Friday, April 17, 2015

What happened to the Lord&Taylor video? - Part 2

This is the continuation of my article Do the Tsarnaev defense's last-minute photos bear proof for innocence? where I promised to show that the defense might be able to turn the table just with a few photos. It is also a continuation of an article from November 22, 2013 about the shadowy Lord&Taylor surveillance video which was last mentioned on April 17, 2013 - two days after the bombings, exactly two years ago. We never heard from the video again.

It is unclear if the defense has seen the video. The brand name Lord&Taylor appeared on a list of companies, potential contributors of evidence, as requested by the defense and approved by the government. The entry "Lord&Taylor" was most likely in reference to the said video.

So the defense lawyers might have obtained the video or not - we don't know it. And even if they were successful so far, it might be buried under the disordered 6-7 terabyte of digital data for which the defense appraised years of search to find the few needles in the haystack. Albeit, it's possible they found it already. Apart from that, it might also have passed to them by a whistleblower. The possibility that the defense knows the video is definitely given.

The Lord&Taylor video is not the only candidate for potential bombshell evidence in the hands of the defense, but it is an excellent representative. In the morning of April 17, 2013, it was praised in the news as a big breakthrough because it allegedly showed a dark-skinned male person placing a black bag in front of the Forum, exactly the bag the investigators were looking for. It was also reported that the suspect was identified with the help of enhanced video techniques, facial recognition etc. One hour later, reports came in that an arrest had been made, a suspect was in custody and moved to the courthouse.

Another hour later, the arrest was disclaimed and qualified as a rumor. No arrest, no suspect. The Lord&Taylor video and its decisive role seemed to be forgotten from one minute to the next. One day later, the Tsarnaev brothers were presented as the culprits.

It is this reported breakthrough moment of the Lord&Taylor video which makes it so attractive for the defense. It might show the person with the black backpack arriving at the Forum, dropping it in front of the entrance and sneaking away. And all the while Dzhokhar Tsarnaev stands at the metal barriers looking at the runners, with his bag at his feet. The video might also indicate that the explosion happened on the patio - or exclude an explosion at the place where Dzhokhar's bag was.

There is ample speculation in this scenario, and many imponderables come along. The scenario shows, however, that a few self-explanatory photos might be sufficient to exonerate Dzhokhar with one stroke. The Lord&Taylor video is just one example. The potential pool of footage from the second bomb site, private or public, is big. A lot of cameras were roaming around. The defense's footage might exceed the government's scant material by the factor 2, 3, or 10 - in any case, enough to turn the table.

Monday, April 13, 2015

Dzhokhar Tsarnaev's movement profile after the blasts

Conrad seizes on distance question: "you spent a week on Boylston, took hundreds of photos, don't know distance?" No. 
David Boeri tweet on March 30, 2015

During the questioning of FBI photographer Michelle Gamble defense attorney Miriam Conrad exhibited a keen interest in particulars of the official Forum video whose significance didn't immediately disclose itself to the common observer. (I have documented the cross-examination in my last blog entry.) The distance of Dzhokhar Tsarnaev to the location of the bomb at the moment of the explosion was one of them. Does Conrad have any independent information about the distance that doesn't match the video?

This thought invites to a closer scrutiny of the distance question. It is indeed possible to establish a fairly precise post-blast movement profile for Dzhokhar. I have expounded here that the Forum video and the Fred Land video together cover a big part of the sidewalk, with only a small gap in between. The Forum video shows Dzhokhar walking away swiftly after the first blast (7:43-7:55 in this compilation). When the second blast occurs, he's just at the borderline between Atlantic Fish and Crate&Barrel, almost the same place where he was standing before he went down to the Forum. He then appears in the Fred Land video, now slowly running (8:39-8:45 in the compilation).  

The diagram illustrates the movement profile:

The rhombs indicate Dzhokhar's path, the attached numbers indicate the respective seconds after the first blast. For the first 12 seconds, he's visible in the Forum video. For seconds 22-28, he's visible in the Fred Land video. During seconds 12-22, he's in the "gap".

Thus Dzhokhar's movement profile can conveniently be subdivided into four parts:

1 - Forum, seconds 0-6. He only moves a little bit, looks back, waits, moves again a bit, but doesn't hurry away yet.

