Appeal Court Intervention in the Case of Dzhokhar Tsarnaev

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

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MOTION OF THREE CITIZENS OF THE UNITED STATES FOR LEAVE TO APPEAR AS FRIENDS OF THE COURT UNDER RULE 29(a) OF THE FEDERAL RULES OF APPELLATE PROCEDURE

United States of America, Appellee
vs.
Dzhokhar Tsarnaev, Appellant
No. 16-6001
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The undersigned introduces himself by offering a short résumé of his career as appendix A, subject to further specification as may ultimately be required by this Court. The undersigned is a specialist in forensic science and medicine, and in British, American, and Canadian constitutional law and history, in both of which fields he has many publishing credits. He has been permanently and generally admitted to the bar of five courts of record in the United States. Beyond his native Minnesota, he has practiced pro hac vice before twenty-eight state or federal courts of record in fifteen jurisdictions of the United States over the course of nearly fifty years. He is a member in good standing of the bar of the Minnesota Supreme Court (#3664X), and was there admitted on October 20, 1967. A formal certificate can be made available on request. No ethics proceedings are pending against the undersigned. On September 26, 2017, upon due inquiry, the undersigned was advised by personnel in the clerk’s office of this Court that he need not be a member of the bar of this Court to make this motion under Rule 29(a) of the Federal Rules of Appellate Procedure in behalf of three citizens of the United States desiring to appear as friends of the court in the above-entitled matter. On October 4, 2017, the circuit executive’s office instructed the undersigned to rely on the clerk’s office. On October 5 and 10, 2017, the clerk’s office confirmed that the admission of the undersigned to the bar of this Court is not necessary for this motion under Rule 29(a), and directed filing and service in paper without fee.
TO COUNSEL FOR THE UNITED STATES AND FOR THE APPELLANT, PLEASE TAKE NOTICE THAT THE UNDERSIGNED MAKES THE FOLLOWING MOTION BEFORE THIS HONORABLE COURT IN BEHALF OF THREE CITIZENS OF THE UNITED STATES, TO WIT:
COMES NOW the undersigned, and he makes the following motion, to wit: That James Fetzer, Ph. D., natural born citizen of the United States and emeritus professor of philosophy at the University of Minnesota Duluth; Mary Maxwell, Ph. D., LL. B., natural born citizen of the United States, previously working in Australia, now present in the United States; and Cesar Baruja, M. D., naturalized citizen of the United States, born in Paraguay, and practicing medicine over the past thirty-seven years, be granted leave to appear as friends of the court in the above-entitled matter through the undersigned as their counsel, and that, if necessary for this purpose, the undersigned be admitted to the bar of this Court generally or pro hac vice, either sua sponte or on motion yet to be made. Attached as appendix B is an uncolored and unbound copy of a proposed submission on the merits, including an addendum of relevant papers from the record, to be submitted in proper format and number as ordered in due course.
This effort is funded by Elisabeth Ritter-Blaser, a philanthropist and German-speaking citizen of the Swiss Confederation, living in the City of Oberburg in the canton of Bern. Her interest is preventing wrongful convictions and executions in the United States and other countries.
The undersigned has contributed nothing to the funding of this effort, but has prepared this motion. He will argue orally, but only if requested by this Court.
