Middlesex DA hedges on trying Tsarnaev for officer’s killing

A month after Dzhokhar Tsarnaev was sentenced to death in US District Court in Boston for his role in the 2013 Marathon bombing, Middlesex District Attorney Marian T. Ryan vowed to immediately bring Tsarnaev to justice in state court, to answer charges in the killing of MIT police officer Sean Collier.

But in more recent statements to the Globe, Ryan said she has not yet asked the US Bureau of Prisons to transfer Tsarnaev to state custody, saying she is still considering her options.

She said she has asked the US attorney’s office in Boston to share evidence in the case “as a first step in the process should it be needed.” That differs from her July statement — which was widely criticized by the legal community and the public – that she was already in the process of asking the federal government to return Tsarnaev to Massachusetts.

“When you come into Middlesex County and execute a police officer in the performance of his duties and assault other officers attempting to effect his capture, it is appropriate that you should come back to Middlesex County to stand trial for that offense,” Ryan said in July.

Dzhokhar Tsarnaev was convicted and sentenced to death for his role in the 2013 Boston Marathon bombings.FBI/AP

Ryan backpedaled from that position in a statement several days later to the Globe’s editorial board, which was not shared with Globe reporters until she was questioned about the process in November. In that statement, Ryan said a request that the Bureau of Prisons transfer Tsarnaev to state custody was a “technical” process that would preserve the state’s right to a trial but not guarantee there would be one. However, she still pledged at that time she would continue with the process.

But in a recent interview, Ryan would not say when she would seek the return of Tsarnaev to state custody, if at all. A spokeswoman said in a statement that Tsarnaev is slated to embark on a lengthy appeal of his death sentence and that she has new guidance from a June 30 Supreme Judicial Court ruling that gives Ryan more time to watch the appeals process unfold and to decide how to proceed.

“This is a long and complicated process which will span many years,” the statement said. “We will monitor the defendant’s post-conviction motions and federal appeals and continue to assess the necessity of pursuing our state charges.”

Tsarnaev, 22, is being held at the federal super-maximum prison in Colorado while he appeals his sentence for his role in the bombings, which killed three people and injured more than 260 others. He was also convicted of charges related to the fatal shooting of Collier and a subsequent firefight with police in Watertown that left another officer with life-threatening wounds. He was sentenced to life in prison for those charges.

Tsarnaev admitted to carrying out the bombings; he sought only to avoid the death penalty.

Ryan’s July declaration that she wanted to try Tsarnaev in Middlesex County for murder and other charges drew criticism within the general public and legal community. Lawyers and analysts said it was pointless to waste the time and resources for a second trial – and to create more emotional harm for Tsarnaev’s victims – considering Tsarnaev will likely never be released from federal prison. Even if Tsarnaev is successful in challenging his death sentence, he is still serving life sentences for other charges.

Tsarnaev was indicted on 15 state charges, including Collier’s murder, in June 2013. Those charges alleged that Tsarnaev and his older brother, Tamerlan, crept up to Collier’s cruiser at the Massachusetts Institute of Technology three nights after the bombing, shot him, and attempted to take his gun. The brothers then carjacked a man, took his car and attempted to flee the area. They were encountered by police in Watertown, where they set off more explosives. Tamerlan Tsarnaev was killed during the firefight.

Suffolk District Attorney Daniel F. Conley – whose jurisdiction includes Boston – could have brought separate state charges for the bombings in Boston but decided against it, saying such charges would be “redundant.”

“State-level indictments for crimes in Boston would only drag out the process that would already be grueling for victims, their families, and the city,” Conley said in 2013.

Brian Kelly, a former federal prosecutor and now a lawyer with Nixon Peabody, said during the summer after Ryan’s initial announcement that a second trial would create a media circus, waste resources, and take an unnecessary toll on the victims. More recently, he said Ryan’s choice to wait out the federal appeals process seems more appropriate, though he questioned whether it is necessary.

“He already received the death penalty on some counts, and life sentences on other counts, so there’s nothing more that can be done,” Kelly said.

Kelly said he recognized the symbolic gesture of holding Tsarnaev accountable at the federal and state courts but added, “at some point the practical realities need to be recognized, too.”

Tsarnaev’s state lawyer, John Salsberg, would not comment on the case. Collier’s family has not commented on the issue, and Ryan’s office has not said whether the family supports a state trial.

Todd Wallack of the Globe staff contributed to this report. Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.