Feds: Marathon suspect made detrimental remark

[Rapunzel]

http://bigstory.ap.org/article/feds-marathon-suspect-made-detrimental-remark


Feds: Marathon suspect made detrimental remark
By DENISE LAVOIE
— Feb. 28, 2014 9:43 PM EST

BOSTON (AP) — An FBI agent overheard Boston Marathon bombing suspect Dzhokhar Tsarnaev make a "statement to his detriment" when his sister visited him in prison, federal prosecutors said Friday.

Prosecutors did not reveal what Tsarnaev said, but they objected to what they called an attempt by Tsarnaev's lawyers to suppress the statement.

Tsarnaev made the remark when an investigator working for his lawyers accompanied Tsarnaev's sister to a prison visit, a meeting that was monitored by an FBI agent, prosecutors said. The defense investigator started to explain to Tsarnaev's sister the rationale behind special restrictions placed on Tsarnaev in prison, prosecutors said.

They say Tsarnaev, "despite the presence of an FBI agent and an employee of the federal public defender, was unable to temper his remarks and made a statement to his detriment which was overheard by the agent."

The government described the conversation in a memo outlining their opposition to a request from Tsarnaev's lawyers to lift the prison restrictions, known as special administrative measures.

Tsarnaev, 20, has pleaded not guilty in the terrorist attack at last year's marathon. Two pressure cooker bombs were placed near the marathon finish line, killing three people and wounding more than 260.

Prosecutors have said they will seek the death penalty against Tsarnaev for crimes that include using a weapon of mass destruction.

In a separate filing late Friday, lawyers for Tsarnaev sought to have multiple charges against him dismissed, saying they are repetitive and that the total number of charges could sway jurors weighing whether to find him guilty and, if they do, whether to sentence him to death.

Noting that more than half of the 30 federal charges carry a possible death sentence, his lawyers wrote that the number of capital charges "appears designed to put a thumb on the scales of justice in favor of the death penalty."

Experts have said earlier filings suggest the defense may try to save Tsarnaev's life by arguing he fell under the influence of his brother. Friday's motion was submitted by his lawyer Judy Clarke, one of the nation's foremost death penalty specialists.

Tsarnaev's lawyers have also argued that the prohibitive prison measures limit Tsarnaev's interactions with people helping his defense team.

Prosecutors argued that the FBI agent's presence was permitted by the special administrative measures, which prohibit providing information to people outside the prison.

Judge George O'Toole Jr. agreed to ease some of the restrictions earlier, but Tsarnaev's lawyers filed a new request last week to lift them.

Miriam Conrad, one of Tsarnaev's lawyers, said their renewed request "was not prompted by any comment that Mr. Tsarnaev made during a family visit."

"We have continuously opposed the SAMs (special administrative measures) as unwarranted, and we believe they unduly interfere with our representation of our client."

Tsarnaev's lawyers had complained that the restrictions "continue to interfere with preparation of the defense in important ways," including "obstacles related to FBI monitoring of family visits."

Tsarnaev's lawyers say the presence of the FBI agent during prison visits by Tsarnaev's two sisters "has thwarted the defense ability to develop important mitigation information."

They argue that courts have recognized the kind of information the defense wants to develop as admissible mitigation evidence, including evidence on "family dysfunction, mental illness and the impact of family chaos on the defendant as he grew up."

Prosecutors have argued that the restrictions are necessary in Tsarnaev's case because of his "commitment to jihad" and his "widespread notoriety."

"There was no expectation of privacy on the part of Tsarnaev, his visitors or the investigator," they argue.

Prosecutors have alleged that Tsarnaev and his brother, Tamerlan Tsarnaev, 26, built the bombs and placed them near the finish line of the April 15 marathon. Tamerlan Tsarnaev died following a shootout with police several days after the bombing.

A spokeswoman for U.S. Attorney Carmen Ortiz declined to comment

[rb224315]

I'm not a lawyer and am rather unfamiliar with details of the machinations which take place in instances such as this one.  Because the terrorist wasn't making a statement to the federal agent, won't his lawyers argue that the agent's testimony is hearsay?  Or is such testimony not considered hearsay if it's given by a law enforcement officer?

