Why delay in Boston Marathon bombing trial may be blow for prosecution
Looming anniversaries of the Boston Marathon bombing, and the marathon itself, could mean a tough week for the jury and a long-term win for the defense.
In this courtroom sketch, Dzhokhar Tsarnaev, second from left, is depicted standing with his defense attorneys William Fick, left, Judy Clarke, second from right, and David Bruck, right, as the jury presents its verdict in his federal death penalty trial April 8 in Boston. Tsarnaev was convicted on multiple charges in the 2013 Boston Marathon bombing. Three people were killed and more than 260 were injured when twin pressure-cooker bombs exploded near the finish line.
Jane Flavell Collins/AP
The Boston Marathon bombing trial is on a week-long hiatus that could have significant consequences, both short- and long-term, for both the prosecution and the defense.
Dzhokhar Tsarnaev was found guilty of committing the bombings last week after an emotional conclusion to more than a month of witness testimony. The jury found him guilty of all 30 charges against him, but they now face another week of waiting before the penalty phase of the trial begins.
In total, the delay means the jury will have spent more than two weeks between the end of the trial鈥檚 first phase and the beginning of the second phase 鈥� where the jury will hear more evidence and decide if Mr. Tsarnaev should be sentenced to death or to life in prison.
This is a blow for the prosecution, according to several legal experts 鈥� although it's unclear whether it will have long-term repercussions.
While the trial will resume less than 24 hours after the start of the marathon next week, the two-week delay will likely sap some of the emotion from the trial 鈥� at least at first, says Daniel Medwed, a law professor at Northeastern University.
鈥淚 think the delay could help neutralize much of the emotional impact from the trial,鈥� he says. 鈥淭hat said, those emotions may likely resurface during the sentencing phase.鈥�
The guilty verdict聽from the jury came 鈥渞elatively quickly,鈥� considering the complex nature of the 30 charges, says Professor Medwed. Jurors deliberated for about 12 hours over two days.
鈥淭hat shows they were swayed pretty well by prosecution鈥檚 case,鈥� says Medwed.
鈥淚t appears pretty clear that the prosecution has momentum,鈥� he adds. 鈥淚f I was the defense, I would want as much time as possible to separate the first phase from the second phase鈥� of the trial.
The defense has now been afforded a week-long buffer between the emotional end to the first phase of the trial 鈥� culminating in Tsarnaev鈥檚 speedy conviction 鈥� and the beginning of the penalty phase, where his lawyers will hope to reset and start convincing the jury to spare his life.聽
In his statement granting the delay, Judge George O鈥橳oole wrote that Tsarnaev鈥檚 defense team had requested additional time before beginning the penalty phase to 鈥渞esolve outstanding logistical issues with a number of potential witnesses鈥� for the second phase.
鈥淚t is not uncommon for there to be a brief recess between phases in a capital case,鈥� Judge O鈥橳oole added in his written decision.
What isn't mentioned in the decision is that the recess will coincide with both the anniversary of the marathon bombing itself 鈥� which occurred on April 15, 2013 鈥� and the running of the Boston Marathon on April 20. The trial will not be in session on these days, sparing the court an ethical dilemma, according to legal experts.
The jury is supposed to judge the case based on the facts of the case, not聽emotion. Were the trial to be in session while anniversaries of the events聽 were being commemorated just a few miles away, the added emotion of the occasion could risk affecting the jury, according to Harvey Silverglate, a Boston criminal defense and civil liberties lawyer.
鈥淭his is a very hard case to try fairly,鈥� says Mr. Silverglate. 鈥淚t鈥檚 incredibly emotional, and having the anniversary coming up in the middle of the trial seems to intensify the emotionality.鈥�
And it is still something the defense could exploit in the long-term.
If jurors do end up sentencing Tsarnaev to death 鈥� a decision that would have to be unanimous 鈥� the defense will now have a much stronger case in appeals court because of the overlap between the trial and the marathon.
Silverglate notes that the defense team has already been building a case for an appeal in their requests to delay the start of the trial earlier this year and in their three failed attempts to get the trial moved out of Boston.
Silverglate says that the delay until after the marathon 鈥渁meliorates, but does not neutralize鈥� the problem of jurors potentially being biased by the emotionality of the race and the anniversary this week.
It may help the government鈥檚 case, should it go to an appeals court, however.
鈥淪kipping conducting the trial on Marathon Day itself does show the judge鈥檚 sensitivity to the problem of prejudice that will help the government on appeal,鈥� he adds.
Judge O鈥橳oole met with jurors Tuesday morning to give them brief instructions ahead of the penalty phase.聽
The meeting in the courtroom barely lasted 10 minutes, but O鈥橳oole said that the looming anniversaries were important enough to call in the jurors.
鈥淎s you鈥檙e undoubtedly aware, this week marks the anniversary of the crimes the defendant is charged with committing,鈥� said O鈥橳oole.
鈥淚 urge you to go about your lives in the coming week and avoid any events that would put you in a position that would be inappropriate for a juror in this case to see or hear,鈥� he added.
In particular, O鈥橳oole told the jurors to not attend the Boston Marathon or any of its related events.
鈥淚f you happen to see anything related to the marathon,鈥� he added, 鈥渟top reading, turn off the TV or computer, put your attention other places.鈥�
鈥淚f people are curious about what you鈥檙e doing,鈥� he continued, 鈥渋f they seek to discuss the issues with you, you cannot talk to them.鈥�
The second phase of聽the trial will begin next Tuesday. O'Toole told the jury he expects the phase to take聽about four weeks to complete.