The trial of the Boston bombing suspect raises questions
By David E. Frank
The Daily Record Newswire
BOSTON — Minutes after the harrowing search for Boston Marathon bombing suspect Dzhokhar Tsarnaev ended, a heated dialogue began over the legal strategy prosecutors planned to pursue in the case.
At an internationally covered late-night press conference in Watertown on April 19, 2013, U.S. Attorney Carmen M. Ortiz confirmed that authorities would question Tsarnaev without first reading him his Miranda rights, based on a public safety exception established by the U.S. Supreme Court.
Debate followed over whether Ortiz was on solid ground, and questions immediately were raised on how Tsarnaev’s criminal case would play out in court. Many of those questions are still being asked today.
Among them:
Why wasn’t Tsarnaev charged federally with the killing of MIT Police Officer Sean Collier?
Collier’s death in Cambridge is a matter of state jurisdiction, which means a prosecution likely would have to occur in Superior Court.
Former Middlesex County District Attorney Gerard T. Leone, who prosecuted “shoe-bomber” Richard Reid in 2002, said the lodging of federal charges in Boston will have no impact on the state’s ability to present its case to a grand jury.
“Unless they envelope the [MIT killing] with some type of wide-reaching RICO, which I don’t believe they are going to do, the state’s going to be the one driving that case,” said Leone, who practices at Nixon Peabody in Boston.
Tsarnaev was indicted by a Middlesex County grand jury in June 2013, but he has not yet been brought into court and currently is in default on the case. Federal authorities are notoriously protective when it comes to turning over inmates in their custody. The federal matter inevitably will go first, making it unlikely Tsarnaev will set foot in Woburn anytime soon. If a plea were to be made in federal court, any resolution probably would involve an agreement that includes the Middlesex case.
Although Suffolk County District Attorney Daniel F. Conley could also pursue state charges, multiple sources told Lawyers Weekly that his office is not planning to do so because most of the crimes in Boston are covered by the federal charges.
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Why did Miriam Conrad and the Federal Defender’s Office, which represents Tsarnaev, ask the court to appoint two additional attorneys to assist with the case?
In prosecutions eligible for the death penalty, 18 U.S.C. §3005 requires the court to appoint at least one attorney who is “learned in the law applicable to capital cases.”
Given the magnitude of the charges, Conrad requested in an April 23 filing that U.S. Magistrate Judge Marianne B. Bowler add two “learned” lawyers to the Tsarnaev defense team. She said a federal judge had recently done that for Arizona shooting suspect Jared Loughner.
Judy Clarke was appointed to the case as a death penalty expert last May. Although a request to name David I. Bruck to the team initially was denied, U.S. District Court Judge George A. O’Toole Jr. granted a defense motion in February appointing Bruck. He has served as director of Washington and Lee University School of Law’s death penalty defense clinic and the Virginia Capital Case Clearinghouse since 2004.
“These are attorneys who go from state to state and take these court-appointed death penalty cases,” said Robert L. Sheketoff, who represented Gary Lee Sampson in Massachusetts’ last death penalty prosecution in 2003. “Typically, you would have a lawyer from Massachusetts and a lawyer from somewhere else, who is paid directly by the court. The statute actually provides for a learned counsel. It’s really not up to the judge.”
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From the time of Tsarnaev’s April 19 arrest to his initial appearance before Bowler on April 22, what would have happened if a lawyer representing Tsarnaev had contacted federal officials and told them to stop questioning him without first giving him an opportunity to consult with counsel?
The attorney wouldn’t have had much luck.
While a suspect has a right of access to his lawyer, any effort by an attorney to put a halt to questioning would likely fail unless the suspect explicitly stated he wanted to talk with counsel. The principle goes back to a 1986 Supreme Court decision, Moran v. Burbine, which held that the police had no duty under the Fifth or Sixth Amendment of the U.S. Constitution to inform a suspect of an attorney’s efforts to render legal services.
“There is a difference between Massachusetts and the feds on this,” Sheketoff said. “Where the lawyer shows up at the police station wanting to talk to his client, the feds, if they are already questioning him, don’t have to tell the person that, but in state court you do.”
Sharon Fray-Witzer of Boston said Article 12 of the Massachusetts Declaration of Rights provides suspects with far broader protections.
Fray-Witzer represented a defendant in a landmark 2010 Supreme Judicial Court case involving a Salem attorney who had been appointed to represent a man charged with murder. The lawyer called the police station and instructed officers to tell his client he was representing him, that he was on the way to see the client, and that the client was not to talk until he arrived.
“If the lawyer specifically makes that request, the police are required to communicate that information to the client,” Fray-Witzer said. “The effect of the police failing in their duty to communicate is in violation of Miranda, and any statements would potentially be suppressed.”
While a state prosecutor could counter that the public safety exception to Miranda applies, it would be up to a judge to decide in a motion to suppress who is correct.
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When might the defense move to have the case transferred out of Massachusetts?
O’Toole told defense lawyers at a February status conference that if they intend to file a motion for a change of venue, they must do so by June 18.
Notwithstanding the judge’s order, the June 18 date would not bar the defense from renewing a venue request on the eve of trial.
Michael D. Ricciuti, who served as chief of the Anti-Terrorism and National Security Unit in the U.S. Attorney’s Office from 2002 to 2005, said the law clearly allows defendants such as Tsarnaev to seek a new venue at any time if they believe they cannot get a fair trial in the district.
