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.
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.'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."