Dr. Fetzer, Dr. Maxwell, and Dr. Baruja have all studied and commented on the prosecution of Dzhokhar Tsarnaev. They all protest this prosecution as unfounded upon probable cause, and they verily believe, from their respective and detailed investigations of the facts in this case, and from the work of other eminent experts, including an internet-accessible report of Lorraine Day, M. D., who for many years served as chief of orthopedic surgery at the general hospital in San Francisco, that the prosecution of Mr. Tsarnaev is dishonorable to the United States. Aside from other anomalies not on this record, Dr. Fetzer, Dr. Maxwell, and Dr. Baruja maintain that, during the trial of Dzhokhar Tsarnaev, certain powerful exculpatory evidence on this record, grasped by many astute observers, and sufficient to warrant outright dismissal or acquittal, or an order granting a new trial, went unused and unnoticed by counsel on both sides, including the principal trial lawyer for Mr. Tsarnaev who loudly proclaimed his guilt in her opening statement and did not even ask for a verdict of not guilty during her final summation. It is no less true that major news and entertainment media of the United States have abused the First Amendment by acting together to create false appearances of guilt on the part of Mr. Tsarnaev of grave capital crimes, and to inspire public hatred against him; that Mr. Tsarnaev was misled into making or otherwise has been said to have made false confessions unconfirmed by the corpus delicti; that the said exculpatory evidence was actually generated by the Federal Bureau of Investigation (FBI), and positively disproves essential facts of accusation in the indictment; and that the said exculpatory evidence is referenced and made part of this record by electronic order #1469 issued by the United States District Court for Massachusetts (No. 13-CR-10200-GAO), the same entered on June 17, 2015. The said exculpatory evidence was never heard or considered by the jury, nor was it considered in sentencing.
Dr. Fetzer, Dr. Maxwell, and Dr. Baruja note here that key papers referenced by the said electronic order #1469 have been conveniently reviewed in an internet-accessible report, dated August 17, 2015, by Paul Craig Roberts, Ph. D., former assistant secretary of the treasury of the United States. The said report by Dr. Roberts has been read since original publication probably by tens of millions in the United States, Canada, Europe, and Russia.
In a nutshell, the FBI crime lab determined from fragments at the scene of the explosions, and the indictment stated in paragraphs 6, 7, and 24 of the general allegations, applicable to all counts, that Dzhokhar was carrying a black backpack heavy-laden with a large pressure-cooker bomb. The FBI then identified as culprits two individuals by reference to a street video which included a still-frame photo showing that Dzhokhar carried a light-weight white backpack. The very evidence used by the FBI to identify the “Boston bombers” referenced in the indictment, excludes Dzhokhar as plainly as white is distinguished from black. And there are widely published photos of the scene of the explosions showing other individuals carrying black backpacks which perfectly match the projections of the FBI crime lab, but we are aware of no evidence that these individuals were ever investigated. The lawyers on both sides must have known about these exculpatory facts, but played to the gallery as if the street video confirmed that Dzhokhar was guilty. In view of these facts, this Court should view and consider the evidence covered by electronic order #1469, then grant appropriate remedy, — i. e., reversal with order for acquittal as a matter of law or reversal with order granting a new trial. Dr. Fetzer, Dr. Maxwell, and Dr. Baruja believe that allowance of a death sentence under these circumstances amounts to judicial murder in the sense illustrated in Powell v. Alabama, 287 U. S. 45 at 72-73 (1932). Such is their interest here.
They submit as authority for their right to intervene and be heard as friends of the court the internet-accessible opinion of Judge T. S. Ellis III, published on February 27, 2006, in United States v. Steven J. Rosen and Keith Weissman, No. 1:05CR225-TSE, Document 228, on the docket of the United States District Court for Eastern Virginia.
Pursuant to 28 United States Code, Section 1746, the undersigned swears, subject to the pains and penalties of perjury, that he has conducted himself and will conduct himself before this Court in an upright and proper manner, that he will support and has always supported the United States Constitution, and that all representations hereinabove are true to the best of his knowledge, information, and belief. This oath is made abroad, subject to the laws of the United States.

