US v. Tsarnaev: One year later

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BOSTON, Mass. — On the first anniversary of the Boston Marathon bombings, the legal questions surrounding Dzhokhar Tsarnaev’s criminal case are as many and as varied today as they were following his arrest in Watertown, Mass., on April 19.

For one, why have the lawyers on the federal case filed so many of their motions under seal?

Also, is the defense barred from seeking a change of venue during jury empanelment?

And where would Tsarnaev, the alleged Marathon bomber, be executed in the event of a death penalty verdict?

Some answers, as U.S. v. Tsarnaev hits the one-year mark.

1. What’s going on with Tsarnaev’s state charges?

Middlesex County prosecutor Adrienne Lynch quietly indicted Tsarnaev last June for the murder of MIT Police Officer Sean Collier. Tsarnaev also faces armed assault with intent to murder, kidnapping, armed robbery, firearm and large-capacity feeding device charges.

While Tsarnaev was served with a copy of the state indictment, he won’t be leaving his Fort Devens Federal Medical Center prison cell for a Woburn courtroom anytime soon. When his state case was called on Oct. 7, Tsarnaev did not appear, and the court issued a warrant for his arrest.

Middlesex County Superior Court Clerk of Courts Michael Sullivan says all indications are Tsarnaev won’t enter his court until the federal trial is finished.

The difficulty in getting a defendant like Tsarnaev to court lies with the feds, who are notoriously stingy when it comes to making their detainees available for state proceedings.

Sullivan, who is running for Middlesex district attorney, said it would be up to state prosecutors to negotiate the transfer with the U.S. Department of Justice.

“In some cases when we’ve had to get a federal prisoner into our court, the federal government will bring him to a federal office and then the state police will do the pickup and bring him back,” Sullivan said. “It’s not an easy process. The federal authorities have their rules and are very particular about what the ‘habe’ has to say in order for them to recognize it.”

2. If Tsarnaev is convicted federally, what are the odds he’ll ever be tried on state charges?

While many believe Tsarnaev will never see the inside of a state courtroom, former Middlesex County DA Gerard Leone Jr. isn’t one of them. The Nixon Peabody partner thinks prosecutors will push to try Tsarnaev in state court regardless of the outcome at the Moakley Courthouse. Leone says the only way that wouldn’t happen is if the Collier family steps in and voices its opposition.

“It doesn’t matter what he gets for a sentence in the federal court, because I would want to try him separately for the murder of that police officer in my county,” Leone says. “There would be a number of factors I would take into account, but the primary one in my mind would be the victim and what his family, loved ones and his police colleagues wanted.”

3. Why have the lawyers on the federal case filed so many of their motions under seal?

Because U.S. District Court Judge George O’Toole Jr. set the rules that way.

At a Sept. 23 status conference, O’Toole acknowledged that concerns have been voiced over all the sealed filings in U.S. v. Tsarnaev. He told the lawyers that those concerns come from folks unfamiliar with the local rules, which, he conceded, need to be reconsidered by the Local Rules Committee.

Until then, however, the parties must follow a series of steps before filing anything under seal.

First, a moving lawyer seeking to submit a sealed pleading must file a separate sealed motion, which explains to the court why the attorney should be allowed to submit a second motion under seal. In the document, which can be filed ex parte, the lawyer must also state when the motion might be unsealed.

If that sounds confusing, it’s because it is confusing.

“[A]fter the motion’s made, there has to be an order granting or denying the motion, what are the reasons for that, and then if it’s granted, the sealed matter may be filed under seal,” O’Toole said in court. “It’s simply to make sure we have a step-by-step record of the application, the order on it, and then the matter, OK?”

4. What will Tsarnaev’s federal trial look like?

The trial will be bifurcated.

During Phase 1, jurors will decide if prosecutors have met their burden of proof on the 30-count indictment returned last June. If there is a guilty verdict on any one of the 17 charges that carry the possibility of death, the same 12 jurors will decide in Phase 2 if Tsarnaev should live or die.

5. How long will each trial last?

Assuming the court operates on a 9 a.m. to 1 p.m. schedule (which is par for the course in federal court), Assistant U.S. Attorney William Weinreb has told O’Toole Phase 1 should take about 90 days. The government estimates Phase 2 will run for six weeks, during which time the defense will present mitigating factors it believes are relevant in the case against death.

