A pretrial conference took place this morning in the case of Dzhokhar Tsarnaev, the alleged Boston Marathon bomber. The biggest piece of news is that Judge George O’Toole scheduled Tsarnaev’s trial for November 3, 2014, far earlier than the defense team would like. In a status report filed jointly by defense lawyers and prosecutors on Monday, both sides laid out their recommended deadlines for various motions and witness disclosures, with the defense suggesting a trial date of September 2015 at the earliest.
Although Judge O’Toole sounded firm and not open to discussion when he announced his decision, it’s hard for me to believe that the trial in such a high-profile and important case could take place merely a year and a half after the bombing. Legal experts don’t think so either, including David Frank of Massachusetts Lawyers Weekly, who tweeted:
In addition to scheduling, some other topics, including discovery, were discussed as well, but we didn’t learn a ton of interesting new information. As usual, Tsarnaev himself was not in court, but some of his alleged victims, including Marc Fucarile, who lost a leg in the bombings, were in attendance. They sat with staff members from the U.S. Attorney’s office and chatted briefly with U.S. Attorney Carmen Ortiz. Interestingly, Ortiz also appeared to be very friendly with defense attorney Judy Clarke, and chatted with her as well before the proceedings began. All four of Tsarnaev’s lawyers – Clarke, Miriam Conrad, William Fick, and Timothy Watkins – were at the defense table. The prosecution was represented by Assistant U.S. Attorneys Nadine Pellegrini and Aloke Chakravarty. William Weinreb, the third prosecutor, was running late and didn’t end up making it.
“By and large, with some exceptions, I think the government’s suggestion is the more reasonable of the two,” said Judge O’Toole, with respect to the schedule. In a no-nonsense tone of voice, he set out the following deadlines:
April 9, 2014: Defense motions to suppress
May 7, 2014: All other motions addressing legal issues
June 11. 2014: Defense motions for a change of venue (also another status conference on this date)
October 20, 2014: Final pre-trial conference
November 3, 2014: Jury selection begins
Judge O’Toole called this calendar “a realistic and a fair one.” He acknowledged that the trial will be lengthy (12 weeks for the guilt phase and 6 weeks for the sentencing phase, according to the status report), but urged both sides to keep it as short as possible and to avoid presenting redundant or unnecessary evidence. “This is a unique case, obviously,” he pointed out, in a significant understatement. “Not everything that can be presented, for either side, needs to be, necessarily.”
Then came the familiar (to anyone who has been following the previous status conferences in this case) bickering about discovery. AUSA Chakravarty told the court that the government has provided the defense team with over 67 terabytes of electronic discovery materials, that the defense team has gotten to view physical evidence, and that they are in the process of arranging for the defense team to view some 2000 additional items, including everything from ball bearings to bomb components, located at the FBI lab in Quantico, Virginia. Chakravarty also mentioned the existence of “larger exhibits, shall we say, vehicles,” at other locations in Boston. He complained that the defense team’s requests are often open-ended and difficult to comply with. Adding to the delays, he said, is the defense team’s request that separate staff members, who are not part of the prosecution team, photocopy documents for them so as not to tip off the government about their strategy. Indicating some willingness to delay the trial date, Judge O’Toole warned the prosecutors that discovery disagreements such as these “could endanger the schedule.”
Defense attorney Clarke agreed that they’ve had “a little bit of a sluggish start to reviewing physical evidence.” But she placed the blame for this on the government. “It’s not the defense dragging its feet,” she contended. ” Discovery has been a laborious process and in my experience, far from the norm… It’s just been a laboriously slow, cumbersome process.” She questioned why the government is so reluctant to turn over evidence and is sticking to only what they are absolutely required to share by law. There is a “whole host of digital items that are pending copying,” and the government has not yet set up an appointment for the defense team to view the 2000 items at Quantico. Additionally, Clarke argued that logistical difficulties such as weather, travel, and the Olympics, as well as the sheer volume of evidence that the defense team will have to sift through, make the November trial date impossible. It took the defense team an entire week last month to review 600-800 items of evidence, she said, so going over all the items at Quantico will be extremely time-consuming.
Then, Clarke’s co-counsel, Miriam Conrad, stood up to add her two cents. “Ms. Conrad cannot help herself,” Clarke told Judge O’Toole, who quipped, “There is precedent for that.” Conrad was animated in describing how the defense team has sent three discovery letters to the government. They sent the first of these on December 9th, received an email on December 18th saying that the government would get back to them after the holidays, and got “radio silence” until February 7th, when the government asked them to clarify their request.
The two sides briefly discussed expert witness disclosures, but Judge O’Toole did not set deadlines for these yet. “Let’s not kid ourselves,” AUSA Chakravarty pointed out, “the issue here is going to be the penalty.”
Finally, Judge O’Toole instructed the prosecutors to provide the defense with a list of all the items at Quantico. When it took Chakravarty some time to give a definite answer, Clarke quipped, “Your honor, you have a black robe, and it took you that long to get an answer from the government.” And that was it for today’s hearing, which lasted from 10:00 to shortly after 10:30.
Some relevant documents can be found below:
Joint Status Report filed 2/10/2014
Tsarnaev Notice of Intent to Seek Death Penalty