2 - Atlantic Fish, seconds 6-12. He hurries away, quickly walking rather than running, with a speed of about 2 meters/sec.

Second explosion occurs.

3 - Crate&Barrel, seconds 12-22. He distinctly slows down, speed about 1,5 meters/sec.

4 - Abe&Louie's, seconds 22-28. He is slowly running now, speed about 2,5 meters/sec.

With the exception of section 3, the speed is simply derived from observing the videos. We don't know what Dzhokhar did in the gap at Crate&Barrel, but most likely he didn't stop for a pause, so I divided this distance into 10 equidistant sections.

This movement profile creates a plausibility problem. Why did Dzhokhar slow down just when the second bomb exploded - one would expect that he would start running like everyone else. But he needed ten entire seconds to bridge the Crate&Barrel gap, which corresponds to a moderate walking, not a running. Something doesn't add up here.

This is even more astonishing as the sidewalk in front of Crate&Barrel is broader than elsewhere, simply because there is no patio there. So the slow down cannot be explained by pedestrian traffic, we would rather expect a speed-up.

At this point, I'd like to recapitulate that there are some peculiar oddities with the Forum video - not matching the Fred Land video is only one of them. Another one is the criminal complaint, which has Dzhokhar not standing behind the tree, but at the barriers, and describes him "calmly but rapidly moving to the west", a calm which is not observable in the Forum video.

It looks therefore legitimate to establish an alternative movement profile, neglecting the Forum video, instead with premises set by the criminal complaint and the Fred Land video:

In this scenario Dzhokhar is standing at the metal barriers between the tree and the mailbox when the first blast occurs. After three seconds, he walks away. When the second blast occurs, he starts running, reaching a speed of 2,5 meters/sec when entering the Crate&Barrel gap and keeping it.

This alternative version looks much more realistic. Here, Dzhokhar must have been in the middle of the Atlantic Fish sidewalk when the second bomb exploded, much closer to the blast than in the Forum video.

Miriam Conrad has of course "insider knowledge" about Dzhokhar's location at the second blast. Is this the only reason she "seized on the distance question" - or is she also aware of footage in conflict with the Forum video?

Saturday, April 11, 2015

Miriam Conrad's cross-examination of FBI photographer Michelle Gamble

On March 30, 2015 the prosecution finished its presentation in the guilt phase of the Tsarnaev trial. FBI photographer Michelle Gamble was the second-last prosecution witness to testify and the last cross-examined by the defense. At the end of his questioning prosecution attorney Weinreb turned to the footage of the second bomb site. In the cross-examination Miriam Conrad immediately chimed in to the subject with a few questions:

- she makes Gamble admit that an overhead diagram of the Forum with circles indicating the position of people on the sidewalk does not show all people who were there, i.e. that the diagram omits some people. Gamble also admits that the prosecution told her to do so.

- she asks Gamble for the distance of Dzokhar to the bomb when it went off, which Gamble is unable to answer.

- she points out that on the Forum video some people "moved around a bit" after the first blast, which is confirmed by Gamble.

For the common observer, Conrad's questions must look cryptic, incoherent and not expedient. Where did she want to get at? It is even weirder that these were the defense's last questions with regard to the second bomb site, and they didn't call any witness of their own for that topic. Did Conrad not have any more urgent questions to ask? Reading between the lines is obviously necessary.

Conrad's questions are related to the topography of the crime scene and which people were there at what time. She points out weaknesses and contradictions of the footage of the second bomb site, especially the Forum video. As I have outlined in previous blog entries, the authenticity of the Forum video is highly questionable. Conrad behaves as if she is aware of other footage not compatible to the government's material. But she doesn't dig deep, only intimates, like a cat playing with a mouse, not hurting it, but giving it no chance to escape.

This enables certain inferences about the defense strategy. This cross-examination looks rather like a little veiled message of strength to the government than a closing address for the second bomb site complex.

The time of the following blogs of David Boeri and Kelley Tuthill is reversed, i.e. they have to be read from the bottom up. They start shortly before Weinreb ends his questioning.


Friday, April 10, 2015

Did the government cut out 10 crucial seconds from the Forum video?

The so-called "Forum video" is the prosecution's supposed core evidence against Dzhokhar Tsarnaev. All the accusations regarding radicalization, bomb building, or the boat confession would be worthless without video evidence that he placed his bag at the place where the second bomb exploded.