Both estimates seem conservative, as a trial of this scope is likely to last far longer.

While some have speculated Tsarnaev may bypass Phase 1 and move right into Phase 2, as any defendant has the right to do, nothing has been said by his team to suggest that that will happen here.

But at a Feb. 12 hearing, prosecutor Aloke Chakravarty told O’Toole where he thinks the focus of the jury’s work will be placed.

“Let’s not kid ourselves,” he said. “[T]he issue here is going to be the penalty [phase].”

6. If defense lawyers are so focused on preparing mitigation materials for Phase 2, does that mean they’ll eventually admit guilt on Phase 1?

Not at all, according to criminal defense attorney David Hoose of Northampton, who knows his way around death penalty cases.

“I don’t think anyone should assume from that that the defense team has concluded the case on guilt is hopeless or anything of the sort,” he said. “I don’t think you can infer anything from it other than that they need to be prepared to go into a penalty phase.”

Hoose represented Kristen Gilbert in 2001 in the Massachusetts’ first capital case in more than 50 years. A federal jury convicted Gilbert of killing patients at a veterans’ hospital, but in the end recommended that she serve life in prison rather than face execution.

O’Toole hasn’t said what he intends to do in the event of Phase 1 guilty verdicts against Tsarnaev, but Hoose notes that most judges don’t leave much time between the two trials. That means the lawyers have to get ready for both phases now.

“I take the position that, in any criminal matter, a lawyer should start preparing for sentencing as soon as he takes the case,” says Hoose, a lawyer at Sasson, Turnbull, Ryan & Hoose. “You don’t have to be a rocket scientist to see that 95 percent of the cases you work on end in an admission or finding [of guilt] of some kind, so you need to be prepared for that. Obviously, in a death penalty case, the need is even greater.”

7. How often do juries recommend death at a Phase 2 trial?

Since the federal death penalty’s reinstatement in 1988 after a 16-year hiatus, there have been 215 Phase 2 verdicts. Seventy-two of those verdicts — or 34 percent — have resulted in death sentences, according to the Death Penalty Information Center.

8. Why have the lawyers been arguing for so long over what evidence prosecutors are required to turn over as it relates to Phase 2?

The Federal Death Penalty Act, 18 U.S.C., §3593, affords Phase 2 juries almost unlimited discretion to choose between the death penalty or life imprisonment.

The defense has said the jury’s sentencing verdict could easily turn on how it apportions responsibility to Tsarnaev and to his older — now dead — brother Tamerlan for carrying out the attacks, and the extent to which it views Tamerlan as having coerced his younger brother to help commit the crimes.

For that reason, they say, any evidence that tends to show Tamerlan supplied the motivation, planning and ideology behind the bombings, and that Dzhokhar acted under his domination and control, is “material” under the law.

Judy Clarke, one of Tsarnaev’s two death-penalty-expert attorneys, has called the exchange of discovery in the case “laborious” and “way outside the norm” in her experience.

“It is perplexing to all of us why prosecutors would tack as close to the wind and not just produce,” she said to O’Toole at a recent hearing.

AUSA Chakravarty countered that his office had gone “above and beyond” what is required in terms of turning over mitigation evidence.

“What we have that is relevant to either the liability phase or the penalty phase we have made available to the defense,” he told O’Toole. “We’ll continue to do so.”

Hoose says the government had an open-file policy in the Gilbert case in which all materials relevant to mitigation were turned over to him months before trial.

“I’d certainly hope the government isn’t playing games [in Tsarnaev],” he says. “If you’re going to try to kill somebody, you shouldn’t be messing around with what should be turned over.”

9. Where would Tsarnaev be executed in the event of a death penalty verdict?

Massachusetts doesn’t recognize the death penalty, so federal officials couldn’t conduct an execution on state ground. While it’s possible he could be executed on federal property in the commonwealth, odds are it would take place elsewhere.

There have been three federal executions since 1988, all of which occurred in Terre Haute, Ind., by lethal injection.

New Hampshire, the closest death penalty state, is another potential venue. U.S. District Court Judge Mark Wolf ordered Gary Sampson to be put to death there after a jury in Boston convicted Sampson in 2001. Wolf supposedly made the decision, in part, to make the process more accessible to the victims.

Sampson’s sentence was vacated in 2011; he’s slated to be retried in February.

