Skip to main content

Vengeance shouldn't guide prosecution

By David Frakt, Special to CNN
updated 11:07 AM EDT, Mon April 22, 2013
Dzhokhar Tsarnaev was arrested on April 19, 2013, after a massive manhunt following an overnight shootout with police in suburban Watertown that left his 26-year-old brother Tamerlan Tsarnaev -- the other man wanted in the bombings -- dead. Authorities say Tsarnaev and his brother were responsible for the Boston Marathon bombing on April 15, 2013. Dzhokhar Tsarnaev was arrested on April 19, 2013, after a massive manhunt following an overnight shootout with police in suburban Watertown that left his 26-year-old brother Tamerlan Tsarnaev -- the other man wanted in the bombings -- dead. Authorities say Tsarnaev and his brother were responsible for the Boston Marathon bombing on April 15, 2013.
HIDE CAPTION
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
<<
<
1
2
3
4
5
6
7
8
9
10
11
>
>>
STORY HIGHLIGHTS
  • Many say bombing suspect's trial should be in federal court due to death penalty
  • Former prosecutor David Frakt says that's a poor basis for a decision on where to try him
  • He says the case seems more focused on state matters, belongs in Mass. court
  • Frakt: Don't treat Tsarnaev as "enemy combatant"; don't deny him civil liberties

Editor's note: David Frakt is a visiting professor at the University of Pittsburgh School of Law, a lieutenant colonel in the U.S. Air Force Reserve JAG Corps and a former lead defense counsel with the Office of Military Commissions. He also previously served as a military prosecutor and special assistant U.S. attorney.

(CNN) -- The Boston Marathon bombings were horrific and senseless crimes. Thus far, all the publicly released evidence suggests that the crimes were the work of just two individuals, the Tsarnaev brothers.

The elder brother, Tamerlan, is dead, and the younger brother, Dzhokhar, is in serious condition at a Boston hospital.

Assuming that he recovers and is mentally fit, Dzhokhar Tsarnaev must face trial. The question is where: in state court or federal court? Both are legitimate possibilities. As with the Oklahoma City bombing in 1995, the acts of which he is accused constitute a variety of crimes under both state and federal law.

David Frakt
David Frakt

There have been numerous calls to prosecute Tsarnaev in federal court because federal law offers the possibility of the death penalty, but Massachusetts law does not. This would be a very poor basis upon which to make the choice.

The decision of where to prosecute should be based on which jurisdiction has a greater interest in the case, not where the potential for vengeance is greater.

In the Oklahoma City bombing, the federal prosecution was given priority because Timothy McVeigh was motivated by hatred of the federal government to directly attack it, destroying a federal building and killing scores of federal employees and their children in the process.

Did one brother brainwash the other?

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



There does not appear to be a similar federal interest here. The Boston Marathon is the quintessential Boston event, and the victims were predominantly Massachusetts residents. Those killed by the blast were a local restaurant manager, a schoolchild and an international student attending Boston University. The law enforcement officer victims were an MBTA Transit Police officer and an MIT campus police officer.

The crimes, in addition to the bombings, included an attempted convenience store robbery and a carjacking, crimes typically prosecuted in state court.

The elected representatives of Massachusetts have rejected numerous attempts to reinstate the death penalty since it was invalidated by the state's Supreme Judicial Court in 1984.

Events leading up to Boston manhunt
The questions Tsarnaev should be asked

Gov. Deval Patrick and other state authorities should resist allowing the passion and grief of the moment to override the will of the people of Massachusetts not to execute its citizens by turning the case over to the feds.

Comments by Mayor Thomas Menino expressing a hope that the U.S. attorney will "throw the book" at Tsarnaev, although understandable after what his city has been through, do not represent the sober reflection we expect of our leaders.

Of course, we do not yet know what motivated the bombers. If investigation reveals that the attack was an attempt to terrorize the United States as a whole as part of some jihadist ideology, then the federal interest in prosecution would be stronger. But at the moment, the Commonwealth of Massachusetts has a much stronger claim to prosecute.

Opinion: Nine questions about the bombers

One option that clearly should not be on the table is any effort to treat Tsarnaev as an enemy combatant. He is an American citizen. Just like McVeigh, he is entitled to all the rights and privileges afforded citizens under the U.S. Constitution and does not forfeit them because he appears to have committed heinous crimes.

We must resist the tendency to treat every act of violence as an act of war just because we are in a "war on terror" and to reflexively label every criminal of foreign origin or Muslim faith as a terrorist.

And if and when Tsarnaev is well enough to be questioned, the interrogation should start with a Miranda warning. Now that the crisis has passed, there is no urgent need to invoke the New York v. Quarles "public safety exception" as a means of circumventing this young man's constitutional rights.

Boston is the cradle of American liberty and is justifiably famous for its rejection of oppressive and tyrannical government. Let us not sully that reputation by sacrificing Tsarnaev's civil liberties in the heat of the moment.

Follow us on Twitter @CNNOpinion

Join us on Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of David Frakt.

