Introducing the Dzhokhar Doctrine of Nullity from Mismatch
by Mary W Maxwell, LLB
In a 2005 article in the papers of Northwestern University School of Law, entitled “What is Legal Doctrine,” Emerson Tiller and Frank B. Cross say:
“The conventional legal approach to the law is all about doctrine. Legal academics understand that the language of judicial opinions represents the law. The classical form of legal scholarship was doctrinal analysis, in which a researcher examined the content of a legal opinion and evaluated whether it was effectively reasoned or explored its implications for future cases.”
When I was in law school, I did not know what a doctrine was and assumed it was a policy, like the Monroe Doctrine (“The US does not allow any nation but itself to wield power in South America.”) Later I ran into legal doctrines that seemed to me unjustified, especially the “doctrine of judicial deference,” whereby the courts defer to the executive branch of government.
Only in recent years did I find that anyone could establish a doctrine. Here I intend to propose a doctrine derived from the Boston Marathon bombing case. The trial of the suspect, Dzohkhar (nickname: Jahar) Tsarnaev took place in federal district court in Boston in 2015. The doctrine I will propose will of course be generalizable to other cases. My tentative name for it is “the Dzhokhar Doctrine of Nullity from Mismatch,” or for short, the Dzhokhar doctrine.
Various Standard Doctrines
First, for background, here are some very standard, everyday doctrines used by lawyers. They do not replace the law. They seem to be understandings, often about procedure.
The doctrine of ripeness. An appeals court may decline to judge a matter if the parties have not yet exhausted other lower courts.
The doctrine of agency. If I have hired you as my agent, you can perform any of my duties on my behalf.
The doctrine of privity. A third party – “C” — cannot sue for the breach of a contract between A and B.
The castle doctrine. A man’s home is his castle.
Vicarious liability (Note: we don’t always say “the doctrine of” — the fact that it’s a doctrine being taken for granted.) An employer is liable for whatever his employee does on the job.
An Act of God. Most insurance companies will not pay for repairs of a building damaged by, say, lightning. The doctrine can be overridden by statute or by the wording of a contract.
Jury as fact-finder. Appellate judges may overrule a jury’s verdict, but will not usually question the facts as found by jurors.
Lawyers treat those things as principles, guides for where to go with your case.
The Tsarnaev Case – the Boston Bombing
Dzhokhar Tsarnaev is a US citizen on Death Row in Colorado’s maximum-security federal prison. He should not be there, as his trial was grossly dishonest on the part of, not least, his defense team. The prosecution brought evidence, of hilariously dubious quality, to demonstrate many points of which I shall list but five:
- On April 15, 2013 Jahar set a backpack down on the ground near the Marathon finish line and, wouldn’t you know it, it exploded shortly thereafter, killing 3 people.
- Twenty minutes later, he was video’d in a supermarket cavalierly buying milk, which proves his utter lack of moral compunction (they say) over the bombing.
- On the evening of Thursday April 18, 2013, he and his older brother, the late Tamerlan Tsarnaev, went to the campus of MIT to steal a gun from a cop. (Well, you would, wouldn’t you. I mean you wouldn’t, would you?)
- Shortly thereafter they carjacked a car. (Ditto the “you wouldn’t” bit.)
- Now safely equipped with both a carjacked car and their old gun (as the gun heist at MIT did not succeed), the boys shoot at cops on Laurel St, Watertown at 12.35 Friday wee hours, April 19th.
Tamerlan died in the road, having been, of all things, run over by his loving sibling Jahar. (Never mind that Tamerlan was seen a half-hour later, undamaged, being taken into FBI custody on Mt Auburn St.)
You can tell that I was not impressed by the court case. I have written the particulars in my free book, The Soul of Boston and the Marathon Bombing. (2020) However, the poor quality of the case in general did not lead me to cook up the doctrine I label “the Dzhokhar doctrine of nullity from mismatch,” or, for short, the Dzhokhar doctrine.
This doctrine can refer to any instance in which there are two absolutely incompatible pieces of evidence at trial.
In the Marathon case, there is more than one serious mismatch. The easiest one to grasp has to do with color. The FBI presented as the crucial evidence of Jahar’s having done the bombing, near the finish line, a black backpack. (Not ambiguously black. Full-on black.)
They located it right there on Boylston Street, within cooee of the Boston Public Library. It was near enough to where a child had stood, to make for an implication that Jahar had heartlessly killed that child. (Just as he had heartlessly bought the milk, I suppose.)
Yet the key FBI video of the brothers at the Marathon – oddly walking in single file – shows Jahar wearing a pack on his back that you could call a grey or silver backpack. (Some even say dirty white, but I don’t want to exaggerate.) It is not black, that’s for sure.
So here you have a potential nullity. I mean the ability to convict the man for the bombing depends on one of the two pieces of evidence being denied. You can say – or the FBI can say –“Oops, the item we picked up on the street and which we figured must have contained the bomb, heck, it practically had bomb DNA on it – must have been a mistake. We need to go back to Quantico and come up with something more persuasive.”
Alternatively, the prosecution could stick with “the black-backpack-did-it” story, but dowse the video of the single-file brothers. Or photoshop it, or whatever.
