LAWYER SAYS “SOMETHING RADICALLY WRONG” WITH BOSTON PROSECUTION

Not only was there never any probable cause or evidence to indict, let alone convict Dzhokhar Tsarnaev, there was plenty there to totally exonerate him.

John Remington Graham is an attorney with decades of experience in the fields of constitutional, environmental, and criminal litigation. He served as a federal public defender; special counsel to Brainerd, Minnesota; and Crow Wing County attorney. He has a great many publishing credits in constitutional law and history, and also forensic medicine and science. He has lectured on constitutional law and legal history in the United States and Canada. Graham was also cofounding professor of law at Hamline University in Minnesota. As a young lawyer, he quickly realized an investigation into constitutional history was necessary to properly defend his clients against the judicial machine. Since then, Graham has been a diligent student of American, Canadian, and English constitutional history and law. He recognized that the American Constitution could not be understood without a thorough knowledge of its foundation in English Constitutional law and history. He has participated in major cases raising difficult questions of constitutional law, appearing before courts in sixteen jurisdictions within the United States. Additionally, in 1998 he was the advisor on British constitutional law and history for the amicus curiae for Quebec in the Canadian Supreme Court, a position that afforded him the opportunity of shaping Quebec’s argument in its case for peaceable secession. Graham received both a bachelor of arts in philosophy and a law degree from the University of Minnesota. Graham, his wife, and children have lived in Minnesota and Quebec.

Dear Sir, — By way of introduction. I have practiced criminal law for nearly forty-eight years, both prosecuting and defending, and served as a founding professor in an accredited law school in my native Minnesota. I have appeared as counsel before courts of record in sixteen jurisdictions, and have a background in forensic science and medicine. I can provide a résumé on request.

On March 25, 2015, while the trial was underway, I wrote and distributed a short opinion on the prosecution of Dzhokhar Tsarnaev, accused of capital felonies in Boston on April 15, 2013 in United States v. Dzhokhar Tsarnaev, No. 13-CR-10200-GAO on the docket of the United States District Court for Massachusetts, commonly known as the “Boston marathon case”, or “the Boston bomber case”. I used eight photo exhibits to explain my conclusions that, as a matter of law, there was no probable cause to support the indictment, and that Mr. Tsanaev was plainly not guilty as charged. These views were shared by others reporting on the internet, but my opinion was meant to provide professional assurance to fellow citizens that, legally speaking, something was radically wrong with the prosecution. In fact there were then and still are a great many anomalies with the case.

The substance of the Boston marathon case, as I then saw it, and as I still see it, is that, on the day after the explosions on Boylston Street in Boston, the FBI crime lab determined from fragments at the crime scene, the FBI chief in Boston announced, and the indictment itself later confirmed that, shortly before the explosions, the culprits were carrying large, heavy-laden, black backpacks containing pressure cooker bombs. Two days later, the FBI chief in Boston stated publicly that the suspects were identified by a certain street surveillance video, which for some days was later displayed for public viewing on the FBI website. The video had been taken from Whiskey’s Steak House, and was used to create still-frame photos of Tamerlan Tsarnaev (the big brother, now deceased), and Dzhokhar Tsarnaev (the little brother, later accused) as they walked up Boylson Street toward the finish line of the Boston marathon, shortly before the bombs went off. These two still frames were featured on posters distributed by the FBI in soliciting cooperation from the general public. But there is a third still-frame photo, taken from the same video, which shows unmistakably that Dzhokhar was carrying a small, light-weight, white backpack. The backpack carried by Dzhokhar was flat, and did not sag or bulge as would have been apparent if it contained a pressure cooker bomb filled with shrapnel as described in the indictment. This third still-frame photo was published by the major news media of the United States. I retrieved my first copy of this third still-frame photo from an internet report of CNN on April 19, 2015.

The bottom line is that the FBI’s own evidence eliminates Dzhokhar as a suspect, and conclusively proves he is not guilty as charged. This reality is literally as clear as the difference between black and white. The establishment press knew about it, and I cannot imagine how the federal prosecutors and counsel for the accused could not have known about it. So obvious was the actual innocence of Dzhokhar Tsarnaev that there was no need for a trial at all, because a good criminal defense lawyer could have taken the FBI information published the day after the explosions, the text of the indictment, and the third still-frame photo from the street surveillance video used by the FBI to identify suspects, and employed those items to support a pre-trial motion for dismissal of the indictment. I have on many occasions made such motions or seen such motions made by colleagues in federal courts, based on facts revealed by disclosures which prosecutors must and routinely do make available to counsel for the accused under a famous decision of the United States Supreme Court. And I have seen such motions granted on not a few occasions. Such practice is not uncommon, as I know from my own experience.

What was going on in Dzhokhar’s case? Why was there no motion to dismiss the indictment based on indisputable facts? Why was there a trial at all? Why did Judy Clarke, a big-time death-penalty lawyer appointed to defend Dzhokhar, admit to the jury in her opening statement that her client was guilty? She had decisive evidence that her client was not guilty. Why did she not use it, bring the case to an end, and thereby save her client’s life? In her final summation to the jury, Mme Clarke did not even ask for a verdict of not guilty. She made no mention of the exculpatory evidence generated by the FBI and mentioned in the indictment. Available were widely published photographs of possible paramilitary agents near the crime scene in Boston about the time of the explosions, carrying large, heavy-laden, black backpacks with characteristic markings which the FBI crime lab material revealed. But these persons with black backpacks were never investigated by the FBI. Why not?

