Dzhokhar Tsarnaev case: Witness for the Prosecution? - Update

Update  4/14/14: the little stairway in the background belongs to the building beside the Apple store.

Fred Langa/ Huffington Post

Jarrod Clowery in front of the Apple Store

Jarrod Clowery in front of Fidelity Investments

Jarrod Clowery is a potential key witness for the prosecution in the Tsarnaev trial because his various public accounts seem to confirm that the second bomb exploded near the metal barriers, not on the Forum's patio - which would indicate that Tsarnaev's bag was the bomb. I have analyzed his statements in a blog entry from August 2013 and mentioned the problems coming along with them.

In this article, I stated that the photo with Clowery sitting on the street, apparently injured and treated by two first aiders, was taken at the crossing Boylston Street/Ring Road. I based this conclusion on the zebra markings in the background which seemed to be the ones in front of the Forum.

After a closer scrutiny, I have to retract this discovery. The photo was not taken in front of Forum/Starbucks Coffee (755 Boylston Str.), but in front of the Apple Store (815 Boylston Str.). Several details in the background make this conclusion inevitable:

1 - there is no stop line marking parallel to the zebra markings
2 - there's a striking gap in the zebra markings (far left)
3 - there's no scrap from the explosion on the zebra markings
4 - the pole has a square socket

Apple Store 815 Boylston Street

Second Bomb Site 755 Boylston Street

(Image source: Google Street View)

All of these details fit the site at the Apple Store, but not the second bomb site. Additionally, the photo with Clowery standing upright is clearly taken in front of Fidelity Investments (801 Boylston Str.) right beneath the Apple store. You can see the italic "Fi..." writing in the window, and the patterns of the pavement and the walls match the location 1-1.

Jarrod Clowery has recently launched a charity, the "Heroes Hearts Foundation". On a speech at the founding assembly, he reiterated his story: he was blown onto the street by the second bomb, stood up in bewilderment, looked around for a couple of seconds, and was compelled to sit down by two off-duty policemen who cared for him afterwards. While it is theoretically possible that all of this happened at the Forum and the scene at the Apple Store occurred a bit later, like kind of a dejà vu, he never has mentioned the Apple Store episode.

Clowery himself has authenticated the first photo (using it on his Facebook page), and he will also not deny that he's the person standing in front of Fidelity Investments. The photographer of both pictures was Kenshin Okubo. Clowery wears a grey jacket - the Boston Red Sox Fashion Therma Base Premier Jacket: 

This jacket has some striking unique features:

-  a writing RED SOX on the front
-  red stripes at the elbows
-  a red stripe at the collar
-  a "red socks" logo on the left sleeve
-  a small logo on the back, below the collar

There is an individual identifiable on photos and videos of the second bomb site wearing the very same jacket, with torn pants and a striking similarity to Clowery. For convenience, I name this man "Red Sox Jacket". His actions can be reconstructed very well with the help of the footage:

7 seconds after blast: Red Sox Jacket runs away from the Forum, in the photo left (source: David Silverman)

24 seconds after blast: Red Sox Jacket enters the Fred Land video area near the Mandarin Hotel, in the lower left corner of the snapshot
27 seconds after blast: Red Sox Jacket leaves the video area

 
30 seconds after blast: Red Sox Jacket is on Boylston Street in front of the Mandarin Hotel looking back to the bomb site, in the photo right (source unknown)

In this diagram, the black stars represent the positions of Red Sox Jacket at the respective moments:

Either Jarrod Clowery is the man with the Red Sox jacket, then there are some irreconcilable discrepancies between the footage and his narrative; or it's a different person and only a remarkable coincidence, but in this case the question arises: where is Clowery on the footage of the aftermath of the second bomb? He must be somewhere.

The prosecutors have declared that they have thousands of photos and hundreds of witnesses for proving Dzhokhar Tsarnaev's guilt. In case they intend to summon Jarrod Clowery to the trial as a witness, he should be prepared for some uncomfortable questions from the defense team.

New Second Bomb Site Evidence: The Silverman Photos

Update 4/6/2014: better determination of the time of photo A added in the middle of the text.

Photo A

Photo B

David Silverman is a professional photographer. He was at the finish line on Marathon Day 2013, witnessed the two blasts and happened to shoot some photos of the second bomb site immediately after the explosion. Two of them he posted on his website on April 17th, 2013. They are most interesting and the subject of this blog entry. Considering their significance for the Tsarnaev case, it is astonishing that they have been overlooked for nearly a year. The credits for uncovering them go to "justfacts" from the letsrollforum website where I picked them up.

The first step is to determine the time when they were generated. It is immediately apparent that both photos must have been shot within seconds after the second bomb exploded. By matching them with already published photos and videos it is possible to pinpoint the time very exactly.

Here's the photo which was the earliest one after the blast up to now. I've already posted it in previous blog entries. Let's name it photo C.

By matching it with the Fred Land video (taking the running policeman on the left side as reference), I determined its time stamp as 13 +-1 seconds after the blast. I marked four individuals through colored squares:

-  black: a man with a black jacket and a black backpack. This man appears in many aftermath photos which I've gathered here. Many believe he is Bill Richard, the father of the killed boy Martin Richard, but this is very unlikely.

-  blue: a man in a blue jacket with dark pants running away from the Forum.

-  white: a bald man wearing a white shirt.

-  red:  a woman with a green short-sleeved shirt and dark pants.

