April 23 (Bloomberg) -- Prosecutors in the Boston Marathon bombings have begun to grapple with the daunting task of assembling evidence from multiple crime scenes and around the world to explain to jurors the story behind the attack, as the latest example of terror on American soil moves to a courtroom.
The effort is led by U.S. Attorney Carmen Ortiz, who must decide whether to seek the death penalty and fight a probable defense bid to move the case elsewhere. While the government’s questioning of Dzhokhar Tsarnaev without informing him of his rights sparked controversy, the case may ultimately turn on forensic evidence and broad terrorism laws passed since the first World Trade Center attack -- and not on what he said and whether it can be used in court. Tsarnaev said he and his brother were responsible for the bombings, according to a U.S. official briefed on the initial interrogation.
“If I were a prosecutor on this Boston case concerned about national security, I’d say I’m playing with the house money,” said Andrew McCarthy, a former assistant U.S. attorney in New York who prosecuted a foiled plot to bomb New York landmarks. “If the worst thing that can happen is that the court suppresses any statement he makes later at trial, I don’t need it when the evidence seems to be overwhelming.”
Building the case will require a review of evidence collected from sites including several city blocks and rooftops near the race’s finish, the scene of a massive gun battle and finally a Watertown backyard where Tsarnaev was discovered hiding in a boat. Much of the evidence collected by investigators was cited in the initial 10-page complaint, unsealed yesterday in Boston federal court.
“It’s the federal criminal court equivalent of D-Day: all the information you have to master and pull together and present to a jury in a logical way,” said Kelly Currie, an attorney at Crowell & Moring LLP and a former federal prosecutor. “It’s a logistical and organizational herculean effort.”
In the complaint, Tsarnaev was charged with one count each of using and conspiring to use a weapon of mass destruction resulting in death, and malicious destruction of property by means of an explosive device resulting in death. The April 15 bombing killed three people and injured more than 170.
Former federal prosecutors said investigators will have plenty to work with as they build their case. Aside from any usable statement by the defendant, there are the scores of witnesses, surveillance footage of Tsarnaev and his brother, mobile phone and computer records, as well as explosives and weapons they may have used or left behind.
A witness who was carjacked on April 18 told authorities that one suspect brandished a loaded gun and told him, “Did you hear about the Boston explosion?” adding, “I did that.”
Video footage on Boston’s Boylston Street shows Tsarnaev apparently dropping his knapsack on the ground minutes before the second of two blasts, the government said. Unexploded incendiary devices, including one contained in a pressure cooker similar to those used in the attack, were found at the scene of the shootout, the FBI said, while a search of Tsarnaev’s college dorm room unearthed a “large pyrotechnic,” and BBs similar to those used in the blasts.
Tsarnaev, 19, is in serious condition in a local hospital. He made his first court appearance yesterday from his room, and is scheduled to appear in court May 30. His brother, Tamerlan, 26, was killed during the four-day manhunt.
The conclusion of the marathon was shattered when the powerful bombs exploded about 10 seconds apart. The blasts sent shrapnel ripping through spectators near the race’s finish line, killing an 8-year-old boy, a 29-year-old woman and a Chinese graduate student at Boston University. Many of the injured lost limbs.
“It seems to me that this case will get stronger and stronger when the forensic evidence is compiled,” said Michael Garcia, a former Manhattan U.S. Attorney who is now a partner at Kirkland & Ellis LLP. “They’ll get the bombs that were thrown out of the car, the cell phone records and eye-witness accounts.”
While the U.S. alleged it has found similarities in the explosives used in the attack and improvised devices found later by police, investigators are probably also trying to tie the suspects to the marathon bombs by tracking the purchase of the components used in the weapon, said Dan Collins, an attorney at Drinker Biddle & Reath LLP and a former prosecutor in the Chicago U.S. Attorney’s office.
Though Massachusetts has no death penalty, Ortiz’s office has the option of seeking it under federal law. Both crimes with which Tsarnaev was charged, use of a weapon of mass destruction and malicious destruction of property resulting in death, allow for the death penalty upon conviction.
The decision must be made by U.S. Attorney General Eric Holder after a months-long review. Local federal prosecutors and lawyers at the Justice Department review mitigating and aggravating factors such as the nature of the crime, the defendant’s background and history as well as other characteristics to determine if the death penalty is warranted.
Defense lawyers are also invited to make a presentation to the Justice Department on why the case doesn’t warrant capital murder, lawyers said.
The review process resembles the penalty phase of a capital trial, a proceeding following a conviction where jurors weigh whether to sentence someone to life, or death.
“There are six different levels of review, and it takes at minimum at least eight months to a year to go through,” said Morris Fodeman, a former federal prosecutor in Brooklyn, New York who handled the death penalty case of Ronell Wilson, convicted of killing two New York City Police detectives.
