Update on Dzhokhar Tsarnaev’s initial appearance today

Monday, April 22, 2013

Dzhokhar Tsarnaev had his initial appearance today in the hospital before a U.S. Magistrate Judge. He was represented by Bill Fick of the Federal Public Defender Office in Boston. Fick confirmed that he will represent Dzhokhar.

He was provided with a copy of the complaint charging him with one count of using a weapon of mass destruction in violation of 18 USC 2332a(a) and one count of malicious destruction of property resulting in death in violation of 18 USC 844(i).

Fick waived the detention hearing, which means he and his client agreed that release on bail is not realistic. Fick will be supported by federal death penalty resource counsel, which may include Judy Clarke as she is one of the resource counsel. As you may recall, she represented Jared Loughner.

Dzhokhar is charged by criminal complaint, which is just a temporary holding device.

To find out more about the case, you will want to read FBI Special Agent Daniel Genck’s affidavit filed in support of the complaint. Go here to read the complaint and affidavit.

The Magistrate Judge found that the affidavit is sufficient to establish probable cause to support the two charges in the complaint.

The case is scheduled for a preliminary hearing on May 30th, to determine if probable cause exists to support the charge, but don’t expect that hearing to take place because a grand jury will indict him before that date.

The indictment may and probably will contain additional charges. He will be arraigned after the indictment is returned.

There will not be any need for a preliminary hearing after the grand jury returns an indictment because a grand jury necessarily makes that finding when it returns an indictment.

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54 Responses to Update on Dzhokhar Tsarnaev’s initial appearance today

  1. ay2z says:

    Update, Dzhokhar Tsarnaev was read his constitutional rights and had his lawyer present, for yesterday’s initial hearing.’

    The transcript of the hearing link:

    http://www.wcvb.com/blob/view/-/19857976/data/1/-/58ebijz/-/Transcript-of-Hospital-Appearance.pdf

    10 BEFORE THE HONORABLE MARIANNE B. BOWLER
    UNITED STATES MAGISTRATE JUDGE
    11 INITIAL APPEARANCE
    April 22, 2013

    1 THE COURT: All right. I note that the defendant
    2 has nodded affirmatively.

    3 As a first step in this hearing, I am going to tell you
    4 about your constitutional rights.

    5 You have the right under the Constitution of the United
    6 States to remain silent. Any statement made by you may be
    7 used against you in court, and you have the right not to
    8 have your own words used against you.

    9 You may consult with an attorney prior to any
    10 questioning, and you may have the attorney present during
    11 questioning.

    12 Counsel will be appointed without charge if you cannot
    13 afford counsel.

    14 If you choose to make a statement or to answer
    15 questions without the assistance of counsel, you may stop
    16 answering at any time.

    17 This right means you do not have to answer any
    18 questions put to you by law enforcement agents or by the
    19 Assistant United States Attorney, Mr. Weinreb.

    20 I want to make it clear. You are not prohibited from
    21 making statements, but that if you do, they can be used
    22 against you. You are not required to make a statement at
    23 this initial appearance, and any statement you do make may
    24 be used against you.

    25 Finally, if I ask you any questions here in this
    1 hearing or at any future hearing which you think might
    2 incriminate you, you have the right not to answer.

    3 Do you understand everything I have said about your
    4 right to remain silent?

    5 THE DEFENDANT: (Defendant nods affirmatively.)

    6 THE COURT: Again I note that the defendant has
    7 nodded affirmatively.

    8 As I said earlier, you have the right to retain
    9 counsel, to be represented by counsel, and to have the
    10 assistance of counsel at every critical stage of these
    11 proceedings.

    12 You have the right to an attorney at this initial
    13 appearance, during any questioning, at any lineup, and at
    14 all proceedings in court.

    15 You also have the right to have this Court assign
    16 counsel if you cannot afford counsel or if you cannot obtain
    17 counsel.

    18 Can you afford a lawyer?

    19 THE DEFENDANT: No.

    20 THE COURT: Let the record reflect that I believe
    21 the defendant has said, “No.”

    22 I have provisionally appointed the federal defender,
    23 Mr. Fick, to represent you in this matter….

    • Two sides to a story says:

      I’m relieved they finally read him his rights. Many reports didn’t explain this, so thanks for posting the transcript. I read only the complaint and charges yesterday.

