Playing by the Rules (No More Mr. Nice Guy)

Knowledge is Power

We, the people, have more power than we think. Now that we know, thanks to the Boston Marathon bombing trial and others like it, how largely corrupt are the courts, attorneys and government officials in our once-great country, we must educate ourselves. The days of the docile spoon-fed jury are over.

The System Behind the System

Anyone who ever held a job that included employee benefits in addition to a salary went through a process of enrollment in those benefits. Anyone who enrolled in their benefits likely had many questions during that process. Anyone who called their benefit administrator with questions, if working for a big enough company, may have talked to me.

I worked in the call center of a global benefits administration outsourcing company for years. It was the most knowledge-intensive job I ever held. The complexity of benefit plans lies not so much in the basics of how benefits work when one is going through enrollment but later – when life begins to happen and benefits need to be applied to real-life situations. That is when it gets dicey.

Anyone who has ever worked in a call center knows that the pressure is unrelenting to get the caller on and off the phone in as little time as possible. In order to fulfill this requirement, get raises and stay employed, representatives cut corners i.e. sacrifice helpfulness and quality. The pervasive attitude is “Let the next rep that gets this caller when they call back explain what I left out or said incorrectly.”

One-call resolution – companies like the one I worked for said they desired it. However, the hidden system-within-the-system was set up and maintained to make this all but impossible. If only I had known this on day one.

I have always been a black and white, distill-it-down-to-its-purest-form type person when it comes to analyzing information. This was never more apparent than when I began working for the company which shall remain nameless. And it was, I came to find out much too late, never more unappreciated by and threatening to the status quo.

After a period of months I got just enough knowledge under my belt to realize how badly written the databases were that we accessed and searched all day every day while answering calls, handling questions from plan participants and taking action on their behalf. Health plans: medical, dental, vision, all forms of life insurance, disability, you name it – we had to be experts about it – and quickly.

My middle name is Quality. It’s in my DNA. It’s how I do things. It’s never going to change. My callers loved that about me; my bosses hated it. You probably already know where this story is going.

Falling Out of Favor

I studied hard to become knowledgeable and it showed. After only six months I was ranked #26 in quality out of 500+ reps across all teams in the building. On my team I was ranked #1. Each month the high-ranking were announced and celebrated.

The month I was #1 on my team this practice was inexplicably suspended and I was told (privately) of my superior ranking by the manager who would end up spear-heading the move to get rid of me. In subsequent months the public celebrations began again.

Jealousy is a terrible thing and the reasons to hate me and want me gone were about to increase: I began to rewrite the database information for my own benefit and handle calls using the tools I had created. This, I found out, was a big no-no.

Paperless Means Paperless

Being of the pen-and-paper generation, I sometimes fail to appreciate the age of technology and instant messaging. This company liked its paperless environment. I bucked that system with all that was in me. Some habits die hard, as we all know.

Those who read my blog know I can write. I say that without conceit for false modesty is just as bad as arrogance in my opinion. One day, I innocently showed a very tenured colleague a procedure I had rewritten just to confirm my accuracy. What I took to his desk was a short article about a procedure that came up on call after call for a particular company. Each time it did, I wasted so much time finding, reading and trying to understand this badly-written information before I could even begin explaining it to my caller. Finally, I got tired of doing so and just rewrote it.

My very tenured colleague was, in a word, astounded by the clarity, brevity and, yes, accuracy of what I had created. He, in turn, took this to the manager in charge of the database information who was equally impressed. To make a long story short, I was asked to write a few test articles. When I did so with the same quality, I was given the job of rewriting all of the databases for our entire team.

This was unheard of: how could someone with a high school education who had never worked in benefit administration before (remember time on job was six months) be this good?

I now had a much-sought-after assignment that tenured associates assured me would open doors to a higher position on any team I wanted after its completion. In addition, I now had a target on my back.

Let the Fun Begin

I’ll cut to the chase so I can get back to talking about Dzhokhar and the trial. Here’s the important takeaway: Companies like the one I worked for bid for contracts to handle the benefits for other companies. It’s very competitive. When they price their bid, they account for a certain number of mistakes to be made by the reps on the phones. These mistakes create a need for all kinds of behind-the-scenes positions that are filled by people who all make more (sometimes significantly more) money than the people answering the phones. (This is not a unionized situation in case you were wondering.)

In order for those mistakes to happen frequently enough to keep all these other highly-paid people employed, the databases must remain badly written. The confusion must not be eradicated. It is, sadly and shockingly, really that simple.

So – with no evidence presented linking Dzhokhar to the crimes for which he was accused, just how did the jury find him guilty on all thirty counts?

Before the trial began the defense complained about and tried to get duplicate charges removed from the Indictment but to no avail. When I read the 30-count Indictment sent to the jury I felt like I was back at my old job in benefits administration.

