The Race to Arrest, Prosecute, Convict & Punish the Boston Marathon Bomber(s)

In view of my experiences as a former federal prosecutor and now longtime federal criminal defense lawyer, I have been asked three questions by various news outlets in the wake of Monday’s horrific bombings at the Boston Marathon: when there is an arrest, will the case be prosecuted in state or federal court?; what are the likely charges and possible punishment?; and what are the procedural steps that will follow an arrest?

 Frankly, the answer to the first question is a no-brainer. While it’s both jurisdictionally and theoretically possible that an arrest will be prosecuted in state court, that simply is not going to happen here. There are numerous reasons why. First, there is a much broader array of possible federal charging options, whether under the Terrorism Chapter of the US Code (113B) or under the Explosives Chapter (39), than on the state-side. Second, there are much stricter penalties under the federal sentencing guidelines, including a possible death sentence, certain mandatory minimums for injuring and or killing others, and for using a destructive device to do so, and additional fact-specific enhancements as dictated by the U.S. Sentencing Guidelines. Third, the resources available for a federal prosecution in terms of manpower, finances, technology and agency involvement far exceed anything on the state-side. Fourth, to the extent there are collateral or on-going related investigations, there will be certain accommodations made to law enforcement under the Patriot Act that might not be allowed by more restrictive state statutes and regulations. Last, while the Marathon Bombing may be a local crime, it is a National Tragedy of such proportions that it is both appropriate and proper for total and complete federal involvement. 

 The second question, what the likely charges and punishment may be, is a bit more speculative because such decisions cannot be made without knowledge of both all the underlying facts and the provable evidence. Nonetheless, the most likely charges under the Terrorism Chapter would be pursuant to 18 USC § 2332f for "unlawfully delivering, placing, discharging or detonating an explosive device in...a place of public use...with intent to cause death or serious bodily injury..." The penalty for a conviction on that charge, pursuant to 18 USC § 2332a "is imprisonment for any term of years or for life, and if death results, punish[ment] by death or imprisonment for any term of years or for life."  The offender would also likely be charged under the Explosives Chapter, pursuant to 18 USC § 844, with maliciously damaging or destroying, by means of an explosive device, a building used in or affecting interstate or foreign commerce or any activity affecting interstate or foreign commerce. Because personal injury is involved, the penalty for a conviction of the same is a mandatory 7 to 40 years. Because death resulted, there is also a death penalty option for a conviction on this charge. It is also possible that a charge for the use of a destructive device under 18 USC §924(c)(1)(B)(ii) will be brought, which adds 30 years to the sentence for the underlying crime(s) upon conviction.

 As for the procedural steps following an arrest on these charges, the accused must be taken "without unnecessary delay before a magistrate judge" in at the U.S. District Courthouse for an initial appearance, pursuant to Fed. R. Crim. P. 5. In a case like this, he (or she) will be brought in under armed escort with heavy perimeter security via an armored vehicle, through a side, underground entrance, to the courthouse, where s/he will first be processed by U.S. Marshals. From there, s/he will be brought before the Magistrate Judge, informed of the charges, advised of the maximum penalties, and informed of his or her right to counsel. On the inevitable motion of the government, the case will be continued for a minimum of 3 days for a detention and probable cause hearing, if there is no indictment — which there probably won’t be this soon in a case of this nature. The defendant will be detained without bail pending the hearing. At that hearing, which may be further continued at the defendant’s request, the Magistrate Judge will consider evidence presented by the government (usually in hearsay format) to show the defendant presents a risk of flight or danger to the community, pursuant to 18 USC § 3142. If after such a showing the judge determines that there is no reasonable condition or combination of conditions that will assure the defendant’s return to court or the safety of the community, he or she will be detained without bail pending trial, subject to appeal to the trial court, in the first instance. If a probable cause hearing is also held, the government will have thirty days to secure an indictment on the underlying charges on which probable cause has been found, in order for detention to continue and the case to proceed. Once indicted, the defendant will be returned to the Magistrate Judge for arraignment, where not guilty pleas will likely be entered. The case will then remain in the Magistrate Session for a series of conferences involving the exchange of mandatory discovery and other related issues. Once that process is completed, the case is "sent up" to the trial court for hearings on evidentiary motions, and ultimately, for trial. Because the defendant is likely to be detained, the Speedy Trial Act under 18 USC ch. 208 is also in play.

 Today President Barack Obama gave a speech at an interfaith prayer service in Boston’s South End honoring the victims and first responders of the senseless tragedy that is the Boston Marathon bombings.  To borrow words from the President, "…the message we send to those who carried this out and anyone who would do harm to our people. Yes, we will find you. And, yes, you will face justice. We will find you. We will hold you accountable…" As a defense attorney I am usually challenging the government in court and am conditioned to fight every step of the way. Nothing changes that ethos. However, as a native Bostonian and lover of sport and athletic competition, I join with the President in hoping that whomever is actually guilty of these horrible crimes are found and brought to justice, so that our State, our City, our citizens and our runners "…will return to this great American city to run harder than ever, and to cheer even louder, for the 118th Boston Marathon. Bet on it." Boston Strong!