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September 23, 2013

Intriguing sparring over federal capital recommendation procedure in Boston bombing case

This AP article, headlined "Lawyers ask for more time to submit arguments against death penalty in Boston Marathon bombing," reports on an interesting tussle over procedure in a hearing today concerning one of the highest-profile on-going federal prosecutions. Here are the basics:

Federal authorities plan to recommend whether to seek the death penalty against Boston Marathon bombing suspect Dzhokhar Tsarnaev by the end of next month and expect U.S. Attorney General Eric Holder to decide early next year whether to pursue it, prosecutors said Monday.

But Tsarnaev’s lawyers objected to the timetable and asked a judge for more time to make their case against the death penalty. During a status conference in U.S. District Court, Tsarnaev’s lawyers said they have not received key evidence from prosecutors yet — including interviews or grand jury testimony of Tsarnaev’s family — and have not had enough time to submit a proposal arguing that Tsarnaev does not deserve the death penalty.

Assistant U.S. Attorney William Weinreb argued that the defense has had almost six months since the bombing. He said federal prosecutors plan to make a recommendation to Holder by Oct. 31. He will have the ultimate say on whether to seek the death penalty; his decision is expected by Jan. 31, Weinreb said....

Weinreb said prosecutors originally asked Tsarnaev’s lawyers to submit their arguments by Aug. 23 but agreed to extend that deadline to October at their request. He said prosecutors are not required by law to wait for input from the defense before submitting their recommendation to Holder. “We think that six months is a reasonable time,” he said.

But Judy Clarke, one of Tsarnaev’s lawyers, said “it’s a matter of fairness” and asked the judge to delay the date for their submission at least until they get the evidence they are seeking. “It’s pretty stunning to say they can make a decision based on what they know without some defense input,” said Clarke, a San Diego lawyer who has won life sentences instead of the death penalty for high-profile clients, including the Unabomber and the gunman in the rampage that wounded former U.S. Rep. Gabrielle Giffords of Arizona.

Judge George O’Toole Jr. took no immediate action on the request but agreed to allow the defense to submit arguments on whether the court has the authority to reset any deadlines.

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September 23, 2013 at 06:30 PM | Permalink


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The idea that the defense has a right to force a delay in the time that one prosecutor can make a potential sentencing recommendation to a higher ranking prosecutor is just mind-boggling.

The US Attorney can make any recommendation to the Attorney General he cares to at any time he cares to, and it is none of the defendant's or the court's business. Is there absolutely nothing left of separation of powers?

The right to discovery is a TRIAL right, United States v. Ruiz, 536 U.S. 622 (2002)(unanimous judgment). There isn't going to be a trial for months at the minimum. This is fishing for delay, pure and simple.

Posted by: Bill Otis | Sep 23, 2013 7:41:39 PM

The lawyers making false motions for delaying tactics should be sanctioned by the judge with costs from personal assets. If the judge fails to control them, have the administrative judge immediately replace the vile pro-terrorist lawyer traitor on the bench. If the administrative judge fails to replace this traitor, direct action groups of victim families should hunt them, and apply 20 lashes. Tie them both to the tree outside the court. To deter the traitors.

If the FBI arrests the direct action group, demand a trial, no plea bargain. No jury will convict them because these judges are vermin, not even human. The jury will cry, and hug the defendants after pictures of the bombing are shown.

There is no legal recourse because this is the beginning of the legal rent seeking feeding frenzy. It will get far worse, and more outrageous, a legal circus.

Posted by: Supremacy Claus | Sep 23, 2013 10:28:41 PM

Isn't about time to bring violence to the lawyer profession? Isn't about time to make them suffer as they make the entire nation suffer by their expensive games, stealing tax funds?

The Supremacy may begin a campaign of legal moves against judges and the lawyers on both sides. This is a side hobby of the Supremacy, driving lawyers out of the profession.