I originally planned to blog about each of the 30 counts one at a time. By the time I got to Count 8, I was done in. I could only imagine how the jury felt. I can picture them having a collective feeling that the words were all beginning to run together…

Imagine having that feeling when where you place your check mark on a form you don’t totally understand determines whether someone lives or dies…

If ever it was important for the one who wrote the Indictment to “know thine audience” it was then. But in fact, I suspect the person who wrote the Indictment did know their audience and knowing the jury is not made up of attorneys, wrote the charges in such a way to guarantee confusion, deception and above all a conviction.

This, I strongly suspect, is the system within the system in our legal process. It must remain in place to facilitate as many wins as possible for the government.

The fact that the jury found Dzhokhar guilty of every count and marked “yes” for every question in every count is proof that they did not:

1) Listen during the trial
2) Read the Indictment with comprehension or
3) Care about the accuracy of their responses

It could also be proof that these twelve individuals were determined to assign guilt across the board no matter how unsupported their findings were by the evidence.

When I analyzed the benefits tools to rewrite them, I looked at them through the eyes of a new employee and kept my rewrites clear, simple and easy to understand. I knew my audience.

When I did the same with the 30-count Indictment, I looked at them as a lay person which, after all, is what I am. I could have been any and every person on that jury. Therefore, it was important that I not look at the Indictment through the eyes of an attorney for neither did they. My findings could have been their findings – if they had taken the time and care to do what I have done below.

I saw that it would have been important for the jurors to understand the following terms that were used repeatedly in the Indictment: conspiracy and aiding and abetting. I began by researching those. The explanation for aiding and abetting contained the phrase intent to facilitate so I looked that up too.

Taken from “Federal Rule of Criminal Procedure 29: A Nuts and Bolts Guide to Judgments of Acquittal for Criminal Defense Attorneys,” an article written by John Balazs, Attorney at Law:

1. CONSPIRACY Cases
“It is not a crime to be acquainted with criminals or to be physically present when they are committing crimes.” United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001). “The inferences rising from keeping bad company are not enough to convict a defendant of conspiracy.” United States v. Wexler, 838 F.2d 88, 91 (3rd Cir. 1988). “Guilt of a conspiracy cannot be proven solely by family relationship or other type of close association.” United States v. Ritz, 548 F.2d 510,522 (5th Cir. 1977).

A defendant’s “participation in a scheme whose ultimate purpose a defendant does not know is insufficient to sustain a conspiracy under 21 U.S.C. & 846.” United States v. Sliwo, 620 F.3d 630, 633-34, (6th Cir. 2010); accord United States v. Boria, 592 F.3d 476, 481-82 (3d Cir. 2010); United States v. Rodriguez, 392 F.3d 539, 545-46 (2nd Cir. 2004).

From “United States Courts for the Ninth Circuit” Manual of Model Criminal Jury Instructions:

5.1 AIDING AND ABETTING

To find a defendant guilty of a crime by aiding and abetting, the government must prove each of the following beyond a reasonable doubt:

1. The crime was committed by someone.
2. The defendant aided, counseled, commanded, induced or procured that person with respect to at least one element of the crime.
3. The defendant acted with the intent to facilitate.
4. The defendant acted before the crime was completed.

FACILITATE – Make an action or process easy or easier

The Supreme Court has stated that the federal aiding and abetting statute has two primary components: “a person is liable if (and only if) he 1) takes an affirmative act in furtherance of that offense 2) with the intent of facilitating the offense’s commission.

When information is poorly worded and provides the reader with too much information in a confusing manner, it is important to look for and identify patterns.

All counts charging conspiracy begin like this:
As to Count (number) of the Indictment charging conspiracy…

The conspiracy charges are then further broken up:
As to Count (number) of the Indictment charging conspiracy
1) to use a weapon of mass destruction (Count 1)
2) to bomb a place of public use (Count 6)
3) to maliciously destroy property (Count 11)

All counts charging that Dzhokhar used or carried a firearm begin like this:
As to Count (number) of the Indictment charging that the defendant used or carried a firearm…

All counts charging Dzhokhar with the actual bombing begin like this:
As to Count (number) of the Indictment charging use of a weapon of mass destruction…

All counts charging Dzhokhar with the actual bombing are separated according to each individual bomb and location where placed:
1) Pressure Cooker Bomb 1 – on Boylston St.
2) Pressure Cooker Bomb 2 – on Boylston St.
3) Pressure Cooker Bomb 3 – on Laurel & Dexter
4) Pipe Bomb 1 – on Laurel & Dexter
5) Pipe Bomb 2 – on Laurel & Dexter
6) Pipe Bomb 3 – on Laurel & Dexter

Then there are the separate counts for the following:
1) Malicious destruction of property
2) Carjacking
3) Interference with commerce by threats or violence

And that pretty much rounds out the guest list.