Dated:___________________ _________________________________________
JOHN REMINGTON GRAHAM
of the Minnesota Bar (#3664X)
180 Haut de la Paroisse
St-Agapit, Quebec G0S 1Z0 Canada
TEL-FAX 418-888-5049
E-mail jrgraham@novicomfusion.com

Counsel for Dr. Fetzer, Maxwell, and Baruja

CERTIFCATE OF COMPLIANCE
The undersigned certifies that foregoing motion has been prepared in 14-point Times New Roman font, and, exclusive of this certificate but including caption and signature material amounts to 1419 words, and thus complies with the rules of this Court.

Dated:___________________ _________________________________________
JOHN REMINGTON GRAHAM
of the Minnesota Bar (#3664X)

APPEALS COURT INTERVENTION

MAY IT PLEASE THE COURT:

For reasons already stated in their motion for leave to appear as friends of the court, Dr. James Fetzer, Dr. Mary Maxwell, and Dr. Cesar Baruja urge this Court to review the papers covered by and including electronic order #1469 in the federal district court in Boston (filed on May 29, and disposed of on June 17, 2015), and displayed in the addendum to this submission. And by virtue thereof they ask this Court to reverse the conviction below and enter a judgment of acquittal, or order granting a new trial with directions for appointment of new counsel for the appellant Dzhokhar Tsarnaev, motivated to defend him on the merits of his plea of not guilty. The most essential facts are properly referenced to this record in the pro se argument of the Russian aunt of Mr. Tsarnaev (pages A18-A25 and A28-A29 of the addendum to this submission). Dr. Fetzer, Dr. Maxwell, and Dr. Baruja wish to add certain comments concerning events since Dzhokhar was sentenced to death and not mentioned in their motion for leave to appear as friends of the court:
Sentencing occurred on June 24, 2015, during which the transcript indicates that, before he was sentenced to death, Mr. Tsarnaev made certain bizarre statements, including suspicious statements of Islamic piety, and about his lawyers who, he says, were “lovely companions.” These comments are wholly uncharacteristic for an Americanized youth, and thus seem to have been scripted for him. Be that as it may, Mr. Tsarnaev went on at sentencing to make statements purporting to confess to the charges in the indictment. We dismiss these and other acts or comments in the nature of a confession, and urge this Court to do likewise, because, if they were true, Dzhokhar would have carried a heavy-laden black backpack on Boylston Street, as charged in paragraphs 6, 7, and 24 of the indictment, although he actually carried a light-weight white backpack (exhibit 4 on page A29 of the addendum hereto). In other words, there would have been natural proof of the corpus delicti, which was wholly lacking here. Compare the comments of the Russian aunt of Mr. Tsarnaev on the corpus delicti rule (on pages A25-A26 in the addendum hereto)
We wish to acknowledge objections which we have heard from certain newspaper-influenced lawyers in New England who tried to explain away the decisive evidence that Mr. Tsarnaev cannot be guilty in this case:
One eminent criminal lawyer in Massachusetts told us that the contention about black backpacks was only an evaporating investigation hypothesis, as sometimes happens in criminal cases, and that evidence concerning events after the explosions on Boylston Street (e. g., the testimony of Den Meng) was enough to convict Mr. Tsarnaev. But this lawyer did not know that the allegation of black backpacks came from the FBI crime lab on the basis of undeniable facts (exhibit 3 on page A29 of the addendum hereto), was incorporated into the indictment (paragraph 7), was part of the government’s case-in-chief at trial, and was decisively disproved by the white backpack carried Mr. Tsarnaev over his right shoulder (exhibit 4 on page A29 of the addendum hereto).
Another practitioner, in Boston, told us that between the time of the still-frame photo (exhibit 4 on page A29 of the addendum hereto) and the time of the explosions, Dzhokhar might have switched backpacks. But there is no evidence for, or even consistent with this far-fetched scenario, nor was the suggestion ever made by anybody at trial. The very street video used by the FBI to identify Dzhokhar Tsarnaev excludes him as a suspect.
Others in Maine have said that the white backpack cannot be used except in post-conviction habeas corpus or writ of error coram nobis. This procedural point is answered by Rule 29(a) of the Federal Rules of Appellate Procedure, and the opinion of Judge T. S. Ellis (cited on page A4 of the addendum hereto), which allow us to proceed, if the Court please. Dr. Fetzer, Dr. Maxwell, and Dr. Baruja do not represent Dzhokhar. They represent the public interest. And we do not have to wait until wrongful conviction. We can proactively prevent wrongful conviction by amicus intervention under positive law here and now.
It has even been suggested by persons with axes to grind that the white backpack (exhibit 4 on page A29 of the addendum hereto) is not compelling evidence. What can be more compelling than the difference between black and white? Why should we not believe our own eyes? We understand that injury to our country and profession will follow a miscarriage of justice in this case, for England lost her territories in France after the judicial murder of Joan of Arc and her free Constitution after the judicial murder of Charles the First. Hence, we dare not conceal the facts from ourselves. We must obey conscience!
The sad story of Anders Brevig in Norway reveals that the death penalty is not the worst of punishments. If Dzhokhar was guilty and had a fair trial, let justice be done. But since Mr. Tsarnaev cannot be guilty here (as appears in the contrast between exhibits 3 and 4 on page A29 of the addendum hereto), the American people need to know what really happened in this case, and this Court must tell them. Our major news and entertainment media will not.
Wherefore, Dr. Fetzer, Dr. Maxwell, and Dr. Baruja ask in behalf themselves and their countrymen that this Court examine the documents in the addendum hereto, and corresponding parts of this record, then do justice.

Dated:__________________ _________________________________________
JOHN REMINGTON GRAHAM
of the Minnesota Bar (#3664X)
180 Haut de la Paroisse
St-Agapit, Quebec G0S 1Z0 Canada
TEL-FAX 418-888-5049
E-mail jrgraham@novicomfusion.com

Counsel for Drs. Fetzer, Maxwell, and Baruja
CERTIFICATE OF COMPLIANCE
The undersigned certifies that the foregoing argument, including greeting and signature material, was prepared in 14-point Times New Roman font, consists of 961 words, and thus complies with the rules of this Court.

Dated:__________________ ________________________________________
JOHN REMINGTON GRAHAM
of the Minnesota Bar (#3664X)

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