However, some parts of the case will proceed very quickly. Under federal law, a magistrate judge must hold a preliminary hearing to establish probable cause within 14 days of the initial appearance if the defendant is in custody (as is the case here, with Tsarnaev being charged Monday). Or the government could obtain an indictment, which by itself establishes probable cause.
“They will probably indict fairly soon unless there is a waiver of the preliminary hearing from the defendant,” says James Keneally, a defense lawyer and partner at Kelley Drye & Warren in New York. “They just can’t string it out: They have to indict him, and they may have already gotten a sealed indictment.”
But once those steps are accomplished, the process will begin to slow down.
The Department of Justice has to decide if it will seek the death penalty in connection with the charges, which include using a weapon of mass destruction, resulting in deaths and injuries.
“There is a whole chain-of-command process that must be completed before you can even make a deal [plea bargain],” says Joshua Dratel of Dratel & Mysliwiec in New York and a leading defense lawyer in terrorism cases. “It is the only true non-rubber-stamp process in the criminal justice system.”
The first element in the process would be a recommendation from the district prosecutor, in this case the US attorney for the District of Massachusetts, Carmen Ortiz. Once the Boston office sends in its recommendation about the death penalty, the case would be forwarded to a Justice Department committee, which would read the file and then make its own recommendation.