The criminal complaint unsealed in U.S. District Court for the District of Massachusetts ended some of the legal speculation about how federal prosecutors would treat defendant Dzhokhar Tsarnaev, 19, following the April 15 bombing that killed three and injured more than 200. 

 

For instance, by filing the charges in civilian courts the Obama administration underscored its refusal to treat Tsarnaev, a U.S. citizen and resident of Cambridge, Mass., as an enemy combatant. Some Republican members of Congress had called for such treatment, which gives the defendant fewer procedural protections. 

 

Tsarnaev faces one count of using and conspiring to use a weapon of mass destruction resulting in death, and one count of malicious destruction of property by means of an explosive device resulting in death. 

 

Holder has used the death penalty sparingly, and has not pressed for that ultimate penalty in other cases that involved multiple deaths, said Richard Dieter, an attorney who runs the nonpartisan Death Penalty Information Center in Washington. There is little in Holder's record to suggest what he will decide, Dieter said. 

 

"It's hard for me to find that consistency. There are cases with numerous victims and yet they declined to seek the death penalty," he said. "A good number of the cases that might be comparable to what happened in Boston have not ended in a death sentence or in a death penalty trial." 

 

For example, the Justice Department did not seek the death penalty for Jared Loughner, who killed six and wounded 12 others in Arizona, including former Representative Gabrielle Giffords, Dieter said. The agency also passed on the death penalty for Eric Rudolph, whose bombs during the Atlanta Olympics and elsewhere killed two people. 

 

Holder has authorized prosecutors to seek the death penalty in nearly 30 cases, some of which involved multiple defendants, according to data from the Federal Death Penalty Resource Counsel Project through March 2013. 

 

There were more than a half dozen cases in which Holder authorized prosecutors to seek the death penalty in federal cases in non-death penalty jurisdictions — a group that includes Massachusetts — that group found. The cases varied from a man charged in Vermont with the kidnapping, rape and murder of a 12-year-old girl to one in Puerto Rico involving a shooting that killed multiple people and a defendant with previous murder convictions. 

 

"These cases are all over the map," said Richard Ney of Ney, Adams & Shaneyfelt in Wichita, Kan., who serves as a lawyer with the Federal Death Penalty Resource Counsel Project. "It's a fairly arbitrary process. Why one case is authorized and one isn't, is hard to say." 

 

The cases typically fell into two categories, he said: first, crimes committed in federal prisons or other institutions, such as the killing of an inmate or correctional officer; and "a wide, wide variety of prosecutions" ranging from drug-related killings to crimes involving witnesses. 

 

Noted defense lawyer Harvey Silverglate, of counsel to Boston's Zalkind Duncan & Bernstein, argued that Tsarnaev belongs in state court. The federal government is prosecuting because "they want the death penalty and the…formerly sovereign people of Massachusetts have eliminated the death penalty in the state," Silverglate said. 

 

Silverglate believes prosecutors could get a Massachusetts federal jury to vote for the death penalty. "This is a horrendous case that really tests the will of the state to stick to its principles. This is not a plebiscite on the death penalty," he said. 

 

Criminal defense lawyer David Hoose of Sasson, Turnbull, Ryan & Hoose in Northampton said defense counsel would attempt to transfer the case out of Massachusetts. "I'm sure they're going to get a look at whether he can get a fair trial in Boston or any other part of the District of Massachusetts. This is a decision that experienced lawyers don't make willy-nilly," Hoose said. 

 

The government will likely ask a grand jury to look into the wave of violence that followed the two initial blasts, including the killing of a Massachusetts Institute of Technology police officer, a carjacking and the shootout with law enforcement, said Kelly Currie, a partner in Crowell & Moring's white-collar and regulatory enforcement group who prosecuted a number of terrorism cases as an assistant U.S. attorney in the Eastern District of New York. 

 

At the Justice Department, a committee will review the case and recommend whether to pursue the death penalty, said Gary Grindler of King & Spalding's special matters and government investigations practice, who just left the role of acting deputy attorney general in the Department of Justice. 

 

The defense attorneys are provided an opportunity to make a written submission to the committee, and sometimes Holder asks to hear more. "Typically, the defense counsel would have the opportunity to in person and in writing make arguments on the various factors involved," Grindler said. 