While it might be tempting to try to get the case out of town as soon as possible, Ricciuti said, there are a number of reasons why the defense might want to hold off on filing such a motion.
“The rules in Massachusetts regarding discovery are far more generous and more defined than elsewhere,” he said. “The judges in this district are very used to fairly extensive discovery. So if you are representing this defendant, you may not want to hustle this case out of Massachusetts until you’re sure you’ve gotten all the information you need because this district is excellent from a defense perspective in ensuring that happens.”
Government opposition to a venue request would likely involve arguments that a majority of its witnesses are in Massachusetts and requiring them to travel to another state would create an undue hardship.
Although motions for a change of venue are routinely denied or deferred until jury empanelment, the conventional wisdom in this case is that a judge would be hard-pressed to keep it in Massachusetts over the defendant’s objection.
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How does the discovery process work when it comes to classified intelligence information?
It’s inevitable that the defense will seek information during discovery that the government contends is protected under the Foreign Intelligence Surveillance Act.
“The public release of classified information can do serious damage to the national interest,” Ricciuti said. “So it is delicately guarded, and it is something that is taken very seriously in American courts.”
In order to gain access to such materials, the defense will have to get a security clearance, he said. Once that happens, the DOJ sends a security officer from Washington who is responsible for overseeing any classified material that may be used in court.
Contrary to the comments of Republican Sen. Lindsey Graham of South Carolina, who described the case as so cut and dry that “a first-year law student could convict him,” dealing with the discovery issues alone will make the Tsarnaev matter extremely complicated for both sides.
“It’s really tricky, and part of the issue is getting the government to disclose the classified material in the first place,” Ricciuti said. “Once that is done, the issue on the defense side is to get a level of comfort that you’ve seen everything. Particularly after Sept. 11, it’s a process that’s not unchartered territory, but it is going to add a level of complexity to anyone — on both the prosecution and defense side — who wants to handle the case the right way.”
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What are some of the difficulties a lawyer faces when taking on a case of this magnitude?
There are few attorneys in Massachusetts better equipped to answer that question than J.W. Carney Jr., who represented mobster James “Whitey” Bulger at trial last year. In addition to Bulger, Carney and his former partner, Janice Bassil, have represented defendants in scores of high-profile cases, including the 2012 trial of Sudbury terror suspect Tarek Mehanna and the 1996 case of John Salvi, who was found guilty of murder after a shooting rampage at two abortion clinics in Brookline.
Carney said the time needed to properly prepare for a case like Bulger can be overwhelming, particularly when the lawyer’s obligations to other clients do not go away.
“Three months after I was appointed to represent Bulger, [Bassil] and I began a nine-week trial in the [Mehanna] case,” he said. “You’ve got all these other matters with clients who are expecting you to finish their cases.”
Carney said that taking on a Bulger or Tsarnaev defense can also drain a law firm’s resources. To keep up with the discovery in Bulger, he had to take on additional office space and hire four lawyers and two paralegals, despite the fact that the court-appointed hourly rate he and his team received was often 25 percent or less of a lawyer’s rate for a private case.
On top of that, there’s the notoriety associated with representing unpopular clients to consider.
“People understand that John Salvi and Tarek Mehanna and James Bulger are entitled under our Constitution to be represented by an attorney appointed by the court, but it still creates problems with those who don’t understand why the lawyer would take this type of case,” Carney said. “For example, I have always been pro-choice, as is my wife, but a large number of our friends thought by representing Salvi I was defending violence against women’s health clinics.”
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How do the resources at the Federal Defender’s Office compare to the DOJ’s?
Former federal defender Tamar R. Birckhead, who represented Reid in the 2003 shoe-bombing case, said she’s concerned about her former office’s lack of resources and manpower.
“It’s like a David and Goliath scenario, where under the best of circumstances they are operating on a shoe-string budget,” she said. “When that’s compounded by [2013’s] mandatory furloughs and sequestration issues, I can’t imagine the duress and pressure they are under.”
Even in good economic times, Birckhead said, the office was small and understaffed.
During Reid, she had to write her own press releases because the Federal Defender’s Office, unlike the DOJ, did not have a press liaison.
“I was getting tons of phone calls from reporters and was left on my own in terms of figuring out when to respond and what to say,” she said. “We knew we had to engage the media, because we wanted to have some impact on the narrative. I’m sure that’s going on now, probably to an even greater degree.”
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How long will a case like this take?
The answer obviously depends on whether the case goes to trial or results in a plea.
Now that prosecutors have announced their intent to seek the death penalty, they hold most of the cards. If the government takes the position that no other outcome but a death sentence is appropriate, the case will go to trial, which means it could go on for a while.
At a recent hearing, O’Toole set a Nov. 3 trial date. Early indications are that the judge plans to keep the pressure on the lawyers to be ready by then. Look for Tsarnaev’s attorneys to file a motion to continue the trial this summer, which will lay out all the reasons they believe more time is needed to mount a proper defense. While they may not get the trial pushed back to November 2015, a spring or summer date in that year is far more realistic.
Birckhead, who now teaches law at the University of North Carolina at Chapel Hill, believes the matter will be resolved short of trial.
“[I]t’s not uncommon in cases like this for the prosecution to be willing to take [death] off in exchange for a guilty plea,” she said. “I hate to say that the evidence is overwhelming, because none of us are in a position to know, but if it does turn out that it’s not a triable case, and if the defendant doesn’t want a trial, my sense is that there will be something negotiated that is to everyone’s benefit.”