It should therefore be in the interest of the prosecution to handle this crucial piece in an open way to avoid any smell of secrecy. In fairness to Tsarnaev, whose life the prosecution wants to take away, the video should be available to the public in unredacted form, from a few minutes before the blast to a few minutes after the blast.

Unfortunately, this hasn't happened. The video was kept hidden from the public until the begin of the trial. The first clip was shown to the jury on March 4th, 2015, the second day of testimonies. It was available to the public a little bit later (Source). But this version of the video covers only the time before the blast and ends half a second after; the aftermath was at that time only documented by a few stills.

The jury had to wait until April 6th to see a continous version of the video, with pre-blast footage, the blast itself, and a few seconds of the aftermath without any cut. This was at least the perception of some observers. They were apparently wrong.

According to jane24, who is a regular attendant of the trial since the pre-trial phase and whose accurate reports fixate many details which would have gone by the board otherwise (the longest sidebar in history), the clip was probably not uncut. jane24 vouches for having noticed a discrepancy in the clip: before the blast, about fifteen people were on the Forum's patio in the foreground, cheering the runners. After the flash of the explosion had settled and the screen cleared, the patio was emptied: all the people had suddenly vanished.

Here is a snapshot, taken fractions of a second before the blast:

Forum video immediately before the blast

The people on the patio certainly needed a few seconds to flee the location. And in the very last frames of the available online Forum video (not in the video shown at court on April 6th!) there are indeed the outlines of some people visible after the flash:

Forum video immediately after the blast

In the video clip shown to the jury on April 6th, jane24 claims, there are no people on the patio anymore. Conclusio: the video re-starts  about 10-20 seconds after the blast, after people have left the patio, and the missing seconds have been cut out. In other words: the government keeps withholding crucial evidence from jury and public for whatever reason.

10 seconds removed, is this really a big deal? Yes it is, because as I have argued here, the very first seconds after an explosion are most important for determining its epicenter by comparing the pre-blast and post-blast location of people. A 10-second gap makes this determination much more complicated because people might have moved and changed their location meanwhile.

But maybe the aggravated determination of the epicenter is exactly what the government intended to achieve by cutting off the 10 seconds.

Saturday, April 04, 2015

Do the Tsarnaev defense's last-minute photos bear proof of innocence?

In this article I will introduce the possibility that the defense is in possession of incontrovertible proof of Dzhokhar Tsarnaev's innocence. In a follow-up article, I will present a candidate for this proof.

March 31th, 2015 was probably the most remarkable day in the Tsarnaev trial so far. Unfortunately, Boston's journalist elite like Laurel Sweet, Kevin Cullen, David Boeri and the team Boeri/Cullen failed in their duty to inform the public objectively and omitted completely an incident which observers label as "the longest sidebar in history".

What happened? After the testimony of the fourth witness, attorney Judy Clarke announced that the defense had no more witnesses to call and only wanted to show the jury a couple of photos - without witness - before resting their case. This prompted an immediate objection by the prosecution and entailed a long-lasting series of sidebars and recesses before the judge finally declined the photos to be shown for procedural reasons (because of the lacking witness). After that, the defense rested.

Jane24 attended the trial on this day and has compiled a detailed chronology of the incident. I have gathered some tweets (see appendix) to reflect the vibes that came along with it. Bottom line: the defense was not successful with its request, yet seemed to be much more happy with the outcome than the prosecution. This is an obvious paradox, and I will express a possible solution now.

The first salient point is that the defense could easily have avoided the procedural problems by presenting the photos through a witness. This would have been usual business and render an objection impossible.

An immediate corollary is that either the defense made a gigantic blunder - or that their main intention was not to show the photos to the jury, i.e. that it was only the pretext for achieving a different aim. The latter seems much more realistic. But what aim might that have been?

Another striking fact is that, as already mentioned, the defense was pleased with the outcome, despite failing to reach their - official - aim. So they must have reached something, probably the clandestine aim I've postulated.

One possibility is that they earned a promise to present the photos later, in the sentencing phase. But this can't have been their initial aim, because, to say it again, with an accompanying witness they could have presented the photos immediately. The defense is certainly not that unprofessional. There must be more.