All of these persons appear also in photo A, and it is clear that photo A precedes photo C: the man in black has moved from the middle of the street (photo A) to the curb (photo C), and the man in blue starts running from the mailbox (photo A) across the street (photo C). The man in white, who is lying beside the mailbox (photo A), is standing upright in photo C.

Taking the time that the man in blue needed to cross the street as reference, the time difference between A and C must be at least 3 seconds, which means that photo A must have been shot within the first ten seconds after the blast.

Update: just right of the man in black, there is a man with a blue jacket and a white cap jumping over the barrier. This man can be spotted in the Fred Land video at 1:07, i.e. the photo ist shot 7 seconds after the blast:

The time stamp of photo B can be determined very precisely with the help of this photo (David L. Ryan) and this video of the second explosion. Here's an enlarged cut-out from the photo:

The female runner within the light-green square and "Mr. Poseidon", the bare-chested man with the mask and the spear appear in photo B at the very same position, i.e. the photos must have been shot within fractions of a second:

A match-up with the video shows that photo B and the Ryan photo are taken 2 - 2,5 seconds after the blast. I leave it to the reader to check this as an exercise.

Photo B bears more interesting details: first, there are two or more people on the street near the mailbox, marked by a purple square. It is impossible to identify them, but they are probably identical to the people highlighted in photo A. They don't seem to be heavily injured, because all of them move away quickly.

The most interesting detail however is the man in the white shirt. In photo A, he was lying at the mailbox; in photo B, he's not at the mailbox, but seems to be jumping over the metal barriers via the junction box. This might look like an overinterpretation, it is supported by the video however. At 0:05, after the camera has pivoted to the second bomb site, you can see a little, but distinct white spot in the background moving vertically downwards. This is - most probably - the white shirt of our man as he jumps over the barrier. I've marked his position in this still at 0:05:

You can follow the white dot/shirt after the jump for a very short time: he moves towards the mailbox. Then the camera sways away from the scene.

To sum up:

Photo B: 2 seconds after blast
Photo A: 7 seconds after blast
Photo C: 13 seconds after blast

The benefit of having established this timeline may not be obvious at the first look; for a reconstruction of the events however it is absolutely necessary. The value of the Silverman photos and the potential to utilize them for the Tsarnaev trial must not be underestimated and will certainly manifest itself in the future.

The account of witness "Danny" according to the criminal complaint

The criminal complaint against Dzhokhar Tsarnaev was the first official paper with detailed information on the case, published on April 22th, 2013. It contains the earliest account of the victim of the alleged carjacking (later identified as "Danny"). I transcribed the crucial passages (19, 20, 21) for documentary purposes and added section 22 for completion, which is not part of the victim's account.

19. Near midnight on April 18, 2013, an individual carjacked a vehicle at gunpoint in Cambridge, Massachusetts. A victim of the carjacking was interviewed by law enforcement and provided the following information. The victim stated that while he was sitting in his car on a road in Cambridge, a man approached and tapped on his passenger-side window. When the victim rolled down the window, the man reached in, opened the door, and entered the victim's vehicle. The man pointed a firearm at the victim and stated, "Did you hear about the Boston explosion?" and "I did that." The man removed the magazine from his gun and showed the victim that it had a bullet in it, and then re-inserted the magazine. The man then stated, "I am serious."

20. The man with the gun forced the victim to drive to another location, where they picked up a second man. The two men put something in the trunk of the victim's vehicle. The man with the gun took the victim's keys and sat in the driver's seat, while the victim moved to the front passenger seat. The second man entered the victim's vehicle and sat in the rear passenger seat. The man with the gun and the second man spoke to each other in a foreign language.

21. While they were driving, the man with the gun demanded money from the victim, who gave the man 45 dollars. One of the men compelled the victim to hand over his ATM card and password. They then drove to an ATM machine and attempted to withdraw money from the victim's account. The two men and the victim then drove to a gas station/convenience store in the vicinity of 816 Memorial Drive, Cambridge. The two men got out of the car, at which point the victim managed to escape.

22. A short time later, the stolen vehicle was located by law enforcement in Watertown, Massachusetts. As the men drove down Dexter Street in Watertown, they threw at least two small improvised explosive devices ("IEDs") out of the car. A gun fight ensued between the car's occupants and law enforcement officers in which numerous shots were fired. One of the men was severly injured and remained at the scene; the other managed to escape in the car. That car was later found abandoned a short distance away, and an intact low-grade explosive device was discovered inside it. In addition, from the scene of the shootout on Laurel Street in Watertown, the FBI has recovered two unexploded IEDs, as well as the remnants of numerous exploded IEDs.

The smothered arrest of a Boston Bombing suspect on April 17th

In two blog entries (here and here) I already have highlighted the turbulent news releases two days after the Boston Marathon bombings. John King of CNN has played the most prominent role here: first, he reported that law enforcement had identified a suspicious dark-skinned male on a surveillance video who placed a black backpack in front of the Forum restaurant. An hour later, he reported that an arrest had been made, in succession of a twitter message from Associated Press.

As an instant reaction to this AP tweet, several hundred journalists gathered in front of the Boston federal courthouse in anticipation of the arrival of the arrested suspect. Some of them, like Kelley Tuthill of the Boston TV station WCVB, went inside. Court staff told her that a courtroom (Nr. 18) was prepared for "some kind of appearance". But soon authorities denied that an arrest had been made, and at the same time the courthouse was evacuated due to a "code red" security alert, a very rare event. A bomb threat was later given as an explanation, but without any details.

