The Brothers (20 page)

Living in America was hard. Amir started out driving the boys’ BMW, the one he had paid for, but every few days he would be chased by several unmarked cars at once, stopped with great fanfare, made to get out of the car and submit to a search, so that each time it was a couple of hours before he was allowed to continue on his way. After a few weeks, with no sign that this pointless ritual was going to end, Amir ditched the BMW and started alternating between cabs and rental cars. Then there was the issue of housing: Amir had to change apartments every month or two, because every renewable short-term furnished-apartment lease had a way of becoming not so renewable once the landlord learned why Amir’s family was in Boston. Arkady Bukh’s people would find Amir a new place, negotiate the option of renewing the contract every few months—and in a few weeks the cycle would be repeated. Amir racked up more than half a dozen Boston neighborhoods in just over a year.

Hiring Bukh had been a good idea: it was by far the highest-profile case he had ever handled, and he threw everything he had at it. Seven of his people rented a house together in a Boston suburb, and, when they were not busy apartment-hunting for Amir, they were cramming for the trial. They went to see every person with whom Azamat had been friendly in college; most of them refused to talk to the lawyers, a few explained that the FBI had told them not to talk to anyone, and not one person agreed to testify for the defense. The legal team reconstructed every FBI interview and interrogation, finding numerous inconsistencies and digging into them. Since they had no witnesses, they would mount a defense based solely on attacking the government’s case.

They did it like it’s done in the movies—in fact, while I was reporting on the trial, I enticed two of my own family members to come watch on two separate days, promising them a cable-series-worthy spectacle, and they were not disappointed. Cross-examining Special Agent Sara Wood, defense attorney Nicholas Wooldridge asked whether Azamat had been allowed to use the bathroom on request—and after Agent Wood asserted that he had been, and denied that he had been told he needed to sign his waiver of rights in order to be allowed to pee, the defense showed a video of Azamat being taken to the bathroom several minutes after the time recorded for his signature on the form that said he had agreed to talk to the FBI without a lawyer. Agent Wood had not merely denied coercion: she had claimed that Azamat signed the form after he returned from the bathroom. What made this cross-examination particularly cinematic was that the lawyers had been able to establish that the clock on the wall at the police barracks had not been set forward to daylight saving time, so a video that at first glance appeared to show an innocuous sequence of events was revealed to tell a different story.

After that day, which came about halfway through the two weeks of testimony, I could not imagine the jury convicting Azamat: the FBI agent who had conducted the first and most important interview with him had just been caught lying on the stand. That, I thought, served to discredit her report—the only existing record of the interview—and without the report, the government’s case would seem to fall apart. Later, Wooldridge caught Wood’s partner, Agent Azad, in the same fib, cementing what I thought was a victory for the defense. Perhaps even more important, the government’s case was not so much about facts, which were not in dispute—Dias, Azamat, and Robel had certainly gone to Jahar’s room, they had driven away with the backpack holding the fireworks, and Dias had thrown it in the trash—as it was about intention. Did they, as the charges alleged, “willfully conspire,” and did they have the “intent to impede, obstruct, and influence” the investigation? The prosecution repeatedly pointed to Azamat’s obsessive surfing of news sites as proof that he was trying to track the manhunt in order to help Jahar get away. The defense was arguing that Azamat kept checking the news because he was confused, scared, and incredulous. The government’s only witnesses who could testify to Azamat’s state of mind before he knew that Jahar had been caught were the FBI agents who had interviewed him then—and the jury had now seen that they could not be trusted.

But Amir, who did not speak any English—the court provided simultaneous translators, but they had some trouble keeping up with the defense—had picked up on cues to which I was not paying attention. The New York lawyers were indeed talking too fast. They also looked too good: their suits fit too well, and Wooldridge’s hair actually shone. The government’s lawyers—the men in their baggy suits, the lone woman in her boxy outfits—and their speech, which struck me as occasionally hokey, and broad Massachusetts accents, had a much better connection with the jury.