While a Brooklyn federal jury sentenced Wilson to death, the sentence was later vacated on appeal. A new penalty phase in the case is scheduled for later this year.
“The defense even has the opportunity to go down to Washington and make a presentation on what they think the mitigating factors might be, such as IQ,” said Fodeman who is now a partner at Wilson Sonsini Goodrich & Rosati PC. “Here in the case of Tsarnaev, defense lawyers might argue that his older brother had undue influence on him. They present that all to the death penalty panel in D.C. who make the recommendation to the attorney general.”
The power of federal prosecutors to bring terrorism cases expanded after the 1993 World Trade Center bombing, where a 1,200-pound bomb was detonated in the tower’s garage, said Garcia, who was on the team that prosecuted that case and a related trial of Ramzi Yousef, the bombing’s mastermind.
“It was really an awakening,” he said. Garcia explained that he and his colleagues were forced to charge the bombing suspects with violating laws that prohibit the destruction of U.S. property, because U.S. Secret Service vehicles parked in the garage had been incinerated in the blast.
“It was a time when we had to look through the book and see what the charges were that would apply,” said Garcia. He noted that the crime of using a weapon of mass destruction was passed into law after the first World Trade Center bombing. The charge of providing material support to terrorists was created after the Sept. 11, 2001, terrorist attacks.
“We didn’t have a playbook for it back then,” Garcia said. “You wanted to charge the attack as an act of terrorism on U.S. soil, not a bombing of a Secret Service vehicle.”
Even in cases matching the brutality of the Boston bombings and their aftermath, however, there is a mixed record of those prosecuted under federal terror statutes when it comes to obtaining a death sentence.
Zacarias Moussaoui, a French citizen who later admitted being part of the plot to fly planes into buildings as part of the Sept. 11 attacks, was spared death, as were two men accused in the bombing the U.S. embassies in 1998, in which 224 people died. The one consistent thread over the years, however, has been that most cases result in convictions.
The Boston attacks and the subsequent manhunt paralyzed the city and left residents shaken. Even with all the physical evidence, jurors may look to prosecutors to find answers as to what motivated the attackers’ assault on them.
“They will build a meticulous case that is going to fill in a picture of the activities of both suspects leading up to the bombing and days after,” Currie said.
Prosecutors may also face an effort by defense attorneys to move any trial out of Boston, claiming that finding an impartial jury there is impossible, some former prosecutors said. The government will have to argue that the victims, witnesses and evidence are located in the Boston area, and that moving the trial would be burdensome.
“This is such a high-profile case that if you tried it in Rhode Island, Maine or Vermont, you don’t really lessen the public impact that’s already occurred,” Currie said.
While defense lawyers got a change of venue in the prosecution of Timothy McVeigh for the 1995 Oklahoma City bombing, which was moved to Denver, such a move is rare, former prosecutors said.
“It’s a very high standard to meet,” Garcia said. “You have to show you can’t get a fair jury pool in Boston, that the pool you’re choosing from is so tainted they’d be unable to be fair. That’s essentially telling a trial judge they won’t be able to adequately vet a jury for bias. It’s very hard to do because you’re telling the trial judge, ‘Whatever you do, it’s not good enough.’”
As for whether the government may entertain a plea deal, Collins said the Boston bombing suspect is unlikely to get one.
“A guy like that, the guy pulling the trigger is not the guy you want to strike some deal with,” said Collins, who prosecuted David Coleman Headley, a U.S. citizen sentenced in January to 35 years in prison for serving as an advance scout for the 2008 terrorist attacks in Mumbai, India.
When Tsarnaev was taken into custody, the Obama administration said it planned to question him without delivering the warning that he had a right to remain silent and be represented by a lawyer. The administration said it was invoking a public-safety exception that allows limited questioning before those rights are conferred.
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 to investigators, including that he and his brother were operating alone and driven by religion, will be usable at trial.
According to court records, Tsarnaev was “alert and able” to respond to the charges at his first appearance in the case yesterday, held at the hospital before a magistrate judge, who informed him of his rights.
Such an exception has occurred in other federal terrorism cases, former prosecutors and defense lawyers noted. Defendants have a constitutional right to a “speedy” arraignment before a federal magistrate, usually within 24 to 48 hours after arrest, However, they can also waive that right, lawyers said.
In another terrorism case, Faisal Shahzad, a naturalized U.S. citizen like Tsarnaev, was arrested on May 3, 2010, two days after trying to detonate an improvised bomb in New York City’s Times Square on a busy afternoon.
After being apprehended as he attempted to board a flight to Dubai, Shahzad was interrogated for days by the U.S “for the purpose of preventing potential future attacks,” Manhattan U.S. Attorney Preet Bharara later said in a letter to two federal judges in New York.
