Boston Bombing Suspect Charged and Advised, Counsel Appointed

By Jeralyn, Section Crime in the News
Posted on Mon Apr 22, 2013 at 01:16:41 PM EST
Tags: Boston Marathon Bombing, Dzhokhar Tsarnaev (all tags)

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Dzhokhar Tsarnaev was charged by federal complaint yesterday and advised of his rights today at the hospital by U.S. Magistrate Judge Marianne Bowler.

The judge ordered him removed from the custody of the FBI and into the custody of the U.S. Marshals. He was represented by Assistant Federal Defender William Fick. Also to be representing him: Attorneys Conrad and Watkins.

He has been charged with two counts (Complaint here):

Destruction 18 U.S.C. s 844(i): Malicious Destruction of Property Resulting in Death
18 U.S.C. s 2332a(a): Use of a Weapon of Mass Destruction

The 10 page Affidavit with probable cause for the charges is here. From the court minutes on PACER: [More...]

ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Marianne B. Bowler:I

Initial Appearance as to Dzhokhar Tsarnaev held on 4/22/2013 at Beth Israel Deaconess Medical Center. Court advises the defendant of his rights and the charges against him. Government states the maximum penalties and moves for detention. Defendant agrees to an order of voluntary detention without prejudice.

Defendant declines to answer bail questions and assents to a probable cause hearing on May 30, 2013 at 10:00am. Court is satisfied that the defendant is alert and able to respond to the charges.

Defendant is remanded from the custody of the FBI agents present to the U.S. Marshals. (Probable cause hearing set for 5/30/2013 10:00 AM in Courtroom 25 before Magistrate Judge Marianne B. Bowler.) (Attorneys present: Weinreb for the Government. Fick for the defendant.) (Entered: 04/22/2013).

While the Indictment may add additional charges, it seems likely the feds are leaving some charges for the state, and the feds will go first.

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Boston Bombing Suspect Charged and Advised, Counsel Appointed | 27 comments (27 topical)

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YAY!!! (5.00 / 2) (#1)
by Slayersrezo on Mon Apr 22, 2013 at 01:47:14 PM EST

He's back in regular court.
He has a lawyer.
This is how it SHOULD be.

: TL's non-lawyer readers should understand (none / 0) (#12)
by Peter G on Mon Apr 22, 2013 at 03:59:31 PM EST

that the scheduled May 30 probable cause hearing, referenced in J's post, will almost certainly never occur. Dzhokhar has a right to an in-court probable cause hearing to justify his continued detention only if he has not been indicted by a grand jury by then. However, he will have been, almost certainly. If so, the hearing will then be cancelled, because the standard for issuance of an indictment is also "probable cause," and the return of charges in that form by itself justifies the proceedings going forward.

From the complaint (none / 0) (#2)
by Jeralyn on Mon Apr 22, 2013 at 01:49:12 PM EST

he had gunshot wounds to the head, neck, legs, and hand.

Last night on 60 minutes (none / 0) (#3)
by Slado on Mon Apr 22, 2013 at 01:50:27 PM EST

it was inferred that he tried to kill himself. The police chief of Boston wouldn't confirm or deny.

That is the possible cause of his wound in his cheek and back of his neck.


pure speculation at this point (none / 0) (#4)
by Jeralyn on Mon Apr 22, 2013 at 02:11:15 PM EST

please lets stick to facts or at least what is represented by law enforcement to be factual.


Understood (none / 0) (#7)
by Slado on Mon Apr 22, 2013 at 02:28:52 PM EST

Just pointing out that the interview had that in it. Found it interesting is all.


: thanks, I'm just (none / 0) (#8)
by Jeralyn on Mon Apr 22, 2013 at 02:31:22 PM EST

trying to keep the threads as factual as possible

NYT is quoting law enforcement on this fact (none / 0) (#28)
by lawstudent on Mon Apr 22, 2013 at 10:31:47 PM EST

One law enforcement officer said the wound to the neck appeared to be the result of a self-inflicted gunshot.

: appeared to be (none / 0) (#30)
by Jeralyn on Tue Apr 23, 2013 at 01:43:33 AM EST

is not the same as forensics has shown it to be. It's not a fact, it's a law enforcement possible theory. And it's already been mentioned, stop repeating it.

Dzhokhar Tsarnaev was (none / 0) (#5)
by KeysDan on Mon Apr 22, 2013 at 02:12:52 PM EST

charged with two counts (use of a weapon of mass destruction, and malicious destruction of property resulting in a death). However, the complaint describes other alleged crimes (state rather than federal) including the car jacking--which may bring evidence that corroborates the video and other evidence underlying the two counts of the federal complaint.

Even if it was the now dead brother, Tamerlan Tsarnaev, who supposedly confessed the bombing to the car jacking victim, criminal implication would appear to exist for Dzhokhar. Accordingly, would it not be important for the state to proceed concurrently, if not prior to, the federal complaint?

car jacking is also a (none / 0) (#6)
by Jeralyn on Mon Apr 22, 2013 at 02:26:49 PM EST

federal offense.

Remember, this is the Complaint, which will be followed up with an Indictment.

I don't see any reason for the state to go first or at the same time.

In Oklahoma City, they did the same thing. The feds went first and the state second (as to Terry Nichols.)


If the state decides to charge him with murder (none / 0) (#23)
by scribe on Mon Apr 22, 2013 at 07:25:38 PM EST

there's no statute of limitations on that. They could wait for-frickin'-ever to charge that.

So, now that he's in the court system, there's no hurry. I suspect the state will wait until after the federal trial so there can be no complaint by the defendant that he was so overwhelmed defending two cases at once that he couldn't and didn't get a fair trial in either.