 

All of that can take time, he continued, and it's not unusual for defense counsel to seek more time to get a complete picture for the facts, which can require retention of experts. 

 

Grindler declined to speak about how Holder made decisions in those cases, citing the confidential nature of the review process. "We all took potential death penalty matters seriously. The attorney general took all of them extra seriously," Grindler said. "The instances in which he would be inclined to the imposition of the death penalty, he would be meticulous in his review." 

 

Ney said that, based on his understanding of Tsarnaev's case, a number of mitigating factors might apply, including the degree to which Tsarnaev's older brother and alleged co-conspirator Tamerlan Tsarnaev was the lead actor. Tamerlan Tsarnaev, 26, died early Friday in a gun battle with police. 

 

Then there's Tsarnaev's age. "He's barely eligible, since 18 would be the cutoff," he said. 

 

Currie said Holder could also take into consideration whether Tsarnaev takes responsibility. "I think it's pretty obvious the government would want to talk more with this defendant," Currie said. "That could also play a role. 

 

The younger Tsarnaev was captured on Friday night and made his initial court appearance today from his hospital room, the Justice Department said. A probable cause hearing was set for May 30.??This case is being prosecuted by assistant U.S. attorneys William Weinreb and Aloke Chakravarty of the antiterrorism and national security unit of the U.S. Attorney's Office for the District of Massachusetts, with assistance from the counterterrorism section of the Justice Department's national security division. 

 

The criminal complaint highlighted the role that photographs and video of the scene played in the investigation. It detailed how cameras captured Tsarnaev and his brother at nearly every minute before and after the explosions.??Following the first explosion, "Virtually every head turns to the east (towards the finish line) and stares in that direction in apparent bewilderment and alarm. Bomber Two, virtually alone among the individuals in front of the restaurant, appears calm." Bomber Two is a reference to Tsarnaev. 

 

According to the court docket, Federal Public Defender Miriam Conrad, along with Timothy Watkins and William Fick from the federal public defender's office in Boston, are his attorneys. Conrad could not be reached for comment. 

 

Also on Monday, law firms adjacent to the crime scene started returning to regular routines, ahead of the FBI's planned 5 p.m. turnover of Boylston Street to the city. But one firm at the center of the maelstrom — Brody, Hardoon, Perkins & Kesten — didn't expect access to its 12th floor office until at least the end of next week, managing partner Rick Brody said. 

 

The firm's 699 Boylston Street offices are in the middle of where the two bombs went off, he said. "It's really still up in the air. I still believe we will be one of the last places on the street to be cleared," Brody said. 

 

Brody said that Brody Hardoon's 30 staffers, including 16 lawyers, mostly were working from home. The office manager has four other firm employees, including billing and management specialists and assistants, working at her house, he said. "She's got people working at her house, sending out bills and paying [them]," Brody said. 

 

The firm was meeting all its case deadlines but was delaying depositions. Although other firms and the city of Boston have offered Brody Hardoon space, "at the moment it seems more of a hassle," Brody said.

 

During a Sunday press conference, Boston Police Commissioner Ed Davis and city officials detailed plans for getting business owners and tenants back into their buildings. Officials said preliminary work on the first two phases, biohazard and environmental testing and structural assessment and restoring utilities, was already underway. 

 

Robins, Kaplan, Miller & Ciresi of Minneapolis, which has a Boston office in the nearby Prudential Tower, saw a whole lot more activity in the crime scene area on Monday, said regional managing partner Tony Froio. "They're stacking the barricades on trucks immediately in front of the Prudential [tower and] heading into the finish line," Froio said. "We're back to normal as much as we can be back to normal." 

 

Foley & Lardner Boston partner Gabor Garai said he's heard of a couple of instances when lawyers were given deadline extensions by courts or in business transactions. On Friday, during the lockdown and the manhunt, people in Boston generally weren't able to work the usual hours with the same concentration, he said. 

 

"There's no question that while you could work remotely and did, a lot of things that could get done, didn't get done," he said. 

 

Tarlow, Breed, Hart & Rodgers name partner Ed Tarlow said the employees at the firm's Prudential Center office "seem very much relieved" and "less nervous." Although people were greatly affected by the tragedy and the subsequent events, "Surprisingly, life goes on," he said.

 

(The National Law Journal)