Boston Herald: Full Court Press: Impartial attorney says of weed plea: 'It could work in this case'

DAY IN COURT: Robel Phillipos, left, leaves federal court with an unidentified man yesterday. Phillipos is claiming he was too high to have willingly aided accused Boston Marathon bomber Dzhokhar Tsarnaev.

Tuesday, October 7, 2014
By Bob McGovern

Dzhokhar Tsarnaev's buddy may have hit on a primo legal defense.

If Robel Phillipos' lawyers can get jurors to believe that the UMass Dartmouth student was too stoned on April 18, 2013, to remember what he and his friends were doing, he could walk away from federal charges.

"It could work in this case," said Peter Elikann, a criminal defense attorney who is not involved in the case. "If they're trying to say that he was just a nervous teenager, the idea that he was smoking marijuana might enhance that argument, and it would be one more thing for the jury to consider."

Phillipos, then 19, is charged with repeatedly lying to FBI interviewers during their investigation into the 2013 Boston Marathon bombings. Authorities say Phillipos was present when Kazakh exchange students Azamat Tazhayakov and Dias Kadyrbayev worked together to conceal evidence in order to help Tsarnaev. Tazhayakov was found guilty in July, and Kadyrbayev later pleaded guilty.

All that's left is Phillipos, and now he's saying that marijuana clouded his memories of the night. That could be enough to convince jurors that he's just a dumb kid and not a criminal worth putting away for up to 16 years.

"If there are jurors who want to be lenient, you have to give them a door to walk through," said Edward Schwartz, a Boston-based jury consultant who is not involved in the case. "This defense could be that door. It provides a legal opportunity - with legal language and instructions - that a juror can point to and say, 'Here's my way out.'"

To be guilty under federal law, Phillipos would have to be found to have "knowingly and willfully" lied to federal investigators. Unlike other crimes - like murder - there are no degrees of guilt.

If he didn't knowingly lie, Phillipos is innocent.

"It's all or nothing here. Either he did it knowingly and willfully, or he honestly couldn't remember," said Brad Bailey, a criminal defense attorney not involved in the case. "He's either guilty or not guilty here."

This isn't a novel defense. Attorneys use the diminished capacity defense in a lot of cases, and sometimes it's accepted as a way to reduce charges. Phillipos is hanging his hat on his stoner defense - but will a jury believe that a night of smoking pot left a blank?

Prosecutors also may have given him an out by saying it took five interviews with Phillipos before he confessed to being in Tsarnaev's dorm room the night of April 18, 2013. Jurors could see that as instructive - that Phillipos was too stoned to know for sure and eventually cracked because he was scared.

The image of a nervous stoner, too far gone to understand the seriousness of his predicament, is exactly what defense attorneys want jurors to see.

"If they are trying to convince the jury that this wasn't a thought-out scheme - it was just that he wasn't thinking clearly and was nervous on top of that - this can only enhance that argument," Elikann said. "I think it's a smart move by the defense. It's clear that they want to paint him as a kid who wasn't thinking clearly, and not a diabolical schemer out to throw the police off the track."