Boston Marathon bombing suspect Dzhokhar Tsarnaev faces the prospect of a long and tortuous legal road.
Important decisions have yet to be made, including whether the Justice Department will seek the death penalty and whether Tsarnaev will maintain his innocence.
But if prosecutors demand execution and Tsarnaev seeks to live if he’s convicted, get ready for a protracted fight. Other lingering federal capital cases, from a long-ago Kansas City, Mo., rape to several killings at U.S. Penitentiary Atwater in California’s Central Valley, underscore the complex path ahead.
“Assuming that there’s a trial, it could take a couple or three years,” former federal prosecutor Aitan D. Goelman, who prosecuted the 1995 Oklahoma City bombing case, said in an interview Friday.
Tsarnaev faces two death-eligible federal charges: use of a weapon of mass destruction, and destruction of property with use of an explosive, resulting in death. Separate state charges may be filed soon, in connection with the killing of a Massachusetts Institute of Technology police officer.
Attorneys might fight over whether to move a trial out of Boston, in search of a neutral jury. Federal public defenders for the 19-year-old naturalized U.S. citizen from Russia’s republic of Chechnya will be conducting an investigation that’s likely to go global. Attorneys will wrangle over questions such as whether Tsarnaev’s hospital bed statements to investigators before he received his Miranda warnings may be admitted.
There may be extended litigation over whether his pain medications and level of consciousness affected whether those statements were given voluntarily.
“Even a decision to seek the death penalty will be weeks, if not months, off,” Richard C. Dieter, the executive director of the Death Penalty Information Center, a nonprofit research and education group, said in an interview Friday.
If there’s a conviction, appeals may take many more years. The evidence is all around, in federal courthouses nationwide.
Wesley I. Purkey, for instance, was sentenced to death in 2003 for the 1998 kidnapping, rape and murder of a Kansas City teenager, 16-year-old Jennifer Long. Purkey has since filed more than a dozen lawsuits and appeals, federal court records show. One appeal is still pending. Other cases have come and gone, court records show, including one in which Purkey complained that prison authorities had denied him a “certified religious diet.”
“Further, Purkey alleged that he had been subject to retaliatory punitive action for practicing tenets of his Buddhist religion, i.e., fasting and performing zazen/meditation,” the inmate declared on his own behalf in one case.
Purkey has since lost his right to file no-cost lawsuits, because of what one judge called his “litigation history.”
In the Boston case, investigators think that Tsarnaev and his late brother, Tamerlan, placed two improvised explosive devices near the Boston Marathon finish line. The resulting blasts, shortly before 3 p.m. on April 15, killed three people and injured more than 260. Tamerlan, 26, died four days later after a police shootout.
The federal criminal charges filed against Dzhokhar Tsarnaev on Monday didn’t specify whether prosecutors will ask for the death penalty. In federal death-eligible cases, that declaration typically comes at a public hearing. Magistrate Judge Marianne B. Bowler, who delivered Tsarnaev his Miranda rights Monday, has scheduled a probable cause hearing for 10 a.m. May 30.
Goelman, who’s now in private practice, predicted that the hearing would be rendered unnecessary when a federal jury returns an expected indictment against Tsarnaev. A formal death-penalty decision, Goelman added, will take a while.
Attorney General Eric Holder will make the final call, based on the recommendations of his Review Committee on Capital Cases, assisted by the Justice Department’s Capital Case Unit and the U.S. attorney for Massachusetts.
The head of the Capital Case Unit, P. Kevin Carwile, is a career prosecutor who formerly headed the department’s gang unit. Under Justice Department guidelines, officials will “consult with the family of the victim” before a final death-penalty decision. Officials are supposed to consider the “strength and nature” of the evidence, as well as the “relative” role played by the defendant, and any arguments made by defense attorneys.
“They can offer any kind of mitigating factor,” Goelman said.
Fifty-nine federal death row inmates await execution, according to the Death Penalty Information Center. The 57 men are incarcerated in Terre Haute, Ind., and the two women in Forth Worth, Texas.
The last federal execution occurred in 2003, with various appeals often helping to slow the process.
Bringing a case to trial, too, may take a long time.
In 2003, for instance, Samuel Richard Stone was one of three convicted murderers crowded into a U.S. Penitentiary Atwater cell that was designed to hold no more than two inmates. Early in the morning of July 12, prosecutors say, Stone attacked one of his cellmates, Michael Anita.
“A rope made of what appeared to be braided strips of a bedsheet was wrapped around (Anita’s) neck,” according to a defense brief filed this Monday. “He had been stabbed in the chest and had bruises on his head and face.”
Prosecutors waited until last year to file charges against Stone. The trial is expected to start next year. Another example of a trial delay involved the June 2008 killing of Atwater correctional Officer Jose Rivera, in the prison about 60 miles north of Fresno. Though charges were filed within two months, various proceedings have postponed the trial of suspects Joseph Cabrera Sablan and James Ninete Leon Guerrero until next year.
“It’s probably going to take a while,” Dieter said of the Boston case. “There are lots of steps.”