Boston Bombing Iron Curtain

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A federal judge has rejected the American Civil Liberties Union’s request to file written arguments in support of Dzhokhar Tsarnaev, who stands accused in the Boston Marathon bombing.

Such arguments are known as amicus briefs, or “friend of the court” briefs, and are filed by third parties who wish to offer legal arguments that may be relevant in a case.  Federal trial judges rarely accept such briefs, which are typically filed not at the trial but at the appellate level.  But the denial is unusual for the ACLU, which for 94 years has entered civil liberties arguments in countless court proceedings.

In a similar setback for the defense, Tsarnaev’s attorneys continue to parry with prosecutors whom they say have been beyond stingy in the pre-trial discovery process. In their latest motion, defense attorneys say “the government continues to withhold reports and testimony of the greatest utility and interest concerning those closest to Tsarnaev.”

The ACLU of Massachusetts (ACLUM) asked permission to file a friend of the court brief in U.S. District Court in Boston on November 5, but the request was rejected less than 24 hours later by Judge George O’Toole.

In his terse rejection order, O’Toole cited his own ruling two years ago when he was presiding over the terrorism trial of Tarek Mehanna, a pharmacy student from Sudbury, Massachusetts, who was convicted and sentencing to 17 ½ years in federal prison. O’Toole rejected an ACLU amicus brief in that case, as well.

In the Marathon bombing case, O’Toole wrote, “While there may be no positive rule forbidding it, in my judgment a trial court presiding over a criminal prosecution should not receive or consider volunteered submissions by non-parties except as specifically authorized by statute.”

The ACLU has a well-respected record of filing influential amicus briefs in some of the country’s most momentous constitutional cases, including Brown v. Board of Education in 1954; Mapp v. Ohio in 1961; Gideon v. Wainwright in 1963; New York Times Co. v. Sullivan in 1964; Miranda v. Arizona in 1966, and Furman v. Georgia in 1972.

The ACLU’s attempt to weigh in at this early stage of the Tsarnaev proceedings is a sign that it sees constitutional questions in the veil of secrecy under which the government is proceeding.

Judges Rejection Called Arrogant, Petty

“It is the utmost in judicial arrogance and pettiness for Judge O’Toole to reject even the filing of such a brief,” Harvey Silverglate, a Cambridge, Mass., attorney who specializes in civil liberties litigation, told WhoWhatWhy.

Silverglate said the judge should welcome input from solid advocacy organizations like the ACLU on complex cases. He said the organization traditionally seeks “to inject a note of fairness, impartiality, and support for constitutional values and procedures.”

“ACLUM has a very long history of seeking to make its voice heard in cases where there is considerable public sentiment against a defendant, and where, it may be assumed, there might be considerable prosecutorial and even judicial sentiment against the defendant,” Silverglate said. “Put more bluntly, Judge O’Toole is acting as if he were a tool of the U.S. Department of Justice, rather than a neutral judge. This is most unfortunate.”

Silvergate said O’Toole’s rejection of ACLU amicus briefs in both the Tsarnaev and Mehanna  terrorism cases “demonstrates perhaps that he does not have the requisite judicial temperament to handle highly controversial, difficult cases involving ‘national security’ issues.”

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