection in there -- any mention of Waltham?
THE COURT: Not necessarily by using the word "Waltham," but anything to suggest he was writing about the events that are suspected?
MR. FICK: Not that I'm aware of, writing about the events either before or after in any specific way.
THE COURT: Are there references to Todashev?
MR. FICK: There's extensive communication, particularly by Skype, with Todashev. Mr. Tamerlan sends back and forth messages to Mr. Todashev including links to various radical, one might say, jihadist images and videos on the Internet, so they're certainly in communication in the years surrounding all of these events about the views of radical Islam, one might say.
THE COURT: And anything that sounds like they're talking about the Waltham events?
MR. FICK: Not in any explicit way other than the extent to which they're conferring with each other about religiously motivated violence and why that may or may not be justified.
THE COURT: How about selling marijuana?
MR. FICK: I don't have -- I'm not sure standing here right now. It's not something that I focused on.
I'd also note that the government sought a search warrant or search warrants -- either the government or the Massachusetts authorities. I'd have to look at the warrant now to recall exactly, but it was in the discovery -- for Tamerlan's vehicle based on probable cause to believe he was involved in the Waltham murders. And so at least at some point authorities believed there was probable cause to believe that that occurred.
And the final thing is it's a very peculiar argument the government is making because they have chosen taking their representations at face value to insulate themselves from all of the investigation that Middlesex has done about these homicides, and saying essentially, We don't know, and we don't want to know, and in conjunction with that, essentially block the defendant from pursuing additional investigations.
So we have a situation where there is a confession, a confession and implication of Tamerlan Tsarnaev. The person who made that confession was killed by the FBI in circumstances that are, shall we say, murky and not definitively resolved? And so -- and at the same time the government has chosen not to learn anything about other evidence that may bear on those murders. And so for all of those reasons, this is really, again, a question of weight rather than admissibility. The jury is capable of sorting out evidence like this, they're capable of deciding what, if any, importance it deserves, and this is not a reason to exclude it.
It's particularly odd in the context of a capital proceeding because in any normal case where, say, two brothers were not coconspirators or co-committers of the underlying crime, part of the family history in any normal capital sentencing presentation would talk about instances of violence or instances of bad conduct by other members of the family, instances of mental health problems by other members of the family.
And so this kind of evidence, even if there were no connection to the underlying crimes which we have here, would be sort of part and parcel of the overall family history picture that gets painted in a capital proceeding. And so to exclude it here because it has particularly strong relevance would be a peculiar result indeed.
And I think that essentially -- you know, what the government says about the reasons why this particular species of propensity evidence in general would create a sideshow, I mean, any piece of evidence, depending on how the parties focus on it, argue it and the importance the jury attributes to it, could wind up taking on outside pieces of importance in their deliberations or it may not. But, again, these are things that the parties are capable of arguing and the jury is capable of deciding, whereas here we have a clear -- well, we have a variety of types of evidence and types of personal history that we expect to put in evidence about the nature of Tamerlan Tsarnaev, the outside influence he had on his brother, the kinds of interpersonal violence he exercised in a variety of settings to essentially coercively control other people. The evidence that he committed a particularly gruesome crime by sort of enlisting somebody who he had influence over is a very, very -- it's an exceptionally strong piece of evidence that the defense ought to be able to introduce.
THE COURT: How would you present the evidence? What would it be?
MR. FICK: Well, in the first instance, we have Todashev's written confession itself, and then there are various investigative materials from a Florida attorney general investigation which we would submit are admissible under the government -- official investigation against the government hearsay exception. I mean, so those would, at least in the first instance, paint the picture of this is what Todashev said, this is what the interaction was with law enforcement.
In addition to that, we have the evidence from the computer about the relationship between Todashev and Tamerlan, as well as the -- just weeks before this idealogical document, so to speak, about seizing or stealing the property of infidels.
Whether we're able to pursue more I guess would depend on the Court's rule. If the Court determines this is admissible, we can certainly pursue initial third-party discovery of this issue as well. It seems to me that, again, we don't know what Middlesex authority's position is sitting here today, but given the passage of time, the likely -- sort of the weighing of their law enforcement privilege, so to speak, as that exists under the law versus the need for the evidence and the potential importance it has in this case, I think that weighing may be different than it was early on when we were seeking discovery really at the beginning of the case. So there may well be forensic and other evidence in the possession of Middlesex authorities which we could obtain, although obviously we do not have it right now.
THE COURT: Okay. Go ahead.
MR. WEINREB: Your Honor, the government -- contrary to what Mr. Fick said, the government is not questioning the reliability of Mr. Todashev's confession to his own criminal activity. That is a statement against interests, and I believe that that alone gives that portion of it some indicia of reliability. It's his attempt to shift blame onto a third person that is the opposite of -- that's an indication of unreliability, well acknowledged under the case law. The defense cites the hearsay exception for statements against interest, but normally if somebody confesses but in the course of confessing they essentially try to shift all of the culpability onto somebody else, that part is redacted and is excised out. It's just their own confession that is admitted in recognition of the fact that the blame-shifting part is the opposite of reliable and it's only the self-implication part that is normally deemed reliable.
