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Tsarnaev lawyers lose bid for more evidence from prosecution

Accused Marathon bomber  Dzhokhar Tsarnaev.

FBI/AP File

Accused Marathon bomber Dzhokhar Tsarnaev.

A federal judge Wednesday declined a request by lawyers for alleged Boston Marathon bomber Dzhokhar Tsarnaev to force prosecutors to turn over more evidence so the defense could better prepare its opposition to the death penalty.

US District Court Judge George A. O’Toole Jr. said in a nine-page ruling that the defense was requesting blanket disclosure of information without showing that the information would be material to the trial, which is the standard prosecutors must follow.

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“The defendant has not made a prima facie showing of materiality,” the judge said. “He essentially seeks access to the government’s information haystack because he is confident there are useful evidentiary needles to be found there. That is simply not enough to trigger a disclosure obligation.”

O’Toole did grant one defense request. He ordered prosecutors to turn over actual recordings of Tsarnaev’s phone calls from jail, not just the transcripts, because the recordings could convey information beyond the words themselves, such as vocal inflection.

Though prosecutors have turned over evidence already, the defense attorneys argued that the government has refused to turn over information such as interview reports with Tsarnaev’s friends and family members, as well as the family members’ immigration records.

Defense attorneys argued that the information could help them prepare a presentation opposing the death penalty. The prosecutors, however, argued that they had already produced all the evidence they were required to. They also argued that they had no obligation to turn over materials that would help in a death penalty presentation, that they would only be required to turn over information for a trial.

O’Toole ruled that the government could be required to turn over information for the death penalty presentation, because arguments over punishment would be part of the penalty phase of the trial and decided by the same jury.

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However, the judge said, the defense attorneys still had failed to prove that the information they requested was material — relevant and significant — to their case.

“The information requested to be produced must be material to the defense, and the defendant bears the burden of making a prima facie showing of materiality,” the judge said.

He said the defense team could file another request if it determined the government had specific evidence that would be relevant to its case.

Tsarnaev, 20, faces multiple charges that carry the death penalty for his alleged role in the April 15 bombings, which killed three people and injured more than 260. He and his brother, Tamerlan, were also accused of fatally shooting an MIT police officer. Tamerlan was killed during a confrontation with police in Watertown on April 19; Dzhokhar Tsarnaev was arrested later the same day.

In addition to arguing against the death penalty if Tsarnaev is convicted, defense attorneys are also allowed to make a presentation to US Attorney General Eric Holder before the trial. Holder is to decide by the end of January whether prosecutors will seek the death penalty.

Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.

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