The trial of alleged Boston Marathon bomber Dzhokhar Tsarnaev is finally here, almost two years after two explosions near the marathon finish line killed three and injured more than 260.
With opening statements today, what can you expect next?
Here’s a step-by-step guide of the legal proceedings.
Arrest: After a day-long manhunt, Tsarnaev was found hiding in a boat in Watertown and taken into custody around 8:45 p.m. on April 19, 2013, four days after the bombing. His older brother and alleged co-conspirator, Tamerlan Tsarnaev, had been killed early that morning during a nearby shootout with police.
Charged: On April 22, 2013, the U.S. Department of Justice charged Tsarnaev with “one count of using and conspiring to use a weapon of mass destruction … against persons and property within the United States resulting in death, and one count of malicious destruction of property by means of an explosive device resulting in death.’’
Indicted: A federal grand jury indicted Tsarnaev on 30 counts on June 27, 2013, including using weapons of mass destruction to kill three people and injure hundreds of others, and using a firearm to kill MIT Police Officer Sean Collier.
Arraigned: Tsarnaev pleaded not guilty to the charges against him at the John Joseph Moakley Courthouse in South Boston on July 10, 2013.
On January 30, 2014, U.S. Attorney General Eric Holder announced that federal prosecutors would seek the death penalty against Tsarnaev.
In the time between that announcement and the start of jury selection, which began roughly a year later, Tsarnaev’s lawyers filed a number of appeals requesting that the trial be delayed and moved out of state, claiming inadequate time to prepare and potential juror bias.
While all of those past requests were denied (a recent motion to move the trial remains open), Judge George O’Toole Jr., who is presiding over the trial, did once delay the trial’s start date from November 2014 to January 2015 “primarily on the basis of the amount of discovery involved,’’ according to his decision. Discovery is a pre-trial process in which the parties exchange information about the evidence and witnesses they will present.
As jury selection began on January 5, O’Toole initially anticipated opening statements to start January 26. That date, however, was continually pushed back as jury selection took longer than expected.
Picking the Jury
Jury Selection: Starting January 5, more than 1,350 potential jurors were called to court over several days to fill out lengthy questionnaires in order to determine whether they could serve on the jury or should be excluded. Those unwilling to consider the death penalty were excluded, as is the case in all capital trials. (A jury cannot be forced to sentence someone to death, however.)
Voir Dire: After reviewing the questionnaires and narrowing the pool down to 256 potential jurors, the judge, prosecutors, and defense attorneys began the process of voir dire, or the in-person questioning of jurors, on January 15. Voir dire was completed on February 25, when the group was whittled to 70 “death-qualified’’ jurors — that is, jurors willing to consider the death penalty.
Jury Seated: On March 3, 12 jurors and six alternates — 8 men and 10 women — were seated after prosecutors and defense lawyers used peremptory challenges to trim the pool down to the official jury.
Now that the jury is formally seated, the trial enters the “guilt phase,’’ in which the jury will determine just that — Tsarnaev’s guilt, or lack thereof.
Opening Statements: Opening statements begin today. These statements set the tone for the trial, as the prosecution and defense tell the jury what they believe the evidence they’re about to present to the court will show.
The prosecution gives its statements first, as the government, which it represents, bears the burden of proving that Tsarnaev is guilty beyond a reasonable doubt. The lead prosecutor in the case is Assistant U.S. Attorney William D. Weinreb; also on the team are Donald L. Cabell, Aloke Chakravarty, Steven D. Mellin, and Nadine Pellegrini.
The defense can either give its opening statements immediately after the prosecution or wait until the prosecution concludes its case-in-chief (that is, when the prosecution finishes presenting its initial set of witnesses). Because of the presumption of innocence, the defense is actually not required to make an opening statement at all. It is all but certain that they will, however.
The lead defense attorney is Miriam Conrad, the state’s chief federal public defender; the other members of the defense team are David I. Bruck, William Fick, Timothy G. Watkins. The final member of the team, Judy Clarke, is known for keeping high-profile clients, including the ‘Unabomber’ Ted Kaczynski, Olympic bomber Eric Rudolph, and Arizona shooter Jared Loughner, off death row.
Prosecution Presents Its Case: The prosecution will now call witnesses and present evidence to the court. WBUR reports that the prosecution has thousands of exhibits and files and a witness list of 590 law enforcement officials and 142 civilians. It probably won’t call all of those witnesses, however, as the list can be streamlined throughout the trial. Defense lawyers will cross-examine the government’s witnesses.
After the prosecution presents its case-in-chief, the defense has the option to make a Rule 29 motion, and ask the judge to acquit if they believe there to be insufficient evidence to convict. Defense attorneys will sometimes make this motion even if they do not think it will be granted, in order to create a record of what they are doing for their client.
