As they have done in every hearing, defense lawyers requested the removal of Special Administrative Measures (SAMs) restrictions on their client, who is being kept in total lockdown. Lawyers have been complaining that they are unable to meet with Tsarnaev without the presence of an FBI officer in the room. During the last hearing on April 24, Judge O'Toole agreed with the defense that there is no national security reason why an FBI officer needs to be present and felt that the prison security should suffice. Although prosecutors insist that the FBI officer present is not going to be a witness at the trial, defense attorneys reported that the FBI officer was taking notes. The judge refused to remove SAMs and told the government they should use an out-of-state FBI agent during prison visits. The Constitutional protection of attorney-client privilege clearly does not apply especially when the defendant is a Muslim.
The defense complained about media leaks. Instead of handing over evidence to the defense, the government is working with the media. FBI agents were interviewed for TV documentaries that aired on National Geographic and 60 Minutes commemorating the one year anniversary of the bombing. These reports, which conflict each other in many ways, served to influence the minds of the public regarding guilt, long before trial. Defense attorneys complained that it is only on TV that they are learning what the prosecution's case is. Judge O'Toole admonished the government for participating in media interviews, calling it "unwise," but refused to penalize them in any way.
Throughout the proceedings, the defense has been muzzled. Attorneys have been warned against making any statements to media or even talking to friends and supporters about the case. Previously, government prosecutors brought up the possibility that defense attorneys might pass along messages from Tsarnaev to his "following" - very similar to the situation with Shaykh Omar Abdul Rahman's attorney, Lynne Stewart, who was imprisoned in retaliation for making statements to the press regarding statements her client made, except that Tsarnaev is not a political or religious leader with any following other than people following his case.
Tsarnaev cannot read any of his mail without a lawyer present and has been advised not to answer any of his mail. Likewise, his family cannot speak to the media about their belief in their son's innocence, lest they be accused of "passing along messages."
The only good thing coming out of this hearing is that the government's emotional tactic of accusing Tsarnaev of "betraying America" was struck down.
"I agree with the defense position that it was unduly prejudicial," O'Toole said, calling this type of charge "obnoxious."
However the prosecution will continue to use "He was comforting our enemies" as an argument for motive in the trial. It appears that pushing the issue of Tsarnaev's interest in Islamic causes will be central to their case. This would imply that they lack evidence, or that the evidence they have would not make the government look good. So far, they have swamped the defense with millions of pages of inconclusive, grainy photographs and some computer files showing that Tsarnaev watched jihad-related material on his laptop, but they have refused to hand over tangible evidence like the GPS of the vehicle that was used to flee from police the night Tamerlan Tsarnaev was killed.
The prosecution asked the judge to demand that the defense supply them the name of their witnesses that they would use to counter the government expert witness' testimony on the Islamic nature of the Boston Marathon bombing. Presumably the government "expert witness" will be the laughingstock, Evan "Saddam is allied with al-Qaeda" Kohlmann, who has already been testifying in front of Congress about Tsarnaev's Islamic motivations long before he has even been found guilty. Defense attorney Judy Clarke argued that this is not standard practice, and according to the Fifth Amendment, they are not required to disclose this type of information to the prosecution at this point in the proceedings. O'Toole delayed making a decision.
US prosecutors say they will not use statements Tsarnaev made during his hospital bed FBI interrogation before his Miranda rights were read, during the guilt/innocence part of the trial but may bring it up for the sentencing part. Defense wants the evidence of these statements to be suppressed. O'Toole delayed the decision for mid-trial.
Tsarnaev's next status hearing is scheduled for August 14.