After the crowd was forced back from the entrance and the street, a white van with tinted windows and a US marshal clinging to the passenger door passed by and entered the building via the back driveway. This incident was quickly brushed under the carpet and has raised no queries by anyone afterwards, but it is well documented by photos, video footage and twitter messages. In this WCVB video

http://www.kaltura.com/index.php/kwidget/wid/_557781/uiconf_id/21039792/entry_id/1_mzq8y0f4 

you can see the van right from the start as he arrives at the courthouse, turns left and drives into the building.

These circumstances don't allow any other conclusion than that the van transported an arrested and potentially dangerous person to be arraigned at the courthouse. The conclusion that the courthouse was evacuated to expel the journalists inside lest they got a glimpse at the arrested individual is nearly inevitable. The presence of several Homeland Security cars in front of the building shows that the arrest was terror-related. The timely correlation to the messages of the arrest and their retraction strongly suggests that the person in the van was the subject of these messages - almost certainly the dark-skinned male reported by King.

The events of April 17th have been accompanied by several real-time online accounts. For a better oversight, I have compiled three timelines:

- a timeline of WCVB twitter messages
- a timeline of Boston police scanner messages, passed on real-time by three websites
- a summarized timeline with the most important points

The noted hours in the time designations on the websites are dependent on the time zone. The context of the messages however unambigously points to the real hour; I adjusted the times respectively.

WCVB Timeline - all times are p.m.

http://livewire.wcvb.com/Event/117th_Running_of_Boston_Marathon?Page=33

http://livewire.wcvb.com/Event/117th_Running_of_Boston_Marathon?Page=34

http://livewire.wcvb.com/Event/117th_Running_of_Boston_Marathon?Page=35

1:26  Janet Wu says an arrest is imminent and may have already taken place.
1:43  AP: suspect to be brought to court

1:48  Janet Wu reports it is a man who was arrested.

1:49  The official says the suspect is to be taken into custody by federal marshals and taken to a Boston courthouse.

1:53  CNN reports the arrest has been made.

1:56  A source tells Newscenter5's Janet Wu that one male suspect delivered both bombs.

2:02  Law enforcement official: Boston Marathon bomb suspect in custody, expected in federal court.

2:03  Intense security at federal court. Anticipating arrival of suspect in bombings.

2:07  Suspect arrested Boston Marathon bombings, heading to Federal Court now.

2:20  Tons of media outside federal courthouse

2:21  Still anticipating arrival of possible suspect in bombings at federal court at any minute... Arrest may have been earlier this morning

2:23  One homeland security guard: " very good day for us "

2:24  There are now conflicting reports on whether the suspect in custody has been formally arrested.

2:32  Several sources are now reporting that no arrest has been made. However, several sources report that a suspect is in custody.

2:34  One federal police officer says arrival expected " within the hour ". Not official word

2:39  Boston Police says no arrest but high security at courthouse and Fed police say suspect arrival soon according to reporters there.

2:48  Federal officials deny that Boston Marathon bombing suspect is in custody.

3:00  Now all media and others moved across street from courthouse.

3:00  Despite all the denials, the Associated Press is standing by its story of a suspect in custody: The official who spoke to the AP did so on condition of anonymity and stood by the information even after it was disputed.

3:04  Evacuation federal courthouse. Code red called on loud speaker.

3:07  The Boston Federal Courthouse is being evacuated. The reason is not clear. US Marshal vans arrived with heavily armed personnel.

3:07  Media pushed across the street from Moakley courthouse and now many people are leaving the building.

3:10  A white van with a police officer clinging to the rear has pulled into the Moakley Courthouse.

3:15  There is a great deal of police boats and Coast Guard boats on the harbor side of the courthouse.

3:38  Kelley Tuthill reports that court personnel were preparing a courtroom for some kind of appearance.

3:55  Kelley Tuthill: I know a lot confusion out there. I can only tell you I was sitting there when court staff told me they were preparing courtroom 18.

3:59  US Marshal: The evacuation was due to a bomb threat received at the courthouse. The building is being swept at this time.

Police Scanner Timeline - all times are p.m. 

http://www.justicequest.net/forums/showthread.php?t=72966&page=28 

http://www.blowoutcards.com/forums/off-topic/494233-reports-explosions-boston-marathon-finish-line-18.html 

http://www.landthieves.com/board/showthread.php?54092-Boston-Marathon-Bombing/page19

 

1:21

2:01

 

2:03 Near MIT, looking for motorcade driving from MIT towards courthouse? Not sure why they would mention looking for this.

2:07

 

2:09 Someone from the US Marshall office. Huge motorcade with police contingent in Kendall Sq. area.

2:13

2:17

2:24

2:34

Summarized timeline - all times are p.m.

ca. 1:30  The suspect is arrested

ca. 1:50  First media reports that a suspect is in custody

ca. 2:00  The suspect is moved from MIT via Kendall Square and Interstate 93 to the federal courthouse, accompanied by a police motorcade

ca. 2:20  The convoy with the suspect arrives at the courthouse, but cannot move on because a journalist crowd has gathered in front of the entrance

ca. 2:30  Beginning denials that an arrest has been made

ca. 3:00  The courthouse is evacuated due to a "code red" alert. The crowd is forced back from the street. AP still stands to its story - for the last time - that a suspect is in custody.

ca. 3:10  A white van with an US marshal clinging to the passenger door - and most probably the suspect inside - enters the courthouse via the back driveway.


