WEEI>On Demand>>SI legal expert Michael McCann on the ensuing trial of Dzhokhar Tsarnaev

SI legal expert Michael McCann on the ensuing trial of Dzhokhar Tsarnaev

Apr 23, 2013|

Michael told the guys that the evidence is overwhelming against Dzhokhar as he readies for trialo. Michael also informed the show that we can expect that the death penalty to be pursued.

Transcript - will not be 100% accurate

Deficit Callahan many twists and turns -- just beginning in this case as them it begins one fold yesterday and help us that at least at the starting point. To get us off on the right foot. Different Mike McCann Michael -- is a human rights law professor and Sports Illustrated legal analyst boarding Michael how are you. -- -- Find work with nuts like this woman from its CUNY the city university in New York we talked about earlier. Is your profession just infested with lunatics. You the only -- one. I think honestly most faculty here are pretty reasonable. And in the context of the case like this there are going to be some that attract a lot of attention. But it is the faculty I work with I think we all treat this as others do which is a case. 201 individual who's been apprehended and has been charged and who. The evidence against him is overwhelming. I think to suggest otherwise is is simply not being truthful. -- Michael begins at the beginning isn't because this is a capital crime that allows the administration in DC to make the call the Joseph Carr is going to be tried as a US citizen. In the US judicial system and not as an enemy combatant. That's right John is if the government decisions the federal government's decision to do this. The federal government believe that this is -- present the strongest strategy for convicting him that you try him as an enemy combatant. Which potentially. Could be deemed unlawful and unconstitutional because he -- the US citizens. There are some legal scholars and attorneys who disagree with that I know Jay Carney. The spokesman for the White House yesterday said they can't treat him as an enemy combatant I know there -- so on the disagree with vapid but. I understand the logic which is to make sure that he is. Either behind bars or potentially receiving the death penalty and be treated as enemy combatant could lead to his attorneys arguing that. Everything is unconstitutional. So he has been ran dies which takes away the the the be possible to the people can scream bloody murder that he did not have his rights read to him this is the safer way to go in most people's opinion. That's right -- that Bible and letting him he now has been made aware. That he has a right to the council which is already received in that statement used against statement that he made that are used against them. Can be deemed admissible let's -- admit -- was he had an attorney present. So I think. It's probably the right way to do it there is a public safety exception where which the government used initially and in interviewing him -- not clear how much information they got in his when he was after surgery and and not probably in great shape. But you don't do a lot of attention has been made about whether he received his Miranda warnings even if none of the evidence that they find it is admissible. After they apprehended him there's still a ton of evidence to convict himself I don't know that ultimately is as important in terms of getting a conviction. As it seems right now. What what do you think is the best the piece of evidence you've seen in the affidavit would it be the witness. The the the guy was carjacked the guy to whom they said they did it. Yet Jerry let's look but basically the guy who -- projects that. They went in there and that you know that often bombings I did it mean that is extremely damning information -- you have all of the physical evidence you have the photographs. You have the backpacks you have the fact that they the FBI has some material in the apartment which directly links to the bombing. I think it's going to be very difficult for Joseph -- would argue that he isn't responsible I think what he's more likely to argue is that. He was duped by his brother perhaps -- argue that he was mentally ill that's a possibility. So I think there are some defenses. That. Goal against it saying well there's no evidence against him there's clearly a ton of evidence against I think what yesterday was established that is mental state was not. One that allowed him to make a voluntary choice. Do you see it going at trial -- notably years where there actually call witnesses and saying you know what kind of guy was joke and asking his you don't teammates on the wrestling -- coach your classmates on it. And done UMass Dartmouth that would will we get to that point and will at that point he'd just be fighting for his life. -- I think we could get to that point is it is he's fighting for his life. Where I I think it's the idea that he's not going to be found guilty. It's just it's farfetched I think he's clearly going to be found guilty. The real question I think -- -- there's some argument over whether he should receive the death penalty. And then we would start seeing his friends who would come in and -- low and we knew him he was a great guy. I don't I'm not -- persuaded by that maybe he was a great guy before but he certainly was not a great guy in the days leading up to the bombing of the day of the bombing in the days after the bombings. And he deserves a punishment that it's what he did so I don't know that testimonial problem but. I gotta think right now is legal strategy is due to prevent the death penalty where he will withhold information as a bargaining chip. So that prosecutors will agree that he received a lot of light sentence instead of the up to. It in a perverse kind of way Michael what if he wants to be martyred because he allegedly wrote on the -- of the boat. My brother is with -- I should be -- -- what you want the death penalty is it possible that could serve as a dis incentive. To cooperate. Yeah he could argue that -- you're gonna have to. Bring me to trial and convict me I'm not gonna cooperate with you in anyway