Dzhokhar Tsarnaev’s lawyers opened the Boston Marathon Bombing trial with a surprising “it was him” soliloquy and ended with what looked like a categorical admission to all of the charges against him. But, in a motion filed on Monday, his lawyers are now requesting a new trial.
While the appeal itself is unsurprising—a lengthy and convoluted appeals process is standard in capital cases like this one—the defense’s claim of “evidentiary insufficiency” calls attention to what has been a seemingly strange defense strategy.
“Evidentiary insufficiency” is, in fact, an apt description of the evidence presented at the weeks-long trial. Remember all the hype about “eureka moments” and “damning” videos that turned out to be… not so much.
(1) It may be true that Dzhokhar dropped his backpack at the finish line as advertised. But you can’t actually see that in the surveillance footage.
(2) The “daring escape” video of the brothers’ carjacking victim, known as “Danny,” appears to contradict key details about the carjacking story as presented to the media and in court. These include: Who was sitting where in the SUV? “Danny” claimed that he was in the front passenger seat while Dzhokhar was sitting in the back. But, in this remarkable video showing the car pull into the gas station, the back door, which is visible the whole time, never opens.
Dzhokhar just suddenly appears from behind the gas pump. He could not have exited from the other door in the back, or he would have had to walk around either the front or the back of the car, in plain view of the video camera. It seems that the only way he could have come into view as he did was by exiting the front passenger door. But with “Danny” sitting there, how could that have happened? This raises questions about the reliability of all of the carjacking victim’s statements.
(3) The video of MIT cop Sean Collier’s murder is so dark, so far away and blurry it’s virtually impossible to discern what’s going on, let alone who was doing what. The sole witness to Collier’s murder was a young student speeding past the crime scene on a bicycle—at night.
Take a moment to scrutinize the above videos then consider this: Before anyone actually got to see them, the prosecution spent over a year working to convince the media-consuming public, which of course included potential jurors, that these videos were “damning.” No wonder caution was the operative word of the defense. The hyper-cautious Judy Clarke, Dzhokhar’s lead counsel, apparently assumed that the trial was a lost cause from the beginning, and that her client had far better chances later at appeal.
This likely explains that almost nothing the prosecution presented was cross-examined, despite obvious weaknesses in evidence like the videos. With a vigorous adversarial back-and-forth—something almost completely missing from the first trial—the appeal process just might fill in some of the missing details.,
These details are hardly trivial. They include such questions as: “Who made the bombs?” or: “Were there others involved in the planning and execution of the attack?” For reasons unclear, neither the media nor law enforcement appear interested in answering such questions about the worst terrorist attack on US soil since 9/11.