Questions arising:

Why was the arrest of a suspect denied in spite of being extensively reported on the Boston police scanner?

What was courtroom 18 prepared for (Kelley Tuthill), if not the arraignment of a suspect?

Who was the obviously arrested person inside the white van?

Why was the white van driving into the courthouse in spite of the fact that the courthouse was evacuated shortly before under a "code red" threat?

Krystle Campbell died of cardiac arrest

It is unknown if the defense team of Dzhokhar Tsarnaev is still struggling to obtain autopsy records of the three expired victims of the bombings. In the case of Krystle Campbell - unlike the other two victims -, they are in part substitutable by the report of Allan Panter, the physician who was accidentally at the first bomb site, was unharmed, and tried to save her life. His account is somewhat surprising, in his own words: puzzling.


Update 12/30/13: CNN aired an interview with Dr. Panter on the evening of April 15th, earlier than O'Reilly and probably the earliest TV interview with him at all.

MORGAN: Thanks very much. I want to bring in Dr. Alan Painter and his wife, Theresa. Alan Painter is a doctor at the E.R., Boston -- treating the Boston Marathon victims today. His wife actually ran in the marathon today. An extraordinary day for the family. Welcome to you, Dr. Painter. Can you tell me when you first heard what had happened today?

DR. ALAN PAINTER, TREATING BOSTON MARATHON VICTIMS: I was standing about 20, 25 feet from the initial blast, so I knew immediately what was going on.

MORGAN: Obviously you knew that your wife Theresa was running. Your first thoughts I guess must have been where on earth she was and was she safe.

PAINTER: It was. And I would like to commend the Boston Athletic Association and the police, paramedics here, they did an outstanding job. My wife was about two-tenths of a mile from the finish line and they pushed her back from the second blast area so it was pretty impressive, their response.

MORGAN: Theresa, you were running in the marathon. You were near the finishing line. What was your reaction when you heard the first explosion go off? THERESA PAINTER, BOSTON MARATHON RUNNER: Well, I really wasn't paying attention and then when I heard the bomb and saw the reaction of the spectators, I was just alarmed. And then I was pushed back by a spectator, and Boston Athletic officials grabbed a bunch of us and pushed us back. So it was pretty upsetting.

MORGAN: And Dr. Painter, you actually went to the Harris Regional Medical Center, I believe. Is that right? Were you treating people there today?

DR. PAINTER: No. I was treating people on the streets and assisted transferring them into the medical tent. I work in Harris Regional Medical Center in (INAUDIBLE) North Carolina.

MORGAN: So you were actually treating people on the streets. What were you seeing? What was the type of injury, how many people did you see injured there?

DR. PAINTER: I saw at least six to seven people down next to me. They protected me from the blast. One lady expired, one lady -- one gentleman lost both his limbs, lower extremities. Most of the injuries were lower extremities. I could not figure out why the young lady had expired, could not find any injury on her thorax. The other people I saw were mainly lower extremity injuries.

MORGAN: Have you ever seen injuries like this in your time working in Boston?

DR. PAINTER: No. I have not had experience with blast injuries in the past. I'm not military, so basically I'm used to more gunshot wounds.
 
 
http://transcripts.cnn.com/TRANSCRIPTS/1304/15/pmt.01.html




O'REILLY: So first tell us about the woman who eventually died, Doctor - were you the first on scene there?

PANTER: I was one of the first, I don't know if I was the first one. Several people converged on the mass of bodies. We pulled a gentleman out from under her and then began working on her, too. She was basically in an arrest at the time. We thought we had a faint pulse. We started CPR (unintelligible) pulse or not. We started to kind of breathe her using an ambu bag. We ended up transporting her to the medical tent where she unfortunately expired.

O'REILLY: So she went into cardiac arrest, did she have other injuries from the bombing?

PANTER: She had injuries that we could visualize of her lower extremities, but could not find any obvious injury to her chest or abdomen, which was kind of puzzling. There was no evidence of shrapnel wounds to her chest that we could find on a cursory examining that we did. It was kind of puzzling. I don't know were these totally blast effects or what that caused the arrest.

http://video.foxnews.com/v/2306084131001/the-human-toll-of-terrorism/


Cardiopulmonary resuscitation (CPR) is an emergency procedure for manually preserving brain function until further measures to restore spontaneous blood circulation and breathing in a person who is in cardiac arrest. It is indicated in those who are unresponsive with no breathing or abnormal breathing, for example, agonal respirations. (Source: Wikipedia)


Sudden cardiac arrest (SCA) is a condition in which the heart suddenly and unexpectedly stops beating. If this happens, blood stops flowing to the brain and other vital organs. SCA usually causes death if it's not treated within minutes.
 
Overview

To understand SCA, it helps to understand how the heart works. The heart has an electrical system that controls the rate and rhythm of the heartbeat. Problems with the heart's electrical system can cause irregular heartbeats called arrhythmias.

There are many types of arrhythmias. During an arrhythmia, the heart can beat too fast, too slow, or with an irregular rhythm. Some arrhythmias can cause the heart to stop pumping blood to the body—these arrhythmias cause SCA.

SCA is not the same as a heart attack. A heart attack occurs if blood flow to part of the heart muscle is blocked. During a heart attack, the heart usually doesn't suddenly stop beating. SCA, however, may happen after or during recovery from a heart attack.

People who have heart disease are at higher risk for SCA. However, SCA can happen in people who appear healthy and have no known heart disease or other risk factors for SCA.