Posted by: Supremacy Claus | Sep 23, 2013 10:49:30 PM

Some of the comments above might seem beyond the Pale. Beyond the Pale means beyond the Paletinate. East of Corfu the Ten Commandments Do Not Apply, so said Rudyard Kipling. But here we have a Tsar boy. A boy named after the Tsars of Russia. He comes to America and decides to be a terrorist. Instead of the death penalty there is a better, more just reward for his efforts. Fly Tsarboy over his home country and set him free-- from ten thousand feet. If he lives then the Islamic faith will be relieved and rewarded.

The problem with sending this punk off to prison in America is his looks. He will get punked over and often. If you do not know what getting punked means in an American prison then please Google the word Punked. No quotes needed here.

Posted by: Liberty1st | Sep 24, 2013 2:14:35 AM

Lib: I thought that region was in Bavaria, and the pale of the expression is a stick in the ground, delineating a boundary, as in "impale."

Posted by: Supremacy Claus | Sep 24, 2013 4:18:28 AM

DOJ policy requires that all potential federal capital cases be submitted for review by the Department and a decision by the Attorney General regarding whether to seek the death penalty. The overriding goal of the review process is to allow proper individualized consideration of the appropriate factors relevant to each case.

Among those items submitted to the capital review committee are the background and criminal record of the capital defendants. Any documents or materials provided by defense counsel to the United States Attorney or Assistant Attorney General in the course of the United States Attorney's Office or Department component's death penalty review process should be provided. No final decision to seek the death penalty shall be made if defense counsel has not been afforded an opportunity to present evidence and argument in mitigation.

This is hardly a fishing expedition. The defense is just doing what the DOJ Death Penalty Protocol asks them to do. And they are doing it in the middle of Congress cutting funds to the FPD Offices and reducing the rates of CJA counsel.

Posted by: AFPD | Sep 24, 2013 9:41:52 AM

I'd always heard it was of Irish origin.

(Although, "Pale of Settlement" has another origin in Czarist Russia.)

Posted by: Jay | Sep 24, 2013 10:47:26 AM


"This is hardly a fishing expedition. The defense is just doing what the DOJ Death Penalty Protocol asks them to do."

Would you mind quoting the part of the Protocol that asks defense counsel to move the court to order the US Attorney not to make a recommendation to the AG until such time as defense counsel thinks he/she has all the useful information (which time will be in the year 3000)? I guess I'd also want to see the part that says the US Attorney makes the "final" recommendation. And the part that says that any part of the Protocol is enforceable by the court, much less the court on the defendant's motion.

Of course there is none. And if there were to be, that would incentivize DOJ just to eliminate the whole thing -- which is not required by statute -- rather than create additional opportunities for court-ordered delay.

The defendant has a constitutional right to try to dissuade the jury from imposing death, not a "right" to dissuade DOJ (and still less the US Attorney) from recommending that death be sought.

This is just a classic case of why the DP takes so long (which is of course the whole object of the enterprise). It's strictly manufactured procedure, in which the name of the game is to deflect attention away from the defendant's behavior.

Given what the behavior was (terrorist murder, multiple murder, murder of a cop and child murder) I can understand why the defense wants to do this, but there is no legal or moral reason it should be allowed, much less (if foolishly it were to be allowed) that it should take more than six months.

Posted by: Bill Otis | Sep 24, 2013 10:56:28 AM

SC, you ask "Isn't about time to bring violence to the lawyer profession?"

You have repeatedly abused your First Amendment rights in you mindless rants against attorneys. You cross the line when you incite violence against them. You run the serious risk of arrest and prosecution. Your obvious mental impairment may lead to a reduced sentence, but, in light of the screed you disseminate, good luck finding a qualified lawyer willing to represent you.

Posted by: FBI Agent Retired | Sep 24, 2013 5:28:10 PM

FBI Agent: Did you enter the FBI as an attorney or as an accountant? Perhaps it was under the Diversified category.