If the court denies the motion — it almost always does, as cases that weak rarely make it to trial — the defense proceeds with its case.
Defense Presents Its Case: If the defense hasn’t already given its opening statements, this would be the time to do it. The defense then calls witnesses and presents evidence, with prosecutors cross-examining. Tsarnaev himself can testify, but is not expected to.
Closing Arguments: In this part of the trial, each side will condense the evidence it has presented during the trial into an argument meant to persuade the jury to decide a certain way. The prosecution makes its argument first, followed by the defense.
Again, because the burden of proof is on the government, the prosecution can then make a rebuttal argument, effectively getting the last say. At this point, the case — and Tsarnaev’s fate — is in the jury’s hands.
Jury Instruction: Before jurors can retire, the judge will instruct them on the applicable laws that should steer their deliberations. This usually includes discussion involving lawyers from both sides, who can contest these instructions.
If the jury has any questions after it retires, it can exchange notes with the judge through a deputy marshal or other court employee.
Jury Retires: The jury will now retire to decide on Tsarnaev’s guilt or innocence. In criminal trials like this one, the jury must be unanimous in its decision. If jurors seems unable to agree, the judge can give them an “Allen charge,’’ which urges them to reconsider their opinions and try to achieve unanimity. If the jury still cannot reach unanimity, what is known as a “hung jury’’ occurs, which results in a mistrial. In the event of a mistrial, the government could re-try Tsarnaev, as a mistrial does not indicate anything about a defendant’s guilt or innocence.
The Verdict: Once they reach agreement, jurors return to court to announce the verdict. There are three options in this case.
The first is that Tsarnaev is found not guilty, or acquitted, because the government could not prove its case beyond a reasonable doubt. Even defense lawyers, however, have said that this case will mostly be about sentencing, indicating that an acquittal is a long shot.
The second option is that Tsarnaev is found guilty, but not of any charges carrying the death penalty. In this case, the trial would proceed directly to sentencing.
The third option is that Tsarnaev is found guilty of at least one of the charges that carries the death penalty — 17 of the 30 charges against him do. In this case, the trial will enter a second phase, called the “death penalty phase.’’
“Death Penalty Phase’’
If the trial enters the death penalty phase, a new series of arguments will be made to the same jury to determine whether Tsarnaev is sentenced to die or spend the rest of his life in prison.
The prosecution first presents “aggravating factors’’ that may justify the implementation of the death penalty. Ahead of the trial, prosecutors have targeted factors related to the harm the bombing caused, certain facts about the victims’ statuses, and the nature of the crime and Tsarnaev’s apparent lack of remorse.
Then, the defense presents various “mitigating factors’’ that could dissuade the jury from sentencing Tsarnaev to death. This is where Clarke’s knack for creating sympathy for her clients (and saving them from execution) could come into play.
Then the jury meets again to see if they can unanimously agree to apply the death penalty.
Sentencing: Sentencing — in which the judge formally pronounces the punishment — occurs whether Tsarnaev is found guilty of any charge, regardless of whether the trial goes to the death penalty phase or not. During sentencing, victim impact statements may be given.
If in its deliberations during the death penalty phase, the jury is unable to reach unanimity, Tsarnaev would automatically receive life in prison without the possibility of parole as the alternative to the death penalty.
If the trial did not go to the death penalty phase, he will be given the sentence recommended for whatever charges he may have been found guilty of.
Appeals: If Tsarnaev is convicted, it is highly likely that he will appeal. There are several ways to go about this.
Order New Trial: First, his lawyers could request that the court vacate the judgment and order a new trial. This step is sometimes required before any kind of appeal can be filed; such requests are usually denied in all but the most exceptional circumstances.
Ask for Review: The second form of recourse is for Tsarnaev to ask a court of appeals to review the decision. If he opts to do this, his lawyers would file a brief to a panel of three judges at a federal appeals court aiming to convince them that the court made an error during proceedings. Prosecutors would also file a brief trying to prove that the court’s decision was the right one — or, that any errors that were made weren’t enough to impact the trial’s outcome. Oral arguments, in which each side gets a short period of time (15 or 20 minutes) to make its case, typically follow the filing of briefs. Sometimes cases are reviewed “en banc,’’ meaning by a larger group of judges at the court of appeals.
Writ of Certiorari: If such an appeal is unsuccessful, Tsarnaev could file a petition for a “writ of certiorari’’ — that is, ask the U.S. Supreme Court to review the case. To get to the Supreme Court is no small feat; it only accepts one percent of the cases submitted, and those usually involve extremely important legal principles or disagreement between several federal appellate courts.
If the Supreme Court won’t hear the case, the most recent decision stands.
The Dzhokhar Tsarnaev trial in courtroom sketches