10. How realistic is Tsarnaev’s Nov. 3 trial date 

Not very.

O’Toole has a reputation for sticking to trial dates, but if he were to force Tsarnaev to go to trial with lawyers who repeatedly have informed the judge that they need more time to represent a client facing a death sentence, he would be creating one heck of a legal issue on appeal (in the event of a conviction).

As of February, the government had provided the defense six to seven terabytes’ worth of digital evidence. Look for Tsarnaev’s lawyers to file a motion to continue sometime this summer that lays out all the reasons why they think more time is needed.

They’re not going to get empanelment pushed back to their originally requested November 2015 trial date, but the spring or summer of next year is a realistic timeframe.

Clarke laid the groundwork for such a request just minutes after O’Toole set the date, when she called the trial schedule “impossible for us to meet.” Speaking in court, she said the defense has a “tremendous amount” of family history to investigate and collect and must travel halfway around the world to gather it.

“We simply know enough about our case to know what we don’t know,” Clarke said at the hearing. “[I]’m not sure how we’re going to make any of the litigation dates. … I doubt we’ll get experts access to information before the summer, which makes a trial date in November virtually impossible.”

11. Is the defense barred from seeking a change of venue during empanelment?

While the answer is, of course, “no,” O’Toole’s recent order that Tsarnaev file any motion for change of venue by June 18 caused some to wonder.

Former federal prosecutor R. Bradford Bailey says the deadline is merely a presumptive date that would not preclude a motion for change of venue during jury selection.

“Deadlines can change, issues can be revisited, and a motion for a change of venue that is denied in June can almost certainly be revisited in October, or even at the time of jury selection,” he says. “Opinions can change as pre-trial publicity ratchets up before a trial. … So I’m one of those who do agree that this is much better done on the eve of a trial rather than five or six months beforehand.”

12. What role could the Ibragim Todashev shooting play in Tsarnaev’s trial?

Late last month, a Florida prosecutor released a long-awaited report that found an FBI agent acted in self-defense when he fatally shot Ibragim Todashev, a 27-year-old with ties to Dzhokhar’s brother, Tamerlan.

Todashev died last May during an interrogation in his home with FBI agents and state police over his friendship with the elder Tsarnaev and his alleged role in a September 2011 triple homicide in Waltham.

While debate will rage on for a long time about what really happened inside Todashev’s Orlando home, it remains unclear what role the shooting might play in Tsarnaev’s death penalty case.

We know the defense filed a discovery motion last fall seeking all documents concerning the Waltham investigation. The defense argued that the nature and extent of Tamerlan’s alleged involvement in the triple homicide and the absence of information about any involvement by Dzhokhar provide critical mitigating information.

But in a Nov. 27 order, O’Toole denied the request on grounds that a law enforcement investigatory privilege protects disclosure of investigative files in any ongoing criminal investigation.

“The defendant has not articulated a specific need for these privileged materials,” the judge wrote, “much less a need which overrides the need to keep confidential the details of an ongoing investigation.”

Before the ink had dried on the Florida prosecutor’s report, the defense asked the judge to reconsider his earlier ruling. While prosecutors have yet to respond, it’s likely they’ll continue to object.

At a Nov. 21 status conference, AUSA Weinreb said his office has no plans to turn over the Todashev information to the defense because the matter is still under investigation by the Middlesex County DA’s Office.

“For that reason, we have tacked closer to the wind when it comes [to disclosing] information with respect to that investigation,” Weinreb said in court. “Obviously, as is the case with any criminal investigation, revealing the details of it while it’s still under investigation would have a tendency to jeopardize it, to undermine it.”

Criminal defense attorney Martin Weinberg said when the government is seeking capital punishment against a 19-year-old, it has an obligation to extinguish as much public doubt about the process as possible. The most compelling way to do that is to have an open-file policy, the Boston lawyer said.

“[Tsarnaev] is one of the litmus-test cases that demonstrate that defendants such as the Boston bombing defendant can get a fair trial in a civilian court pursuant to all of the procedures that are applicable to anyone who is charged,” Weinberg said. “It surprises me that the government is not just essentially giving an open file at the earliest possible time. The U.S. attorney must believe that they have a trustworthy case. Why cause doubt by reducing the universe of discovery that’s made available to the defense team?”