Start here:

Brandenburg v. Ohio, 395 U.S. 444 (1969)

Go here:

Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam)

NAACP v. Claiborne Hardware Co.,458 U.S. 886 (1982)

Finally, here:

Planned Parenthood v. American Coalition of Life Activists, 290 F.3d at 1089, 1091, 1092

The hierarchy of the lawyer profession is so powerful and entrenched in government that it laughs off threats, knowing, it will not be moved.

I am interested in your opinions and experiences as an FBI agent.

Were you in the civil service or an at will employee as an FBI agent?

Did you clearly understand that you were an agent of the prosecution in the DOJ?

Did you ever have a supervisor tell you to increase or decrease your efforts in a politically connected case or one in the media?

Was there a policy to go for the physically easy cases, such as health fraud vs illegal alien MS13 gang beheadings?

Did you ever watch the FBI agents in the Sopranos? Part of the quality of that show was to be dead on with inside information on methods and styles of many professions, psychiatry, construction, addiction counseling, wedding planing, high school teaching, and many others? Were they also dead on accurate in the depiction of the FBI agents?

I know these are superficial, but they are a start if you wish to educate the public about the FBI. If interested, I will ask far less superficial questions.

P.S. Lawyers like me and enjoy my points. And I love the rule of law, and the lawyer profession. I want to save it, not hurt it. I want it to quadruple its pay, and increase its public esteem 10 fold. I have the path, if any will listen and be willing to change the indoctrination of the cult enterprise.

Posted by: Supremacy Claus | Sep 24, 2013 10:19:44 PM

FBI Agent: Your rebuttal to my points? Declare me insane. Arrest me. A show trial. And incarceration. Those threats are all KGB. The mentality of big government advocates is the same around the world.

I believe every federal prosecution is an opportunity to destroy the lives of a federal lawyer, his supervisors, and to bankrupt his division.

All defenses should start with total e-discovery of the federal thugs' personal and work computers. Then go where they live, worship, and play. Demand that people shun them. Post the content to the web, and send to the news media, including child porn. (That will be a non-superficial question if FBI Agent replies, how much child porn is there on FBI laptops.)

Defense lawyers will not counter attack because they owe their jobs to the prosecution, not to the client. The defense lawyer must be terrorized by a second lawyer, a lawyer malpractice lawyer. The defense lawyer will just laugh if the client demands a vigorous counter attack.

Posted by: Supremacy Claus | Sep 25, 2013 6:51:18 AM

Leaving aside the comments that are obviously not worth commenting on. I think the DOJ's policy of giving input is a good idea of placing the interests of justice first. I think the DOJ's delaying on discovery is the exact opposite of that (when talking about "the interests of justice," their bare minimum ethical duties shouldn't be the ending place of the discussion). It's not like they aren't going to turn it over anyway (at least, I would be shocked if the DOJ didn't have an open file policy on a capital case) and the goal is to ensure that the Attorney General has a fair and complete picture, so it makes sense for defense counsel to have the discovery to develop the argument fully. I think the best way to effectuate this policy would be to delay the decision until after the discovery is turned over.

That being said, this strikes me as a discretionary policy within the Department of Justice. At most, it would be a non-justiciable political question. I can see hearing arguments on court authority (there's very little harm there and it makes sure things are done right), but I doubt the court has authority.

Posted by: Erik M | Sep 25, 2013 8:00:18 PM

"You have repeatedly abused your First Amendment rights in you mindless rants against attorneys. You cross the line when you incite violence against them. You run the serious risk of arrest and prosecution."

Perhaps he risks arrest and prosecution, but hopefully not conviction.

Posted by: federalist | Sep 25, 2013 10:54:23 PM

The lawyer wants to delay the trial of a guilty person to generate lawyer fees. The judge must sanction such stealing of tax funds, and preserve the court's integrity. Such sanctions must come from personal assets and should cover all the cost of the other side needed to reply to these frivolous motions and dilatory tactics.