I can spot only one reasonable strategy: the defense wanted to show the photos to the judge, not to the jury. There have been several matters in the past where the judge examined evidence first (in camera) before the jury got the occasion. Examples: autopsy photos, boat note. So at the sidebar negotiations, the defense might have suggested to O'Toole to have a look at the photos himself before making a decision with regard to the jury.

Judging from the defense team's displayed mood their strategy worked out, and O'Toole agreed to take a look at the photos - presumably during the after-lunch recess. It didn't matter for the Tsarnaev team that he declined to show the pictures to the jury. They had reached their inofficial aim: to serve notice on the judge.

At this point, the content of the photos comes into play. The fact that O'Toole didn't let the jury see them signifies a huge embarassment for the government. What may have caused the defense to choose such a convoluted strategy? The timing - right at the end of the guilt phase - bespeaks a carefully designed dramaturgy. There is every indication that the photos are self-explanatory and shatter the prosecution's narrative. Is it imaginable that such powerful footage exists? As I said in the introduction: yes, it is.

So why did the defense keep this evidence back during the first phase, and why do they want only the judge to know? This has, of course, to do with the political nature of the case and the widespread involvement of law enforcement in blaming Dzhokhar Tsarnaev for a crime he didn't commit. The defense team has always shied away from spectacular statements or actions and used to pursue their goal "under the radar".

From this perspective, the ball is now in O'Toole's court.

Jane24: it is obvious that it was important to the prosecution that these photographs not be shown. At least two hours were spent negotiating this issue and however it was resolved the defense seemed very happy with the outcome. The prosecution? Not so much...

Appendix - tweets from the Tsarnaev trial, March 31th, 2015


 12:30 pm - 12:35 pm  First sidebar

12:35 pm - 12:55 pm  First recess

12:55 pm - 1:00 pm  Second sidebar

1:00 pm - 2:15 pm  Second recess (lunch)

2:15 pm - 2:20 pm  Third sidebar


2:20 pm - 2:45 pm  Third recess


2:45 pm - 2:50 pm  Fourth and last sidebar

Boston Bombing News: Defense Rests - by jane24

Jane24 usually publishes her trial reports on, but the website has accessibility problems since a few weeks. This is her account for Tuesday, 31st March 2015, in the case of US. v Dzhokhar Tsarnaev.

    Witnesses For the Defense:

    Although scheduled for 9.oo am proceedings actually got underway this morning at 9.16 am after now customary delay when the defense called their third witness in this case, Mark Spencer. Mr. Spencer employed by "Arsenal Consulting" and is an expert in digital forensics and electronic data evaluation. Willia Fick began questioning by requesting that Spencer outline his vocation related experience and qualification and it was mentioned that this witness is to be paid by the Federal Public Defender's Office having put in some hundred hours of work to date. The standard billing rate for Mr. Spencer is $425 per hour but the work he had put into this case will be charged at a slightly discounted rate of $375 per hour. One of Spencer's coworkers is fluent in Russian language.

    This witness stated that he had examined multiple devices owned by the Tsarnaev family bu today's testimony focused specifically on the HP computer recovered from the Tsarnaev family home located on Norfolk Street in Cambridge, the Samsung laptop owned by Tamerlan Tsarnaev which was recovered from Laurel Street in Watertown, the Sony laptop owned by Dzhokhar Tsarnaev which was recovered from the shared apartment of Azamat Tazhayakov and Dias Kadyrbayev in New Bedford and a hard drive recovered from the Mercedes SUV also in Watertown.

    Digital evidence relating to Tamerlan's trip to Russia in 2012 was briefly discussed and it was mentioned that full copies of an edition of "Inspire" magazine had been downloaded onto both the Samsung and Sony laptops immediately prior to Tamerlan's departure from Cambridge. Following this revelation the bulk of Fick's questions were aimed at illustrating the diffences between the Tsarnaev brother's online activities and that all that might be considered incriminating could be credited to the elder brother. The most notable information obtained from Spencer's testimony was that Dzhokhar had made no internet searches related to the Boston Marathon or indeed "bombs" prior to the bombing of that event. Most of Dzhokhar's online activity comprise of viewing of Facebook, VK and movies.  In contrast Tamerlan had made multiple searches on topics such as the Boston Marathon, detonators, fireworks and gun stores in the weeks preceeding the bombing. Instructions on how to make bombs were discovered on Tamerlan's laptop but not on that of his younger borther.