[Oceander]

I'm not a lawyer and am rather unfamiliar with details of the machinations which take place in instances such as this one.  Because the terrorist wasn't making a statement to the federal agent, won't his lawyers argue that the agent's testimony is hearsay?  Or is such testimony not considered hearsay if it's given by a law enforcement officer?

The rules on hearsay are, to put it mildly, complicated.  Generally, hearsay is any out-of-court statement offered as evidence for the truth of what it asserts.  So yes, if the agent were to testify in court about what this guy said, that statement would be hearsay.  However, that's only half the analysis; the next step is figuring out if there is an exception to the rule that hearsay is excluded.  In this case there is at least one exception, the statement against penal interest exception (also known as the admission against interest).  Since the accused's statement appears to have been bad for him, it would likely qualify as a statement against penal interest and therefore still be admissible.

Basically, the idea is that no one would make a statement that implicated them in criminal activity unless it were true (I'll leave it to others to debate the wisdom of that assumption).  So, for example, if A says "I threw the gun into the river after Shorty was shot," that pretty much implicates him in Shorty's shooting and would be admissible under the assumption that A wouldn't have said that if it wasn't true.  It would then be up to A to introduce evidence showing that he was either obviously joking (e.g., he was confined to a hospital bed from before Shorty was shot until after the cops recovered the gun), or that the gun wasn't the gun used to shoot Shorty, or anything else that negates the weight of that statement.


So, to recap, yes the statement would be hearsay but no it wouldn't be excluded because it almost certainly fits within one of the exceptions to the rule that hearsay is excluded from evidence.


Now for some bonus material:  even if a statement is inadmissible hearsay - that is, it's something the accused said someplace other than in the court and it doesn't fit an exception - it can still be admitted if it's being used as evidence of something else other than the truth of its contents.  So, for example, suppose that A had said this instead:  "they threw the gun that shot Shorty into the river".  That's not a statement against interest and no other exception applies so it would be inadmissible as evidence to prove that the gun that shot Shorty was actually thrown into the river.  However, if A gets up on the stand and says that there's no way he was involved in shooting Shorty because he had no idea he'd been shot until the day the cops arrested him, then A's statement can be introduced as evidence to show that A is lying because he clearly believed that Shorty had been shot when he made that statement.

Is your head hurting yet?  If you're a normal human being - and thus not a lawyer - it should be.  Basically, a witness can testify in court about things that he or she saw, heard, etc, himself or herself directly.  So, if a witness actually heard someone yelling "die, die" from Shorty's house the night Shorty was shot, the witness could testify "I heard someone yell 'die, die' in Shorty's house that night."  In general, a witness can testify about what he or she heard coming out of someone's mouth, so if B heard A say "they threw the gun that shot Shorty into the river" then B could testify in court that he heard A say "they threw the gun that shot Shorty into the river" if - and here's the if - the only purpose was to prove that those words came out of A's mouth.

Why is that useful/important?  Because in this case it would be evidence that A believed Shorty had been shot prior to the time A was arrested, which contradicts A's testimony that he didn't find out Shorty had been shot until the cops told him when he was arrested.  That apparent lie by A throws doubt on his credibility - i.e., makes the rest of his testimony less believable - and so the prosecution would want to get the statement in to discredit A.  In other words, if A is lying about how and when he found out Shorty had been shot, then he might be lying about other things as well.

The difference can be subtle, and it can also lead to exactly the result that the rule against hearsay is supposed to prevent because when the jury hears that A said "they threw the gun that shot Shorty into the river," the jury is probably not going to just use it as evidence to discredit A in general, they will also treat it as a true statement - that is, that A in fact knew that the gun was thrown into the river.

Prosecutors love this sort of trick and it also explains in part why no defense attorney wants his client to testify at his trial:  once the accused takes the stand, the prosecution can throw almost anything they can find at him in order to discredit him, even if those statements would otherwise be inadmissible hearsay.  Some people call it the "dumptruck rule" because when an accused takes the stand in his case, the prosecution can back up the dumptruck and dump everything he's ever said on him.