(Source: http://www.nhlbi.nih.gov/health/health-topics/topics/scda/)

FBI-released photo: remnants of the second bomb?

In the evening of April 16th, Associated Press released a few photos of remnants of the Marathon bombs, obtained from the FBI and the DHS. Most of these photos show deformed parts of a pressure cooker. The picture above - which belongs to this set of photos - shows a torn black backpack which served as a container for one of the pressure cookers. The Guardian has a good overview of what has been released.

It was not reported whether the torn backpack was found at the first or the second bomb site. For Dzhokhar Tsarnaev, this question is of potential live-saving importance because the scrap piece clearly doesn't belong to his light-colored bag.

The background of the photo shows asphalt and a line marking. Thus the object lies on the street, not on the sidewalk. The photo was obviously shot before the object was picked up and saved by forensic experts. Thus the photo shows almost surely Boylston street, and the only remaining question is if it was taken at the first or the second bomb site. The marking helps to answer this question: it is too wide (at least 1 foot, compared with the backpack) to be one of the slim lane segregation markings, and the tire imprints are transversal to the line, which leads to the same result: it must belong either to a stop line or a crosswalk as they occur at crossings.

There is a crossing very close to the second bomb site, with a stop line and a crosswalk. There is no crossing and therefore no 1 foot wide line marking in the immediate vicinity of the first bomb site. Conclusion: the photo must have been shot at the second bomb site. In any case, the defense must call out the FBI on the object's place of finding.

Moreover, there is no object visible on photos of the aftermath of the first bomb site which could possibly be the scrap piece in the FBI photo. But aftermath photos and videos of the second bomb site very well show such an object, right at the stop line near the Forum. It is the biggest scrap piece on the street and matches in size, shape and color the torn backpack in the FBI photo. Lacking any alternative, it is most probably the backpack of the photo.

Here is a selection of pictures taken within the first five minutes after the explosion (for the original URLs, see here and here). The object in question is framed by a yellow rectangle. The times indicate minutes/seconds after the second blast. They have been determined with the help of the Fred Land video - see here.

0:12

1:02

2:35

3:02 (0:23 in the Daniel Robert video; from 0:20 to 0:30 the object is distinctly visible in the lower right corner).

At some time between 3:10 and 4:30, the object has moved (probably inadvertently kicked) 3 feet towards the stop line, now matching the position of the FBI photo.

4:30

4:35

April 17, 2013: Dzhokhar Tsarnaev spotted on surveillance video, wanted as a witness

Update 12/10/2013: I added the transcript of another CBS News clip with Bob Orr to the appendix, aired at about 3:38 p.m. on April 17th. Orr reports that investigators were matching cell phone logs with images from a young white man with a white baseball cap. The images were taken from the Lord & Taylor video and processed by facial recognition software - but the suspect was not yet identified and not yet called a suspect.

http://www.cbsnews.com/videos/fbi-zeroing-in-on-possible-suspect/ 

For a better understanding, the reader is advised to read my preceding blog entry at first in case he doesn't know it already.
 
This CBS News webpage from April 17th comprises a video clip and a text. Both of them clearly refer to Dzhokhar Tsarnaev while he's standing in front of the Forum, makes his phone call, and moves away before the explosion, just as it is described in the criminal complaint. The TV clip was aired at about 2:40 p.m., with Bob Orr reporting a "man with a white baseball cap backwards" to anchorman Scott Pelley; the text is dated 6:45 p.m. and adds a comment by CBS's "special FBI consultant" John Miller. A transcript of the video snippet is in the appendix.

The earlier "arrested suspect" story, primarily but way not exclusively promoted by John King of CNN, was just in meltdown when Orr broke the new information. The crucial question is now of course whether the man reported by Orr (i.e. Tsarnaev) is identical to the individual reported by King.

At first it is important to note that Tsarnaev was not firmly considered a suspect by CBS's sources. Orr himself delivers no assessment, but his dialog partner Pelley carefully outlines the FBI's approach: Tsarnaev was "a person they want to speak with", "either a witness or potentially a suspect". How did Pelley achieve these informations? Certainly it was Orr who told him about the development and the status of Tsarnaev before the program started.

There are many additional points why it's impossible that Tsarnaev is King's suspect:

- CNN reported a dark skinned male, but Tsarnaev's skin is not dark, and CBS described him here explicitly as a "white male".

- CNN reported that the suspect planted a black bag at the bomb site, but Tsarnaev's bag was light-colored; a fact not changed at all by CBS also mentioning a black backpack. This error was probably induced by the inflationary usage of the term "black backpack" in the hours before.

- CNN excitedly reported a big breakthrough; but according to CBS, the FBI regarded Tsarnaev only as a person to speak with, a witness, or a potential suspect at most. These attributes hardly constitute an exciting breakthrough.

- CNN emphasized the outstanding role of the Lord & Taylor surveillance video and the enhancement techniques applied to it, enabling a clear facial recognition of the suspect; CBS concentrated solely on the evaluation of the cell phone call logs.

- CNN reported the arrest of the suspect; but Tsarnaev was not arrested on that day.

John Miller's comment in the text part of the link is more food for thought:

CBS News senior correspondent John Miller said that the big case Wednesday was whether to make the case to release that photo and go out and say this is the person who is being sought or to hold that back.

