Why delay in Boston Marathon bombing trial may be blow for prosecution

Looming anniversaries of the Boston Marathon bombing, and the marathon itself, could mean a tough week for the jury and a long-term win for the defense.

Jane Flavell Collins/AP
In this courtroom sketch, Dzhokhar Tsarnaev, second from left, is depicted standing with his defense attorneys William Fick, left, Judy Clarke, second from right, and David Bruck, right, as the jury presents its verdict in his federal death penalty trial April 8 in Boston. Tsarnaev was convicted on multiple charges in the 2013 Boston Marathon bombing. Three people were killed and more than 260 were injured when twin pressure-cooker bombs exploded near the finish line.

The Boston Marathon bombing trial is on a week-long hiatus that could have significant consequences, both short- and long-term, for both the prosecution and the defense.

Dzhokhar Tsarnaev was found guilty of committing the bombings last week after an emotional conclusion to more than a month of witness testimony. The jury found him guilty of all 30 charges against him, but they now face another week of waiting before the penalty phase of the trial begins.

In total, the delay means the jury will have spent more than two weeks between the end of the trial’s first phase and the beginning of the second phase – where the jury will hear more evidence and decide if Mr. Tsarnaev should be sentenced to death or to life in prison.

This is a blow for the prosecution, according to several legal experts – although it's unclear whether it will have long-term repercussions.

While the trial will resume less than 24 hours after the start of the marathon next week, the two-week delay will likely sap some of the emotion from the trial – at least at first, says Daniel Medwed, a law professor at Northeastern University.

“I think the delay could help neutralize much of the emotional impact from the trial,” he says. “That said, those emotions may likely resurface during the sentencing phase.”

The guilty verdict from the jury came “relatively quickly,” considering the complex nature of the 30 charges, says Professor Medwed. Jurors deliberated for about 12 hours over two days.

“That shows they were swayed pretty well by prosecution’s case,” says Medwed.

“It appears pretty clear that the prosecution has momentum,” he adds. “If I was the defense, I would want as much time as possible to separate the first phase from the second phase” of the trial.

The defense has now been afforded a week-long buffer between the emotional end to the first phase of the trial – culminating in Tsarnaev’s speedy conviction – and the beginning of the penalty phase, where his lawyers will hope to reset and start convincing the jury to spare his life. 

In his statement granting the delay, Judge George O’Toole wrote that Tsarnaev’s defense team had requested additional time before beginning the penalty phase to “resolve outstanding logistical issues with a number of potential witnesses” for the second phase.

“It is not uncommon for there to be a brief recess between phases in a capital case,” Judge O’Toole added in his written decision.

What isn't mentioned in the decision is that the recess will coincide with both the anniversary of the marathon bombing itself – which occurred on April 15, 2013 – and the running of the Boston Marathon on April 20. The trial will not be in session on these days, sparing the court an ethical dilemma, according to legal experts.

The jury is supposed to judge the case based on the facts of the case, not emotion. Were the trial to be in session while anniversaries of the events  were being commemorated just a few miles away, the added emotion of the occasion could risk affecting the jury, according to Harvey Silverglate, a Boston criminal defense and civil liberties lawyer.

“This is a very hard case to try fairly,” says Mr. Silverglate. “It’s incredibly emotional, and having the anniversary coming up in the middle of the trial seems to intensify the emotionality.”

And it is still something the defense could exploit in the long-term.

If jurors do end up sentencing Tsarnaev to death – a decision that would have to be unanimous – the defense will now have a much stronger case in appeals court because of the overlap between the trial and the marathon.

Silverglate notes that the defense team has already been building a case for an appeal in their requests to delay the start of the trial earlier this year and in their three failed attempts to get the trial moved out of Boston.

Silverglate says that the delay until after the marathon “ameliorates, but does not neutralize” the problem of jurors potentially being biased by the emotionality of the race and the anniversary this week.

It may help the government’s case, should it go to an appeals court, however.

“Skipping conducting the trial on Marathon Day itself does show the judge’s sensitivity to the problem of prejudice that will help the government on appeal,” he adds.

Judge O’Toole met with jurors Tuesday morning to give them brief instructions ahead of the penalty phase. 

The meeting in the courtroom barely lasted 10 minutes, but O’Toole said that the looming anniversaries were important enough to call in the jurors.

“As you’re undoubtedly aware, this week marks the anniversary of the crimes the defendant is charged with committing,” said O’Toole.

“I urge you to go about your lives in the coming week and avoid any events that would put you in a position that would be inappropriate for a juror in this case to see or hear,” he added.

In particular, O’Toole told the jurors to not attend the Boston Marathon or any of its related events.

“If you happen to see anything related to the marathon,” he added, “stop reading, turn off the TV or computer, put your attention other places.”

“If people are curious about what you’re doing,” he continued, “if they seek to discuss the issues with you, you cannot talk to them.”

The second phase of the trial will begin next Tuesday. O'Toole told the jury he expects the phase to take about four weeks to complete.

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