The case against the three new suspects in the Boston Marathon bombing - and the message the FBI wants to send

This is a rush transcript from "On the Record," May 1, 2013. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: According to the criminal complaint that's now been filed by the U.S. attorney's office, all three suspects have admitted removing [Dzhokhar] Tsarnaev's backpack from his dorm room. But still, their lawyers insist their clients knew nothing about Tsarnaev's alleged involvement in the bombing.


ROBERT STAHL, DIAS KADYRBAYEV'S ATTORNEY: Dias Kadyrbayev absolutely denies the charges. As we've said from the very beginning, he assisted the FBI in this investigation. He is just as shocked and horrified by the violence in Boston that took place as the rest of the community is. He did not know that this individual was involved in a bombing. His first inkling came much later.

The government allegations, as far as -- that he saw a photo and recognized them immediately, we dispute, and we'll be looking forward to proving our case in court. Mr. Kadyrbayev and his family are very sorry for what happened here in Boston, and he did not have anything to do with it.


QUESTION: He did not take the computer (INAUDIBLE)

QUESTION: ... bring it to the dump and (INAUDIBLE) fireworks are in the knapsack? (INAUDIBLE)

STAHL: We are not saying that. Mr. Kadyrbayev told the FBI about that. He did not know that those items were involved in a bombing, or of any interest in a bombing, of any evidential value.


QUESTION: ... Tsarnaev knew how to make bombs? And did he also know that the gunpowder, or the powder that was in the fireworks, and the Vaseline, could also be used for bomb-making, as the affidavit states?


QUESTION: What about the text from Dzhokhar Tsarnaev, according to the complaint, saying, Go into my room and take whatever you want? (INAUDIBLE) some kind of a signal to (INAUDIBLE)

STAHL: That was no signal. I think it means the plain English meaning.

HARLAN PROTASS, AZAMAT TAZHAYAKOV'S ATTORNEY: My client, Azamat Tazhayakov, feels horrible and was shocked to hear that someone that he knew at the University of Massachusetts Dartmouth was involved with the Boston Marathon bombings. He considers it an honor to be able to study in the United States and that he feels for the people of Boston who have suffered as a result of the Marathon bombing.


VAN SUSTEREN: Right now, two of the new suspects are charged with conspiring to obstruct justice, the other making false statements to the FBI.

Joining us, our legal panel, in San Francisco, former prosecutor Jim Hammer, and here in Washington, defense lawyers Bernie Grimm and Ted Williams.

And I want to start first with you, Ted, and let me read from the criminal complaint. And this is the allegation by the FBI under oath in an affidavit, in which he says that Kadyrbayev decided to move the backpack from the room in order to help his friend, Tsarnaev, avoid trouble. He decided to take Tsarnaev's laptop, as well, because he did not want Tsarnaev's roommate to think he was stealing or behaving suspiciously by just taking the backpack. So knowledge?

TED WILLIAMS, DEFENSE ATTORNEY: Yes. And it's very serious, and it's counterproductive to the lawyers' public relations gimmickry because if this affidavit is true and correct, they've got some serious problems here.

The -- and the one question these lawyers haven't answered is, if these guys had nothing to do with this, why in the hell would they take a backpack, Vaseline, a laptop, and dump it, if they had nothing to do with it? Serious.

BERNIE GRIMM, DEFENSE ATTORNEY: No. They had something to do with it. Kadyrbayev's lawyer essentially said -- and all this information about Kadyrbayev and what he did comes out of his own mouth. I mean, there's no eyewitnesses or ear witnesses. Kadyrbayev's lawyer essentially said, I was the first one in the door. My guy is cooperating.

What the viewers don't know is if these guys went to trial today and got convicted, the max they could get would be 10 years. That's...

VAN SUSTEREN: I don't agree with you on that.

GRIMM: I know.

VAN SUSTEREN: Let me tell you why. It maybe -- maybe...

GRIMM: Accessory after the fact.

VAN SUSTEREN: Maybe -- maybe Jim agrees with you, Bernie, or with me. But I think all this is, is that they put a couple charges together -- we should tell the viewers -- because they just want to have enough charges to hold them. After this, it then goes to a preliminary hearing. Prosecutors don't want to prove a lot so they don't charge a lot.

GRIMM: Get an indictment...

VAN SUSTEREN: Then it goes -- then it goes to get an

GRIMM: ... indictment and they'll get...

VAN SUSTEREN: And -- and once it gets...

GRIMM: ... unloaded on.

VAN SUSTEREN: And once it gets to the indictment, I think they're going to get loaded on with -- they're going to get accessory after the fact to four homicides and accessory after the fact to probably anywhere from 100 to 150 attempted murders by blowing the bomb up.

Jim, Bernie doesn't think they're going to get accessory charges.

JIM HAMMER, FORMER PROSECUTOR: Well, Greta, I think you're certainly right, the prosecutors are going to stack every possible charge because that's what we do as prosecutors. Having said that, this is one of the most horrific crimes we can imagine. They'll load every charge. If, Greta -- and this is a big if -- they get convicted and the judge actually stacks those accessories for each of the assaults and each of the homicides, they could spend the rest of their life in prison.

