The Case Against Dzhokhar Tsarnaev: A Guide
Posted by Jeffrey Toobin
April 23, 2013
On Monday, the government filed formal charges against Dzhokhar Tsarnaev in the terrorist attack on the Boston Marathon last week. He is charged with use of a weapon of mass destruction and malicious destruction of property resulting in death, and could face the death penalty.
The legal proceedings in Tsarnaev’s case are likely to be lengthy and complex. Here’s a guide to a few of the issues that may come up, or already have.
What happened Monday? Tsarnaev was arraigned before a magistrate judge. (Here’s a transcript of the brief proceeding.) The judge informed Tsarnaev of the charges against him, told him the potential penalties, and found that the defendant was lucid and understood the proceeding. Tsarnaev said only one word, “no,” when asked if he could afford a lawyer. Otherwise, he just nodded his head. Tsarnaev was represented by William Fick, a defense lawyer with the federal-defender service in Boston. (Though his client is fluent in English, it may prove useful that Fick spent six years working in Russia earlier in his career. Still, at some point, Tsarnaev may wish to hire his own attorney, and he is free to do so if he can afford to.)
Tsarnaev was apparently questioned by investigators before he received Miranda warnings. What happens to any statements he made during that time? It depends on what use the government chooses to make of them. If prosecutors seek to introduce those statements against Tsarnaev at his trial, he could move to suppress them on the grounds that they were illegally obtained. The government would argue that the questioning was justified under the public-safety exception to the Miranda rule. That argument will probably prevail, but it’s not a sure thing. In most instances, if the government wants to use Tsarnaev’s statements for a purpose other than trying him—if, for example, it started an investigation of someone else based on what he’d said—it can, and Tsarnaev would have no right to challenge that.
What happens next? Federal prosecutors will begin to present evidence to the grand jury, which will probably return an initial indictment in the next thirty days. The case will then be assigned to a federal district judge for trial. (As the government uncovers more evidence, it will almost certainly file additional and amended indictments after the first one; these are called superseding indictments.)
When do state prosecutors step in? And who gets to go first, state or feds? This is subject to negotiation, and sometimes those turf battles can be ugly. The usual rule is that the feds go first; they’re perceived as having greater resources and representing the national interest. (And if you ask state and local law enforcement, they’ll tell you the feds have the bigger egos as well. It’s in the course of this type of internecine warfare that you’ll hear that F.B.I. stands for “famous but incompetent.”) Federal prosecutors have limited jurisdiction. Some cases may only be brought in state court. The murder of the M.I.T. police officer Sean Collier is a possible candidate for a separate state case. But these judgments will be made several months from now.
What will Tsarnaev ultimately be charged with? It’s not clear. An indictment will often contain more charges than the initial complaint, which is what the government has filed thus far. Since the crime took place just a week ago, the authorities will undoubtedly do a great deal more investigating. Much of this further effort will be scientific in nature: attempting to tie evidence found in Tsarnaev’s home and car and at the scene to the defendant personally.
Is there anything surprising about the complaint? It makes no mention of the Collier murder. There are several possible reasons for this. First, the government is not obligated to disclose all of its evidence and make all of its claims at this early stage. The evidence connecting Tsarnaev to this murder may not be clear. Second, the murder of Collier may not be a federal crime; only certain crimes, which have some connection to interstate commerce, are prosecuted in federal court. Most murders are prosecuted in state court, and this matter may be left to Massachusetts to pursue. In any case, all options remain open at this point.
What about weapons charges? One of the many unknowns in the case is where and how the two brothers obtained their weapons. If they were obtained illegally (or with illegal help from others), that might be the basis for more charges.
How long will this whole process, including the trial, take? There’s no way to say for sure. But it’s very unlikely that there would be a trial sooner than a year or so from now. One can be sure of one aspect of the defense strategy: delay, delay, delay. (And a possible request for a change of venue.) The farther the defense can get from this moment in Boston, temporally and physically, the better its chances. (Not that the defense’s chances appear at all promising.)
Does Tsarnaev have to be out of the hospital to be tried? If so, how long are authorities allowed to continue holding bedside hearings like this one? There are no hard-and-fast rules here. Tsarnaev has to be able to understand the proceedings against him and participate meaningfully in his defense. He does not have to be a hundred per cent healthy to be tried. He does have to be present at the trial. The decision about his fitness to stand trial will be up to the district judge assigned to try the case.
Tsarnaev supposedly was coöperating with the authorities, consistent with his medical condition. Will he continue to do so? Almost surely not. His attorney will put a stop to it. If Tsarnaev and his lawyer want to negotiate something other than a death sentence, his possible coöperation would be an important bargaining chip. The more Tsarnaev talks now, the less he has to offer later.
If the Tsarnaevs did in fact act alone and Dzhokhar doesn’t have information about terror plots or people engaged in planning for terror, would the Department of Justice still be willing to agree to a plea bargain? This is hard to say. Dzhokhar would certainly have more leverage if he could tell investigators about a wider plot. Prosecutors will have to consider many factors in deciding whether to plea bargain; among them are the strength of their case, the wishes of the victims and their families, the views of local authorities, and the judgment of senior Justice Department and White House officials.
So prosecutors are going to seek the death penalty? The initial charges include crimes that potentially carry the death penalty; this will probably also be true of the charges in the initial indictment. But that doesn’t mean that the government will necessarily go for the death penalty. The Department of Justice has a formal process for deciding whether to seek death in eligible cases; this process begins after the indictment. The final decision is up to Eric Holder, the Attorney General.
What if the government can’t prove that it was Dzhokhar and not Tamerlan who, for example, shot Collier? Also, more generally, what does it mean to the case that only one brother is alive? Dzhokhar is currently not charged with Collier’s murder. If the government believes that Tamerlan pulled the trigger to kill Collier—or if it can’t prove that Dzhokhar did—Dzhokhar could still be prosecuted under a conspiracy theory or as a felony-murder accomplice. As a general matter, it is a mixed blessing for Dzhokhar that he is the only survivor. It is bad for him because he is now the focus of all the prosecutorial attention. But it is potentially helpful for him as well: he and his lawyers could try to paint his absent older brother as the mastermind and manipulator and, potentially, as the one who fired the shot that killed Collier.
What happens if the families of those killed file wrongful-death suits? Can they be tried at the same time as the criminal case(s)? Civil cases only proceed after all the criminal trials (state and federal) are over. I have no doubt that civil cases will be filed, but it’s not clear to what end. The Tsarnaevs appear to have virtually no money. I suppose it’s possible that there could be lawsuits for negligence against those who failed to prevent the attacks, but (a) those kinds of cases are hard to win, (b) it’s not clear at this point that there was any negligence, and (c) any kind of civil litigation is likely to be years in the future.
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