Conjecture: The judge has or will rule that the defense, jury and public have no right to know of surveillance of Tamerlan or Dzhokhar Tsarnaev or any of their friends before April 15, 2013 or afterwards. This is whether by NSA, wiretaps, FBI surveillance on foot.
Also if the FBI knew who the Tsarnaevs were between the bombing and the end of the siege of Watertown will not be given to the defense, jury or public. This includes whether any FBI were in Cambridge waiting for the Tsarnaevs or in Watertown or the Allston section of Boston. This includes any surveillance of Harvard or MIT Economics Department or profs linked to them or HBS or Sloan School of Management or others linked to IMF loans to Russia. This includes Andrei Shlefier, Larry Summers, etc.
This includes whether Tamleran had a relation with the CIA or US government, Russia FSB or Russian front groups or private security firms like Mongoose.
Thus the defense, jury and public will be unable to place evidence in context. This impairs forming inferences on whether the Tsarnaevs could have hijacked the SUV, could have followed the path suggested, could have shot the MIT police officer, etc. So it impacts the inference capacity of the defense, the jury and the public.
That in turn limits the ability of the defense and public to investigate themselves to find information that contradicts the official version. That is a denial of right to a public and fair trial.
A public trial is one where the public can follow it sufficiently to use information the public has to determine if the charge is valid, even if the jury is not able to do that. The public is a second jury, but one that can investigate and continue the investigation after the formal trial is over. The public has powers like firing the police and prosecutor and judge for running a rigged trial. That power requires they be informed of the context of the investigation.
The prosecutor, judge, cops act in the name of the public. That gives the public a broader right to know what the investigation was in its broadest outlines and what the police knew and did at each stage. That is part of the right to a public trial, which is a right of the public as well as the defendant.
The public has the right to know if the judge, prosecutor, police acted as the public wishes and to fire them if it doesn’t like how they acted. This is a major part of the right of the defendant to a fair trial and is part of the meaning of a public trial, the risk to the police, prosecutor and judge they will be fired for being unfair or irresponsible. That includes putting at risk the MIT cop, the SUV man who was hijacked, babies in their cribs almost hit by stray police bullets.
Could the deaths subsequent to the Boston bombing been avoided because the police already knew who the Tsarnaevs were? This is part of the penalty phase for Tsarnaev since it affects this calculation by the jury and public.
The jury knows the public makes an assessment of the trial. That depends on the wider context. This is also part of the check an balance on the jury, their reputation cost for a bad verdict. That includes their own family and friends even if their names are withheld from the public, which should be rare. Being subject to shame for a stupid or unjust verdict is part of the check and balance on the jury just like the police, prosecutor and judge.
This is draft and preliminary. The above is hypotheses and speculation. Comments and corrections welcome. Please restate as questions. All other disclaimers apply.