In what seems to me to be the definitive report on the November 12 status hearing on the Boston marathon bombing case, Karin Friedemann writes this: Judge George A. O’Toole, Jr. said about the Special Administrative Measures, which were suddenly imposed on suspect Dzhokhar Tsarnaev and his attorneys four months after his incarceration began, and which they were challenging at the hearing, that his court’s purview was “not whether SAMs are annoying but if they are limiting.”
By “limiting” Judge O’Toole meant compromising a defendant’s right to a fair trial by interfering with his communication with the legal defense team. By “annoying,” he meant the personal restrictions on Tsarnaev, specifically mentioning the ban on group prayer with other Muslims. He did not rule on the limiting part, but simply asked the attorneys to negotiate what additional defense team personnel could be allowed to interact with the defendant. As to annoying, he recommended that that be handled in a civil suit brought by a third party.
Annoying. That is what Judge O’Toole evidently thinks is wrong with solitary confinement and denial of human contact except for minimal communication with blood relatives. That is what he thinks of the practice that the United Nations Special Rapporteur on torture has said is close enough to torture that it should be banned “except in very exceptional circumstances and for as short a time as possible.” The ACLU’s brief on the matter was similar, but of course the good judge took care of that by expunging it from the record.
Just who is this guy?
Well, it is easy enough to find out such data as that he was appointed to the federal bench by President Clinton in 1995, where he got his degrees, etc., Which does not tell us much. What about his record?
For one thing, if the Tsarnaev legal defense expects him to actually rule on such points of its motions as lifting the ban on mentioning anything Tsarnaev said to a third party, it could have a long wait. He has yet to rule on a case where he heard the closing arguments in February, 2011, on whether a police promotional exam’s questions discriminate against minorities, even though Boston officials have pleaded that the delay is holding up the police advancement process.
But of course O’Toole was also the trial judge who oversaw the 2012 conviction of Tarek Mehanna on highly controversial terrorism-related charges, and then sentenced him to 17.5 years in prison followed by 7 years supervised probation. According to Rick Hplmes the severity of Judge O’Toole’s sentence was dictated in part because Mehanna’s statement at the sentencing, widely praised elsewhere for its eloquence and passionate honesty, did not express sufficient “remorse” for his actions (which included such nefarious examples as translating the articles of parties fighting the US invasion of their lands into English).
In principle I should probably study the Mehanna trial record to see just where Judge O’Toole’s rulings on objections and the like helped or hindered the government’s case. (It seems that the jury was shown a video of 9/11, with which by common consent Mehanna had nothing to do, and one would like to know how that got in. To be sure, O’Toole didn’t make sufficient legal errors to get the case thrown out, as Mehanna’s appeal was denied earlier this month.) Anyone who wants to do so is invited to enter pertinent discoveries in the comments below. However, I’ve seen enough to persuade me that Judge O’Toole is bad news for Dzhokhar Tsarnaev.
(And btw he excluded the ACLU’s brief in that case, too.)
I don’t suppose the defense can do anything about O’Toole’s overseeing the case. And I don’t suppose his pre-trial decisions are subject to appeal until after a trial which is hypothetical to say the least (because, as I have argued previously, the point of the SAMs is to break Tsarnaev to the point where he will agree to a plea bargain). But at the very least all concerned people should keep their eye on the man.