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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.
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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
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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?

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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.

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

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