Tsarnaev’s face was splotched and swollen, his left hand was bandaged, and he was unable to talk during the brief court hearing presided over by U.S. Judge Marianne Bowler on Monday afternoon.
The surviving bombing suspect mouthed rather than said the word “no” when asked if he could afford a lawyer and nodded in the affirmative when asked if he understood his rights.
But Tsarnaev appeared to fully follow the proceeding, the source said. The most telling moment, the source said, came early on when, after Tsarnaev was informed of the two charges against him, the judge asked prosecutor William Weinreb to spell out the possible penalties he was facing.
“Your honor, the maximum penalty is death,” Weinreb said, according to a public transcript of the proceeding.
Tsarnaev showed no reaction — nor did his heart monitor register any change, the source said. “There was no blip at all,” said the source.
But heart monitors don’t always register emotional responses — and there is no way to tell what impact medications Tsarmaev may have been given had, according to medical experts.
There have also been conflicting reports about Tsarnaev’s mental state in the days after his capture. “Over the weekend, he’s in and out of lucidity,” Rep. Mike Rogers, chairman of the House Intelligence Committee, said on MSNBC’s “Andrea Mitchell” show on Thursday. “He’s got — he’s on medication, he’s talking, but he’s not talking, he’s unconscious, he’s going for medical procedures.”
But those present at the bedside court hearing were convinced that Tsarnaev was fully cognizant of the circumstances he was facing, the source said. Judge Bowler agreed. “I find the defendant is alert, mentally competent and lucid,” she said, according to the transcript. “He is aware of the nature of the proceedings.”
The court proceeding erupted as a source of controversy Thursday when Rogers charged that Judge Bowler had interfered with FBI questioning of Tsarnaev – and that the Justice Department failed to object — when she ordered that Tsarnaev be read his rights on Monday, a day after he was charged in a then-sealed complaint at 6:47 p.m. Sunday.
FBI agents were questioning Tsarnaev — and getting his responses in writing — under a “public safety exception” that allows agents to obtain information from criminal suspects for 48 hours without reading them their constitutional rights informing them they have the right to remain silent and a right to a lawyer. The information that agents got — including the disclosure Thursday that Tsarnaev and his brother had talked about driving to Times Square to set off more bombs — came during those sessions over the weekend.
But Rogers said Thursday that FBI agents “weren’t quite finished with him” when Bowler directed that the court hearing take place that Monday. “To have the court affirmatively push their way in, is — A) I think it’s wrong, and B) we should have given the FBI the time that they needed.” Justice Department officials “have a lot of explaining to do.”
Bowler, asked by NBC News about Rogers’ charges in her federal courtroom in Boston Thursday, replied: “The court does not comment.”
A federal law enforcement official disputed Rogers’ account, telling NBC News that FBI agents had already left the hospital room and wrapped up their questioning before the court hearing took place mid-day Monday. In a statement emailed to reporters Thursday, Justice Department spokesman Dean Boyd said that, after the criminal complaint was filed, the rules of criminal procedure required the judge to advice the defendant of his rights.
“The prosecutors and FBI agents in Boston were advised of the scheduled initial appearance in advance of its occurrence,” he said.