      • ay2z says:

        Two sides, I’m wondering if this was done after the elite team of interrogators asked their questions.

        Hopefully those questions were limited.

  2. Malisha says:

    BB’s are the ammunition used in BB guns I believe. Small pellets. I know they can do a lot of harm!

    The idea that Obama had to announce that this guy was not going to be treated as an enemy combatant shows us the real horror of the slippery slope. If we can grab somebody in Afghanistan and bring him to Guantanamo and call him an enemy combatant but not name a country with whom we are at war so there is no government to negotiate for him, the words “enemy combatant” have no real meaning other than we are making an excuse to deprive him of all rights, representation and hope, and to keep him outside our treaty obligations. If we can do that to ANY person we can do it to EVERY person. It is just a trick.

    By calling Dred Scott a “slave” we were able, in 1857, by means of our US Supreme Court, to place him outside the reach of all of our laws pertaining to “persons.” I have seen it done to a woman named Kitty K in Iowa who was defined by DHHS as “not a person.” I have seen it done to others; once it is in the realm of the possible, it is in the realm of the probable, and just keeps moving down that slope.

    • Nef05 says:

      The idea that Obama had to announce that this guy was not going to be treated as an enemy combatant shows us the real horror of the slippery slope

      I firmly believe that the Senator(s) calling for this did it in an attempt to take back the “hard on terror” claim they lost when POTUS got OBL. I think that to them it was a win/win. Either they got DT designated as an “enemy combatant” or they get the administration to announce they would do no such thing, in which case the Senator(s) can claim they are “hard on terror” and the administration is “soft”, citing this as an example.

      I don’t think they ever believed it could legally be done. Then again, I could be overestimating their understanding of the relevant requirements for such a designation.

    • Two sides to a story says:

      ‘I have seen it done to a woman named Kitty K in Iowa who was defined by DHHS as โ€œnot a person.โ€ ‘

      Good grief.

  3. LeaNder says:

    What is a metallic BB?

    • fauxmccoy says:

      leander asks

      What is a metallic BB?

      small, round metal pellets, such as bird shot one would find in a shotgun shell.

      does that clear it up?

      • LeaNder says:

        Yes, it does.Thanks fauxy. It does not explain why “BB” though. ๐Ÿ˜‰ Ok, Wiktionary links to ball bearing. Maybe that is what BB alludes to, bearing balls? not necessarily ball bearings? Maybe that is why the use the abbreviation.

        I once had a neighbor who shot birds, I couldn’t stand him. But yes with my basic ignorance concerning weapons and ammunition that seems to make sense. Used to be made of lead and seems to be steel now. Google led me to a multitude of weapon sites in this context. In any case what they offer does not look like toys to me.

        Wiktionary:
        BB (plural BBs)

        A type of pellet which can be shot out of a gun-type “toy”; a ball bearing.

        • fauxmccoy says:

          @leander — often times, at least in the rural setting in which i was raised, a kid’s first ‘gun’ was called a BB gun. it was rifle shaped and shot a single small round metal pellet. it could not do much damage, but never stopped mothers everywhere from saying ‘careful! you could put somebody’s eye out!’. which of course it could, but you would really have to work at it. getting your first ‘bb gun’ was a real right of passage in this culture.

          unlike most guns, a BB gun uses compressed air to shoot the small, individual pellets as opposed to any gunpowder type explosive.

          this would be what was common when i was a kid in the late 60s/early 50s

          http://www.daisy.com/youthrifles

          • LeaNder says:

            That was a very interesting digression into American culture. Appreciate it. Thanks a lot. That’s why they add “toy”, since that would be what most people associated immediately. Thanks fauxy. Yes, sounds like a rite of passage, indeed. Maybe more in rural settings than in towns on the East or West coast?

          • fauxmccoy says:

            leander says

            Maybe more in rural settings than in towns on the East or West coast?

            pretty much — although i am west coast (california but far north) and in a very rural setting, i am sure rural settings on the east coast would be similar.

      • Trained Observer says:

        Faux — Amazing, isn’t it … looking back on how BB guns were so acceptable? Most every kid in my neighborhood (mostly boys) in the heartland had one. I only had a Wyatt Earp cap gun. Ads for the Daisies in your link were on backs of comic books.

