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 Whether what the suspects said is admissible in court is a
question that will loom large next week at the trial of Azamat
Tazhayakov, charged with obstructing the probe into the April 15,
2013, attack that killed three people and injured 264.
The judge hearing the case has warned that if he finds Tazhayakov's
comments, made before he was advised of his right to legal
representation, were not voluntary, he will declare a mistrial,
forcing prosecutors to build a case without a key piece of evidence.
Defense attorneys had asked U.S. District Judge Douglas Woodlock to
suppress the statements, but refused to have Tazhayakov, one of
three men who prosecutors say removed a laptop computer and backpack
from the accused bomber's dorm room, take the stand before trial.
The judge declined, saying he would allow prosecutors to cite them
in their opening statements set to begin on Monday, and would
determine during the trial if Tazhayakov understood he was free not
to answer agents' questions.
It is unusual for a judge to put off ruling on such a vital piece of
evidence, said legal experts, who added that the fact neither
prosecutors nor the defense will back down shows that whatever
Tazhayakov, a 20-year-old Kazakh exchange student, told FBI
interrogators is at the heart of the case against him.
"The vast majority of people who are convicted are convicted based
upon what they have said themselves," said Walter Prince, a Boston
attorney and former federal prosecutor. "The other evidence in the
case may be flimsy."
Tazhayakov, who was arrested on immigration violations the day after
that interrogation, faces up to 25 years in prison if convicted of
the charges. One of his attorneys told reporters last week he had
rejected a plea deal because of a "lack of evidence."
His roommate Dias Kadyrbayev, who faces similar charges, told a
pretrial hearing last month he had not believed he was free to go
during police questioning and also suspected that his friend
Dzhokhar Tsarnaev had a role in the bombing when he removed the
items from his dorm room. Kadyrbayev goes on trial later this year.
The third man who went to Tsarnaev's dorm room, Robel Phillipos, is
awaiting trial on the lesser charge of lying to investigators.
Tsarnaev has been charged with the attack, as well as with murdering
a university police officer, and faces the possibility of execution
if he is convicted. His older brother, Tamerlan Tsarnaev, also
accused in the bombings, died after a gunfight with police while the
pair were trying to flee Boston.
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'TOUGH CASE FOR DEFENSE'
Prosecutors and federal agents noted that neither of the suspect's
friends had been arrested before being questioned, and thus had not
been informed of their rights to have a lawyer present.
But that may not be enough to convince a judge their statements were
voluntary, with legal experts noting that Tazhayakov may testify
that he did not believe he was free to go or to decline to answer
agents' questions.
"If it is the functional equivalent of arrest, then it's still
subject to the same requirements," said Chris Dearborn, a law
professor at Suffolk University in Boston and former criminal
defense attorney.
FBI agents began questioning the pair as they were searching for
Tsarnaev following the gunbattle with police, and focused initially
on whether there were additional explosives that posed a risk to the
public. Their questions only later turned to the visit to Tsarnaev's
dorm room at the University of Massachusetts at Dartmouth.
The defense's focus on the statements also suggests they contain
admissions of guilt, another legal expert said.
"It's a very tough case for the defense," said attorney Michael
Kendall, of McDermott Will & Emery, a former federal prosecutor.
"You have to wonder if they are trying to manufacture some kind of
error here because that's easier than having a jury decide it."
(Reporting by Scott Malone; Editing by Peter Cooney)
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