Tsarnaev Case Judge: FBI Interview Reports Are Unreliable—And Cast in Stone

FBI interview reports were used in Dzhokhar Tsarnaev’s trial instead of witness testimony. Tsarnaev has been sentenced to death. Photo credit: FBI.GOV
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The Federal Bureau of Intimidation?

The presiding judge in the case against convicted marathon bomber Dzhokhar Tsarnaev warned jurors last week against automatically assuming the reliability of FBI interview reports.

US District Court Judge George O’Toole’s admonition inadvertently bolstered long-standing criticisms of FBI interview practices—that the FBI creates its own “truth” by refusing to electronically record interviews, and then forcing witnesses to go along with it using threats of jail time under the federal “making false statements” statute.

His warning came after he took the unusual step of allowing Tsarnaev’s defense team to read aloud FBI witness interviews, known as “302 reports,” from two of older brother Tamerlan’s friends. The defense team, as part of their “mitigating factors” strategy, read selected excerpts of the reports in order to show that Tamerlan was “radicalized” long before Dzhokhar was. Much of the partially redacted 302 reports were not read in court.

This unusual “testimony” was allowed because the two witnesses refused to testify in person. One invoked his Fifth Amendment right against self-incrimination, while the other witness just plain went missing. And in the penalty phase of a death penalty trial, the rules of evidence are more relaxed than in the guilty-or-not-guilty phase.

O’Toole advised jurors that FBI 302 reports are not “verbatim transcriptions of the conversation, but summaries, and they may be made from the agents’ notes and then put together in a report either that day or perhaps the next day.”

In fact, the resulting report is a summary of an FBI agent’s interpretation of what was said during an interview—not what was actually said. Even assuming complete good faith on the part of the interviewing FBI agents, anyone familiar with the parlor game of “telephone” could guess what might go wrong here—particularly if the summary report were written “the next day.”

What O’Toole said next pointed to a kind of Catch-22 in FBI procedures that seems designed to intimidate interviewees into supporting the Bureau’s version of what happened.

The judge told jurors that, “It is a federal crime to impede a federal law enforcement investigation by giving false information, but a witness interviewed under these circumstances is not placed under oath, as a witness in the courtroom would be.”

Judge George O’Toole admitted FBI interview reports in lieu of witness testimony, though the reports are third-person summaries of the events that led to Tsarnaev’s death sentence. Photo credit: US District Court

Judge George O’Toole admitted FBI interview reports in lieu of witness testimony, though the reports are third-person summaries of the events that led to Tsarnaev’s death sentence. Photo credit: US District Court

In other words, although 302 reports are actually the interviewer’s summary of what happened during an interview, the FBI nevertheless has the power to prosecute an interviewee for “making false statements” if he or she contests what an agent has written down.

Just how imperfect can those 302 summaries be? That’s hard to say, because the FBI refuses to electronically record interviews under most circumstances. Instead, agents work in pairs—one does the questioning while the other takes written notes.

In an age of the ubiquitous smartphone and with the ever-expanding proliferation of recording technology, this may strike observers as odd. Wouldn’t FBI agents want an indisputably accurate record of what was said?

Actually, they don’t. And the stated logic undergirding the non-recording policy is particularly troubling to critics.

An internal FBI memo made public by The New York Times spells out the policy’s reasoning. Here’s an excerpt:

“[A]s all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.”

In other words, if the actual interview were presented to juries, agents’ interrogation techniques may come across as unfair or coercive to lay people, according to civil liberties advocate and longtime critic of the FBI policy, attorney Harvey Silverglate. He writes:

“[W]hat the agency leaves unsaid is that human experience demonstrates that coercive and misleading tactics have a tendency in some situations to produce false rather than true testimony. Therefore, rather than risk such juror skepticism in response to a verbatim recording, the FBI feels that a jury will more likely be led to the FBI’s version of the truth by reading an FBI agent’s form 302 than by listening to the actual interview.”

Even more insidiously, as O’Toole noted in his warning, witnesses are not “placed under oath, as a witness in the courtroom would be.” Nor are they informed that what the interviewers later write down can become a de facto transcript of the witness’s own statement.

This is where the “federal false statements law” comes into play. According to Silverglate, the federal statute known as Section 1001 “provides that it is a felony, punishable by up to five years in prison, to make a material misstatement to any member of the federal government.”

He says this creates “tremendous pressure” on a witness to testify “consistently with what the 302 report claims he told the agents when interviewed.” It works like this:

“When the feds suspect that a witness might tell a tale at the grand jury or at trial that is inconsistent with the prosecution’s favored factual scenario, the prosecutors will usually show him or his lawyer the 302 report. It becomes clear to the witness that he either must stick to the 302 version, or else risk a false statement or perjury charge when he testifies differently under oath.”

And as an example of the sort of “misleading” trickery that can be obscured by the FBI’s non-recording policy, interviewing agents are under no obligation to warn their interviewee, as arresting officers must in accord with the familiar “Miranda” rule: “anything you say can and will be used against you in a court of law.”

