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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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Judge Bowler will also appoint a “mitigation specialist,” who will work with the defense to find reasons to oppose the death penalty. This can involve an in-depth history of the defendant, a psychological profile, and the testimony of people who know Tsarnaev.

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“It is sometimes a voluminous process,” Mr. Keneally says.

Motive and impetus will be important. “There is a heck of a difference between a dyed-in-the-wool terrorist who believes in killing innocents versus an underachieving pothead influenced by his brother,” says Keneally. “So all those factors will get taken into account before there is a final approval to seek the death penalty from the Department of Justice.”

Tsarnaev’s legal defense team could also make pretrial challenges that could take time to resolve. For example, the government decided not to read Tsarnaev his Miranda rights – the right to remain silent –when investigators began questioning him. Instead, the government invoked a “public safety” exception to discover if there were still bombs or perhaps another conspirator.

Criminal defense attorney Christopher Tritico, who was a lawyer for Oklahoma City bomber Timothy McVeigh, sees a possible legal challenge to the government’s decision not to read him his constitutionally guaranteed rights. “It’s like the government says, the Fifth Amendment [which guarantees due process] begins when we say it does,” says Mr. Tritico, of the Houston law firm Tritico Rainey. “Some court will have to address this issue.”

But Mr. Dupree, whose specialty includes constitutional law, thinks the government can easily make the case that invoking the public-safety exception was warranted. “There could have been other bombs out there and other people they need to know about for public safety,” he says.

“The only way there could be court review is if the government introduced a statement he gave during questioning,” he continues. “I’m not sure the government needs to do that: They have an overwhelming amount of evidence.”

Tsarnaev was read his Miranda rights on Monday.

Sorting through all the evidence will take quite a bit of time.

Tritico expects the defense will want to hire its own bomb experts to better understand the evidence. “They will be poring over the records generated by the FBI lab,” he says. “I don’t think it’s impossible to take a year or a year and a half to get ready for trial.”

In the case of Mr. McVeigh, who was convicted of and executed for the Oklahoma City bombing, the defense, which was composed of 14 lawyers, had to wade through 32,000 FBI 302 forms (summaries of interviews of witnesses) and 5,000 pages of lab notes, Tritico says. It ended up taking two years for the McVeigh trial to start.

In the case against Tsarnaev, add hundreds of hours of video images and probably thousands of hours reviewing images sent in by private individuals from their phones.

“When you have that many records to pore over, it becomes complicated, and you just have to figure it will take time,” says Tritico.

There may also be some pretrial battles over where the trial will take place. In the case of McVeigh, the defense successfully argued that the trial should be moved out of Oklahoma City because McVeigh would not get a fair trial. The trial took place in Denver.

Moving a Tsarnaev trial to another city could add time. In one of Tritico’s cases, in which the trial was moved from New York to Houston, the change in venue added a year, he estimates.

Things could take even longer if Tsarnaev receives further medical treatment and needs more recovery time.

“In this case, he has a severe neck injury,” Tritico says. “If he has to have follow-up surgeries, that may delay the time he has to work with his lawyers.”

Some of the prosecutors’ witnesses may also have injuries or emotional stress that could prevent them from testifying in a timely fashion, Dratel notes. “So it could take awhile to assemble all the materials produced in discovery from a variety of different sources,” he says.

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