    The conclusion of Spencer's testimony focused on the hard drive recovered from the Mercedes and Patriot thumb drive. These devices contained  some content which might be considered "radical" and included lectures by al Awlaki which had been downloaded over the original content. The original content was comprised of music and homework assignments.  Fick was able to establish that Spencer considered Tamerlan to be the most recent user of both the hard drive and the thumb drive and that the thumb drive had latterly been connected to Tamerlan's Samsung laptop.

    Aloke Chakravarty conducted cross examination of this witness for the prosecution. His questioning of Spencer was brief but gained an admission that the electronic devices could have had multiple users and that it was not possible to prove who viewed what on which device. Chakravarty also asked Spencer if he was aware that there are records to suggest that the defendant purchased a computer which has not been found. The defense objected to this line of questioning but this objection was over-ruled by Judge O'Toole. Spencer then responded that he had not been aware of this. Morning break was at 11.00 am.

    At 11.20 am Mark Spencer returned to the witness stand and was questioned once more by William Fick who queried the lack of dates on some of the data. Spencer's responce was that not all information was stored and that there were occasions when times and dates would be irretrievable. He stated that "the tools are not perfect." Chakravarty cross examined briefly again extracting affirmation that it could not be proved with certainty which brother had searched and for what at any given time. At this point Spencer was informed that he could leave the stand.

    At 11.35 am the defense called their fourth witness, Elena Graff, who works for the FBI at their lab in Quantico and is an expert in fingerprint analysis and Timothy Watkins prepared to question. Having elicited from this witness her professional qualifications Watkin's posed many questions as to whose fingerprints were found on which pieces of evidence. Over eight hundred fingerprints were analyzed in this case and were compare with known prints including those of Tamerlan and Dzhokhar Tsarnaev. Graff's testimony was somewhat lengthy and for this reason I will summarize:

    Tamerlan Tsarnaev's fingerprints, (and in some cases palmprints), were found on much of the evidence which was submitted for analysis whereas Dzhokhar's prints were discovered on very little of this evidence. The older Tsarnaev's prints were found on evidence recovered from both bomb sites, the lid from one of the pressure cooker bombs, tools recovered from the apartment at Cambridge Street, (which is actually not surprising even if these tools were not used in the manufacure of bombs), several rolls of duct tape and a jar containing nails and metal. His younger brother's were not. Neither brother's prints were found on the remnants of a backpack alleged to have contained the bomb which was detonated at "The Forum" restaurant. Both brother's prints were found on a plastic storage container, (identified by some as the "Tupperware bomb"), and it was stated that two of the prints on this item belonged to Dzhokhar and six to Tamerlan. 

    During Timothy Watkin's questioning of this witness I twice observed Dzhokhar Tsarnaev writing and passing notes to a member of his legal team. These notes were taken to Watkins who paused to read them. Throughout the day the defendant seemed more focused on proceedings than he has appeared to be previously. (With the exception of two previous occasions during testimony of witnesses for the prosecution.) Several jurors appeared to be busily taking notes during this testimony.

    William Weinreb's cross examination of this witness was relatively brief and his main focus was to ascertain that fingerprints are indeed fragile, can easily be removed and that it is possible for an individual to touch an object without leaving a print. Neither the defense nor the prosecution had any further questions for Ms. Graff.

    At 12.30 pm Judy Clarke stood up and announced that the defense had called their last witness during this phase of the trial but added that she would now like to show the court and the jury a series of photographs. William Weinreb stood up immediately to object loudly.

    A "brief" recess was immediately ordered by the judge and judge, jury and both legal teams left the courtroom. By 12.50 pm the defense were back in the courtroom to be followed, five minutes later by the prosecution, judge and jury. A five minute sidebar was then followed by the judge's announcement of an hour's break for lunch.

    Proceedings after lunch were as follows:

    At 2.00 pm there was a fifteen minute delay to be followed by a five minute sidebar. At 2.20 pm the judge called for a fifteen minute recess which was followed by yet another sidebar. The jury re-entered the courtroom at 2.50 pm and Judy Clarke stood to announce that the defense would now rest their case and that no photographs would be shown. Following this it was stipulated that "the victim of offense count seven was a foreign national and not a US citizen." (This reference was to bombing victim Lingzi Lu.) Judge O'Toole then informed the court that closing arguments will take place on Monday, 6th. March followed by jury deliberations. This was followed by another brief sidebar and court was adjourned at 3.00pm.