Shahzad was advised daily of his constitutional rights to remain silent and to be brought before a judge and repeatedly waived those rights, Bharara said.
Later charged with trying to “kill and maim,” Shahzad didn’t make a court appearance until May 18, 2010. At that hearing, Assistant U.S. Attorney Randall Jackson said the daily questioning had continued and that each day Shahzad had waived his rights.
Attorney General Holder later said Shahzad provided “substantial” information and intelligence while prosecutors in New York said that leads developed during those interviews have been pursued by “hundreds of agents in different cities working around the clock since the defendant’s arrest.”
“Uninterrupted access to the defendant has been, and continues to be, critical to this process, which requires, among other things, an ability to promptly verify with him the accuracy of information developed in the investigation,” Bharara said in the letter.
Shahzad, a former financial analyst, pleaded guilty in 2010 and admitted receiving training and funding from the Pakistan Taliban. He was sentenced to life in prison.
Shahzad, isn’t the first terror suspect to waive his right to a speedy arraignment and agree to be questioned by investigators. Some defendants waived initial hearings and only appeared in court publicly to be sentenced years after they were arrested.
Adis Medunjanin, charged in a foiled plot to detonate bombs on New York City subways, waived his right to an immediate court appearance after his arrest. He was later indicted based on incriminating statements he made to authorities which his lawyer later challenged.
Federal prosecutors said Medunjanin “voluntarily” waived this right in January 2010, shortly after he crashed his car on the Whitestone Expressway in Queens, New York, and federal agents questioned him at the hospital where he was taken after the accident. His lawyer later disputed the government’s claim Medunjanin had been advised of his rights and had waived them.
Medunjanin was subsequently convicted of terrorism charges and is serving a life prison term.
Michael Padden, a federal defender in Brooklyn, New York, said the circumstances surrounding the Boston case reminded him of a man he defended, Gazi Abu Mezer, an immigrant from Egypt who was charged in a foiled suicide plot to bomb the New York subways in July 1997.
Mezer was shot and wounded after police raided his Park Slope, Brooklyn apartment just hours before the attack was to occur, witnesses testified. He was hospitalized and under guard and Padden said he was told by government officials Mezer wasn’t competent to be interviewed.
“They were claiming he was unfit for arraignment for days” Padden said. “I went to the hospital, marched past machine gun-bearing federal officers and cops in flak jackets who surrounded him in the hospital. I finally talked a U.S. marshal into letting me see him and discovered he was conscious and coherent.”
Padden said he reported the news to a federal magistrate and hours later, lawyers and court personnel were back at the hospital and Mezer had a bedside arraignment.
“I insisted he not be questioned by investigators anymore,” Padden said.
During the trial, Padden and his colleagues moved to suppress the statements Mezer made to authorities during his hospitalization. The judge allowed prosecutors to use them, citing the public-safety exception, Padden said. Mezer was convicted and sentenced to prison, and he said, the FBI uses the case as an example to agents on how to use the exception.
“I would do anything I could to get information and intelligence’s sake about what else is out there, or what network is out there,” McCarthy, the ex-federal prosecutor, said. “The national security of the country has dimensions beyond the outcome of any due process given a defendant, you don’t use it as an excuse not to get information.”
Fodeman agreed, saying “if you’re really worried about public safety and bombs out there, you may decide, the worst case scenario is I don’t get his statement in court but at least I could potentially get this valuable intelligence.” There is always the risk that when you advise them of their rights, “they may decide to clam up and say ‘Get me a lawyer.’”
Authorities said they believe the two bombing suspects were acting alone and haven’t found connections to any groups or other suspects, said a person briefed on the investigation who asked not to be identified because it is a continuing probe.
The Tsarnaev brothers are ethnic Chechens, said their uncle, Ruslan Tsarni, who lives in Gaithersburg, Maryland.
Tamerlan Tsarnaev was an amateur boxer and a Muslim who trained at a gym in the Allston section of Brighton and told friends, “I’m very religious,” according to an account by Johannes Hirn, a freelance photographer who profiled him.
Garcia, the former Manhattan U.S. attorney and prosecutor on the first World Trade Center bombing, said for that trial, investigators were able to amass thousands of pieces of evidence, including the twisted axle and identification number of the truck that delivered the bomb.
He said the government’s case against Tsarnaev will have the advantage of much more sophisticated evidence, including surveillance footage, facial recognition as well as mobile phone tracking records not available in the earlier case.
“In 1993, we clearly didn’t have the video surveillance that you have here, the phone records and all the electronic records for the purchase of materials,” Garcia said. “The challenge is to bring all that together to give a narrative of what has happened. To walk them through the evidence and show that it’s really not like in TV. If you have a good narrative with that, it makes the case.”
The case is U.S. v. Tsarnaev, 13-02106, U.S. District Court for the District of Massachusetts (Boston).