"It's been a tough call," said Miller. "For investigators, there's always a difficult choice because if the person doesn't know you're looking for him, he may stay in place, you may catch up to him. If he does know you're looking for him, he may run. On the other hand, if you don't get him, it's always great to enlist 20 million or so more eyes in the public who may be able to give you a location right away. That's not going to happen tonight anymore. It was going to happen earlier -- they've rethought that. It may happen with the release of that picture tomorrow. They're reassessing."

At first, Miller abandons the caution of Pelley and Orr; for him, Tsarnaev is definitely no witness, but a suspect. Then he explains at length why the FBI has not released a photo of the "person": because he may be warned and run away. Miller apparently doesn't realize that the leaked details about the person (white baseball cap backwards etc.) were too vague for the "20 million public eyes" to identify him, but easily sufficient for the person himself to recognize that he was the one the investigators were looking for. In other words, it was extremely stupid and a lose-lose decision to release vague verbal information about a wanted person instead of a photo.

So what does Miller try to achieve with these ill-considered remarks? They look like an attempt to explain the information clutter on April 17th through the alleged "difficult choice" between releasing a photo and holding it back. But as investigators have obviously made the worst choice at all, i.e. releasing vague verbal information instead of photos, this explanation requires extremely stupid investigators and is therefore extremely unlikely.
Miller's real intention seems to be to downplay the damaging early reports about the dark-skinned suspect by identifying him with Tsarnaev: the public is told that the (alleged) confusion at CNN and Boston Globe arose only because investigators could not agree on how to handle the case. Again Miller outs himself as a gatekeeper for the FBI.

Appendix: CBS News transcript April 17th, 2:40 p.m. 

SCOTT PELLEY: There has been a development in the Boston Marathon bombing. Police and FBI investigators have identified at least one person that they want to speak with, a person that was identified on surveillance camera video and was apparently either a witness or potentially a suspect in the bombing. Our Bob Orr has been talking to his sources in Washington and can give us more information about how this person was identified and maybe located – Bob?

BOB ORR: Scott, we have quite a bit of information actually, and they have done lot of police work in the last 24 hours to get us to this point, but essentially here's what I understand: at the site of what became the second explosion surveillance pictures and tape captured the image of a man standing there with a black backpack. On the tape – according to my sources – the man can be seen placing the backpack on the ground and he's on a cell phone call at the time. He's described as wearing a black jacket, a grey hoodie, and has a white baseball cap on backwards. What's interesting is while he's on the phone, I'm told, the explosion takes place at the finish line, down the race course. As soon as that blast went off this man then - according to my sources - can be seen leaving that area in kind of just mingling back into the crowd.

Now what they did is – they realized what the time frame was when the cell phone call was made. So investigators have done the basic police work, they've gone back through all of the cell phone information from that time period specifically to identify potential call users and ID's, and of course then they have taken the pictures and tried to match all that up in kind of a triangulated way to zero in on the suspect. I will tell you the sources are very encouraged by these developments.Very encouraged that perhaps they're on to a very good lead here, Scott.

PELLEY: There has to be a news conference by the FBI in Boston later this afternoon, Bob, it has been slipping all day and we've been wondering why the news conference was originally supposed to be at two o'clock, then it became four o'clock, it became five o'clock and we began to wonder whether there weren't going to be significant developments in this case as the news conference was pushed back farther and farther. Bob, using this cellphone information, what kind of things would they be able to determine typically?

ORR: Well my understanding is what they did here, Scott, was they knew the time frame from the surveillance tape as to when this man was on the cell phone. So they went back and pulled all the information from the surrounding cell towers and went through the call logs to try to determine who may have made calls. There are user informations, subscriber informations connected to these phone numbers. And that's how they learned about it, Scott.

PELLEY: Bob, thank you very much. Could be a significant break in the Boston Marathon bombing case. 


CBS News transcript April 17th, between 3:00 p.m. and 6:45 p.m.

BOB ORR: Investigators will tell you they are making solid progress in the hunt for the Boston bomber or bombers. Surveillance pictures and cell phone records may help the FBI close in on at least one possibe suspect.

Sources say investigators are trying to identify a person described as a young white man who is standing in the crowd near the scene of the second bombing just before the device explodes. A surveillance camera at a nearby Lord&Taylor department store captured images of the man who is carrying a backpack and talking on a cell phone. 

Sources say he was wearing a black jacket, a gray hoodie and a white baseball cap which was backwards on his head. Investigators say the man, who seemed to be alone, put the backpack on the ground. Then, when the first explosion occurred at the finish line about a hundred yards down Boylston Street, he took off. Just a few seconds later, the second bomb exploded near where the man had been standing. 

Investigators now are going through cell phone logs to determine who made calls from that location near the time of the explosions. Sources say the FBI is working with a list of names of cell phone owners and attempting to match one of those to the unknown man on the surveillance tape. Sources say forensic experts will attempt to use facial recognition software and compare the images from the surveillance camera to photo ID's connected to known cell phone users.

Now officials say so far they have not identified that mystery man and are not yet calling

him a suspect, but this is clearly a strong lead, Scott, in what has become a very tough investigation.

What happened with the Lord&Taylor surveillance video of Dzhokhar Tsarnaev?

Unknown to the public - unknown to the defense?

 

Update 11/27/13: Judge George O'Toole has denied in large part the defense's request to obtain more material from the prosecution. However, he offers a hint how the defense might overcome this obstacle: the requests must be more specific.