        • fauxmccoy says:

          @trainedobserver

          yes, they were prevalent and definitely a ‘rite of passage’. my bro got his on christmas when he was 8. of course sis was right there too.

      • Rachael says:

        It was such a different time back then and I even lived more in the city than rural and we still had them (I didn’t but most of the kids, yes boys, did). But we all played with toy guns, cap guns and the like.

        TV Westerns were big – Gunsmoke, The Lone Ranger, The Rifleman, Wanted: Dead or Alive, Laramie, Have Gun, Will Travel, Bonanza, The Virginian, Wagon Train, The Big Valley, Maverick, The High Chaparral, The Gene Autry Show, Sugarfoot, Cheyenne, Bat Masterson

        And there were SO many movies.

        I had my little cowgirl outfit and boots – and my six-shooter cap gun.

        We would play army men too.

        No one thought anything of it and everyone had toy guns. And I’m serious. I mean if I did, everyone did. It was just a very very different time back then.

        Kids weren’t any different really, but the times and situations were.

        • fauxmccoy says:

          rachael says

          Kids werenโ€™t any different really, but the times and situations were.

          yup – you summed it all up quite nicely ๐Ÿ™‚ thanks for the walk down memory lane ๐Ÿ™‚

      • Nef05 says:

        LOL @ Fauxy – that “first gun” comment takes me way back. My kid brother got one of those “BB rifles” for his 12th(i think) birthday. All the boys (cousins) got one, none of us girls did. My younger sister and I came home from a party one night, and found a hole in the dead center of our family’s floor model TV. You remember the really big ones the size of a dining room buffet, with a stereo on one side, the radio on the other and the TV in the middle. My dad’s pride and joy for watching ball games (Al Kaline) in the summer.

        All I could think of was “Ooooooohhhhhh, somebody’s in BIG TROUBLE”. He was lucky and mom was smart. She got to him before dad did. Then she sent dad off to the cabin to go fishing while she got it fixed. ๐Ÿ™‚

        • fauxmccoy says:

          nef says

          He was lucky and mom was smart. She got to him before dad did. Then she sent dad off to the cabin to go fishing while she got it fixed. ๐Ÿ™‚

          nice mom! i doubt mine would have been nearly as cool. ahhhh, those consoles…. memories ๐Ÿ™‚

      • Two sides to a story says:

        Oh, Trained Observer – that brought back memories. As a teen an adult, I’ve been happily gunless, but as a child, I had a double holster with blazing six-shooter cap guns, a cowboy hat, and boots. I happily played cowboy by the hour. My parents never allowed me to aim a cap gun at people or animals, though.

        I blanched a little when my youngest son wanted a bb gun about age 11. Boys often do hurt birds with them. We had long talks about how to handle the bb gun, then he broke all the rules, of course, but became disinterested in it after a year or so while naturally becoming a pacifist while his contemporaries moved on to hunting rifles, etc. It sat in a corner by the front door for many years, part of the house protection plan, along with a big mag lite! :}

      • LeaNder says:

        Interesting exchange. Yes, fauxy, I got that wrong. Maybe comments by my former military man and blogger about “flyover America” and the fact that his foreign visitors after a while objected to be taken there was on my mind. Fact is also I was rarely off cities smaller than Bolder Colorado in the US. So yes, these two things may have influenced my response. Just as I basically could imagine that in rural areas it may make more sense to not expect law enforcement to help you. Especially in a farm far away from anybody else. I rely on documentary reports in this context. ๐Ÿ˜‰ Not on real experience.

        But two points,

        Nef05, I admittedly had to look up the special movies and I have not done that. But one American couple I once met, both professors in film in the US titled their lectures about the Western and gender roles: Shooting it out, and Waiting it out. These phrases have never left me. Just as I finally understood why the most interesting women in Westerns, at least concerning the majority, were predominately whores. Meaning they did not have to conform with the stereotypical gender patterns. And yes, admittedly I had serious “gender troubles”. Also serious troubles with the female movie role models I was served, not only German but also American. It slightly changed in the 70s.

        Two sides, the story about your son is very interesting. Yes it makes much more sense to let kids experience something rather than simply forbid it.

        Thanks to all to this interesting little look into US culture.

