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.
“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.
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.
“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.