April 24, 2013

Uphill battle for defense of Boston Marathon bomb suspect

The Associated Press

There are photos of the suspect at the bomb scene, video footage of him dropping a knapsack at the site of one of the blasts, and perhaps most incriminating could be the written words of Dzhokhar Tsarnaev himself during questioning in a Boston hospital. A case with evidence like this may be the toughest challenge a lawyer can face: defending someone accused of an act of terror so horrific a nation cries out for swift, severe punishment.

click image to enlarge

In this Monday, July 23, 2007 file photo, attorney Frank Rubino, left, talks to reporters as Jon May looks on during a news conference in Miami. Attorneys who handle terrorism and other notorious cases say public opinion is stacked against the defense for obvious reasons. Rubino, who represented former Panamanian dictator Manuel Noriega on drug conspiracy charges, agreed it wouldn't make sense to deny the younger Tsarnaev's involvement in the Boston Marathon bombings, but attorneys could try to spare his life by focusing on his age - 19 - and possible coercion by his older brother, Tamerlan, 26, who was killed Friday, April 19, 2013 in a fierce police shootout. (AP Photo/Alan Diaz)

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Attorneys who handle terrorism and other notorious cases say public opinion is stacked against the defense for obvious reasons. Acts of terrorism unleash an outpouring of anger from the public, including potential jurors. In Boston, the circumstances are especially egregious: Three people, including an 8-year-old boy, died in the twin blasts, more than 260 were injured, and a Massachusetts Institute of Technology police officer was later fatally shot.

Some lawyers say that in this case, the surveillance evidence and a police shootout make a "he wasn't there" innocence claim untenable — and keeping Tsarnaev out of the execution chamber may itself be a triumph.

"The reality is you just try to save his life," said Thomas A. Durkin, a Chicago lawyer who has defended several terrorism suspects, including Ramzi bin al Shibh, one of the alleged plotters in the 9/11 attacks now being held in Guantanamo.

Durkin said there are several steps the defense can take: Hire top-notch investigators, look for possible psychiatric issues or brain damage and scour for potential vulnerabilities in how the government collected evidence. But he said the biggest hurdles for lawyers, clearly, are the bombings and the ensuing horror.

"It's just an unspeakable crime," Durkin said. "It strikes at the heart of a free society. It strikes fear into everyone. It's just an awful, awful situation — people standing, watching a race one second and having no feet after that. I can't imagine worse evidence."

Frank Rubino, a Miami defense attorney who represented former Panamanian dictator Manuel Noriega on drug conspiracy charges, agreed it wouldn't make sense to deny the younger Tsarnaev's involvement, but attorneys could try to spare his life by focusing on his age — 19 — and possible coercion by his older brother, Tamerlan, 26, who was killed Friday in a fierce police shootout.

"To take this case to trial and argue that he didn't plant the bomb and someone else did it would be futile," Rubino said in an email. "The evidence of both flight from the police and the shootout will come in evidence as 'consciousness of guilt.' How can one explain that conduct? Innocent people don't throw bombs at the cops, shoot it out with the cops and hide."

Tsarnaev was charged Monday with using a weapon of mass destruction to kill in the April 15 bombings. He could face the death penalty if convicted. He was questioned in his Boston hospital room by a special interrogation team for high-value suspects.

Two U.S. officials said preliminary evidence from that interrogation suggests the brothers were motivated by religious extremism but apparently were not involved with Islamic terrorist groups. Tsarnaev communicated with his interrogators in writing, according to the officials, who spoke on condition of anonymity because they were not authorized to discuss the investigation publicly.

An FBI affidavit released Monday reveals incriminating evidence against Tsarnaev, including surveillance-camera footage that shows him raising his mobile phone to his ear just before the two blasts. After the first explosion, a block away, as the horrified crowd turned in that direction, he appeared calm. He then quickly walked away, leaving a knapsack on the ground. About 10 seconds later, the FBI said, a bomb blew up where he'd been standing.

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