Unfortunately, I think, though, Bernie's probably right, and that this case probably maxes out near 10 years because the conduct is really one set of conduct. Usually, you don't get punished multiple times for the same set of conduct. It's a horrific conduct.


HAMMER: I think- the punishment should be much worse.

VAN SUSTEREN: I think -- I think the public outcry on this one -- I don't -- I mean, the prosecutor makes a decision what to charge and what not. Well, actually, the grand jury officially does it, but the prosecutor -- I cannot in my wildest dreams (INAUDIBLE) prosecutor think, You know, this is a only a 10-year offense.

WILLIAMS: Well, you know...

VAN SUSTEREN: Or a judge, and say, This is only a 10-year.


WILLIAMS: Let me just say this. Normally, I would...

HAMMER: In a typical accessory case -- just real quick -- the crime's over, the murder's committed and someone hides a piece of evidence, maybe's someone wife. What stands out about this case is they had every reason to believe that these essentially mass murderers were going to do it again. That's a very different crime. They're essentially helping this guy be concealed so he can attack again.

VAN SUSTEREN: Which is -- which is why...


HAMMER: I think that's an incredibly serious crime.

VAN SUSTEREN: That -- that defeats your argument that this is not your routine accessory after the fact! It's over...

HAMMER: I didn't say it was routine!


WILLIAMS: I would agree that they could do this, but I don't think that the government is going to stack on. As a matter of fact, I think they're going to...

VAN SUSTEREN: I don't know what you guys are smoking!

WILLIAMS: ... try to use...

VAN SUSTEREN: I don't know what you guys...


WILLIAMS: No, I think they're going to try to use -- what you're saying -- and I do agree that for each and every count, that they could do the accessory after the fact, but they're not going to do that.

VAN SUSTEREN: I -- you know what?

WILLIAMS: They're going to try to use these guys...


GRIMM: ... going to use these guys. They're going to milk them for as long as they can, then unload on them...


GRIMM: ... and probably include them in a conspiracy to commit murder and/or a terrorist act.

VAN SUSTEREN: See, I -- I think that they're going to -- I think they're going to have both barrels on these three because they had every opportunity...


VAN SUSTEREN: ... to -- they thought -- there was a fear that they'd be out doing more. The public outcry over this, four dead, including a police officer...


GRIMM: Greta, you don't have to tell me. My brother crossed the finish line 10 minutes before this happened. So thank God he trained -- he (INAUDIBLE) I think what they want to do -- sorry, Ted -- is they want to go backwards and see the network of financial support, intelligence or whether they were networked with other larger groups.

WILLIAMS: Well, my greatest concern is not so much these three guys and Dzhokhar. I hope that they will not enter into any kind of a deal other than go at him for capital murder, and not try to get information from him, and look at probably life without the possibility of parole.

VAN SUSTEREN: Bernie, would you -- I mean, Jim, I assume you would charge the death penalty in this case, right?

HAMMER: Oh, if there was ever a death penalty case, this is it. There's one thing in this affidavit, which I think if anyone has a doubt -- when one of these suspects says in a text message, saying, Hey, you look like one of the bombers, the living suspect wrote back "lol," laughing out loud after (INAUDIBLE) in the streets of Boston.

VAN SUSTEREN: You know, I guess that's what's...

HAMMER: I mean, I don't know of a more horrific case than that.

VAN SUSTEREN: You know, in reading this, this is, I guess, surprised me, the three of you think that it's not going to be as fierce a prosecution of these three. When you read...


HAMMER: ... Greta. I'm on your side!


VAN SUSTEREN: I think they're going to -- I think they're going to pile every possible charge because they were -- they were sort of joking about it. They were...

HAMMER: I agree.

VAN SUSTEREN: They knew about it. They went back and got the...

GRIMM: Yes, I mean...

VAN SUSTEREN: They went and got the equipment. They tried to cover for him. I realize they're young, but I think it's...

GRIMM: Right, but -- yes, I mean, you're in Boston federal courthouse, right downtown, not far from the Boston Marathon, which is historical and is just apple pie and Chevrolet. These guys are going to get convicted. They're going to get convicted quickly, and they're going to go away for the rest of their lives.

WILLIAMS: But there's another reason they did this. The reason is that the FBI wants to send a signal out there, Hey, if you know something, you better cooperate with us.

VAN SUSTEREN: Which is actually, though -- that -- then you're on my side of the argument! If you think they're going to -- that they want to send a message, they're going to be as heavy-handed as they can! You guys -- I mean, what you're saying is you're actually -- you know...

WILLIAMS: There is a clear dichotomy between actually helping the FBI and not lying to the FBI and what they'll actually be charged with. I don't think they're going to go heavy-handed on the charges.

VAN SUSTEREN: All right. Well, the thing is we -- all this stuff is recorded. After they are indicted, we'll see whether or not you guys are right or wrong. But I obviously, won't ever have any of the three of you back on the show again for disagreeing with me.


HAMMER: I'm on your side!

VAN SUSTEREN: I'm just teasing you! All right, gentlemen, thank you.