Why trial for Boston bomb suspect could be at least a year away (+video)
Both sides in the case of alleged Boston bomber Dzhokhar Tsarnaev will be scouring thousands of FBI interviews and other evidence. Also, the Justice Department will undertake a lengthy process to decide if it will seek the death penalty.
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The short answer is awhile – at least a year, maybe more, before legal experts think both the government and the defense would be ready.
Both sides will be scouring thousands of interviews by the Federal Bureau of Investigation, hundreds of hours of forensic laboratory work, and who knows how many hours of images sent in by individuals to law enforcement. On top of that, the defense might make pretrial challenges that would have to be decided before the trial starts. And both sides will be asking experts to help them understand the psychological makeup of the 19-year-old Mr. Tsarnaev, who could face the death penalty.
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“A trial of this complexity – I would be surprised if it goes to trial this calendar year,” says Thomas Dupree, a former deputy assistant attorney general and now a partner in the Washington law firm of Gibson, Dunn & Crutcher.
However, some parts of the case will proceed very quickly. Under federal law, a magistrate judge must hold a preliminary hearing to establish probable cause within 14 days of the initial appearance if the defendant is in custody (as is the case here, with Tsarnaev being charged Monday). Or the government could obtain an indictment, which by itself establishes probable cause.
“They will probably indict fairly soon unless there is a waiver of the preliminary hearing from the defendant,” says James Keneally, a defense lawyer and partner at Kelley Drye & Warren in New York. “They just can’t string it out: They have to indict him, and they may have already gotten a sealed indictment.”
But once those steps are accomplished, the process will begin to slow down.
The Department of Justice has to decide if it will seek the death penalty in connection with the charges, which include using a weapon of mass destruction, resulting in deaths and injuries.
“There is a whole chain-of-command process that must be completed before you can even make a deal [plea bargain],” says Joshua Dratel of Dratel & Mysliwiec in New York and a leading defense lawyer in terrorism cases. “It is the only true non-rubber-stamp process in the criminal justice system.”
The first element in the process would be a recommendation from the district prosecutor, in this case the US attorney for the District of Massachusetts, Carmen Ortiz. Once the Boston office sends in its recommendation about the death penalty, the case would be forwarded to a Justice Department committee, which would read the file and then make its own recommendation.
Once the case gets to the Justice Department committee, the defense would have an opportunity to go to Washington and meet with committee members to present mitigating circumstances. “If there is any doubt, you go and make the pitch,” Mr. Dratel says. “You have only one shot.”
Once the committee makes its recommendation, the case then goes to the US attorney general, in this case Eric Holder.
“The whole process takes six months to a year,” Dratel says.
As part of the process, a judge appoints for the defense a “learned counsel,” who has experience in death-penalty cases, as well several other attorneys. On Tuesday, Miriam Conrad of the Federal Public Defender Office, asked the judge, Marianne Bowler, to appoint two lawyers who are specialists in the death penalty.