possible right this is my mission that's been my mission from day one I'm not gonna cooperate. With the government. I'm going after you guys are not going to be now on your team. He can try that strategy I'm sure his lawyers will tell him that's the strategy that is doomed to fail. That it will cause him a great deal of pain and then some -- I have to go to trial and cases victims and here is victim's testimony I think he probably wants to minimize that. And if he -- any chance of not getting the death penalty I think his best play is to cooperate. Well in the have you ever been a public defender -- What I'm CI -- in this case is -- public defender Mike. No one would blame her. If Regis you sit there and Conrad it's it's a one yet would blame her if she just mailed it and went through the motions. Is it part of the public defender's job to publicly. Announced the of the of the innocence or the possible innocence of their client. He carried the job you you can argue is more directed to ensure that the -- I think client is getting a fair shake. That as opposed to saying that he's innocent. More arguing that the government has to prove the case against their client and I think that's what we're gonna see here I don't think we're gonna see. Declarations that he had nothing to do with that I think we're gonna see more statement saying the government has to prove the case all our. Statement saying that while my client was clearly responsible. His mental state was not -- that he was the inning acting in a criminal mind we could see the public defenders going that direction. And then we would have psychological testimony brought in and and the -- But I don't think we're gonna see is defended public defenders several like quite -- the thing to do that do it does he wasn't even mayor I think the evidence against. The candidates this would would be so far -- to make that statement I don't think they're gonna make it. Michael is there an obvious reason that you understand that the feds the prosecutors listen only to specific charges both carry a possible to the death penalty and not murder and mayhem and I guess littering when he ran over his brother they try to keep it simple here at the beginning. -- -- -- charges will be added later on -- I suspect the first part of the grand jury will likely -- charges after they can't grand jury is convened and issued an indictment. Also will likely be state charges brought against him as well. -- shooting. -- officer collier MIT they'll likely be murder charges brought on that front but those will be brought by the state so. We'll see additional federal charges I suspect and also some state charges -- visitors the early stages it's -- superseding indictment. In the sense that -- and only the start until the other one that it -- later. What do we just confesses did that screw you much Kuwait Sheikh Mohamed. Khalid Sheikh Belushi we liked the column which it says I did I'd like to do it again excuse me. What are we to -- then. Well I think at that point we we say that you're gonna do you agree to plead guilty and he will say yes. And he has no collateral at that point in terms of bargaining gets the death penalty doesn't have bill that would be a pretty. Substantial death penalty hearing it would also be up to. The attorney general US -- Eric Eric Holder to decide whether or not to seek the death penalty I suspect he would. Argue that the death penalty should be shot there'd be stop there -- it death penalty hearing. It would be pretty messy and that sounds but -- I think the government would move forward and say okay we're gonna keep the death penalty. -- double back to the beginning because he -- a US citizen obviously this is one of the reasons they want tour feel it's it's more advantageous to try him as a US citizen in this justice system if you were like his brother. Where his citizenship were still pending still being reviewed with the military tribunal as a an enemy combatants have some advantages to Michael. Yes definitely would NC a greater argument for trying him as an enemy combatant where we could say in order to extract more information from him. In order to ensure that there are others not connected to him that are still on the United States that there is -- present. Threat of -- That it's appropriate to do that. And maybe we would see that happen there others though would argue that it's still in the best interest to try him as a descendant because the government has been very successful. Through the criminal justice process as opposed to other means of getting information. But I do agree there would be -- more lively debate in that regard. Pretty brother had he been surviving. I -- went to the lawsuits start and who's the who's the target. Yeah this is going to be interesting that there will be civil lawsuits I suspect and will be civil lawsuit brought against. The surviving brother possibly against family members possibly -- against his school at the school had any. Any kind of information whatsoever didn't act on it. But I don't think we're gonna see many of them prevail I think first of all it doesn't appear that this family here his family have any real money. So these could be lawsuits that are problem that without any realistic expectation of a judgment that's paid. And it's not clear that the schools that he was attending did anything wrong. But as more information has uncovered Jerry I think we'll start to see greater possibility for civil claims. -- is -- look at different from Sports Illustrated law professor always says is the case were smarter after we're -- talk with you Michael appreciate the time this morning. Michael McCann with Dennis and Callahan on the AT&T hotline we should point out that AT&T has set up a text to donate -- donate text line. The benefit the victims of the Boston Marathon bombing text Boston the word Boston. 280. 1082. Donate ten dollars to the one. One fund Boston message and data rates may apply full terms at -- give dot org slash T. Text Boston 280108. To donate ten dollars to one fund Boston or AT&T. Excellent.

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