Lawyers for Dzhokhar Tsarnaev, the accused Boston Marathon bomber, asked a federal judge to ease special restrictions that have been placed on him at the prison in Fort Devens, saying they have unduly left him in harsh isolation while preventing proper communication with his family and his legal team.
The lawyers argued that US Attorney General Eric H. Holder J. had no basis to order the special administrative measures for Tsarnaev in late August, more than four months after his arrest, with no evidence that Tsarnaev was a further threat of violence or to security.
“The government has not alleged that Mr. Tsarnaev has done or said anything since his arrest to commit violence, incite violence, or engage in communications that pose a security threat,” the lawyers argued in a court filing Wednesday, calling the measures unlawful and unwarranted.
Federal prosecutors have not yet responded to the filing.
Tsarnaev, now 20, faces 30 charges related to the April 15 bombing that killed three people and injured more than 260, including several terrorism charges that carry the possibility of the death penalty. Authorities also say he killed MIT police Officer Sean Collier.
In the first stage of the legal proceedings, Holder is considering whether to seek the death penalty for against Tsarnaev.
But lawyers for Tsarnaev, saying their access to him is vital to build a case against the death penalty, argued that the special administrative measures have unduly limited communications with him in violation of his constitutional rights.
The special measures limit who from the defense team can visit or communicate with Tsarnaev and what information they can share with him or others. The lawyers face penalties for violating the measures, a possibility they said had a chilling effect on their judgment making. In one instance, they said, they could not show Tsarnaev photos of family.
The measures also restrict Tsarnaev’s communications with the outside world to only immediate family members, and those communications are limited, as well. Tsarnaev also has no access to media and cannot communicate with other inmates.
Holder, in ordering the Bureau of Prisons to enact the measures in August, at the request of US Attorney Carmen M. Ortiz, said that they are “reasonably necessary to prevent the inmate from committing, soliciting, or conspiring to commit additional criminal activity,” according to records made public Wednesday.
Prosecutors argued that Tsarnaev was inspired to commit the bombings by terrorist groups, that he told investigators that he hoped he inspired others, and that “there is no indication that Tsarnaev’s intentions have changed since.”
They also said Tsarnaev’s mother taped a telephone conversation with him and played it for the press in Russia in an apparent effort to “engender sympathy” for him.
But Tsarnaev’s lawyers argued that the measures are unwarranted.
“While the government may not want anyone to feel sympathy for Mr. Tsarnaev, that is not a proper basis to impose” the measures, they said.
They argued that there is no evidence Tsarnaev attempted to incite others and that the harsh prison conditions are based more on his alleged crimes than anything he has done since his arrest.
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