The jurors took a day and a bit to return a verdict, but as I found out later, that had been an illusion of deliberation: one of the jurors had simply been ill on the first day. In fact, the jury’s unanimous decision had been nearly instant. Azamat never had a chance.

Azamat and Dias were in solitary for the first six months in federal prison. Then they were placed together for a few months, then separated again—and placed in solitary—before Azamat’s trial began. Once they were in separate cells, each was offered a deal: a reduced sentence in exchange for pleading guilty and testifying against the codefendants. Azamat told Amir he had turned the deal down. Amir told me that Dias’s father had told him that Dias had said no as well—indeed, he did not testify at Azamat’s trial.

Dias was scheduled to face trial two months after Azamat, in September. A month earlier, at what was scheduled as a pretrial hearing, Dias pleaded guilty. In exchange, the government asked that he be sentenced to no more than seven years behind bars.

•   •   •

THE SENTENCING
was scheduled for 2015. If Bayan’s father, by being first to hire a lawyer, proved that he was the smart one, now it looked like Dias’s father, who had had his lawyer cut a deal with the prosecutors, was not so dumb either, while Amir, who had spent a million dollars on lawyers and uprooted his family to come to Boston to try to move mountains for a year, was enough of a fool that his son was staring at twenty-five years in prison. Amir instructed the lawyers to look for a deal: it was a question of survival now, not of honor. At Robel’s trial in November, Azamat was a witness for the prosecution.

Azamat’s head was shaved now. He was prison-pale, the kind of pale that results from spending twenty-three hours a day in a tiny locked room. Amir must have bought him a new shirt for this trial—he was well used to the routine of exchanging a laundered white shirt for a soiled one through a special window at the courthouse—but he made a mistake with either the size or the style: the cutaway collar of the shirt spread out over the collar of Azamat’s navy English-cut suit, making him look like he was wearing someone else’s clothes.

When Assistant U.S. Attorney Stephanie Siegmann asked Azamat to tell the jury of his agreement with the prosecution, he said, “As long as I tell the truth, it may help with my sentencing.” He had been given no promises.

Azamat had not testified at his own trial, so now he told the story in court for the first time. Answering the prosecutor’s questions, he ran through it step by step: Dias texted him, they went to Jahar’s room, it was locked, later they got in, he and Robel watched
Project X
while Dias searched the room, they left, they ate, some of them smoked, they watched
The Pursuit of Happyness
, they slept, and then Dias emerged from the bedroom. “He wanted to throw the backpack,” testified Azamat. “I agreed with him.” When the prosecutor asked him what language he and Dias used to talk about the backpack, Azamat said it had been English. When Robel’s defense attorney pointed out that Azamat had not said this in earlier interviews and interrogations, Azamat said that he did not remember.

The question of whether Russian or English was spoken that morning in the apartment was essential to Robel’s defense. His lawyers’ strategy rested on two assertions: Robel was too stoned to remember anything, and he did not understand what Dias said about the backpack because Dias and Azamat spoke Russian to each other. The prosecution, basing its case in large part on the strange statement Robel had signed in April 2013, in that little room Agent Delapena had locked, promising to keep the “wolves” out, insisted that the conversation had been conducted in English—and Robel had even said, “Do what you have to do,” which his defense now denied. In other words, in the prosecution’s narrative, Robel and Azamat had played identical roles in the story: neither of them had touched the backpack or the fireworks, and both of them had passively acquiesced to Dias’s intention to dispose of them. Indeed, they had been together every step of the way, from eight in the evening on April 18 to nine in the morning on April 19. They had watched
Project X
together while Dias searched Jahar’s room, and they had both napped together while Dias and Bayan had words about the backpack. Unlike Robel, Azamat had never denied going to Jahar’s room. So why was Azamat charged with conspiracy and obstruction of justice while Robel was charged only with lying to investigators? The prosecutors would not answer that question, but when I asked Robel’s defense attorney Derege Demissie, he suggested the government chose the lighter charge for Robel because “they could make it stick.”

