Kevin McCoy and Brad Heath, USA TODAY
The Boston Marathon bombing suspect could face the death penalty, former prosecutors, defense attorneys and a capital punishment expert said Saturday.
Federal prosecutors and state law enforcement counterparts in Boston are starting the process of filing criminal charges against Dzhokhar Tsarnaev, 19, the naturalized American citizen from Cambridge arrested Friday night in the bombing that killed three, wounded dozens and chilled the nation with the worst terrorism case on U.S. soil since the 9/11 attacks nearly 12 years ago.
But former prosecutors predicted the biggest legal decision facing prosecutors was already clear.
"I would be shocked if it's not a death penalty case," said Michael Sullivan, a former Massachusetts U.S. attorney. "You look at the statute that gives you the highest level of potential punishment."
Tsarnaev is likely to be charged under federal law, because the federal government has more legal and investigative resources and Massachusetts does not have a state death penalty statute, the former prosecutors said. Saying there's "no way that this is going to be a state case," Sullivan added that "the federal interest would not be satisfied by a state prosecution."
The federal prosecution process typically starts with the filing of a legal complaint with an affidavit outlining probable cause for criminal charges. Next, Tsarnaev would have to be presented before a federal magistrate judge. Because he's in a Massachusetts hospital, the judge could be brought there. Barring extraordinary circumstances, his appearance should occur by Monday.
After that appearance, prosecutors would have 14 days to obtain an indictment from a federal grand jury.
Given the now-notorious circumstances of the bombing, Tsarnaev could theoretically be charged with use of weapons of mass destruction resulting in death, said Richard Dieter, executive director of the Death Penalty Information Center, a non-profit organization that researches capital punishment.
That statute and other federal charges can be punishable by execution, said Dieter, who also predicted "there's a good likelihood" the government would seek the death penalty.
Current Massachusetts U.S. Attorney Carmen Ortiz and her staff are expected to decide the specific federal charges filed against Tsarnaev. If the charges are death penalty-eligible, she would make a recommendation to Attorney General Eric Holder.
He would review the recommendation, as would a panel at the main Department of Justice office in Washington - and defense lawyers would have an opportunity to submit arguments at both reviews. Holder would then issue the final decision, the final step in a process that Dieter said would likely entail "some months of consideration."
"A case like this, I would think there would be no problem" to get Department of Justice approval to seek the death penalty, said Alexander Bunin, the former top federal public defender in New York's northern district. "There certainly isn't any reason I could think of that it wouldn't be authorized."
Nancy Hollander, a past president of the National Association of Criminal Defense Lawyers, similarly theorized that prosecutors would seek execution "if the death penalty applies under federal charges that are brought."
However, Dieter stressed that the Washington decision-making process would weigh potential mitigating factors, such as Tsarnaev's relatively young age and his mental state.
Although Timothy McVeigh was executed for the 1995 Oklahoma City bombing, Dieter noted that federal prosecutors declined to seek the death penalty against Unabomber Ted Kaczynski or for Eric Rudolph, the so-called Olympic Park bomber captured in 2003 who confessed to a string of attacks across the southern U.S. during the 1990s. Instead, prosecutors agreed to guilty pleas and life sentences for both.
More recently, Jared Loughner, the Arizona gunman who shot then-U.S. representative Gabrielle Giffords and others in a 2011 attack, was sentenced to seven consecutive terms of life in prison after he pleaded guilty in federal court.
"These cases were federal cases, and all of them resulted in life sentences ... after initial thoughts about the death penalty," Dieter said.