Middlesex DA Should Avoid Rerunning Boston Marathon Case in State Court

Last week, Middlesex County District Attorney Marian Ryan confirmed her Office has begun the process of pursuing the first degree murder and firearms indictments against Dzhokhar Tsarnaev in connection with the line of duty slaying of MIT Police Officer Sean Collier in Cambridge, and the ensuing firefight in Watertown with local police officers and other responding law enforcement units, that were returned by a state grand jury nearly two years ago. You may be saying to yourself, but wasn't Tsarnaev already sentenced to death? Yes, 6 times over... but these charges are different, notwithstanding that they involve some of the same core facts. Despite his convictions last April on all thirty counts in the federal indictment in United States District Court in Boston, DA Ryan's reasoning is clear: "When you come into Middlesex County and execute a police officer in the performance of his duties and assault other officers attempting to effect his capture, it is appropriate you should come back to Middlesex County to stand trial for that offense." Unlike federal courts, in Massachusetts state court, the death penalty is not an available sentence (It was abolished in 1984). Instead, a MA murder 1 conviction carries an automatic sentence of life in prison without the possibility of parole. Against this backdrop, it is also important to know that in addition to the death penalty, United States District Court Judge George O'Toole also imposed 20 life sentences as a result of Tsarnaev's convictions in federal court. Three of those life sentences were for the charges of possession and use of a firearm during and in relation to a crime of violence resulting in death in counts 16, 17, and 18 of the indictment, i.e., those specifically relating to Collier's killing, and thus, the same facts upon which the Middlesex County murder charges are predicated.

There is no question that DA Ryan, as Chief Law Enforcement Official for Massachusetts' largest county, has complete discretion and the absolute power to pursue these charges. There is no double jeopardy bar since the United States Government and the Commonwealth of Massachusetts are separate sovereigns, and the crimes themselves, as well as the elements to be proven, are different. Moreover, in emphasizing that the killing of a police officer in the line of duty and impeding law enforcement from the execution of the same through violent means will not be tolerated, DA Ryan has both solid grounds and good reason to go forward on the 15 state charges against Tsarnaev for which he was indicted in 2013 (the charges were suspended pending the federal trial). Also, as an elected official, it’s good politics to make clear to the local and state police to whom she is beholden that she “has their backs.” Still, the question is fairly asked, should she? I for one, think the answer is no [— unless, of course by some miracle he inexplicably wins an appeal of all his convictions in federal court; and even if that unlikelihood were to occur many years from now, there is no statute of limitation on a murder charge.]

In my opinion the reasons not to bring Tsarnaev back from the U.S. Penitentiary Administrative Maximum Facility - a/k/a ADX Supermax - in Florence, Colorado to go forward with a murder 1 prosecution in Middlesex County substantially outweigh the alternative:

1. To begin with, there are no other cognizable instances of pursuing parallel charges when the death penalty has already been handed down. It may be a different story if it were a situation where a life sentence was imposed in one jurisdiction and charges seeking the death penalty were subsequently brought in another jurisdiction, as may be the case for Whitey Bulger (who received 2 life sentences in MA federal court, but may still face the death penalty for pending charges in OK and FL).

2. Second, and relatedly - it doesn't make sense to try Tsarnaev on state murder charges when the maximum penalty DA Ryan could obtain (life in prison without the possibility of parole) is less than what he already received for his federal convictions (death + multiple life sentences) on count(s) with the same core facts her office is seeking to prove on the MA indictments.

3. Third, in DA Ryan's statement, she also noted that state charges could serve as insurance against Tsarnaev's successful appeal of his federal convictions, which she noted are "not yet final." To me, this justification doesn't hold up. Absent Tsarnaev getting the convictions overturned on abuse of discretion in denying change of venue, which is unlikely, the only real grounds for a potentially successful appeal are in regard to the death penalty sentence, itself. So, even if he was successful, the result would still be an automatic sentence of life in prison (multiple times over) — which is best DA Ryan could do anyway.

4.Fourth, of course, are the costs of pursuing a state trial (and resulting appeals):

a. The cost of special housing in Middlesex County during the trial (and likely well beforehand to attend pretrial hearings and permit his defense counsel access to him; unless he is temporarily housed in another federal facility such, as FCI Danbury (in CT) or the Donald W. Wyatt Detention Facility (in RI), where transportation costs and convoy security will be prohibitive).

b. The cost of courtroom/courthouse security (in a courthouse not equipped for high profile cases no less). The police OT alone for the federal trial cost the taxpayers $748,400.

c. The cost of the trial (and any appeals) itself, including prosecutors AND likely publicly funded defense counsel, which will undoubtedly reach hundreds of thousands of dollars when all is said and done.

5.Fifth, there's also the fact that prejudice from pretrial publicity may end up forcing any trial out of Middlesex County anyway. If Tsarnaev had a credible argument before his federal trial, imagine how much stronger that argument would be now that he's been convicted and received a death sentence.

6.Last, and perhaps most importantly, do the victims really want or need to go through this again, particularly Collier's family, friends and colleagues? I can't possibly imagine their grief, or know their related thoughts, but I humbly suggest that any satisfaction they might receive from a murder conviction (in addition to/as opposed to a conviction for "possession and use of a firearm during and in relation to a crime of violence resulting in death") would be vastly outweighed by the stress and emotional upheaval of having to go through another trial.

At the end of the day, I understand DA Ryan's position - I was after all an Assistant District Attorney in that office many years ago - it's a matter of principle. Believe me, defending those accused of heinous crimes also entails adhering to matters of principle. But, there is also the matter of whether the end justifies the means. In this case, going forward with Middlesex County indictments against Tsarnaev seems a bit like bringing coals to Newcastle - he's already been sentenced to serve 6 death sentences, 2 consecutive life sentences, followed by 25 years in prison, followed by 6 more consecutive life sentences, followed by 32 years in prison, followed by 4 more life sentences… you get the drift. As a Middlesex County resident and constituent, I think we are all better served by turning the page on this sad chapter and moving on without imposing further stress, emotional upheaval, or expense.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.