At Boston bombing trial, breakthrough for Tsarnaev defense

The legal defense team for accused Boston Marathon bomber Dzhokhar Tsarnaev says he was led astray by his older brother. On Monday, defense lawyers appeared to get some traction with that argument.

An intense and technical cross-examination pushed the Boston Marathon bombing trial into unfamiliar territory Monday with testimony becoming heated and confrontational.

The defense team of Dzokhar Tsarnaev has so far had few opportunities to drive home its basic argument: that Mr. Tsarnaev was bullied into the marathon bombings by his ringleader brother, Tamerlan, who was killed in a confrontation with police days after the April 2013 attacks.

But defense attorney William Fick appeared to make headway Monday, flustering a key prosecution witness. The testimony threw doubt on assertions that Dzhokhar had accessed a number of radical Islamic materials from computers and devices recovered during the investigation.

No one expects the potential points scored by the defense Monday to change the outcome of the first phase of the trial. Tsarnaev’s team admitted he was involved in the bombing. What the defense wants is to save Tsarnaev from the death penalty, and Monday was perhaps the first time that they were able to lay the foundation they think they need to get there.

Mr. Fick opened the day with a loud and aggressive line of questioning on the Federal Bureau of Investigations probe into the Tsarnaev devices. On Thursday, FBI special agent Kevin Swindon had testified about a number of files related to radical Islam on the devices.

But Fick argued that Mr. Swindon’s testimony last week presented a skewed portrait of Tsarnaev because the FBI cherry-picked certain incriminating files that weren’t representative of the contents of the devices as a whole. The devices also held ordinary files, such as pop songs and homework assignments.

Moreover, Fick was able to establish that much of the radical Islamic material was downloaded by Tamerlan onto an external hard drive before being moved onto other devices. The hard drive was recovered where Tamerlan died.

“Are you aware that the hard drive recovered in Watertown was formatted by Tamerlan Tsarnaev?” Fisk asked near the end of his cross-examination.

“I don’t have the information to confirm that,” Swindon replied.

Fisk later added: “Did you ever become aware in your role that every single file and folder on this hard drive was created by Tamerlan Tsarnaev’s computer?”

“No,” Swindon replied.

“Was anyone else at the FBI aware of that?”

“Not that I know of.”

The cross-examination allowed the defense to explore Tamerlan’s character more deeply than at any other the point in the trial so far. Fick questioned Swindon about Tamerlan’s use of a computer during Tamerlan’s visit to Russia in 2012, as well as his use of encryption software on some of the files in his computer.

Fick noted how easily the FBI was able to decrypt the files, again highlighting facts Swindon didn’t seem to know.

“Are you aware it was easy [for the FBI] to get into Tamerlan’s encrypted files because he had an easy password?” Fisk asked at one point.

“I was not aware of that,” Swindon rpelied.

The defense established that Dzhokhar’s online activity was more benign, and that he was just one of several family members who likely used the devices. Specifically, Fick noted that Dzhokhar was one of several Skype account users on the desktop computer in the family apartment. Others included “Bella,” his sister. 

The top search terms from a laptop Dzhokhar used were from Facebook and VK – a Russian version of Facebook – as well as the term “Chechnya,” where the Tsarnaev family emigrated from in the 1990s, Fick noted, citing an FBI report.

“Would you agree that the top two search terms, you wouldn’t be surprised to find them in the computer search terms of an adolescent male?” Fisk asked Swindon.

“I’m not an adolescent psychologist,” Swindon replied.

“Are you aware that among the top 16 search terms, none of the terms are ‘Islam’ or ‘jihad’?”

The prosecution successfully objected to this final question.

It is unclear what affect these victories might have on the jury. According to reporters in the courtroom, jurors at times appeared frustrated by the dense, technical line of questioning.

Ultimately, however, Tsarnaev’s defense team will be encouraged. Testimony in the first phase of the trial could wrap up by the end of this week. If Tsarnaev is found guilty, the trial will move on to determining if he should be sentenced to death or to life in prison.