The Lord & Taylor surveillance video certainly fulfills all required preconditions for an "in camera" review:

-  what evidence does the defendant hope to find? Footage of a dark-skinned male, planting a black backpack in front of the Forum restaurant.
-  why does he think the material contains this evidence? Because it has been reported by several media outlets - CNN, Boston Globe and others, based on law enforcement sources.
-  why would this evidence be favorable for him? Because it shows that the second bomb was planted by another person than him.

Update 11/23/13: Associated Press defended their story of a suspect in custody for a while even after the high level denial, just like King. This twitter message (WCVB TV) is from 15:00:

Update 11/23/13: This is what John King said at 14:45, when the arrest had been disclaimed by high level officials. His sources were still telling him about a significant breakthrough based on enhanced surveillance video, but they suffered from a "significant blowback at the leaks".

I was one of the people first on the air when we said Fran Townsend had a federal source saying arrest has been made, I had a Boston source saying we got him. I want to go through this.

I'm told they have now checked as high as the attorney general of United States who would know if an arrest has been made. This federal law enforcement source has just communicated with significant progress has been made, but no arrest.

Anyone who says an arrest is ahead of themselves. I went back to the Boston law enforcement sources who said got him, identification on arrest, the source says can't talk to you right now, says there is significant blowback at the leaks and says there will be more information later today.

One of the federal sources I was just communicating with said even to say it's an identification, a specific identification, was to go too far, but then I circled back several Boston and other sources said we have identity based on the enhanced video. They call it a significant breakthrough, but clearly there has been some significant confusion and question of an arrest.

http://transcripts.cnn.com/TRANSCRIPTS/1304/17/cnr.10.html
 
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The criminal complaint against Dzokhar Tsarnaev, issued on April 21th, exclusively refers to surveillance footage from a camera above the doorway of the Forum restaurant which allegedly shows him dropping his bag at a metal barrier near the curb. According to this court document, the surveillance video is the prosecution's main evidence that Tsarnaev planted the Forum bomb. It was provided to the defense on May 10th - and it was apparently the only video, because it is formulated in singular.

There is however another live video of the explosion at the Forum, taken from the roof of Lord & Taylor, a department store across the street. The video has fallen into oblivion, but its existence is confirmed prominently by the then Boston Mayor Thomas Menino and entrenched itself firmly into the realm of mainstream media:



He ((Menino)) told me when I pressed him on what I've been told by the source about the progress of the investigation, he did confirm to me and he was very careful he confirmed that the police commissioner told him of significant progress in the investigation and he did confirm to me when I pressed him that it was Lord & Taylor, he'd been told the Lord & Taylor video was critical to the breakthrough.

http://transcripts.cnn.com/TRANSCRIPTS/1304/17/cnr.07.html

The Globe’s source also said a surveillance camera at Lord & Taylor, located directly across the street, had provided clear video of the area, though it was unclear whether the image of the suspect was taken from that camera.
“The camera from Lord & Taylor is the best source of video so far,” confirmed Dot Joyce, a spokeswoman for Boston Mayor Thomas M. Menino. “All I know is that they are making progress.”
- See more at: http://www.boston.com/metrodesk/2013/04/17/boston-medical-center-reports-five-year-old-boy-critical-condition-victims-treated-from-boston-marathon-bombings/gkKXBTqL2jyNhsC2Kz5GyO/story.html#sthash.SdGCthbC.dpuf

The Globe’s source also said a surveillance camera at Lord & Taylor, located directly across the street, had provided clear video of the area, though it was unclear whether the image of the suspect was taken from that camera. - See more at: http://www.boston.com/metrodesk/2013/04/17/boston-medical-center-reports-five-year-old-boy-critical-condition-victims-treated-from-boston-marathon-bombings/gkKXBTqL2jyNhsC2Kz5GyO/story.html#sthash.SdGCthbC.dpuf

The Globe’s source also said a surveillance camera at Lord & Taylor, located directly across the street, had provided clear video of the area, though it was unclear whether the image of the suspect was taken from that camera.
“The camera from Lord & Taylor is the best source of video so far,” confirmed Dot Joyce, a spokeswoman for Boston Mayor Thomas M. Menino. “All I know is that they are making progress.”
- See more at: http://www.boston.com/metrodesk/2013/04/17/boston-medical-center-reports-five-year-old-boy-critical-condition-victims-treated-from-boston-marathon-bombings/gkKXBTqL2jyNhsC2Kz5GyO/story.html#sthash.SdGCthbC.dpuf

The Globe's source also said that a surveillance camera at Lord & Taylor, located directly across the street, had provided clear video of the area, though it was unclear whether the image of the suspect was taken from that camera.

"The camera from Lord & Taylor is the best source of video so far," confirmed Dot Joyce, a spokeswoman for Boston Mayor Thomas N. Menino. "All I know is that they are making progress."