Posted by: Supremacy Claus | Sep 26, 2013 1:05:12 AM

Erik M --

Sure, the policy of soliciting defense counsel's input will at least arguably promote fairness, so it should be done WITHIN REASONABLE LIMITS. Those limits have been met here. The way it works in capital defense is that delay is always on the defendant's side, so he wants as much as he can get. With that as the ethos, there will ALWAYS be the request for just one more thing and just one more month.

If DOJ falls for that, they have been gamed. What you do, as US Attorney, is say: "Hey, look, it's been six months and we are going to proceed to talk to the AG. He makes the final decision, not me. Before he does -- which as we both know will be months from now -- you might come up with additional material, and if you do, fine, you can submit it to him and ask for a meeting. But justice delayed is justice denied, and allowing for yet more delay at this very preliminary stage is not going to be allowed. By the time the decision actually gets made, you will have had the chance to present the kitchen sink, so fretting about it now is just dilatory."

And then you, as US Attorney, go ahead with your recommendation.

As an officer of the government, you never let your litigation adversary direct you as to when or what you may communicate to your superior. Defendants should and do have plenty of rights; that is not one of them.

Posted by: Bill Otis | Sep 26, 2013 9:44:43 AM

I agree with the latter half of that, but not the former. I agree completely that the defense doesn't have a right to demand anything in this particular process, so this motion should be denied. However, if they're going to turn over discovery anyway, I think it makes sense to turn over what they have now in order to let the defense make the best argument they can make (after all, isn't that the whole point of asking for their input).

It's just like an open file policy. You don't have to have one. But many prosecutors think it's the right thing to do, particularly in a serious or capital case.

There will be delays to come (some of the delays will likely be over discovery). This process will take time. Neither side is likely remotely ready for trial. But they're both likely preparing now regardless of the decision. A delay in the decision isn't likely to be a significant delay in the other processes.

Posted by: Erik M | Sep 26, 2013 10:23:44 AM

Erik M --

If I, as the US Attorney, could be sure this is the last delay they would seek, I would allow it. The problem is that it's a little delay here and a little there and a little the next place, so giving in one time becomes merely giving in the first of a hundred times. That is how capital litigation gets to be 10 to 15 to sometimes 20 years long.

It's absurd, and the government should not allow itself to be led down that path. Thus, what the US Attorney should say is that he'll go along with this request in exchange for the defense's word that it will be the last one until after the government has made the decision what penalty to seek.

The alternative is for the government to become the perpetual Charlie Brown kicking (or more correctly not kicking) the defense-placed football.

There is absolutely no reason the central issue in this case -- namely his mental state, since there's no question he did it -- can't be fully investigated in a year at most. What exactly could take more than that?

Perhaps the major knock on the DP as now administered is that it takes too long. But it needn't take anywhere close to what it does. Some urgency and discipline behind counsel is what's actually needed.

I spent years doing federal criminal cases, some of them complex. I would be happy to say under oath that a completely fair final resolution of this matter can be had in less than ten years. What we need to know are (1) what did he do (we already have it on that one), (2) why (he scrawled the message on the boat he was hiding in), and (3) under what influence.

Only the third or (maybe) the second question takes even months to figure out.

Let's be honest about what's really going on here. On the merits, this guy is toast. So the point has to be to put off the merits as long as possible, and hope that the system manages to tie itself up in knots or just becomes fatigued to the point it will settle for LWOP.

That may be what happens, but there is no persuasive reason our people and our law, which allows the DP, should allow it to.

Posted by: Bill Otis | Sep 26, 2013 10:57:32 AM


please, specify how my comments risk arrest, except for false arrrests and ginormous litigation against the DOJ. FBi is obviously not a lawyer, and I have no dispute with him. He is also too stupid to understand how the lawyer hobbled his own agency from preventing 9/11. That failure was so big the FBI should have been disbanded.

Posted by: Suptemacy Claus | Sep 27, 2013 8:38:18 PM

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