Boston bombing judge becomes target over Miranda rights
By ERIK LARSON, GREG FARRELL and JANELLE LAWRENCE
(Published in print: Sunday, May 19, 2013)
A Harvard Medical School research assistant who has served as a U.S. judge for 23 years now finds herself at the center of the Boston Marathon bombing case, and by extension the post-Sept. 11 issue of whether, and when, suspected terrorists deserve constitutional rights.
Marianne Bowler, who also freelanced for magazines before going to law school, became a civil litigator for the Justice Department in the late 1970s. She put her background to use, specializing in personal injury cases, medical malpractice, swine flu and asbestos litigation, before eventually rising to be the second-most powerful federal prosecutor in Massachusetts.
Now 66 and a federal magistrate judge, her career as an attorney and jurist took on a new headline when, at a bedside court hearing in Boston’s Beth Israel Deaconess Medical Center last month, she advised bombing suspect Dzhokhar Tsarnaev of his rights under the U.S. Supreme Court ruling Miranda v. Arizona.
On May 30, she is scheduled to preside over the first full court hearing in Tsarnaev’s prosecution, as the government seeks to show a trial is warranted on the two capital charges he faces. Tsarnaev, 19, is accused of carrying out the April 15 attack that killed three and injured 260 with his brother Tamerlan, 26, who died after a shootout with police. Bowler also presides over the prosecution in Boston federal court of three of Dzhokhar Tsarnaev’s friends accused of hindering the probe.
Bowler read Tsarnaev his rights to remain silent and seek legal counsel in the hospital room hearing April 22, three days after he was captured. During those three days, Tsarnaev, according to law enforcement officials, revealed details of the attack to investigators who were acting under a so-called public safety exception that allows pre-Miranda questioning if there is a reasonable belief there is imminent danger to the public.
While he answered their questions freely during that time, he stopped talking after Bowler read him his rights, said Republican lawmakers, who seized on this in the following days, making Bowler the issue with accusations that she chose to intervene in the investigation.
“I totally disagree with what she did,” said Rep. Peter King, a New York Republican. “From talking to a number of FBI agents, this appears to be unprecedented for a judge to walk in and in effect stop the interrogation and provide Miranda rights.”
Bowler’s action was “highly unusual” and may have harmed the FBI probe, Rep. Mike Rogers, the top Republican on the House Intelligence Committee, said in an interview last month. “The problem in this case is you have a judge who hastily intervened” in the public safety exception.
“That cost us dearly in terms of valuable intelligence” about the bombing and other possible plots, Rep. Mike McCaul, a Texas Republican who leads the U.S. House Homeland Security Committee, said last month. “The FBI was cut short in their interrogation when the magistrate judge decided to Mirandize him.”
Tsarnaev may have revealed more information if the judge hadn’t stepped in, McCaul said. As an example, the lawmaker cited Tsarnaev’s pre-Miranda revelation that he and Tamerlan had discussed going to Times Square in New York to detonate at least seven more explosives.
The problem with the lawmakers’ criticisms of Bowler is that they are misplaced, because she was just doing her job, according to the Justice Department, the U.S. Attorney’s Office and defense lawyers.
Authorities are required to notify courts of an arrest within 48 hours by supplying an affidavit showing there was probable cause for the detainment. Once that complaint is signed by a judge, an initial court appearance must be scheduled without “undue delay,” according to court rules.
The Justice Department confirmed that, as required under rules of criminal procedure, Bowler didn’t become involved in the case until April 21 when prosecutors filed a criminal complaint, which she signed that day.
“The court, that evening, scheduled an initial appearance for Monday, which it then coordinated with the prosecutors, federal defender, court reporter, U.S. Marshal Service and the hospital,” said Dean Boyd, a spokesman for the government. Under those same rules, the judge is required to advise a defendant of his rights at the initial appearance.
Susan Phalen, a spokeswoman for Rogers, declined to comment on Bowler. Mike Rosen, a spokesman for McCaul, said the congressman had reversed his position since his April 26 statement, alleging that the FBI provided inaccurate information about the reading of Miranda rights to Tsarnaev.
King said the interrogation should have continued for as long as it took to get details about the planning of the attack, even if it meant the information couldn’t be used against the suspect. There’s enough evidence to prosecute Tsarnaev without that information, he said.
“Whether it was the FBI’s fault or the judge’s fault, the Miranda should not have been read,” King said.
Jason Pack, an FBI spokesman, declined to comment on lawmakers’ statements.
There was nothing unusual about Bowler reading the Miranda warning, said Christina DiIorio-Sterling, a spokeswoman for Boston U.S. Attorney Carmen Ortiz, who is prosecuting Tsarnaev. “There have been claims that the judge abruptly entered the hospital room unannounced; that simply was not the case.”
Brendan Garvin, Bowler’s spokesman, declined to comment on the lawmakers’ statements.
Friends of Bowler said that the sudden politicization of her role runs counter to her reputation.