“The camera from Lord & Taylor is the best source of video so far,” confirmed Dot Joyce, a spokeswoman for Boston Mayor Thomas M. Menino. “All I know is that they are making progress.” - See more at: http://www.boston.com/metrodesk/2013/04/17/boston-medical-center-reports-five-year-old-boy-critical-condition-victims-treated-from-boston-marathon-bombings/gkKXBTqL2jyNhsC2Kz5GyO/story.html#sthash.SdGCthbC.dpuf

The Globe’s source also said a surveillance camera at Lord & Taylor, located directly across the street, had provided clear video of the area, though it was unclear whether the image of the suspect was taken from that camera.
“The camera from Lord & Taylor is the best source of video so far,” confirmed Dot Joyce, a spokeswoman for Boston Mayor Thomas M. Menino. “All I know is that they are making progress.”
- See more at: http://www.boston.com/metrodesk/2013/04/17/boston-medical-center-reports-five-year-old-boy-critical-condition-victims-treated-from-boston-marathon-bombings/gkKXBTqL2jyNhsC2Kz5GyO/story.html#sthash.SdGCthbC.dpuf

http://www.boston.com/metrodesk/2013/04/17/boston-medical-center-reports-five-year-old-boy-critical-condition-victims-treated-from-boston-marathon-bombings/gkKXBTqL2jyNhsC2Kz5GyO/story.html

These reports are from April 17th and emphasize the crucial role of the Lord & Taylor video as the most outstanding single piece of evidence. But four days later the complaint refers solely to the video taken by the Forum camera. Interestingly, the Washington Post had accomplished a nice graphic of the Lord & Taylor camera and its relative position to the crime scene by then, but, based on official sources, played down the significance of its footage in behalf of the Forum video.

We've never heard of the Lord & Taylor video since. Given the permanent stonewalling of the prosecution, it is highly doubtable that Tsarnaev's defense team has obtained it. This is most unfortunate because it probably contains exculpatory evidence. The defense should request it in all circumstances. Here's why - for one hour at midday of April 17th, CNN's John King put his head far over the parapet and leaked some details of what the video shows:

-  Now I am told based largely on the video analysis that came from closed-circuit cameras from the Lord & Taylor department store that according to one of these sources, they have made a clear identification of a potential suspect and they are calling this substantial progress, hopefully a breakthrough they believe in this investigation. 

-  A physical description was given to me of the suspect, Wolf, I want to be very careful here because this is very sensitive information, but the description given to be was (INAUDIBLE) is a dark-skinned individual.

-  but I'm told from the video analysis that they now have what they believe to be clear video image of a suspect approaching the site, placing a package and leaving the site and placing a package that matches the description of what they have been looking for, the size of the package, the black bag and like and they have those images now being analyzed and to such detail I am told that they believe they have a clear identification including a facial image of a suspect.

-  they've enhanced the video and have a close-up look at this individual they have on video they say dropping a package, making a placement that they believe to be the explosive device. And they say it's a dark-skinned male.

-  But I am told that the video showed clearly at the site of the second explosion an individual showing up and placing a black bag. Officials said they've been looking for a black backpack or duffel bag, placing it at the scene of the second explosion and leaving it at the scene of the second explosion.

-  I've just been told that an arrest has been made. We know they have identified a suspect based on surveillance video and they were then taking the further steps in the investigation. Just in to us, and again, Fran Townsend has a second source, and this is from one of her sources, that an arrest has been made in this investigation. A dramatic shift. We're waiting for the public briefing today at 5:00 p.m. here in Boston. We do know from other sources -- I was told this morning that the big breakthrough came from surveillance video from the Lord & Taylor Department Store right near the site. 

-  And again, we have a local source, a Boston law enforcement source and Fran has a federal source telling her the arrest has been made. I was told the video enhancement showed a dark-skinned male placing the package at the second explosion site and backing away.

http://transcripts.cnn.com/TRANSCRIPTS/1304/17/cnr.07.html
http://transcripts.cnn.com/TRANSCRIPTS/1304/17/cnr.08.html 
http://transcripts.cnn.com/TRANSCRIPTS/1304/17/cnr.09.html

Let's summarize. King emphasizes that the breakthrough came from the Lord & Taylor footage and that the video shows a dark-skinned male - identified by a clear facial image - dropping a black bag at the Forum. Then he reports that an arrest has been made based on this surveillance video. This information is independently confirmed by Boston law enforcement sources as well as federal sources.

Dzhokhar Tsarnaev's skin color doesn't differ from a white, "Caucasian" American; his bag was light-colored, not black; and he was not being arrested at this time. In other words: he was not the individual who was clearly identified by the enhanced footage from the Lord & Taylor camera.

Not all of the details reported by King - f.i. the "dark-skinned male" - are confirmed by other sources; but the importance of the Lord & Taylor video, the clear identification of the suspect and the black bag are (Boston Globe).

The alleged arrest, despite being disclaimed shortly later, was widely reported, amongst others by the Associated Press and the Boston Globe:

So it is difficult to dismiss this message as a pure rumor. In fact, a big crowd of journalists gathered in front of the Moakley courthouse, where they expected the suspect to be. Strangely, the courthouse was subsequently evacuated due to a bomb threat. The Wire has a good summary of the confusing news on that day.

Milton Valencia / Boston Globe

As matters stand, the Lord & Taylor video may be able to prove Tsarnaev's innocence at once by showing a dark-skinned male planting a black backpack on the patio of the Forum restaurant, 15 feet away from the place where Tsarnaev placed his bag. The defense must insist on obtaining it and may request to summon Thomas Menino and John King.

The Globe’s source also said a surveillance camera at Lord & Taylor, located directly across the street, had provided clear video of the area, though it was unclear whether the image of the suspect was taken from that camera.
“The camera from Lord & Taylor is the best source of video so far,” confirmed Dot Joyce, a spokeswoman for Boston Mayor Thomas M. Menino. “All I know is that they are making progress.
- See more at: http://www.boston.com/metrodesk/2013/04/17/boston-medical-center-reports-five-year-old-boy-critical-condition-victims-treated-from-boston-marathon-bombings/gkKXBTqL2jyNhsC2Kz5GyO/story.html#sthash.SdGCthbC.dpuf