Friday, January 9, 2014
The first 1200 people summoned for jury service in the Boston Marathon Bombing Case have completed the 28 page juror questionnaire. Prosecution and defense counsel will be busy this weekend reviewing the questionnaires in preparation for voir dire that will start Monday. I believe we can reasonably expect Judge O’Toole will excuse about half of the group for financial hardship due to the length of the trial that is expected to extend into June. Students, teachers, self-employed business owners, single parents with young children and people with prepaid vacations are typically excused.
Several people have asked me to explain coconspirator and accomplice liability under federal law. State prosecutors rarely charge people with conspiracy, so most people don’t know much about it.
A conspiracy is an agreement by two or more people to commit a specific crime and the commission of an overt act by one of them in furtherance of the conspiracy. Often, the overt act is a crime, but it does not have to be. For example, purchasing fireworks is not a crime if you are old enough, but it could be an overt act in furtherance of a conspiracy to build a bomb using the gunpowder in the fireworks. Indeed, overt act 19 alleges that Tamerlan Tsarnaev traveled to Phantom Fireworks in Seabrook, New Hampshire on or about February 6, 2013, where he purchased 48 mortars containing about 8 pounds of low grade gunpowder for use in furtherance of the conspiracy charged in Count 1 (conspiracy to use a weapon of mass destruction resulting in death).
A member of a conspiracy is responsible for all crimes committed by other members of the conspiracy, even if he did not know that the person who committed the crime was a member of the conspiracy or that he was going to commit that crime, so long as it was reasonably foreseeable that some member of the conspiracy would commit that crime.
Mere knowledge of the existence of a conspiracy, or presence at a location where a crime is committed by a member of the conspiracy, is not sufficient to establish guilt and there is no affirmative duty to inform police about the conspiracy.
Federal prosecutors typically structure indictments by charging a conspiracy to commit a specific crime in count 1 and allege any number of overt acts committed in furtherance of the conspiracy alleged in that count. Every member of the alleged conspiracy is accused of committing at least one of the overt acts. Overt acts that constitute crimes are added as separate counts in the indictment.
For example, in Overt Act 31 of Count I, Dzhokhar Tsarnaev is accused of killing MIT Police Officer Sean Collier by shooting him in the head at close range with a Ruger 9mm P95 semiautomatic handgun and attempting to steal his service weapon.
In Count 16 he is charged with possessing and using a firearm during the course of the conspiracy to murder Officer Sean Collier.
The government’s theory regarding the purpose for this shooting is that the Tsarnaev brothers only had one gun (Tamerlan’s Ruger 9mm P95 semiautomatic) and they wanted to obtain a second gun for Dzhokhar, so they sneaked up on him while he was sitting in his patrol vehicle and Tamerlan executed him with a single shot to the head. However, they were unable to get the gun out of the holster.
The government will argue that Dzhokhar is legally responsible for that shooting, even though he did not shoot the officer, because he was a member of the conspiracy and the shooting was an overt act committed by Tamerlan in furtherance of the conspiracy.
The government has a second argument to hold Dzhokhar accountable for the murder based 18 USC 2(a), which provides in pertinent part:
Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
This is the federal accomplice liability statute by which someone who assists another to commit a crime is as responsible as the person who committed the crime.
I hope this explanation helps readers to understand coconspirator and accomplice liability under federal law.
If we assume for the sake of argument that Dzhokhar Tsarnaev will be convicted on all counts on the basis of his own acts and on the basis of coconspirator and accomplice liability for acts committed by Tamerlan, that does not mean that his arguably lesser role would not result in an LWOP sentence instead of death. A lesser role is a mitigation factor as are his youth and subservient relationship to his brother.
I believe this case probably will boil down to whether one or more members of the jury decide that the evidence in support of those three factors merits an LWOP sentence. That is why I have stated that this case is not about winning or losing. It’s about living or dying.