Defending Dzhokhar Tsarnaev: The attorneys for Timothy McVeigh and the D.C. sniper talk strategy
(CBS) - It was about 9:30 at night and attorney Stephen Jones was at home when he got the call asking if he would be willing to defend Oklahoma City bombing suspect Timothy McVeigh. Jones was honored to be chosen for such a high profile case, but said he needed a day to talk it over with his family.
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"I'd never been involved in a case where my wife, my children, my home, my office might be at risk," remembers Jones. "But lawyers have a duty to defend unpopular clients."
And so Jones accepted - but not without arranging security for his car, his home and his office.
"It was a hostile environment," Jones told CBS News' Crimesider.
The attorneys who represent Dzhokhar Tsarnaev, the 19-year-old charged with using a weapon of mass destruction to kill three people and wound more than 170 at the Boston Marathon on April 15, will likely face a similarly hostile environment. Many, including elected officials, have advocated stripping the suspect of his rights as a U.S. citizen and trying him in a military tribunal as an enemy combatant.
But on Monday, the White House announced that Tsarnaev will be tried in federal civilian court, and when the hospitalized suspect was asked if he could afford an attorney to represent him, he said "no."
That didn't surprise Jones, who estimates that defending the accused bomber will likely cost "several million dollars."
In Oklahoma City, the judge called Jones to take over the case because the federal defender's office had actually been damaged in the bombing, turning the attorneys themselves into victims of the crime allegedly committed by the man they were being asked to defend. According to the Associated Press, Tsarnaev will be represented by federal public defenders. Three attorneys from the Massachusetts office were present when he was charged.
Jonathan Sheldon, the attorney who represented D.C. sniper John Allen Muhammad, told Crimesider that federal defenders are "highly skilled" attorneys who could be making many times their salary at a private firm.
And although Tsarnaev may already be considered guilty in the court of public opinion, Sheldon and Jones both say that the outcome of a trial is no foregone conclusion. Sheldon points to the Madrid train bombings, where, based on fingerprints allegedly found at the scene, an Oregon-based attorney named Brandon Mayfield was initially named as a suspect in the terrorist attack that killed nearly 200 people. But the fingerprints had been misidentified. And after two weeks behind bars, Mayfield was released and later received $2 million and an apology from the FBI. He told reporters he believes he was targeted because he was Muslim.
"Even though it may appear evidence of guilt is overwhelming, that doesn't excuse defense lawyers from investigating and challenging that evidence," says Jones.
And, says Jones, in the Tsarnaev case, there appears to be clear evidence that others - including Tsarnaev's now-deceased older brother Tamerlan - were involved in the bombing and its aftermath.
"It looks likely this guy was involved - but how involved?" says Sheldon. To find that out, the attorneys may well need to travel to Dagestan, where the brothers' parents lived, and parts of Russian where Tamerlan reportedly visited in 2012.
"His attorneys will have to keep an open mind and investigate every angle," says Sheldon.
One possible outcome is a plea deal, which Jones says McVeigh initially agreed to allow him to enter into, but then changed his mind. Jones says that because Tsarnaev may have "a treasure trove" of information, the government might be willing to make a deal - perhaps even take the death penalty off the table - if he cooperates.
Barring that, when it comes to trial strategy, Jones says that the attorneys will start with procedural steps. First Tsarnaev's defense team may move for a change of venue. McVeigh was ultimately tried in Colorado, and Muhammad in Virginia Beach. Sheldon says that because so many people in and around Boston could be considered "victims" - either by being at or near the marathon, or by being locked down for an entire day as authorities searched for Tsarnaev - attorneys for the defendant may argue that potential jurors could struggle with impartiality.
Second, Jones says, the attorneys may ask for money and time to investigate.
"We're going to find out much more than we know now" about the Tsarnaev brothers, says Sheldon. And some of that information - whether it is based on witness statements, mental health records, or even the circumstances of his upbringing - may be mitigating.
"His attorneys may argue diminished capacity, or duress," says Jones.
Much has been reported in the days since the alleged bombers were identified about the relationship between Dzhokhar and his apparently more dominant 26-year-old brother, Tamerlan.
"His age might be a mitigating factor," says Jones. "A lot of 18 and 19-year-old people are not very mature. They lack critical judgment." Plus, he says, there is, as yet, no evidence that Dzhokhar had any kind of political involvement prior to the bombings.
"While it's fashionable to refer to this as terrorism, what we're really dealing with here is a murder case," says Jones.
A murder case that the whole world will be watching.
Complete coverage of Boston Marathon bombings on Crimesider