And to clear up a likely future question I see coming around the corner - there is no double jeopardy bar on both the state and the federal governments charging the same defendant with criminal offenses arising out of the same conduct. So long as the essential elements of the state crime are not exactly the same as the essential elements of the federal crime, there is no double jeopardy because the crimes charged are different. And, in this case, an essential element of both federal charges is that the conduct affected interstate commerce or involved goods/property that had moved in interstate commerce. State crimes don't have the interstate commerce element.


Yes, and as (none / 0) (#31)
by KeysDan on Tue Apr 23, 2013 at 09:31:25 AM EST

pointed out by Jeralyn, the car jacking component is both a state and federal crime--the federal statute having been upheld by Courts as a valid exercise of Congress' powers under the Commerce Clause (in this case, the Mercedes SUV having been transported in foreign/interstate commerce). While the punishment for federal car jacking is severe, in and of itself, this crime also appears to provide evidence for the charges set forth in the complaint (and, perhaps, for the subsequent indictment.)


: Yes. The car jacking appears (none / 0) (#33)
by Tamta on Tue Apr 23, 2013 at 04:10:39 PM EST

to be the Feds strongest link between these men and the bombing scene- the pressure cooker bombs are trying to be used against LE at the the SUV that matches the ones used at the bombing, and supposedly one of the brothers admits to being the bomber. Without the carjacking 'evidence', there is just video evidence of the Dzhorkar at the marathon, and the video is not that conclusive.
Its also interesting how the complaint downplays the second car, diverging from LE narrative of that night.

Transcript of arraignment (none / 0) (#13)
by Big Tent Democrat on Mon Apr 22, 2013 at 04:37:15 PM EST

Link.

He does exist (none / 0) (#15)
by CoralGables on Mon Apr 22, 2013 at 05:12:06 PM EST

he spoke a word (none / 0) (#17)
by Jeralyn on Mon Apr 22, 2013 at 05:35:51 PM EST

"No." All else was nodded. I'm glad the federal defender got to meet with him first, even if "briefly."


I think by "He does exist" (5.00 / 2) (#24)
by Peter G on Mon Apr 22, 2013 at 07:49:12 PM EST

CoralGables was referring to the sudden reappearance of BTD, not commenting on the transcript of the initial appearance.


I'm surprised the prosecutor did not (none / 0) (#18)
by oculus on Mon Apr 22, 2013 at 05:39:08 PM EST

Say, for the record, every time defendant nodded, that defendant noodled assent, or something to that effect. Kind of sloppy.


: I liked that (5.00 / 3) (#29)
by sj on Mon Apr 22, 2013 at 11:22:19 PM EST

"noodled assent". I think that's what I do sometimes.

: As is my spelling. (none / 0) (#19)
by oculus on Mon Apr 22, 2013 at 05:39:40 PM EST

Three on the defense team so far (none / 0) (#20)
by CoralGables on Mon Apr 22, 2013 at 05:42:16 PM EST

Led by Miriam Conrad who represented "shoe bomber" Richard Reid.

Joining her are Timothy Watkins and William Fick.


Continued... (none / 0) (#21)
by CoralGables on Mon Apr 22, 2013 at 05:43:47 PM EST

she's asked for access to two more that specialize in death penalty caees to join the team.


: Expect to see Judy Clarke brought in (none / 0) (#22)
by Peter G on Mon Apr 22, 2013 at 07:13:01 PM EST

or another top federal capital defender. Miriam Conrad is the chief defender of the Massachusetts-New Hampshire-Rhode Island office of the Federal Public Defenders. She's very good, as is the office generally.

Query: Jeralyn, were there ever threats (none / 0) (#14)
by oculus on Mon Apr 22, 2013 at 04:59:33 PM EST

to you attributable to your representing defendant Mc Veigh?

: no threats (none / 0) (#16)
by Jeralyn on Mon Apr 22, 2013 at 05:28:37 PM EST

Unrest concerning civil rights this week (none / 0) (#32)
by Strelok1029 on Tue Apr 23, 2013 at 02:32:22 PM EST

I've literally been glued to the internet and media since Monday afternoon...actually just got into the house and checked the news within minutes of the terror attacks.

Starting with Thursday evening's shootout and Friday's all-day manhunt and subsequent arrest, public opinion has been incredibly divided over the authority's assertion of the public safety exception to the Miranda warning (which I understand to not actually be a right guaranteed under the constitution), and the shelter-in-place directive imposed on the public in the Boston area. I'd done some reading and found that these more extreme actions by law enforcement were not without precedent -- previous instances included other dangerous criminals on the loose and dangerous environmental situations arising from industrial accidents and environmental contamination. Personally speaking, I will say I didn't see any misconduct by the law enforcement or federal authorities in the Boston area, but I reside in a small, uneventful town in the midwest where violent crime is almost nonexistent. I felt the authority's actions were prudent and ultimately saved more lives.

I'd like to know what your guys' thoughts are/were pertaining to these events...is there any real significant possibility of litigation against the authorities for their actions Friday?

Second point I'd like to address to Jeralyn, you've had experience representing clients accused of federal charges relating to terrorism and mass murder. Granted, your involvement in the McVeigh case was in the mid 90's, several years before 9/11, I would understand you might see things differently with how the federal courts will proceed with regards to Mr. Tsarnaev. What do you think, given the circumstances and political climate, his defense counsel will go for? Do you think that in light of the overwhelming evidence leveled against him, they will seek a plea for a reduced penalty or guarantee of non-capital punishment? Do you think the counsel will direct a lot of their efforts towards exploiting circumstantial evidence to get an acquittal? Finally, do you think they may try the psychological angle, trying to build a case on insanity and/or coercion by the older brother?