        • fauxmccoy says:

          @leander

          applause to rejecting traditional female roles! as the daughter of pioneers, i suppose that is my birthright.

          also, i will freely admit that most of my fellow americans are unaware of the california in which i live – it is not like any stereotype depicted in hollywood. steinbeck had a clue, but i am still far more north than even his stories illustrated. i just like to keep folks aware of the vast diversity of my state and do my best to burst the bubble of illusions.

      • LeaNder says:

        fauxy, I may have been close to where you live now in 1981. I once camped with my best girlfriend and her husband from Seattle in some type of national park in the Redwoods. I seem to remember that was already in California, but north somehow.

        • fauxmccoy says:

          leander – that would have been relatively close, but i am more inland (about 100 miles) and to the south just a bit.

          it’s beautiful country up here, largely unknown and i like it that way ๐Ÿ˜‰

          • LeaNder says:

            I wondered if you were more inland. Thanks, for your responses that triggered these interesting constributions. I am off again:

            I am meant to return to ยง4 and ยง7 of one of our many and complicated tax laws, which may help someone to solve a problem. But it involves a lot of calculations to see if it would make sense at all, especially since it does not come for free too, but would result in more work concerning business investment. The alternative if this path is not chosen is a rule for 5 years to file regular value tax declarations, in a context were it does not seem to make much sense. Maybe it is not worth the trouble, in any case it would help to make this artist more active, which may well make the rule more reasonable. Complicated issue, complicated laws, need of deep and serious look, before I suggest anything. The ultimate decisions will not be made by me, but they may well

      • LeaNder says:

        but they may well impact me. Either way really. No idea why this was sent, before I finished. Difficult person. But a very good artist.

        gone now, take care.

    • jo says:

      bb….ball bearings maybe

      • LeaNder says:

        thanks jo, I realized by now. I learned something today that is much more exiting than taxes. You either changed your name or you are new, I doubt I would have missed a jo here.

        jo ๐Ÿ˜‰

      • ay2z says:

        bb guns are popular with kids around here, found the plastic bb pellets in the yard, red or green ones. Jo, seems familiar, ball bearings.

  4. thejbmission says:

    Will I sound un-American if I say, Dzhokhar would probably not have been involved in the bombings if not for his older brother’s influence.
    JMO

  5. ay2z says:

    Wolf Blitzer report from today.

  6. groans says:

    @ MountainManPat – I just saw this on Lawrence O’Donnell, and it made me think of you … and your description of your gun (if I understood it correctly)! ๐Ÿ™‚

  7. Two sides to a story says:

    I see that the affadavit greatly condenses the shoot-out in Watertown incident that led to TT’s death and DT’s fleeing the scene, in other words, no mention of D running over T.

    • ay2z says:

      Yes, I just left a comment on ‘who killed T.T./’ with the complaint document also showing it’s unlikely that the victim of the carjacking could have been in the Watertown location.

      So, T.T. would have been put into a police car not once, but twice, according to the media video with Gabe’s description. Then what…..

  8. groans says:

    Professor, do you think the Commonwealth of Massachusetts is probably also working on a grand jury presentation, too?

  9. groans says:

    I’m still confused about whether Dzhokhar answered any questions before the magistrate judge informed him of his rights and, if so, what did he say before the magistrate judge so eloquently informed him of his rights.

    What a relief that he’s got counsel now, though.

  10. Two sides to a story says:

    My, that was tidy. I’m surprised they didn’t find about a dozen things to charge him with. Perhaps the feds are more concise than local and state prosecutors.

    • The feds are the major leagues; state not so much.

      The indictment will have more charges.

      Like I said, a complaint is just a holding device until the grand jury acts.

      You aren’t likely to see bonehead theatrical acts like O’Mara pulls in state court.

      • Xena says:

        @Professor

        You arenโ€™t likely to see bonehead theatrical acts like Oโ€™Mara pulls in state court.

        Hahaha!!

        O’Mara does not appear to be qualified to play with the big boys. He wasted valuable time trying to circumvent federal procedure by having Judge Nelson order that the feds turnover info to him, that the feds came back and said, “lack of jurisdiction.”

      • Two sides to a story says:

        Ah, I see. Well, we’d want our Federal gov’t to not act like Mack and Meyer for hire, definitely.

  11. fauxmccoy says:

    follow

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