    We can but speculate what the photographs Judy Clarke had intended to show the court might depict? Whatever the answer may be it is obvious that it was important to the prosecution that these photographs not be shown. At least two hours were spent negotiating this issue and however it was resolved the defense seemed very happy with the outcome. The prosecution? Not so much...

    Update: News in that the prosecution seek to add another to their team: Connecticut AUSA Tracy Dayton.


Monday, March 30, 2015

Official "Forum video": where's the baby buggy?

The government has published a few post-blast stills of the Forum video as part of the trial. The above picture is one of them, taken 30 seconds after the blast. As blurry as it is, it distinctly shows a big item on the sidewalk directly in front of the entry area of the Forum. It looks like some metal rods composed to a frame. I have highlighted the item within the colored square.
A closer look invites to the conjecture that the item might be a baby buggy. And amazingly, a review of post-blast footage reveals exactly that. Three photos and one video are sufficient to show.

Photo A. You can see a black wheel just left of the tree. It is a wheel typical for a baby buggy. Looking more closely, you can also recognize a part of a second wheel. The photo was shot at about 1:25 minutes after the blast.

Photo B. This Bill Hoenk photo catches a view from the front, just like the Daniel Robert video. The red backrest/headrest is recognizable just left of the tree. Time: about 3:40 minutes after the blast.

Photo C was created only a few seconds before Photo B. It delivers by far the best view, high resolution and full profile. The buggy is between the road sign and the red-jacket runner.

The buggy's location is very close to Dzhokhar Tsarnaev's location in the official pre-blast Forum video. So expectations seem to be justified to get to see a buggy in the video, but they are disappointed. Neither at the point of the explosion, nor one minute before, nor in between there is a buggy at the same spot as in the post-blast stills and photos, not even close to it. There is simply no buggy in the official Forum video.

Why is there a baby buggy in the post-blast footage, but no baby buggy in the pre-blast footage?

Sunday, March 22, 2015

Kevin Cullen distorts testimony of Bill Richard

The Boston Globe's chief reporter in the Tsarnaev case, well-reputed journalist Kevin Cullen, has enjoyed many recommendations for his dense twitter covering of the trial. But on March 5th he made a serious and significant mistake, qualifying as a big blunder at best and a deliberate misreporting at worst.

On this Thursday, the second day of testimonies, Bill Richard, father of deceased 8-year-old boy Martin Richard, entered the witness stand and told the jury the sad story about how his family experienced the second bomb blast. He described how his son Henry pointed him to his heavily injured daughter Jane, and how he walked towards her, picked her up and carried her onto the street.

There's just one problem with these tweets: the location. Richard didn't testify that Jane was by the tree, at least not according to the majority of reporters. Most journalists don't mention the location at all, but some do, and with the exception of Cullen, they locate Jane by the mailbox. This is reported by WCVB's Kelley Tuthill, probably the most reliable source in the courtroom:

Here are the corresponding tweets from Alysha Palumbo and Gail Waterhouse:

Another source is the New York Post:

Here's another article by Danika Fears:

That's 4:1 against Cullen, and court documents will certainly confirm the majority of observers. Yet Cullen went on to plant his fallacious "tree" version into a Globe article:

Pointing out the tree/mailbox discrepancy is not a quibble. The issue comes with a punchline. It is stunning that Cullen, despite blatantly misreporting this detail of the Richard testimony, actually seems to have reported factually correct: that Bill Richard picked up his daughter next to the tree - not "by the mailbox". In other words: Richard's memory seems to have betrayed him, and his wrong recollection was kind of adjusted by Cullen.

These three stills from the Forum video, just published by the Department of Justice as exhibits, show how a man - supposed to be Bill Richard - bends down to the ground near the tree and has a little child on his arm six seconds later - supposed to be Jane Richard.

Exhibit 21-1

Exhibit 21-2

Exhibit 21-47

The man does not walk towards the mailbox, and it wouldn't have made sense anyway, because there is no little child lying by the mailbox, as these photos, shot from a different perspective, show:

photo: Bill Hoenk

photo: Kenshin Okubo