“I was very glad to see that she didn’t play to the critics, because she ran that initial appearance in the hospital in the same way it would have been conducted if it had taken place in a courtroom involving an anonymous defendant,” said Mark Pearlstein, a defense lawyer who has known Bowler since the late 1980s and had an office next to hers when they were federal prosecutors. The criticism is “wildly misplaced,” he said.
Bowler is evenhanded with both sides of the courtroom aisle, said Pearlstein, now a criminal defense lawyer who leads the Boston office of the law firm McDermott Will & Emery.
“I would not regard her as being reflexively liberal or conservative,” Pearlstein said in a phone interview. “She’s taken a baseball umpire’s view of calling them as she sees them.”
Tsarnaev is recovering from wounds sustained during the police manhunt following the bombing. U.S. authorities are also probing the activities of others, including Tamerlan’s widow, and investigators have traveled to Russia and elsewhere in pursuit of leads on the genesis of the attack.
Lawmakers briefed by federal law enforcement officials have said the Tsarnaev brothers, ethnic Chechens who came to the United States with their parents as refugees from Russia’s Caucasus region, were motivated by radical Islam they learned mostly over the internet.
Dzhokhar Tsarnaev, now held at a federal prison medical center west of Boston, is charged with using and conspiring to use a weapon of mass destruction and may face the death penalty if convicted. He told investigators the original plan was to target the city’s July 4 celebration and that the brothers attacked last month’s race after building their bombs - pressure cookers filled with explosives – faster than expected, according to an official briefed on the matter.
Bowler may be replaced by a U.S. district judge if a grand jury indicts Tsarnaev. For now, she is the arbiter of the Obama administration’s effort to bring the alleged bomber to justice in a case where prosecutors have yet to say whether they will seek the death penalty.
The day after Tsarnaev’s May 30 hearing, Bowler is scheduled to preside over the next court appearance of his friend, Robel Phillipos, 19. He is accused of lying to investigators about how he and two other friends at the University of Massachusetts-Dartmouth reacted when they realized Tsarnaev might have been involved in the attack.
Phillipos, a U.S. citizen, has already sought to put distance between himself and the other two men, Dias Kadyrbayev and Azamat Tazhayakov, saying he – unlike them – isn’t accused of destroying evidence. Phillipos was released on bail and is under “strict house arrest,” as ordered by Bowler.
Kadyrbayev and Tazhayakov, both 19, are from Kazakhstan. They are accused of disposing of a backpack containing fireworks wrappings they found in Tsarnaev’s dorm room April 18, after the FBI released pictures of the Tsarnaev brothers.
Both in the U.S. on student visas, Kadyrbayev and Tazhayakov waived a probable cause hearing that Bowler had scheduled for this week because their lawyers wanted more time to see government evidence.
Bowler, whose list of citations on her resume includes as many medical journals as legal publications, was a pre-med student in Regis College in Weston, Mass., where she graduated in 1967. She focused on biochemistry while at Harvard, according to a biography supplied by the court, and as a writer on medical subjects before obtaining a law degree from Suffolk University in Boston.
Born in Boston, she became a judge there in 1990, after serving in various roles as an assistant U.S. attorney in Boston beginning in 1978, according to a biography on the federal court’s website. As a government lawyer, she was part of a New England “strike force” against organized crime in 1979.
Bowler has a reputation for avoiding ideology and public pressure in high-profile cases, defense lawyers and former colleagues said.
She is known for a formal approach to interacting with litigants, said Michael Kendall, a formal federal prosecutor in Boston who has known Bowler since the early 1980s.
“I can’t think of a person who would be less interested in injecting any predisposed views into a case than her,” Kendall, who now leads the white-collar defense group at McDermott Will & Emery in Boston, said in a phone interview. “Whatever ideological viewpoint she has never comes into the courtroom.”
Before ascending to the bench, Bowler was a trial lawyer for the civil division of the U.S. Attorney’s Office – a role that required her to defend the U.S. in litigation.
Richard Egan, a retired FBI agent, said that when he was sued by a political activist in the 1980s, Bowler was given the job of defending him.
“I could not have had better representation if I had hired the most expensive law firm on Wall Street,” Egan said in a phone interview. “She’s practical, understands personalities, understands the process and doesn’t overstep it.”
An hour after Tsarnaev’s bedside hearing last month, Bowler was back in her courtroom, presiding over an unrelated criminal case involving the illegal possession of drugs and firearms.
At that hearing, she displayed her propensity for formality in her courtroom. While Assistant U.S. Attorney Glenn MacKinlay questioned his primary witness, an officer from the U.S. Bureau of Alcohol, Tobacco and Firearms, MacKinlay sat down briefly to review his notes, and then asked another question.
Bowler immediately asked him if he intended to continue questioning his witnesses from a seated position. MacKinlay said it wasn’t his intention and hopped to his feet before continuing.
“Courts are the last bastion of procedure and form in this country – she protects that civility and formality,” Robert Peabody, a former state and federal prosecutor in Boston who now practices at Collora in Boston, said in a phone interview.