I contacted Maret Tsarnaeva, the paternal aunt of Dzhokhar living in Chechnya which is part of the Russian Federation, a lawyer trained in the old Russian school of law in the Kyrgyz Republic which was once part of the Russian Empire and the Soviet Union, but has been independent since the conclusion of the former Cold War. A very bright and interesting woman Maret turned out to be, and, from the beginning, she maintained that her nephew was not guilty. My conversations with her over Skype led me to conclude that Judy Clarke and her colleagues in the federal public defender’s office in Boston could not stand up to the political pressure and thus threw the case instead of defending Dzhokhar.

Mme Tsarnaeva executed an affidavit on April 17, 2015, which explains events when representatives of the federal public defender’s office in Boston met with Dzhokhar’s family in Russia. For those interested in details, I attach a copy of her affidavit exactly as sent to me by Maret from Russia and later filed with the federal district court in Boston, except that the affidavit filed in the federal district court includes Maret’s original signature in Russian script which I can verify with my business records.

Maret hoped to call exculpatory evidence to the attention of the presiding judge, because Dzhokhar’s lawyers were not defending the accused and federal prosecutors were acting without probable cause. After diligent research on options was made, Maret decided to attempt an appearance before the federal district court in Boston as a friend of the court. She had to apply to the presiding judge for permission to appear in this capacity, and to make a motion asking the court to appointment me as her personal counsel for this purpose on special occasion. Normally, to be admitted to practice before the court on special occasion, I would need a motion from a member of the local bar. My paralegal assistant and I contacted many lawyers in Massachusetts. Some were sympathetic, but none dared to participate, lest their reputations be harmed. I had practiced before the federal district court in Boston some years previously, and then had no difficulty in securing the routine courtesy of a member of the local bar in sponsoring my appearance on special occasion. But not even the American Civil Liberties Union in Massachusetts dared to assist Maret or myself. I had to assist Maret in making an intervention pro se, representing herself, while she listed me as “of counsel” so as to signal that she was guided by a lawyer, and asked the presiding judge to admit me on special occasion without sponsoring motion of a member of the local bar, due to unusual circumstances. On instructions of court personnel, we could not proceed on the electronic record, and Maret’s pro se motion with supporting documents was served upon the federal district attorney and the federal public defender in paper and by registered mail, and the papers had to be filed with the office of the clerk of the federal district court, again in paper and regular postal service. But our task was accomplished by May 29, 2015.

For your convenience, I attach herewith the formal argument made by Maret Tsarnaeva acting pro se with my guidance, exactly as filed in the federal district court in Boston, except that the copy served and filed included the signature of Maret Tsarnaeva in Russian script, as I can demonstrate from my business records. We showed by text and exhibits, and by reference to the trial record and FBI-generated evidence that Dzhokhar cannot be guilty, because the FBI determined and the indictment alleged that the culprits carried black backpacks, but the FBI’s evidence showed that Dzhokhar was carrying a white backpack.

Maret expressed her grievances against the unethical misconduct of the federal prosecutors in proceeding when they knew they had no probable cause, and the unethical misconduct of court-appointed counsel in not defending in earnest. We enclosed the four most critical photo exhibits, including the results of the FBI crime lab investigation and the exculpatory third still-frame photo from the video used by the FBI to identify the culprits.

I am aware that many incredulous citizens cannot accept that the government of the United States would stage a show trial in Boston to convict an innocent young man and sentence him to death. But such events are not unusual in history. Judicial murder spoils the history of many nations. These incredulous citizens point to Dzhokhar’s alleged confession statements inside the boat in Watertown and at the time of sentencing. But contrary to the beliefs of the uninitiated, it has been clear from ancient times that confession statements are the weakest and most suspicious of all testimony, as is stated by legal scholars going back many centuries. Maret’s pro se argument cited Sir William Blackstone, from whom the founding fathers of the United States learned the law, for this truth. False confessions are very common, and result from fabrication, artifice, duress, unfounded hopes, attempts to curry favor, even brainwashing. Hence, going back centuries the law has struggled to develop safeguards against false confessions.

The intervention by Maret Tsarnaeva in behalf of her nephew in the Boston marathon case is significant because, although denying her motion to appear as a friend of the court, the presiding judge entered an order, which appears on the electronic record, is numbered 1469, and directs that her filings be maintained by the office of the clerk of the federal district court in Boston. These documents should be accessible to those wishing to see and read them. Therefore, it is a matter of public record, not merely a matter of internet protest or gossip, that the federal prosecutors, the court-appointed lawyers for the accused, and the presiding judge are all aware of the FBI’s own evidence which excludes Dzhokhar Tsarnaev as a suspect, and proves his actual innocence. It is also clear that the major news media of the United States, which orchestrated a false appearance that Dzhokhar was guilty of heinous crimes, and called for his execution, were aware that he was not guilty. They knew, as the report of CNN four days after marathon Monday makes plain, that Dzhokhar was in fact carrying a small, light-weight, white backpack, and that the government’s own evidence shows that the culprits, whoever they were, carried large, heavy-laden, black backpacks.

John Remington Graham of the Minnesota Bar (#3664X)