ADVERTISEMENT
Part of complete coverage on
updated 12:42 PM EDT, Wed April 16, 2014
Rick McGahey says Rep. Paul Ryan is signaling his presidential ambitions by appealing to hard core Republican values
updated 11:39 AM EDT, Wed April 16, 2014
Paul Saffo says current Google Glasses are doomed to become eBay collectibles, but they are only the leading edge of a surge in wearable tech that will change our lives
updated 2:49 PM EDT, Tue April 15, 2014
Kathleen Blee says the KKK and white power or neo-Nazi groups give haters the purpose and urgency to use violence.
updated 7:56 AM EDT, Wed April 16, 2014
Sen. Sheldon Whitehouse and Rep. Henry Waxman say read deep, and you'll see the federal Keystone pipeline report spells out the pipeline is bad news
updated 7:53 AM EDT, Wed April 16, 2014
Frida Ghitis says President Obama needs to stop making empty threats against Russia and consider other options
updated 5:29 PM EDT, Tue April 15, 2014
Peter Bergen and David Sterman say the Kansas Jewish Center killings are part of a string of lethal violence in the U.S. that outstrips al Qaeda-influenced attacks. Why don't we pay more attention?
updated 12:41 PM EDT, Tue April 15, 2014
Danny Cevallos says families of the passengers on Malaysian Airlines Flight 370 need legal counsel
updated 11:23 AM EDT, Mon April 14, 2014
David Frum says Russia is on a rampage of mischief while Western leaders and Western alliances charged with keeping the peace hem and haw
updated 7:56 AM EDT, Mon April 14, 2014
Most adults make the mistakes of hitting the snooze button and of checking emails first thing in the morning, writes Mel Robbins
updated 1:54 PM EDT, Mon April 14, 2014
David Wheeler says as middle-class careers continue to disappear, we need a monthly cash payment to everyone
updated 7:55 AM EDT, Mon April 14, 2014
Democrats need to show more political spine when it comes to the issue of taxes.
updated 11:55 AM EDT, Mon April 14, 2014
Donna Brazile recalls the 50th Anniversary of the Civil Rights Act as four presidents honored the heroes of the movement and Lyndon Johnson, who signed the law
updated 9:17 AM EDT, Mon April 14, 2014
Elmer Smith remembers Chuck Stone, the legendary journalist from Philadelphia who was known as a thorn in the side of police and an advocate for the little guy
updated 2:56 PM EDT, Sun April 13, 2014
Al Franken says Comcast, the nation's largest cable provider, wants to acquire Time Warner Cable, the nation's second-largest cable provider. Should we be concerned?
updated 11:22 AM EDT, Fri April 11, 2014
Philip Cook and Kristin Goss says the Pennsylvania stabbing attack, which caused grave injury -- but not death, carries a lesson on guns for policymakers
updated 3:06 PM EDT, Fri April 11, 2014
Wikipedia lists 105 football movies, but all too many of them are forgettable, writes Mike Downey
updated 10:32 AM EDT, Fri April 11, 2014
John Sutter and hundreds of iReporters set out to run marathons after the bombings -- and learned a lot about the culture of running
updated 12:49 PM EDT, Fri April 11, 2014
Timothy Stanley says it was cowardly to withdraw the offer of an honorary degree to Ayaan Hirsi Ali. The university should have done its homework on her narrow views and not made the offer
updated 10:16 AM EDT, Fri April 11, 2014
Al Awlaki
Almost three years after his death in a 2011 CIA drone strike in Yemen, Anwar al-Awlaki continues to inspire violent jihadist extremists in the U.S, writes Peter Bergen
updated 9:21 PM EDT, Fri April 11, 2014
David Bianculli says Colbert is a smart, funny interviewer, but ditching his blowhard persona to take over the mainstream late-night role may cost him fans
updated 1:31 PM EDT, Thu April 10, 2014
Rep. Paul Ryan says the Republican budget places its trust in the people, not in Washington
updated 5:28 PM EDT, Thu April 10, 2014
Aaron David Miller says Obama isn't to blame for Kerry's lack of progress in resolving Mideast talks
updated 11:22 AM EDT, Mon April 14, 2014
David Weinberger says beyond focusing on the horrors of the attack a year ago, it's worth remembering the lessons it taught about strength, the dangers of idle speculation and Boston's solidarity
updated 12:32 PM EDT, Thu April 10, 2014
Katherine Newman says the motive for the school stabbing attack in Pennsylvania is not yet known, but research on such rampages turns up similarities in suspects and circumstances
updated 7:03 AM EDT, Fri April 11, 2014
Simon Tisdall: Has John Kerry's recent track record left Russia's wily leader ever more convinced of U.S. weakness?
updated 12:40 PM EDT, Thu April 10, 2014
Mel Robbins says Nate Scimio deserves credit for acting bravely in a frightening attack and shouldn't be criticized for posting a selfie afterward
updated 2:39 PM EDT, Wed April 9, 2014
Wendy Townsend says the Rattlesnake Roundup -- where thousands of pounds of snakes are killed and tormented -- is barbaric
updated 9:45 AM EDT, Thu April 10, 2014
Dr. Mary Mulcahy says doctors who tell their patients the truth risk getting bad ratings from them
updated 9:28 AM EDT, Wed April 9, 2014
Peggy Drexler says the married Rep. McAllister, caught on video making out with a staffer, won't get a pass from voters who elected him as a Christian conservative with family values
updated 7:43 AM EDT, Wed April 9, 2014
David Frum says the president has failed to react strongly to crises in Iran, Syria, Ukraine and Venezuela, encouraging others to act out
updated 4:57 PM EDT, Wed April 9, 2014
Eric Liu says Paul Ryan gets it very wrong: The U.S.'s problem is not a culture of poverty, it is a culture of wealth that is destroying the American value linking work and reward
updated 7:51 AM EDT, Wed April 9, 2014
Frida Ghitis writes: "We are still seeing the world mostly through men's eyes. We are still hearing it explained to us mostly by men."
updated 10:08 AM EDT, Thu April 10, 2014
Chester Wisniewski says the Heartbleed bug shows how we're all tangled together, relying on each other for Internet security
updated 3:26 PM EDT, Wed April 9, 2014
Danny Cevallos says an Ohio school that suspended a little kid for pointing his finger at another kid and pretending to shoot shows the growth in "zero tolerance" policies at school run amok
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT