Published in 2023 Massachusetts Super Lawyers magazine
By Natalie Pompilio on October 10, 2023
Hours after two bombs exploded near the Boston Marathon finish line on April 15, 2013, then-United States Attorney for Massachusetts Carmen Ortiz surveyed the scene from a raised vantage point.
Workers in white hazmat suits were moving slowly on Boylston Street below, collecting and photographing the nails, ball bearings and other bits of shrapnel that had cut through the air at bullet-like speeds when the explosives detonated. A tarp on the ground covered the body of one of the victims. Ortiz believes it was either 8-year-old Martin Richard or college student Lu Lingzi, 23.
“No one had been moved yet, and it was …” Ortiz pauses. “It was …” She pauses again.
“All I could feel was a chill cutting through my bones and this sense of disbelief and horror. I wondered, ‘How could this happen here? Why did it happen here?’ And I was afraid, concerned. Are there other [bombs] waiting to go off? Are other people at risk? What can we do to act as quickly as possible to figure out who did this?”
Within days, she had some answers: The bombs had been built and ignited by brothers Dzhokhar and Tamerlan Tsarnaev, whose family of Chechen heritage had settled in the Boston area more than a decade earlier. They considered their act of terror payback for American wars in Muslim countries. On race day, their devices killed three people: Richard, Lu, and Krystle Campbell, 29. More than 250 others were injured, including 17 who lost limbs.
Tamerlan died in a shootout with police; Dzhokhar was eventually captured and faced a trial, a conviction, a death penalty recommendation, and a sentencing. He is currently locked in the same Colorado supermax security prison as 9/11 co-conspirator Zacarias Moussaoui and “shoe bomber” Richard Reid.
Ortiz, now a partner at Anderson & Krieger, stepped down from her federal post in 2017. When she reflects on her office’s handling of Tsarnaev’s arrest and prosecution, she doesn’t consider what they might have done differently.
“That’s not because I think we did everything ‘right,’ but because I thought we did everything we needed to get done at the time,” she says.
Instead, when she looks back on the case, she tries to understand the why.
“How can someone in our country from the age of 9 grow up to commit such despicable acts? I still struggle with that a little bit,” she says. “The whole situation is tragic, not just in terms of people who were hurt or killed, but how this happened and continues
Boston hosted its first marathon in 1897 and did so every year until 2020, when the COVID-19 pandemic forced it to become a virtual event. The race traditionally takes place on Patriots’ Day, the third Monday in April. Unlike many other marathons, Boston requires runners to achieve a qualifying time in a previous marathon before they can enter. The elite race draws about 30,000 runners annually and more than 500,000 spectators, according to the Boston Athletic Association.
On Marathon Monday 2013, managers in the U.S. Attorney for the District of Massachusetts office were in a staff meeting when they learned of the explosions, recalls Jack Pirozzolo, who served as Ortiz’s first assistant until February 2014 and is now a partner in the Boston office of Sidley Austin. Within half an hour, “It became apparent it was a serious situation and involved what appeared to be an intentional attack,” he recalls.
The city already had a Joint Terrorism Task Force, a multi-agency group that included the FBI and the Boston Police Department. “People had a pretty good understanding of how to start dealing with the situation,” Pirozzolo says. Within hours, the group had established a command post and briefed the media.
Investigators began collecting photos and videos from individuals, businesses and public sources as they sought to identify the perpetrators. No terrorist group had claimed credit for the act. “The most stressful thing for me was my fear it would happen again. I didn’t want anyone else to get hurt,” Pirozzolo says. “I wanted to make sure we were working as quickly as we could to solve this.”
Part of his role was to contact colleagues who had dealt with similar incidents. One gave him some sobering advice.
“He said, ‘Jack, you need to prepare yourself. … There’s going to be all sorts of effort, but you need to understand that you may need to settle in, because this may never be solved, or it will take years to be solved,’” Pirozzolo recalls.
Early Wednesday morning, less than 48 hours after the explosions, investigators had identified two suspects: “White Hat” and “Black Hat.” Surveillance footage showed White Hat—Dzhokhar Tsarnaev—outside the Forum restaurant, where the second explosion took place.
“This was a trial that depended heavily on digital evidence,” Ortiz says. “The video actually showed these were the guys who did it. It showed Dzhokhar putting down a backpack, literally behind a tree, literally behind these families, including the Richard family. There’s a video of the crime being committed.”
Late Thursday, April 18, the Tsarnaev brothers knew authorities were closing in. They shot and killed M.I.T. Police Officer Sean Collier, 27, who was sitting in his patrol car in Cambridge, then forced a student at gunpoint to drive with them to Watertown. Tamerlan was critically injured in a late-night shootout with police and died early Friday morning. Dzhokhar escaped, but was found hiding in a boat in a suburban backyard about 20 hours later.
Having suffered multiple gunshot wounds, Tsarnaev was rushed to the same facility that was already treating marathon victims.
“He was in the hospital down the hall from the people he had blown up and their families. Navigating that was among the most difficult things we could do,” Pirozzolo says. “We do live in a country where the rule of law matters, and there are rules and processes that matter even when someone has committed as despicable an act as Dzhokhar did. Even if I didn’t agree with the rules, they are the rules, and you want to make sure you’re complying so justice can be served.”
At the same time, Ortiz was taking part in a press conference detailing Tsarnaev’s capture. After expressing sympathy for the victims and their families, her remaining remarks included this: “Tonight, you’re going to have many questions, but I want to say, as I’ve said the last several days, this has been a very active and ongoing investigation, and although for some of you tonight is a closure, for me the journey continues. … This will continue to be an ongoing and active investigation as we sort all the details, continue to evaluate a tremendous amount of evidence, and file our formal charges. But I will say this: I have never been prouder to stand with a tremendous group of law enforcement here.”
Pirozzolo was impressed by her words.
“It would have been easy for her to be celebratory, but she understood our work was just beginning,” he says. “The moment wasn’t too big for her. Talk about grace under fire. … Good leadership matters.”
As U.S. Attorney for the District of Massachusetts, Ortiz was involved in key decisions, such as which charges were filed against Tsarnaev and which attorneys would lead the prosecution. U.S. Attorney General Eric Holder, Ortiz says, made the final decision to seek the death penalty.
“This is the kind of case where the federal government would be seeking the death penalty, seeing it—and these are not my words—as the ultimate justice,” she says. “But that’s not necessarily so. It doesn’t bring lasting peace or justice.”
There was talk of moving Tsarnaev’s trial out of Boston, with defense lawyers saying a local jury pool would most likely be tainted. Ortiz’s office successfully fought to keep the trial in the city.
“The community here had a major stake in what happened. This was the community that was really harmed,” Pirozzolo says. “I felt, and I still feel, that Tsarnaev could and did get a fair trial in Boston.”
Ortiz agrees. Before prospective jurors even entered the courtroom for voir dire, they’d responded to a survey that included hundreds of questions, including ones about prior knowledge of the case and whether that would prevent them from being fair and impartial. The responses to those questionnaires culled the number of eligible jurors from 1,373 to 256. It took another three weeks of in-person questioning to seat the 12-person jury.
“I genuinely believe everyone brings certain biases with them based on how we grow up and how we’re raised and how we view the world through our own lens,” Ortiz says. “The key is when you have a bias, you’re cognizant of it so you’re able to put it aside and focus on your decision and on what it should be based.”
Ortiz’s office had handled high-profile cases before Tsarnaev’s. One year earlier, it had prosecuted organized crime boss James “Whitey” Bulger, who had been a fugitive for more than 15 years. A jury found Bulger guilty of multiple crimes, including 11 murders.
While local and some national media had followed Bulger’s trial, Tsarnaev’s trial was international. “When the bombs went off during the marathon, you had reporters from all over the world here, covering their own athletes,” Ortiz says.
It was just one of many logistical issues the office had to deal with.
“The challenge in a case like this is you have a lot of moving pieces,” Ortiz says. “You have inquiries from the media, you have concerns about the families and the witnesses, protecting their privacy, making sure they’re not being hounded, keeping them informed and as comfortable as possible.”
That meant opening a separate parking lot for survivors, their families, and the families of those killed so they could be shuttled to the courthouse and taken in through a private entrance. It meant commandeering multiple courtrooms, including one for the live court proceedings, another for the media, and a third where those personally affected by the bombings could seek respite, get something to eat or drink, or talk to counselors.
Ortiz visited that third courtroom regularly during the trial.
“It was important to be empathetic and show confidence in the system so that they trusted we’d do everything we could to help them through the process. I always say we will do everything possible to make this easier for you to handle, but we will not be able to make it easy. Our justice system can be very painful, intimidating, lengthy and complex, especially with a case like this. What we do is provide you support by explaining our positions and explaining what’s happening next and providing you with a sense of comfort to the extent that we can.”
In April 2015, a jury found Tsarnaev guilty of all 30 charges against him, including multiple counts of “use of a weapon of mass destruction, resulting in death.”
“It was not a foregone conclusion that he would be convicted because you have a videotape of him planting a bomb in front of a family and children,” Ortiz says. “Even with overwhelming evidence of guilt, nothing is a done deal until the jury considers the evidence and comes to a verdict.”
One month later, the jury recommended that Dzhokhar Tsarnaev be executed for the murders of Martin Richard and Lingzi Lu, who were killed in the explosion of the second bomb, the one he is seen on video placing on the ground near them. (They did not sentence him to death for the murders of Krystle Campbell and Sean Collier, perhaps considering his brother primarily responsible for those killings.)
“The jury read the counts and understood what was required,” Ortiz says. “They were thoughtful and they took the time to hold him accountable for his individual acts, beyond a reasonable doubt.”
On appeal, Tzarnaev’s attorneys have continued to argue that Dzhokhar only took part in the bombing because he feared his brother and allowed himself to be indoctrinated. To that end, they say the district judge was wrong when he did not allow them to enter evidence that connected Tamerlan Tsarnaev to a 2011 triple homicide. They also argue the district judge did not fully vet jurors, including one who called Tsarnaev “that piece of garbage” in a pre-trial tweet.
Ortiz rejects both arguments.
“The videos of his behavior shortly after the marathon bombings and shortly after the murder of Officer Sean Collier show him shopping for snacks as if he didn’t have a care in the world,” Ortiz says. “The idea that he was forced, that he feared his brother and did not have a will of his own, we did not see evidence of that.”
In 2020, the U.S. Court of Appeals for the 1st District overturned the death penalty decision and ordered a new sentencing hearing. That decision was appealed and, in 2022, the U.S. Supreme Court overruled the lower court’s decision, reinstating the original sentence.
More appeals are pending. Ortiz, as usual, speaks of the events in terms of their effect on the victims and their families.
“I think those impacted by the crimes want to put this behind them, but the death penalty prevents that because the appellate process can take years, and even when it’s over, the expected execution may never result,” she says.
When Ortiz looks back at the events of 10 years ago, she also thinks about the strength of the victims and their families; of the regular folks who joined first responders in running toward the explosion to help the injured.
“Out of tremendous adversity and tragedy, people can truly come together and demonstrate genuine care for one another, courage and resiliency,” she says. “That’s why we all thought ‘Boston Strong.’”
Pirozzolo was struck by how life can change in an instant. “Hug your kids,” he says. “Because you really never know.”
But in 2023, Boston is a stronger, safer, more united city, he says.
“I just was, and am, in awe of our community’s ability to come together and accomplish something under very, very difficult circumstances,” Pirozzolo says. “People were willing to set aside their personal problems and say, ‘Let’s just get this done.’”
Fighting for the Survivors
When Doug Sheff was growing up in the late 1960s, he and his father had an annual tradition: On Marathon Monday, they watched the race outside Chef Chang’s, a famed Chinese restaurant on Beacon Street. When runners passed on their way to the approaching finish line, Sheff’s father, a runner himself, shouted encouragement: “Mile and a half! Mile and a half!”
At lunch time, the pair would duck inside the restaurant—young Doug always ordered the Peking Duck, the fanciest dish at the fanciest restaurant he knew—before joining the spectators outside. They’d finish the day at Fenway Park, then head home to Newton, often tired, always happy.
“I looked forward to that day like it was my birthday,” says Sheff, who worked alongside his father at their eponymous firm until Irving “Chick” Sheff’s death in 2007. “My father was also a trial lawyer. He worked seven days a week and he’d still be working when I went to bed every night. But Marathon Monday was a holiday, a special day.”
On race day 2013, Sheff was working in his Tremont Street office, about a mile from the finish line. In addition to his own case load, he was preparing to be sworn in as president of the Massachusetts Bar Association.
Then he heard explosions.
“I said to myself, ‘Those darn construction workers,’” Sheff recalls. “But what I thought was a brief interruption to my workday was the start of my Massachusetts Bar year.”
As a personal injury and wrongful death attorney, he knew survivors and their families would need pro bono lawyers—to help with estate management, to wrangle health insurers, to assist with disability claims and employment issues, and most importantly, to secure compensation for injuries and death. And he knew he’d be in a position to lead the charge.
Nearly 100 lawyers quickly answered Sheff’s call to action, offering their time to the Marathon Bombing Victims Legal Assistance Program and the MBA’s Dial-A-Lawyer service.
“We had more volunteers than there was need. I remember being in a war room with lawyers of every ilk, trying to organize and assign people to issues and to clients,” Sheff says. “Some people were researching issues. Sometimes you had someone who represented an amputee or someone who lost a loved one. We had lawyers whose training was real estate closings now learning to understand injuries.”
They also found themselves advocating for clients with The One Fund, the charity established to provide financial compensation to bombing victims and their families. Financial giant John Hancock, Boston-based for more than 150 years, provided the initial $1 million cornerstone donation, but soon people from across the world were chipping in. Within 75 days, the nonprofit gave away $61 million.
Sheff says that, while the fund’s managers quickly helped victims who had obvious injuries, such as amputations, they were slower to provide aid to those with less obvious wounds—including traumatic brain injuries, PTSD and hearing loss. These survivors included a doctor who developed increasingly serious hearing problems, to the point where he couldn’t hear out of his stethoscope, and speech challenges in the year after the attack.
“One of the biggest challenges was to get people—not just with the fund, but other folks and the media—to understand that a brain injury is just as serious, if not more so, than an orthopedic one,” says Sheff, who has an extensive background working on cases involving TBIs. “I remember one reporter asked, ‘Why are you taking money from amputees?’ It stopped me in my tracks. In no way should any of the work with brain injury victims diminish the horrors that were suffered by so many in the marathon bombings. I worked with and fully supported those with all sorts of injuries, but the fund was fully capable of compensating everyone fully, regardless of how much they paid to brain injury victims. I told the The Washington Post, ‘My heart goes out to all victims, but I would rather lose a limb than my brain. At least it’s possible to get a prosthesis for your limb, but there is no equivalent for your brain.’”
The MBA offered to provide medical records and doctors to The One Fund decisionmakers so they could better appreciate the seriousness of these injuries. Later, when a second round of payments was scheduled for July 2014, the MBA held a press conference that featured a panel of bombing survivors and a medical expert who asked the charity to re-evaluate its criteria.
One week later, The One Fund announced that injuries eligible for compensation included “post-concussive syndrome, and traumatic brain injury,” adding that this had always been the intention and should have been more clear. The MBA and Sheff praised the announcement, saying it was more than just semantics.
“The victims were acknowledged and made to feel cared for, and that’s a lot,” he says. “A lot of the time, it’s not about the money. It’s about someone listening.”
Over the course of its existence, The One Fund dispersed nearly $80 million to more than 200 victims and their families, and used $1.5 million to establish ongoing support programs.
Sheff’s term as president of the MBA ended in fall 2014, and he continues to handle catastrophic injury and wrongful death cases in Massachusetts and beyond. One of his goals was to improve the image of the legal profession, and he says the post-bombing pro bono efforts helped achieve that. These lawyers, he says, took action not for publicity or money, but because they wanted to help victims—and help the community reclaim its beloved marathon.
The terrorists, Sheff says, “were trying to take away childhood memories. They were trying to take away a lot of people’s everything. Working hard was a way to take them back.”
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