The pending legal case surrounding Dzhokhar Tsarnaev and his reportedly copped-to involvement in the Marathon Monday bombings is almost sure to incite a visceral reaction from the public one way or another. It’s simply not an event to be consumed idly. There have been shouts to charge the 19-year-old as an enemy combatant, shouts since for life imprisonment and shouts for the death penalty. There are those among us who vehemently claim his innocence and those who have long since written him off as guilty.

Details of the brothers’ lives before the attack continue to trickle into the public drinking water. There’s a lot we still don’t know. What we do know is complicated. As the sole suspect in this unprecedented act of terror lies in a city hospital bed, questions abound. Why wasn’t he read his Miranda rights immediately? Will he get the death penalty? How will this trial play out?

To help anchor us with some answers amid a sea of questions, I chatted with Daniel Medwed, a Northeastern law professor and expert in criminal procedure, about the above and more. Below is an edited version of our conversation.


Alex E. Weaver: So, catch us up. Where do we stand now?

Daniel Medwed: At this point, Dzokhar Tsarnaev is facing two criminal charges in federal court: (1) one count of using and conspiring to use a weapon of mass destruction resulting in death, and (2) one count of malicious destruction of property by means of an explosive device resulting in death.

In theory, he could also be subject to state criminal charges, for instance, a murder charge related to the killing of Officer Collier. For the time being, though, he is only facing federal criminal charges — and, I should add, in regular federal court as opposed to a military tribunal. These charges could, in theory, carry the prospect of the death penalty. The Department of Justice will likely convene a committee to evaluate whether to seek the death penalty, or life imprisonment, in this case. It is significant that federal prosecutors, not their state counterparts, have filed the first charges because the death penalty is only available at the federal level within the Commonwealth; Massachusetts has abolished capital punishment as a matter of state law.

AEW: What stands out to you about this case?

DM: What stands out to me is not so much the legal context as the social and emotional context. The principals in the 9/11 crimes died that day and, even though the investigation proceeded to look for accomplices, there was no immediate, surviving, direct participant at whom the public could focus its anger. We have such a target here, which I think will create some very complicated issues in the case. Can he receive a fair trial in Boston or, for that matter, anywhere in the District of Massachusetts? Will prosecutors – and defense lawyers – feel compelled to seek a plea bargain to spare the community the trauma of a trial? Or, conversely, will prosecutors refuse to offer a plea because of a desire to have this play out in an open forum for all to see?

The only case that comes to mind as even somewhat analogous is the Oklahoma City Bombing case — and that case was ultimately moved to Denver.

It is noteworthy that neither charge expressly relates to terrorism.

AEW: Do you expect more charges to emerge?

DM: I do imagine that state prosecutors may file murder charges concerning the death of Officer Collier. That strikes me as a classic state crime, and I think federal prosecutors would be hard-pressed to characterize it as a federal offense.

AEW: Do you see any issues with the delayed delivery of the Miranda rights?

DM: Although it is an interesting issue as a matter of legal theory, I think it has little practical effect here. Miranda protects against the use of certain pretrial statements made by a suspect against that person at trial; it relates more to the admission of evidence at trial than anything to do with the investigation. Given that the evidence in this case already appears to be quite strong, I am not sure the U.S. Attorney’s Office even needs any of the defendant’s potential statements to law enforcement for use at trial; in other words, there is no practical downside to asking him questions without Mirandizing him. Even if those statements are deemed to have been procured in violation of Miranda, the remedy is suppression at trial — the authorities could still use them as leads to investigate other potential accomplices and so forth.

AEW: Does the fact that one of the brothers has died complicate the case?

DM: I anticipate that the surviving brother may – if the case even makes it to trial – argue that the older brother was the more culpable party and contend that he ‘coerced’ Dzhokhar into acting, namely, that the younger brother acted under duress and that his actions should at least partially be excused. The death of the brother could complicate the assessment of that issue.

AEW: Is a plea bargain a possibility here?

DM: I think it is a strong possibility – the Department of Justice will decide whether to offer one and, if so, what should be contained in the offer. A variety of considerations factor into that analysis, including the severity of the crime, the wishes of the victims and a host of other things. Then the defense will have to consider the advantages and disadvantages of the plea and, finally, the judge will have to determine whether the defendant entered his guilty plea knowingly, intelligently and voluntarily.

AEW: What factors determine whether the sentence could be imprisonment or the death penalty?

DM: First, the Department of Justice will have to decide whether it wishes to pursue the death penalty. Second, if capital punishment is sought, then the trial will have two phases – a “guilt phase” and a “sentencing phase.” The guilt phase will look a lot like a regular trial; the sentencing phase is a different process in which both the prosecution and the defense will make arguments about whether the defendant deserves or does not deserve to die.

AEW: Can a suspect request the death penalty?

DM: A suspect can request the death penalty but it need not be honored.

AEW: How long do you anticipate this whole case taking?

DM: No clue.