It is not true that the government has chosen to insulate itself from the Middlesex District Attorney's investigation of the Waltham triple homicides. The Middlesex district attorney's office has decided to insulate us from their investigation. We made requests for that information. They said no. They said it's a confidential investigation by a sovereign that is independent of their investigation of this case, and they declined to allow us to view the file or to look at the evidence in that case. And that position, as far as I know, has not changed.
There is nothing murky about the circumstances under which Mr. Todashev was shot dead after confessing. It was investigated thoroughly by three separate agencies who issued very lengthy published reports. No need for me to repeat what's in them. They speak for themselves. But I think that is yet another example of the kind of sideshow that we will see if this information is put before the jury during the sentencing phase and will just serve to further distract them from the job that they have here, which is to make an individualized assessment of the defendant's character and the nature of his crimes, not the character and nature of other people stretching from his brother all the way through Todashev to the officers who were present in the room when Mr. Todashev was shot.
And then finally, this idea of coercive control, that's just not even in the statement itself. Even Mr. Todashev did not go so far in trying to shift blame onto Tamerlan Tsarnaev to say that Tamerlan Tsarnaev coercively controlled him nor would that have been remotely plausible. Mr. Todashev, as the Court is probably aware, was an extremely experienced mixed martial arts expert. He was a walking deadly weapon. Shortly before he attacked the agents in his apartment, he engaged in an episode of what's commonly referred to as road rage where he beat someone to a bloody pulp who just got into a traffic altercation with him. There's no evidence that the defense can point to anywhere, including Mr. Todashev's own statement, that Tamerlan Tsarnaev controlled him in any way.
THE COURT: Go ahead.
MR. FICK: Just very briefly on the statement against interests, again, we're, of course, operating not in a strictly, you know, four corners of the rules of evidence. And certainly if Tamerlan Tsarnaev were on trial, Todashev's statement against interests implicating Tamerlan might be excludable in the sense that -- well, because the sort of due process right of Tamerlan vis-à-vis the nature and reliability of the statement, that weighing would be different.
But what we have here is a very different situation where Todashev implicates himself. And the only way that implicating of himself makes any sense is to talk about what he did together with Tamerlan. I mean, these people who were killed, Brendan Mess and the two others, these are Tamerlan's friends. There's no indication that Todashev had any preexisting relationship with them. So everything about Todashev's self-implication only makes sense in the context of it being part of what Tamerlan did.
THE COURT: Let me ask about the computer information. Again, with respect to the victims in Waltham, what, if anything, do Tamerlan's computers have to say about that? Do they show a dealing relationship, for example?
MR. FICK: You know, Tamerlan did not communicate a lot on his computer except via Skype and so -- and that was largely with either Mr. Todashev in Florida or here or people up overseas. His text messages and emails are really not on the computer itself. There were search warrant returns for providers for those things, and you don't really see a lot of interaction between him and Mr. Mess or others in the electronic evidence that we have.
THE COURT: So I guess what I'm looking for: Is there anything that you're aware of that would tend to be some kind of objective corroboration for your theory about the relationship of Todashev and Tamerlan?
MR. FICK: Well, many, many civilian witnesses, including Tamerlan's wife, although whether we would call her or not is a question, but there's ample sort of lay witness evidence to suggest that Brendan Mess, one of the three people killed, was one of Tamerlan's best friends for years, they spent time together, they smoked marijuana together. There may have been some sales relationship back and forth. And certainly there's evidence to suggest -- or there is civilians who would suggest that Mess in particular and the others were sort of large-scale marijuana dealers themselves.
You know, exactly how we could corroborate that in terms of electronic evidence, I'm not certain. That may not be something that within the four corners of electronic evidence is there. But there's -- certainly lay witnesses would be able to establish the basic bona fides of the relationship between Tamerlan and the murder victims.
Oh, and the other peculiar piece of behavior was -- and this is something that civilians have talked about -- Tamerlan did not attend Brendan Mess's funeral, sort of stayed away, even though for years they had been considered best friends. And that was something that people thought odd, that, you know, there had been questions asked about why law enforcement didn't think that odd and investigate Tamerlan earlier. But, again, for what it's worth, that's another piece of civilian testimony -- or available civilian evidence that would go to Tamerlan's peculiar behavior around these homicides and his relationship with those individuals.
And Ms. Clarke reminds me, again, I would have to go back and look exactly at the call history, but there may well have been some telephone calls around the time of the homicide either between Tamerlan and one or more of the victims and/or between Tamerlan and Todashev. But standing here right now, I don't have that sort of lined up in my head.