Dzhokhar Tsarnaev, the former college student accused of bombing the Boston Marathon, lost a court bid to hire a second lawyer experienced in overcoming federal death-penalty cases against Muslim terrorists.
U.S. District Judge George A. O’Toole Jr. in Boston yesterday denied a request to hire David Bruck, a professor at Washington & Lee University School of Law in Lexington, Virginia, who directs the campus’s death-penalty defense clinic.
Judy Clarke, Tsarnaev’s lawyer specializing in capital punishment, argued in court papers in July that her team needed Bruck because the case is too complex for one expert. The ruling was made in a brief posting in an online docket, and a written decision wasn’t available.
Bruck in 2004 negotiated a life sentence for Jordanian Zayd Hassan Safarini, who hijacked Pan Am flight 73 on the tarmac of a Pakistani airport in 1986, resulting in the deaths of almost two dozen people. Bruck also represented Mohamed Rashed Daoud al-’Owhali, the Saudi who drove a bomb-laden truck to the U.S. embassy in Nairobi, Kenya, in 1998, killing 213 people and injuring thousands. Both men escaped the death penalty.
Tsarnaev is charged with killing two women and an 8-year-old boy and injuring 260 others with homemade bombs left in crowds near the marathon’s finish line. The bombing was the first deadly terrorist attack in the U.S. since Sept. 11, 2001.
Clarke didn’t immediately return a phone message seeking comment on the ruling.
Tsarnaev, an ethnic Chechen who’s now a U.S. citizen, was inspired by al-Qaeda and motivated by the U.S. military’s killing of Muslim civilians, according to prosecutors. Tsarnaev pleaded not guilty on July 10 to 30 counts, including claims he shot to death a university police officer in the days after the attack.
Prosecutors haven’t said whether they will seek the death penalty in the case -- a decision that must come from Attorney General Eric Holder. If the U.S. seeks the death penalty and Tsarnaev is found guilty, a jury will hold a second phase of the trial to determine whether he should be executed.
At a hearing yesterday in Boston, Clarke told O’Toole she wanted to review evidence that federal prosecutors are using to decide whether to seek the death penalty. Miriam Conrad, another defense attorney, told the judge that the government had turned over a “large amount” of evidence in the case this month, including digital evidence, computer hard drives and interviews with witnesses.
“Notably missing,” Conrad said in court yesterday, was evidence that might mitigate against the death penalty, including “grand jury testimony of family members and other information that could be exculpatory at sentencing.”
Bruck and Clarke previously worked together representing Susan Smith, the South Carolina woman who was convicted in 1995 of drowning her two young sons the previous year by locking them in her car and letting it roll into a lake.
In the hijacking case, Bruck secured the life sentence for Safarini after a judge ruled federal law at the time of the attack didn’t permit the death penalty in such a case. In the Kenya attack case, Al-’Owhali was sentenced to life in prison in 2001 after a jury failed to reach a unanimous decision on the death penalty.
The case is U.S. v. Tsarnaev, 13-cr-10200, U.S. District Court, District of Massachusetts (Boston).