Could that be why the two witnesses interviewed in the 302 reports refused to show up at Tsarnaev’s trial?

To read more about the FBI’s apparent “war on witnesses” in the Boston Marathon bombing investigation, read here and here.

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19 responses to “Tsarnaev Case Judge: FBI Interview Reports Are Unreliable—And Cast in Stone”

  1. Elisabeth Ritter-Blaser says:

    The FBI clearly does operate in a Mafia-like manner. The FBI or the ‘Federal Bureau of Intimidation’ should be investigated independently, certainly not by the U.S.Government or themselves. Maybe the international human rights watch?…..If they would have the guts. Dzhokhar Tsarnaev was sentenced to death under dubious circumstance. The U.S.Government sought the death sentence from the very beginning, so it is no surprise that Dzhokhar has gotten what they have sought for him. So the U.S.Government cannot admit to their wrongdoing by blaming and sentencing a young man to death. I do pray that the full truth is coming to daylight and that all those who are responsible for threatening defense witnesses, of ‘vanishing’ exculpatory evidence (for example anything sealed or not shown to court), and that all those who were bribed and have lied are coming to justice. The Federal Bureau of Intimidation is as unto a criminal syndicate.

  2. JayGoldenBeach says:

    “… liberty and justice for all” is just a cynical sound bite.

  3. closetothetruth says:

    your persistent hammering of this story makes the rest of your important website lose credibility.

    the very fact that the judge cast any doubt at all on FBI testimony demonstrates his impartiality, in a process that you elsewhere assert to be entirely corrupt.

    there are witnesses and reporters present in the courtroom. If Tsarnaev did not believe himself to be guilty of a death penalty offense, all he would have to do is to stand up AT ANY POINT and say his counsel is lying, misrepresenting him, and that he is innocent. The judge would HAVE to declare a mistrial. period.

    I am not saying that everything about this case is above board, clear, or as the government says it is. But the fact is that it is truly hard to imagine a scenario where “the government” has been able to threaten Tsarnaev to allow his lawyer to lie in a case where he is sure to receive the death penalty. even something as outrageous as death threats against his family really don’t make much sense when you think about it. And we have precious few cases of “the government” coercing suspects and lawyers into pleading guilty to death penalty offenses when they have nothing to do with the crime. Further, despite the ravings of Jim Fetzer and others, the payoff for the government to have set all this up is just miniscule at best. It has accomplished nothing; it has advanced no political agenda; it has put in place no new terrorism laws. “Your mother/sister will die in what appears to be a suicide if you insist on your innocence.” really? If I were Tsarnaev and I knew myself to be innocent, I’d have every reason to take my chances. For god’s sake, the evidence against him, as you yourself say, is not that strong–he’d have a pretty good chance to be found innocent, *were* he innocent, and then “accidental deaths” to his family members would be great fodder for sites like this one.

    Ergo, Tsarnaev himself believes he did it, despite all the theorizing you and others do.

    JFK, 9/11, many others, I am with you. Boston bombing, Sandy Hook, the moon landing (not that you promote this one, but someone I mention above who is obsessed with this case does, as well as a certain WWII event about which his arguments are shockingly thin): these things discredit the real work you do elsewhere. They fail the Occam’s razor test, and besides that, they are based on very thin (in my opinion, entirely unconvincing) evidence of wrongdoing that are *all over* the real conspiracy stories.

  4. sk1951 says:

    One person died…maybe…his brother.

  5. oh_look says:

    Not much anybody can do for Dzhokhar at this point. The government won. The appeals process will likely be as rigged as the rest of the trial.

  6. OCCUPY FEARRINGTON says:

    TWA 800 CRASH? “A pilot who flew Obama questions the TWA 800 story

    Andrew Danziger, NY Daily News – There are many reasons to disbelieve the official explanation of what happened to TWA 800 almost 19 years ago, on July 17, 1996, off the South Shore of Long Island. There’s hardly an airline pilot among the hundreds I know who buys the official explanation — that it was a fuel-tank explosion — offered by the National Transportation Safety Board some four years later….

    After the explosion, more than three dozen witnesses reported they’d seen contrails going up into the sky towards the plane; 18 of those people said they saw something coming up from the water, rising to meet the plane…

    The FBI only summarized the interviews in its reports; the witnesses weren’t permitted to see what was written or to review the reports, and the NTSB only received summary reports in which all personal information was redacted. And maybe most importantly, the witnesses — there were more than 700 of them — weren’t permitted to testify…

    Among those witnesses were people who attended a wedding on a beach in the Moriches, which was in progress at the time of the explosion. Some of them were recording the ceremony, their cameras trained on the wedding party with the ocean and sky in the background. Many of these people witnessed the explosion, and some said they saw something rising from the water.