The jury had to first consider whether or not the defendant was guilty or not guilty of the action in the first part of the count – question 1. If they found him guilty of question 1 of the count they were to proceed to question 2 and answer yes or no for that question and any others that followed in that count.

This is where it got revealing. This is where I saw proof of stupidity, proof of bias, proof of an arrogant and misplaced belief that no one would notice or care anyway what they marked on the form as long as the jury found him guilty, proof of desire to convict him of everything no matter what the evidence said.

The best and most laughable examples are to be found in the group of charges that Dzhokhar used or carried a firearm. If the jury really was smart and wanted to get away with finding Dzhokhar guilty without arousing the suspicions of people like me they would have found him not guilty of the following counts: 3, 5, 8, 10, 13, 15, 16, 17, 18, 20, 22, 24, 26, 28 and 30.

Folks, that’s 15 of the 30 counts!

If the jury wanted to at least appear to have paid attention during the trial and wanted to at least appear not to have been biased, they would have marked all fifteen of these counts “not guilty” which would have meant they were supposed to skip going on to any subsequent questions after question 1 of those counts.

Fact: No evidence was ever presented during the trial that showed Dzhokhar ever had possession of a firearm or that he used one in the commission of any of the crimes related to the Boston Marathon bombing. Period.

However, the jury still managed to find Dzhokhar guilty of using and/or carrying a firearm when it was never proven or even hinted that he did. Where it gets really shameful and comical is when they not only found him guilty of using or carrying a firearm but when they answered the subsequent questions. Here is one of the best examples of absurdity:

COUNT THREE:

1. As to Count Three of the Indictment charging that the defendant used or carried a firearm (Pressure Cooker Bomb #1) during and in relation to a crime of violence, namely, use of a weapon of mass destruction as charged in Count Two of this Indictment, and aiding and abetting, we unanimously find the defendant, Dzhokhar A. Tsarnaev:

Not Guilty – Guilty
If guilty, proceed to Questions 2 – 4. If not guilty, proceed to next Count.

So let’s break that down:
The charge is that Dzhokhar used or carried a firearm. We know this was not proven so Not Guilty was the only finding supported by the evidence here. Since the jury (remember the form says the finding of guilty or not guilty has to be unanimous) found him guilty of using or carrying a firearm they went on to answer yes or no to questions 2 – 4:

2. They said yes that the firearm was discharged.
3. They said yes that the firearm was a destructive device.
Here’s the biggie, the one that will really make you laugh (or cry) when you read it:

4. They said yes that in the course of committing the violation alleged in Count Three (remember the violation alleged in Count Three is using and carrying a firearm) the defendant caused the death of Krystle Campbell through the use of the firearm, and the killing was a murder, or aided and abetted another in causing the death of Krystle Campbell through the use of the firearm, and the killing was a murder.

Saying yes (unanimously) to the above is absolutely, embarrassingly preposterous! There is no way the jury even read this. They had to have just checked off all the boxes without giving it careful thought. If they did give it thought that is even more incredible to contemplate for it would mean the jury believed, unanimously, that they had seen and heard evidence that Dzhokhar carried a gun and used it to kill Krystle Campbell!

Krystle Campbell died from wounds received when a bomb exploded. She was not shot to death.

When people have something to hide, they hide it in an abundance of words. Let’s look at how this count was deliberately worded and structured in order to mislead the jury.

As to Count Three of the Indictment charging that the defendant used or carried a firearm (Pressure Cooker Bomb #1) …

STOP RIGHT THERE!

So as previously stated, this count is about whether or not the defendant (Dzhokhar) used or carried a firearm. In order to make the jury forget that it is, the writer immediately follows the word firearm with (Pressure Cooker Bomb #1). All of the words after the word “firearm” have to do with describing the crime of the bombing. Therefore, when you get down to answering guilty or not guilty, it is likely all you are going to remember, given that the lions’ share of what you just read filled your head with thoughts about the bombing, is the phrase (Pressure Cooker Bomb#1) + death of Krystle Campbell = “guilty!”

Don’t believe me? Let’s look at questions 2 – 4 and what they talk about:

2) As to whether the firearm charged in Count Three (Pressure Cooker Bomb #1) was discharged, we unanimously find No – Yes

They insert the words (Pressure Cooker Bomb #1) again to keep the jury thinking about the bombing and not the firearm that this count is really about. Remember, bombs detonate, guns discharge and there was never a testimony, video or news story saying shots were fired at the marathon!

