THE BLOG
06/10/2014 09:27 am ET | Updated Jul 31, 2014

Tsarnaev's Friends Seek Constitutional Rights

Important Issues At Stake In First Boston Marathon Bombing Trial

The United States will be riveted on Dzokhar Tsarnaev when he goes on trial on Nov. 3, 2014, for allegedly murdering three people and injuring 264 on April 15, 2013, when he and his brother Tamerlan allegedly placed two bombs near the finish line of that day's Boston Marathon.

Legal experts and scholars, though, might conclude that the first Boston Marathon bombing trial is more legally significant than the trial of Tsarnaev, 20, who has also been accused with his brother of killing one police officer and injuring 16 officers during April 18 and April 19 skirmishes that also resulted in Tamerlan's death.

That first trial begins on June 30 and its outcome could depend on crucial Fifth Amendment and Sixth Amendment issues. On June 2, a hearing related to those issues will resume.

The first trial isn't about the bombing itself, but prosecutors allege that three of Dzokhar Tsarnaev's friends at the University of Massachusetts-Dartmouth - Dias Kadyrbayev, Robel Phillipos, and Azamat Tazhayakov - committed crimes after Tsarnaev was identified by security videotapes as a suspect in the Boston Marathon bombings.

Kadyrbayev and Tazhayakov were charged with conspiracy to obstruct justice for taking property belonging to Tsarnaev, including a backpack with fireworks and a laptop computer, from his college dorm room on April 18, 2013, and throwing it in the garbage in an effort to hide potentially incriminating evidence from the police. Phillipos was charged with making false statements to law enforcement officials.

The prosecutors' primary evidence against Kadyrbayev and Tazhayakov is a confession, but the two men's attorneys dispute whether the confession was voluntary. On June 2, U.S. District Court Judge Douglas P. Woodlock will reopen a hearing on whether the confession should be thrown out because the suspects' Constitutional rights were violated during the confession. Woodlock has denied Tazhayakov's motion to suppress because he has refused to testify at the hearing, but his attorney, Arkady Bukh, said prosecutors should not be allowed to introduce the confession at his client and Kadyrbayev's trial.

"The Supreme Court's ruling in 1966 in the Miranda vs. Arizona case was clear," said Bukh, a prominent New York City criminal defense attorney who works for the law firm Bukh & Associates, PLLC. "Law enforcement officials not only have to inform people they interrogate that they have the right to counsel and the right to not incriminate themselves, but when they interrogate people who don't have an attorney with them and take a confession, they have what the Court called a "heavy burden" to show that the people who confessed intelligently and knowingly waived their right to counsel."

According to articles written by the Associated Press and the Boston Herald, attorney Robert Griffin phoned the Massachusetts police barracks on April 19, 2013, while Kadyrbayev and Tazhayakov were being questioned by law enforcement officials and said he represented the two suspects.

The attorney told the state trooper who answered the phone call that he represented the Committee for Public Counsel Services and he didn't want the men to answer any questions. The state trooper told one of the law enforcement officials about the phone call, but the interview continued - without the students being informed that an attorney wanted to represent them.

It's important to remember a few things about the case here. One is that the two suspects were not under arrest and, in fact, were not arrested until May 1. Another is that the two suspects were citizens of Kazakhstan, not the United States. Consequently, there is no reason to believe that they understood the rights that suspects have according to the U.S. Constitution regardless of what the law enforcement agents told them before the interview began.

The agents have testified that they informed the two men about their Fifth Amendment and Sixth Amendment rights, but Bukh and Robert Stahl, Kadyrbayev's attorney, said their clients needed to speak with attorneys representing them because they were confused and intimidated by a process they didn't understand. As of now, Bukh's website explicitly maintains Tazhayakov's innocence.

The Fifth Amendment to the Constitution says, in part, that no person "shall be compelled in any criminal case to be a witness against himself." Kadyrbayev and Tazhayakov were essentially testifying against themselves as well as incriminating themselves by talking to two FBI agents and a Homeland Security Investigations agent before they had a chance to talk to an attorney who might have better explained their rights than law enforcement officials who were more interested in a confession than suspects' constitutional rights.

The Sixth Amendment says, in part, that all accused people should have the right "to have the Assistance of Counsel for his defence." This right was at least partly abrogated on April 19, 2013, when the suspects weren't told that an attorney wanted to represent them.

The prosecutors have filed documents that say that Kadyrbayev and Tazhayakov cooperated with law enforcement officials and began making statements about their actions on April 18, 2013, before the officials learned that an attorney wanted to represent them. However, the law enforcement officials should have understood the "heavy burden" they had according to the 1966 Miranda decision to make sure that the two suspects understood their rights rather than just telling them that they could remain silent and contact an attorney.

"The issue is the voluntariness - whether Dias (Kadyrbayev) understood what was going on, whether there was a knowing, intelligent and voluntary waiver of his constitutional right," Stahl said, according to a May 16, 2014, Boston Herald article.

Ten days later, addressing the same issue, Stahl reiterated his concern about the confession being part of the evidence against Kadyrbayev and Tazhayakov at their trial.

"The right to counsel has long been seen as the most important right afforded criminal defendants," said Stahl. "Thus, any intentional or negligent government actions which infringe upon that right must be scrutinized under the most exacting standards."

Bukh said any conviction at a trial that allows the confession to be introduced will spark a long appeals process.

"My client is completely innocent of the charges," said Bukh. "He had no intention of helping Tsarnaev dispose of evidence. More importantly, appeals courts will not look kindly upon the behavior of law enforcement officials who should have realized that the Miranda decision required them to give my client, who was not under arrest, every opportunity to speak with an attorney rather than interrogate them as soon as possible."

Kadyrbayev and Tazhayakov could be sentenced to up to five years in jail if convicted, while Phillipos could go to jail for up to eight years, according to the Boston Globe.

Tazhayakov's trial begins on June 30. Kadyrbayev's trial begins on Sept. 8. Phillipos' trial begins on Sept. 29.