The capture and charging of suspected Boston Marathon bomber Dzhokhar Tsarnaev shifts attention from the manhunt to the prosecution by U.S. Attorney Carmen Ortiz in one of the biggest terrorism cases since the trial of Oklahoma City bomber Timothy McVeigh two decades ago.
Tsarnaev, 19, was charged by Ortiz’s office with using a weapon of mass destruction that killed three people and injured more than 170. He faces a second charge of destroying property with a bomb, according to the complaint in federal court in Boston. If convicted, he may face execution.
The stakes in the case are enormous for Ortiz, the Obama administration and Attorney General Eric Holder, said Samuel Buell, a professor at Duke University School of Law who served as an assistant U.S. attorney in Boston alongside Ortiz before joining the Justice Department’s Enron Task Force in 2002.
“Carmen Ortiz and her assistants now have the job of proving that the AG and the president are right in believing that terrorism cases can still be handled through conventional prosecution,” Buell said. “That means with the right result, safely, and with deliberate speed.”
For Ortiz, 57, who grew up in the east Harlem section of New York City, the trial will overshadow every other case she’s handled since becoming the top federal prosecutor in Massachusetts in 2009, said Robert Peabody of Collora LLP, who worked with her as an assistant district attorney as well as an assistant U.S. attorney in Boston.
Ortiz, the first woman and the first Hispanic to become U.S. attorney in Boston according to the Justice Department, earned her bachelor’s degree from Adelphi University in 1978 and her law degree from George Washington University in 1981. That year, she became a trial attorney at the Justice Department.
“This is a marquee case for the U.S. Attorney’s office, and for the justice system in the U.S., too,” said Scott Harshbarger of Proskauer Rose LLP (1145L), who hired Ortiz as an assistant district attorney three decades ago after he was elected district attorney of Middlesex County.
McVeigh was executed for the 1995 bombing that killed 168 people and injured more than 800.
Tsarnaev and his brother, Tamerlan, 26, detonated two pressure cookers packed with explosives near the finish line of the storied foot race on April 15, according to prosecutors. Tamerlan died as the two tried to elude police. Dzhokhar, wounded though still armed, was found hiding under a boat tarp on April 19.
In early interviews with investigators, Dzhokhar Tsarnaev has communicated that he and his brother were responsible for the bombings, operating alone and driven by religion, according to a U.S. official briefed on the initial interrogation.
The brothers are ethnic Chechens, and the U.S. is probing reports that Tamerlan may have been involved with Islamic extremists in the separatist conflict in Chechnya, a majority Muslim republic of Russia.
Communicating primarily by nodding and occasionally in writing due to a gunshot wound to his neck, Tsarnaev indicated that he and his brother weren’t aligned with any known international terrorist or military groups, the official said.
While federal law technically allows the use of such statements in court, they are often strenuously attacked by defense lawyers as unconstitutional. As a result, it’s unclear whether Tsarnaev’s statement will be usable at trial.
Ortiz said the night of Dzhokhar’s capture that her office was continuing to investigate and evaluate the “tremendous amount of evidence,” even as charges were being drawn up.
“Although for some of you tonight is a closure,” Ortiz said, “for me the journey continues.” She declined to comment on the charges, dated April 21 and unsealed yesterday.
As the top federal prosecutor in Boston, Ortiz’s office won convictions against Salvatore DiMasi, a former speaker of the Massachusetts House of Representatives, and former state Senator Dianne Wilkerson.
The office has been a leader in health-care fraud prosecutions, securing $4 billion in civil and health-care recoveries in 2012. Those included a $3 billion payment from GlaxoSmithKline Plc (GSK), which pleaded guilty to charges that it illegally promoted prescription drugs.
Last April, Tarek Mehanna, a Massachusetts pharmacy-school graduate convicted of conspiring to give material support to al-Qaeda, was sentenced to 17 1/2 years in prison. Prosecutors said Mehanna translated terrorist materials from Arabic into English, including a manual titled “39 Ways to Serve and Participate in Jihad.”
