The Boston Marathon bombings case promises to be a high-profile spectacle. Every move prosecuting and defense attorneys make will be subject to searing media analysis and second-guessing. The death penalty could be on the table.
To all that add another complication: the federal budgetary sequestration. Lawyers with the federal public defender office in Boston representing Dzhokhar Tsarnaev, the 19-year-old charged in the fatal attacks, are bracing for three weeks of furloughs. The U.S. attorney’s office in Boston, on the other hand, is expected to operate at full strength following an announcement last week from Attorney General Eric Holder Jr. that the U.S. Department of Justice would avoid furloughs, at least for now.
It’s a situation one former defender described as "David and Goliath." Sequestra­tion could force Tsarnaev’s lawyers to take up to 15 days of unpaid leave before the end of the fiscal year on September 30. Lawyers familiar with the office said it is feeling the pinch in other ways, including leaving vacant positions unfilled.
"There’s no doubt that the sequester is going to affect the administration of justice in general, in Boston, and with this case ­specifically," said John Cunha Jr. of Boston’s Cunha & Holcomb, former president of the Massachusetts Association of Criminal Defense Lawyers.
The Executive Committee of the Judicial Conference approved a sequestration plan earlier this month that included up to 15 furlough days for federal public defender offices nationwide. The plan slightly lowered the maximum furlough days facing the Boston office, which had been planning for up to 16.5 days, according to the U.S. District Court for Massachusetts.
Via email, federal public defender Miriam Conrad said the office hadn’t received any money yet that would lower the expected furlough days from 16.5 to 15. She declined to comment further. Conrad and staff defenders William Fick and Timothy Watkins represent Tsarnaev.
Assistant U.S. attorneys Aloke Chakravarty and William Weinreb are leading the prosecution. Both serve in the anti-terrorism and national security unit. Prosecutors will avoid furloughs through the end of September, but Holder warned that they remained a "distinct possibility" if sequestration continues into the 2014 fiscal year beginning on October 1.
Thirteen attorneys serve in the Boston federal public defender office. The furloughs would coincide with the early weeks of Tsarnaev’s defense, which Cunha called a "crucial" time. "You start to figure out where you are and where the government is and where they’re going to go and how to protect this person’s rights."
Tsarnaev’s lawyers would be allowed to work pro bono during furlough days, according to Charles Hall, a spokesman for the Administrative Office of the U.S. Courts, but he stressed that it would need to be voluntary. Supervisors couldn’t "insist on or assign work" or apply "coercive pressure," he said via email.
Tamar Birckhead, a former assistant federal public defender in Boston and professor at University of North Carolina School of Law, compared the situation to the biblical "David and Goliath" story. "People will pitch in and do what they can, but it is an unfortunate circumstance," she said. "It could result in a delay of a possible resolution of the case, which I’m sure is not what the public wants to see."
On April 22, a federal magistrate judge unsealed a criminal complaint accusing Tsarnaev and his brother, Tamerlan Tsarnaev, 26, of planting two bombs near the finish line of the Boston Marathon that killed three people and injured more than 200. Dzhokhar Tsarnaev was charged with one count of using and conspiring to use a weapon of mass destruction resulting in death and one count of malicious destruction of property by means of an explosive device resulting in death; his brother died on April 19 in a shoot-out with police.
Tsarnaev’s defense team has already asked for assistance. As local prosecutors and the U.S. Department of Justice weigh whether to seek the death penalty, Conrad has asked that the court appoint two additional lawyers qualified to handle capital cases. The defender office, working with the Federal Death Penalty Resource Counsel Project, will recommend lawyers to the court for appointment.
Federal law requires that at least one lawyer appointed for a defendant facing the death penalty have capital case experience. Tsarnaev’s lawyers will have two opportunities to weigh in, once before the local prosecutor and once before the Justice Department; the final decision rests with Holder.
David Hoose of Sasson Turnbull Ryan & Hoose in Northampton, Mass., said he expected out-of-state lawyers would be appointed, given the lack of lawyers qualified to handle death-penalty cases in Massachusetts, which lacks a state death penalty. Hoose is qualified, but said he couldn’t join Tsarnaev’s defense team even if asked because he’s handling a capital case in Rhode Island.
"This is a huge amount of work," he said. "Whoever takes this on is going to have to severely limit whatever else they do for the next couple of years."
Conrad has worked for the federal public defender office in Boston since 1992 and took the top job in 2005; her duties also include overseeing federal public defender offices in New Hampshire and Rhode Island. She’s had experience defending high-profile suspects, including Richard Reid, the so-called "shoe bomber" who was sentenced to life in prison after attempting to detonate explosives in his shoes on a passenger jet in late 2001.
Handling big cases in the national spotlight such as Reid’s or Tsarnaev’s is rare for a public defender, Hoose said. "If you’ve had one, you’re probably in a class by yourself," he said.
Mark Pearlstein, a partner at McDer­mott Will & Emery and former federal prosecutor in Boston, said Conrad was "a genuinely outstanding lawyer" and her office was held in high esteem across the bar.
"She’s got enormous credibility with the judges and other personnel in that courthouse and with the U.S. attorney’s office," said Pearlstein, who also serves as a court-appointed lawyer for indigent criminal defendants in the Massachusetts federal court. "She’s very, very highly regarded as being a formidable advocate and a very straight shooter."
Tsarnaev agreed to voluntary detention during his initial appearance before a judge at a Boston hospital where he was recovering from injuries sustained before his arrest. A probable-cause hearing was scheduled for May 30.
Contact Zoe Tillman at firstname.lastname@example.org. Sheri Qualters in Boston contributed to this report.