April 18 (Bloomberg) -- Boston Marathon bombing suspect Dzhokhar Tsarnaev’s lawyers, seeking to spare him from the death penalty, lost a bid to force the U.S. to turn over evidence that may show his older brother radicalized him and led the attack.
The request for material about Tamerlan Tsarnaev, who was killed in a police shootout after the bombing, was denied yesterday in Boston by U.S. District Judge George A. O’Toole Jr., who didn’t elaborate on the decision handed down just days after the one-year anniversary of the terror attack.
Dzhokhar Tsarnaev, 20, is scheduled to go on trial in November for the April 15, 2013, double-bombing near the finish line of the landmark race that killed three people and injured 260. The U.S. Justice department has said it will seek the death penalty for Tsarnaev, a Russian immigrant and former college student, if he’s convicted.
“This is about a family and the search for what happened,” Tsarnaev’s lawyer, David Bruck, said at an April 16 hearing in Boston.
In court filings, Tsarnaev’s lawyers haven’t denied their client’s involvement in the attack and are instead focusing on avoiding his possible execution. The defense said it intends to highlight their client’s youth, as well as his brother’s deeper ties to extremism, in a bid to keep Tsarnaev off death row.
Tsarnaev, a U.S. citizen, was inspired by al-Qaeda and motivated by the U.S. military’s killing of Muslim civilians, prosecutors have said. He pleaded not guilty in July to 30 counts, including allegations that he killed a university police officer in the days after the attack.
At the hearing two days ago, O’Toole said Tsarnaev, who’s being held in the Federal Medical Center Devens, a lockup in Ayer, Massachusetts, should be allowed to have private meetings with his sisters without monitoring by the Federal Bureau of Investigation or the prosecution team. The U.S. had objected to such an arrangement, calling it a safety risk.
Tsarnaev’s attorneys want the meetings private so that mental health professionals working with the defense team can observe the “family dynamic” in preparation for trial, Bruck said at the April 16 hearing.
In yesterday’s ruling, O’Toole said he will review statements made to the FBI by Ibragim Todashev, suspected of aiding Tamerlan Tsarnaev in a triple murder two years prior to the bombing, before deciding whether to give the material to the defense team. Todashev was killed by federal agents while he was being interviewed in Florida last May.
Tsarnaev’s defense team has said the older brother’s possible involvement in the murders could be evidence of Tamerlan Tsaranaev’s cruelty. The younger Tsarnaev hasn’t been implicated in the killings.
“If it is a fact that Tamerlan Tsarnaev slit the throats of three helpless people, one of whom is disclosed as a close friend, whether the defendant ever learned of it or not is clearly an important part of this story in terms of who is the motivating, the acting, leading participant in what happened later,” Bruck told the court.
In three separate requests filed March 28, defense lawyers said the U.S. failed to meet requirements to turn over all favorable evidence it has that may persuade a jury to spare Tsarnaev from the death penalty if he’s convicted, such as details of Tamerlan Tsarnaev’s closer ties to extremist elements and greater role in planning the attack.
The defense also said Tamerlan Tsarnaev may have grown paranoid after being approached by federal agents seeking an informant on the Chechen and Muslim communities. The lawyers requested any evidence to bolster that theory, which they attributed to members of Tsarnaev’s family.
According to the defense filing, FBI agents solicited Tamerlan after asking him about his Internet search activities.
“No one other than Tamerlan and the agents involved were actual witnesses to what transpired, and absent verification from the government itself, the defense will have no direct evidence to establish the reasons for these contacts, or their number, nature and content,” Bruck said in the filing requesting the evidence.
Prosecutors told the defense team they had “no evidence” of such contact with the elder Tsarnaev and said they shouldn’t have to turn over the requested files, according to an excerpt of the government’s response included in Bruck’s filing.
Tamerlan Tsarnaev, 26, was killed as Boston police zeroed in on the pair in the days after the attack. Dzhokhar Tsarnaev was captured and charged with using weapons of mass destruction resulting in death.
The Tsarnaevs, immigrants of Chechen descent, had lived in the U.S. for more than a decade. After the attack, investigators began working with Russian authorities as they focused on a six-month trip Tamerlan Tsarnaev took in 2012 to Chechnya and neighboring Dagestan, both Russian regions roiled by Islamist separatist movements.
U.S. Attorney General Eric Holder decided in January that prosecutors should seek the death penalty if Tsarnaev is convicted. U.S. Attorney Carmen Ortiz in Boston, who’s leading the case, said at the time that Tsarnaev’s intentional involvement in the “especially heinous” attack, his lack of remorse and his betrayal of the U.S. justified a capital sentence.
The case is U.S. v. Tsarnaev, 13-cr-10200, U.S. District Court, District of Massachusetts (Boston).
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