Ortiz told reporters at the time, “We’re disappointed it wasn’t longer. He came across as an angry, defiant young man.”
In November, a graduate of Northeastern University in Boston was sentenced to 17 years in prison after pleading guilty to attempting to damage a federal building with an explosive and providing material support to terrorists. Rezwan Ferdaus, a U.S. citizen, had plotted to use remote-controlled planes filled with plastic explosives for a terrorist attack on the Pentagon in Virginia and the U.S. Capitol in Washington, according to prosecutors.
Ferdaus was from Ashland, the second town along the route of the Boston marathon.
Along with the string of hits have come misses. In March 2012, Ortiz’s office dropped charges during a trial against four Stryker Biotech LLC employees accused of scheming to market unapproved medical devices to surgeons.
Ortiz faced criticism for her office’s aggressive prosecution of Aaron Swartz, a 26-year-old Internet activist, who was accused of breaking into the computer system of the Massachusetts Institute of Technology. Swartz faced the prospect of going to trial, where a conviction could put him in jail for seven years or longer, or a plea bargain resulting in a six-month jail sentence. He committed suicide on Jan. 11.
Ortiz defended her subordinates and said it was her duty to act when individuals broke the law.
“The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably,” Ortiz said in a statement.
Before the marathon bombing, the biggest case being handled by Ortiz’s office was the prosecution of James “Whitey” Bulger, a mobster who spent years on the FBI’s most-wanted list until his 2011 arrest in Santa Monica, California.
Bulger, whose trial on multiple counts of murder is scheduled to begin June 10, struck a deal with agents from the FBI’s Boston office in the mid-1970s. He provided information that led to the arrest and prosecution of members of the Patriarca crime family. The FBI, in turn, thwarted local investigations into Bulger’s own criminal enterprise and shared information with Bulger that led to the murder of at least three men.
The collusion between Bulger and FBI agents was exposed in 1997. The revelation embarrassed law enforcement officials and resulted in a jail term for one agent. It also poisoned the relationship between state and federal prosecutors, the FBI and Massachusetts state police for a decade, Harshbarger said.
Harshbarger, the state’s former attorney general, and Peabody credit Ortiz with helping to foster improved relations with state prosecutors, as well as between FBI agents and state and local police.
Ortiz’s former bosses insist that she’s ready for her moment on the big stage.
“She’s tough-minded and exceptionally professional,” Harshbarger said.
Donald Stern, a former U.S. Attorney in Boston, hired Ortiz in 1997.
“She’s hardworking, bright and personable,” Stern said. “Given the high visibility of this case, she will receive a lot of guidance and assistance from Washington.”
Unlike the economic crime cases handled by Ortiz’s office, the prosecution of Tsarnaev will be more akin to those the two handled when they worked in the district attorney’s office, Peabody said.
“This is an assistant DA case on steroids,” Peabody said. “Bomb issues are very complicated and very complex, and they require sophisticated forensic expertise and testimony.”
The case has national and international significance, Peabody said.
“She’s prosecuted the speaker of the house, and Whitey Bulger,” he said. “Those are gigantic cases, but this one’s the biggest of them all.”
When she was asked on April 19 whether she would seek the death penalty for Tsarnaev, Ortiz indicated that her efforts will be supported by the Justice Department.
“This is still an active and ongoing investigation,” Ortiz said. “It’s a very thoughtful, long process that is engaged and it’s the attorney general of the Department of Justice that makes that final decision.”
However the case proceeds, one thing is for sure, Buell said: “Boston’s never had a case of this magnitude.”
The case is U.S. v. Tsarnaev, 13-02106, U.S. District Court District of Massachusetts (Boston).
The Mehanna case is U.S. v. Mehanna, 09-10017, U.S. District Court, District of Massachusetts (Boston). The Ferdaus case is U.S. v. Ferdaus, 11-10331, U.S. District Court, District of Massachusetts (Boston).
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