The new Dzhokhar doctrine says You can’t go around convicting an accused, much less give him or her the Death Penalty, on the basis of two diametrically opposed “exhibits.”
Jahar’s Tweets – a Perfect Mismatch with the Terrorism Gig
When I invented the idea, today (June 5, 202) of having a Dzhokhar doctrine (chosen, by the way, for its alliteration—D, d – no one would be impressed by a “Jahar doctrine”), it wasn’t because of the incompatible colors of the backpack.
(Those incompatible colors do figure prominently in the amicus brief of which I am party, and which the Court has promised to consider.)
Rather, the little eureka moment came about when, by luck, I was perusing a list of remarks that Jahar made on Facebook during the year 2012.
Around the time of the trial in 2015, many Bostonians commented on social media, that one day after the bombing, the Tuesday at 2:04pm. when many people were upset, Jahar wrote: “Ain’t no love in the heart of the city, stay safe people.”
That might indicate to folks that he was not a bad person and that he had nothing to do with the case (as I believe is the case – he had nothing to do with the case.) But it was not until today that I saw a long list of his remarks.
The Delightful Dozen
Herewith twelve of those Facebook comments by Jahar. I normally consider it absolutely unacceptable to publicize a person’s private stuff, but he did “advertise” it on FB, and anyway when a person is on Death Row, some of the rules of etiquette can be relaxed.
(Think of the maxim: Apices juris non sunt jura. “The niceties of the law are nor the law.”)
Shown with date of uploading to Facebook; they’re all from 2012:
• some people are just misunderstood by the world thus the increase of suicide rates (January 18).
• i got 99 options but failure aint one (April 4).
• A smile isn’t just mouth movement, one can distinguish between fake & real smiles by the shimmer of happiness in the persons eyes (April 4). [Fancy that!]
• gratitude is the attitude of the blessed (May 8).
• knowledge, strength, faith, money, love and success i’m hungry for it all (May 22).
• i didn’t become a lifeguard to just chill and get paid, i do it for the people, saving lives brings me joy (May 29).
• love for your brother what you love for yourself (June 12).
• little kids bring nothing but joy into the house and a lot of noise too (June 20).
• 15 billion was spent on the olympics, imagine if that money was used to feed those in need all over the world. I’m saying #endworldhunger (August 17).
• Foreign to racism, never been a part of it (October 22)
• But I also like when people stand by what they believe no matter what any jerk like me says (November 30).
• No matter where life takes me you’ll still find me with a smile (December 10). [Human Rights Day!]
Where’s the Incompatibility?
The prosecution painted Jahar as a terrorist, and the defense went along with that, softening it, though, with the strategy of older-brother worship. In other words, the late Tamerlan was gung-ho Jihad, while Jahar was only gung-ho Tamerlan.
Among the “proofs” of Jahar’s interest in Islam was his alleged boast to friends that he knew how to make a bomb (See the logic? he is religiously Muslim, therefore he studies bombing in case the Infidels get out of hand.)
German scholar Elias Davidsson’s research turned up the fact that the online magazine “Inspire” – meant to radicalize young Muslims – is traceable to a website run by Israelis. One of the articles from that website, which the prosecution said Jahar downloaded, is called “How To Make a Bomb in the Kitchen of Your Mom.”
So how is that suited to the Dzhokhar doctrine? I now argue that the dozen delightful FB remarks made by Jahar in the 15 months leading up to the Marathon bombing, are incompatible with the trial’s “theme” of his terrorist motivation.
A famous piece of evidence used to convict Jahar was a written confession on the inside wall of a boat. I quote the text:
(Note: The word “[hole]” mean bullet hole from police’s 228 shots.) I’m jealous of my brother who ha (hole) ceived the reward of jannutul Firdaus ( inshallah) before me. I do not mourn because his soul is very much alive. God has a plan for each person. Mine was to hide in his boat and shed some light on our actions ….
I bear witness that there is no God but Allah and that Muhammad is his messenger (hole) r actions came with (hole) a (hole) ssage and that is (hole) ha Illalah. The U.S. Government is killing our innocent civilians but most of you already know that. As a M (hole) I can’t stand to see such evil go unpunished, we Muslims are one body, you hurt one you hurt us all,…
know you are fighting men who look into the barrel of your gun and see heaven, now how can you compete with that. We are promised victory and we will surely get it.
Many have said that the confession needs to be thrown out on the physical basis that Jahar couldn’t have written it on fiberglass with a pencil. And many have said that Jahar’s apparent awareness of Tamerlan’s death, in the confession, does not match with his asking in hospital “Where is my brother?”
But those issues are ordinary grounds about which a jury can discuss possible innocence. They would not make for a sparkling new “doctrine.” The doctrine here has to do with the incompatibility of the Muslim-terrorist theme, and the delightful dozen quotes from Facebook.
Jahar said: “I didn’t become a lifeguard to just chill and get paid, I do it for the people, saving lives brings me joy.” He also said: “Foreign to racism, never been a part of it.”
So, would he perform a few murders for the sake of Allah?
Apply the Dzhokhar doctrine! The presence of two utterly incompatible things (black backpack/white backpack; or jihadism/lifesaver philosophy) results in a nullity. Neither has merit if its exact opposite is also present.
The Dzhokhar doctrine of nullity from mismatch.