    During the investigation, holes were discovered in parts of the aircraft skin that penetrated from outside in — evidence that an object, most likely a missile — had struck the plane. But when investigators began photographing that evidence, according to my former colleague who was there, the FBI told them to stop.

    Normally, air crash investigations in the United States are led by the National Transportation Safety Board. It is standard procedure to have investigators present who represent all of the interested parties: the NTSB and Federal Aviation Administration, the airline, the pilots union, the mechanics and the manufacturer of the airframe, engines and aircraft components.

    The FBI’s presence on the investigation team was unusual in any fashion, but for the agency to take the lead was unprecedented….

    Was it a terrorist attack — a precursor to 9/11, as has been widely suggested — or a U.S. military training exercise gone wrong?

    Sadly, we might never know. But as an experienced commercial pilot, I know this much: Planes do not blow up by themselves. I firmly believe that this plane was shot down. I also believe my friend when he says the FBI imposed limits on what investigators could and couldn’t analyze.”

  7. lofty1 says:

    Who within the power structure orchestrated this set up? They have gone to extraordinary lengths to silence this kid and continue to make sure that we will never have a chance to hear his side. They could easily discredit him. Why do they have to kill him?

    • oh_look says:

      There seems to be an element of revenge, against the entire family.

    • lofty1 says:

      There does seem to be that, as shown by how the relatives have been treated, with the exception of Uncle Ruslan, who immediately tried to distance himself from the brothers. However, I don’t think it is the main reason.

    • oh_look says:

      What do you think main reason is?

    • lofty1 says:

      I have no idea, but evidently he either knows something or they think he knows something that they do not want to get out.

    • jane24 says:

      The government went to great lengths, (and stooped very low), to achieve their desired death sentence. Makes you wonder what Tsarnaev knows…

    • lofty1 says:

      My guess is it could be something as simple as being able to reveal who told the brothers to be there that day. He doesn’t seem the type to be privy to much more than that.

    • jane24 says:

      Thinking could very well be as you suggest, lofty1. Would be enough.

  8. oh_look says:

    They set up the system so it’s tails they win and heads you lose. Don’t ever talk to FBI without a lawyer present.

    It’s hard to imagine that Clarke will do any better for Tsarnaev if she does the Appeals, since she is the one that started the entire trial off by condemning her own client. I just cannot get over that.

    • jane24 says:

      Appellate lawyers for court of appeals. Not Judy Clarke et al. (Not that I am suggesting that this will necessarily improve Tsarnaev’s quality of representation.)

    • oh_look says:

      I spoke to Sydney Powell, who used to work for DOJ and has written a book about it. She is an Appellate Defense Attorney. She told me it would probably take Multi-millions for someone to come in from scratch (a new counsel) to work Tsarnaev appeals case.

      I also contacted the Innocent Project but they only work with cases involving exoneration through DNA.

      The problem is the Department of Justice (DOJ). The DOJ head, Eric Holder at the time, and the FBI head at the time, Robert Mueller, are said to have refused the Tsarnaev family independent counsel. Not sure how accurate that is, although it apparently came from the aunt. As you know, Holder announced his resignation shortly after members in Congress began process of impeachment, But he stayed in office right up ’til Tsarnaev was found guilty (funny timing).

      The Defense team was from Boston, except for Judy Clarke, whom the DOJ flew in to handle the case.

      This young man has been all alone throughout his ordeal with the U.S. justice system. For two years. All his witnesses were removed in one way or another. The Defense obviously talked him into going for LWOP and most likely fed him all kinds of positive feedback that Judy would get him off DP. They most likely told him there was “nothing they could do” because the Government held all the cards.

      In fact, according to the Aunt (Meret?) Judy Clarke and Fricks visited the family in the Caucasus (Dagestan?) and she said Clarke acknowledged at the time, 2013, that Dzhokhar was innocent, but they “couldn’t do anything”.

      85% of Boston wanted LWOP, because 99% believe he did exactly what the Government has told them he did.

      Boston Globe, Boston.com, and Boston Herald, among other mainstream media in Boston, must all attract the other 14% in Boston who want the DP, because comments, to their very biased articles, are some of the most venomous I’ve ever read.

  9. MarkTenneyNewMathDoneRight says:

    The FBI is now recording some interviews. The news reports are framed in terms of suspects. Witnesses is another issue.

    A major problem in intelligence cases is that FBI and JTTF agents simply don’t know enough about Russia to remember what was said. In an interview case I have heard of, the government agents said they could understand what the person said but could not repeat it. They are not specialists on Russian history in the last 20 years.

    The Moscow apartment bombings, Chechen wars of 1990s, etc. are things they need to work on. A random agent won’t know this history or more detailed specialist knowledge that is highly arcane.

    The FBI and JTTF are particularly weak in understanding the networks of academics and technical people both in hard technology and soft technology such as programming and banking and trading.

    As the FBI deals more with these areas, they need to record the interviews just so they can learn what the person said better by making a transcript and studying it and comparing it to others.