Boston Bomb Suspect Seeking to Bar FBI Hospital Notes

Boston Marathon bombing suspect Dzhokhar Tsarnaev wants statements he made to federal agents after his capture barred from use in a trial because he made them while on painkillers and didn’t have a lawyer present.

The interrogation by agents with the Federal Bureau of Investigation took place while Tsarnaev was recovering from a gunshot wound to the head and continued after he repeatedly asked for an attorney and “begged” for time to rest, his legal team said in a federal court filing yesterday in Boston.

Tsarnaev, communicating with a notepad because his jaw was wired shut, “begged the agents to leave him alone and to let him sleep,” according to the filing. “He also wrote, ‘I’m hurt,’ ‘I’m exhausted,’ and ‘Can we do this later?’”

Tsarnaev’s lawyers, seeking to save the 20-year-old from the death penalty if he’s found guilty, are grappling with prosecutors over evidence that may be used in the trial stemming from the April 15, 2013, attack that killed three people and injured 260. A jury trial is scheduled for November.

The lawyers asked U.S. District Judge George A. O’Toole Jr., who is overseeing the case, to block the FBI’s notes and the notes written by Tsarnaev from being used in the trial, arguing the process violated his constitutional rights.

Under Guard

The FBI agents continued to question Tsarnaev for hours at a time -- without a lawyer present -- even after the suspect, who was handcuffed to his hospital bed and under heavy guard, assured them there were no other bombs or conspirators, his attorneys said.

In a related filing yesterday, Tsarnaev’s legal team asked O’Toole to block evidence seized during searches of Tsarnaev’s home and dormitory room at the University of Massachusetts at Dartmouth, claiming defects with the warrant process. Items they want thrown out of the case include a sample of a “reddish-brown powder” found on a windowsill and a book called “Muslims in the West,” according to the filing.

Christina Sterling, a spokeswoman for the prosecutor’s office, declined to comment, saying the government would respond in court.

Tsarnaev was shot in a gun battle with police early on April 19, 2013. He escaped and was shot again 20 hours later “when police unleashed a barrage of bullets into the boat where he was hiding, unarmed” in a backyard, according to the filing.

Gunshot Wounds

Tsarnaev arrived in critical condition at Beth Israel Deaconess Medical Center at 9 p.m. that night, with gunshot wounds to his head, face, throat, jaw, left hand and both legs, his lawyers said in the filing. The next morning, on April 20, he was sent to the intensive care unit and given painkillers throughout the following days, they said.

A federal public defender who arrived at the hospital to assist Tsarnaev was turned away by FBI agents, who refused to accept a letter to Tsarnaev notifying him of the lawyer’s availability, according to the filing.

“One of the agents insisted, nonsensically, that Mr. Tsarnaev was not in custody,” his lawyers said.

Tsarnaev was questioned in his hospital room for 36 hours starting at 7:22 p.m. on the night of April 20, according to the filing. Unable to speak, he communicated with the agents on a notepad and wrote the word “lawyer” 10 times, sometimes circling it, according to the filing.

Bedside Interrogation

The interrogation ranged from how the bombs were made and his beliefs about Islam and U.S. foreign policy, to sports activities, career goals and school history, according to the filing. There was no video or audio recording, the lawyers said.

FBI agents may have lied to Tsarnaev by telling him his older brother, Tamerlan Tsarnaev, 26, the other suspect in the bombing, was still alive, even though he’d been killed in the police shootout, they said.

“Where’s my bro?” Tsarnaev wrote on the notepad, according to the filing. At one point, he asked the agents if they were lying, the lawyers wrote. “Is he alive, show me the news! Whats today? Where is he?”

A lawyer was appointed to defend Tsarnaev at about 9 a.m. on April 22, according to the filing. In all, Tsarnaev was questioned over the course of two days before a judge read him his constitutional rights to remain silent and seek legal counsel.

Investigators cited a public-safety exception to the law that allows questioning without a lawyer if there is a reasonable belief the public is in imminent danger.

Tsarnaev’s lawyers argue the exception expired after they found out there was no additional danger.

In a separate filing yesterday, Tsarnaev’s lawyers asked O’Toole to declare the Federal Death Penalty Act unconstitutional by virtue of being “cruel and unusual” punishment that isn’t permitted in many states.

The case is U.S. v. Tsarnaev, 13-cr-10200, U.S. District Court, District of Massachusetts (Boston).

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