3) As to whether the firearm charged in Count Three (Pressure Cooker Bomb #1) was a destructive device, we unanimously find: No – Yes

I find it hilarious this question is even on the form. It’s really nothing more than asking if guns are dangerous… well duh…

4) As to whether the defendant, in the course of committing the violation alleged in Count Three, caused the death of Krystle Marie Campbell through the use of the firearm, and the killing was a murder, or aided and abetted another in causing the death of Krystle Marie Campbell through the use of the firearm, and the killing was a murder, we unanimously find: No – Yes

Here is where you see the reason they kept inserting the phrase (Pressure Cooker Bomb #1). By the time the jury got down to question 4 it was embedded in their overworked and overwhelmed brains to connect Pressure Cooker Bomb #1 with the death of Krystle Campbell, not the firearm, when the question is plainly asking if a firearm was discharged and used to murder Krystle Campbell.

In regard to the three counts of conspiracy (1, 6, and 11):
1 – conspiracy to use a weapon of mass destruction, 6 – conspiracy to bomb a place of public use and 11 – conspiracy to maliciously destroy property the government did not prove, or even strongly attempt to prove prior knowledge or involvement when it came to Dzhokhar and the actions he took or did not take. Receipts and phone records were presented to prove his lack of involvement. Tweets and website visits, when revealed for what they really were, also supported his lack of involvement in the planning stages.

Instead the government appeared to be leaning heavily on the aiding and abetting angle. For this reason I would have expected an intelligent and unbiased jury who had paid attention during the trial to vote “Not Guilty” for the three conspiracy charges. This, sadly, was not that jury.

When it came to the six bombing charges (counts 2, 4, 23, 25, 27 and 29) the color of Dzhokhar’s clearly visible backpack should have guaranteed a finding of “Not Guilty” for counts 2 and 4.

As video of the firefight in Watertown where it was alleged the other bombs were lobbed at police was so poor in quality and law enforcement testimony regarding the bombs was unreliable, counts 23, 25, 27 and 29 should have been given a finding of Not Guilty. There was plenty room for reasonable doubt.

Malicious Destruction of Property and Interference with Commerce by Threats or Violence did not, if I recall correctly, carry the death penalty.

That left the carjacking count (Count 19) and there is so much to dispute and disprove the story by the government witness that a finding of Not Guilty for this count should have been guaranteed as well.

The jury needed to understand and remember that it is not enough to secure a finding of guilt for aiding and abetting due to a defendant simply “being there.” This however, most certainly slipped their minds, if it even entered into their thinking in the first place, when they moved to deliberation.

The aiding and abetting factor lay behind the government’s push to convince the jury that Dzhokhar procured the gun from his friend in order to supply his brother with the means to carry out the crimes related to the Boston Marathon bombing. Though Dzhokhar’s friend did testify to giving Dzhokhar the gun, he did not testify that Dzhokhar wanted it for his older brother or that he wanted it to commit crimes of terrorism related to the Boston Marathon. He stated he wanted to borrow it in relation to his own drug dealing business. The testimony did not accomplish what the government intended, yet when all was said and done, evidence and testimony had nothing to do with how the jury voted.

Jurors must be suspicious of complexity. When reading a jury form, complexity helps to accomplish a hidden agenda. The extra language found in each and every count of the Tsarnaev Indictment contains what I used to call “fluff” back in my benefits administration days.

Fluff is not your friend and does not aid understanding. It makes things sound more complicated than they really are or need to be. The high-sounding language of “fluff” leads to mistakes.

In this trial, in this instance, the mistakes that may have been caused by “fluff” (if one is so inclined to give the jury the benefit of the doubt) cost Dzhokhar Tsarnaev his freedom – for the time being. However, I have it on good authority that those mistakes will be corrected. Those mistakes will not ultimately cost him his life.

We must and we will continue exposing the travesty that was this trial, knowing that Almighty God is also at work bringing to ruin and removing from their positions of power and authority all those who believed they could orchestrate this travesty and walk away unscathed.

2 thoughts on “Playing by the Rules (No More Mr. Nice Guy)”

  1. You were definitely no sleeping juror Lynn….right on point. This blog is so true. Jahar was guilty in the jurors minds the day he stepped foot in court. He never had a chance. Verdict was read way before trial even started. Multiple accounts that were repeated. When you take a look at them I read like 5-7 counts. Others were all repeated. Unfair convictions. Plus the testimony of a witness ‘Silva’ that should have never taken the stand. This whole trial was biased. Needs to be retried…great writing Lynn. Impressive!

  2. You’ve got it so down pat Lynn. The verdict form was written with the same conspiratorial devious malice so prevalent in everything the prosecution did throughout this unconstitutional, unfair, one sided, joke of a trial.
    It was written just as you say, to confuse and force the already bias jurors to check every box. Dzhokhar didn’t have a chance from day one. This is how the evil and corrupt “justice” system works in the US, and those who do it very well are often rewarded. However, for the heinous participants that won’t continue in the afterlife, and rightly so. It’s all so shameful, with a young life languishing at ADX.

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