Why could the heavier charge be made to stick to Azamat and not to Robel? It was obvious: Robel was not a foreigner or a Muslim. Demissie used every opportunity to point out the distinction, stressing that Dias, Azamat, and Jahar “shared a language and a religion” that were foreign to Robel. At one point, Judge Douglas Woodlock instructed the jury that it would be “inappropriate” to take the defendant’s religion into consideration—but he allowed Demissie’s remark to stand.

Demissie even got former Governor Dukakis to take the stand. He admitted that he had no direct knowledge of the events in question, but his testimony demonstrated that Robel was one of Massachusetts’ own. That was evident even before he came to court, causing a minor news sensation. The local media, which had only briefly acknowledged Azamat’s trial and Dias’s guilty plea—there had been a day or two when I was the only journalist in the courtroom—turned out in force for Robel’s trial.
Boston Globe
columnist Yvonne Abraham published a piece titled “Robel Phillipos Made Stupid Mistakes That Any Kid Could Make.” In it she asked, “Is it absolutely necessary to bring the full force and power of the federal government down on him?” The following day, Abraham was a guest on a public-radio talk show, and listeners kept calling in to affirm her view: Robel seemed like a regular kid, he could be one of their kids, and he should not go to prison.

•   •   •

LOST IN THE DISCUSSION
of just how stupid a mistake Robel had made was a simple question: How much damage had the three friends’ actions done? When Azamat was on the stand during Robel’s trial, prosecutor Siegmann asked him to explain to the jury why he had been convicted. “Because I took the stuff, it blocked the investigation,” he said.

Once the FBI learned of the backpack and its having been thrown in the dumpster, it appointed Special Agent Kenneth Benton, a twenty-six-year veteran of the agency who specialized in white-collar crime and public corruption, to look for it. Benton assembled a team of twenty-five agents who, dressed in hazmat suits and armed with rakes, spent a day and a half sifting through trash pulled up by an excavator at the landfill where a garbage truck had taken Carriage Drive waste on Friday afternoon. The agents produced a number of false-hope backpacks before they finally got one with the JanSport logo on the outside and an eight-and-a-half-by-eleven sheet of ruled paper inside, with some of Jahar’s ethics homework. It also contained the emptied-out fireworks containers and the Vaseline jar. Between assembling a team of agency volunteers, cordoning off a section of the landfill, and a bad-weather delay, the agents did not start digging through the garbage until Thursday the 25th and did not find the backpack until the afternoon of Friday the 26th. Jahar had been in custody for one week. Robel was just signing the confession with the inaccurate description of the backpack.

Robel was charged with “knowingly and willfully making a materially false, fictitious, and fraudulent statement.” The key word here is “material”—meaning that it had a substantial impact on the investigation, or, as Azamat said, “blocked” it. But Robel knew less than the investigators learned from Dias and Bayan almost as soon as they were detained—before Robel was interviewed for the first time, in the Price Chopper parking lot. Even if he had instantly spilled everything he had known about the fireworks and the Vaseline, it is difficult to imagine that the information could have influenced the course of the investigation. What if the investigators had learned of the backpack and the dumpster even sooner than they got to Robel, say, as soon as they laid siege to Carriage Drive? The garbage truck had already come and gone, so the FBI might have been spared a little time and expense but none of the humiliation and filth of the landfill search.

And what if Dias had not taken the backpack at all? That would not have aided the process of identifying Jahar: by the time investigators arrived at Pine Dale Hall, his name had been known for hours. Nor did the government ever claim that the contents of the backpack helped determine where or how the Boston Marathon bombs were made.

•   •   •

IN ROBEL’S CASE
the jury was out for four days. Longer deliberations bode better for the defendant. But the jury returned with a verdict of guilty on two counts of making false statements, which left him vulnerable to the maximum sixteen years for that crime.

•   •   •

IN MAY 2014,
a year after Amir moved to Boston, some young women from the boys’ informal support group happened to catch a cab with a Russian-speaking driver from Central Asia. They asked him for his number so that they could give it to Amir: not only did the guy speak Russian but he drove a minivan—handy for when Amir was going to visit Azamat in jail with family and friends, or members of the defense team. A day or two later, Amir called the cabbie to drive him and several others to the federal prison.