Lawyers for Dzhokhar Tsarnaev, the accused Boston Marathon bomber, asked a federal judge Monday for more time to decide whether to seek a change of venue for his high-profile case.
The lawyers asked US District Court Judge George A. O’Toole Jr. to vacate a Feb. 2 deadline he had set for them to file a change of venue request, and to defer setting a new deadline until they can complete all pretrial litigation.
Saying they have not yet decided whether to seek a change of venue, the lawyers argued that unresolved legal questions, such as whether prosecutors plan to seek a death penalty in the case, would make a decision now “improvident, because those events and the passage of time are likely to have substantial effects on the very public attitudes that underlie the venue decision.”
The lawyers also argued that publicity of other, unresolved legal questions, such as litigation challenging the use of statements Tsarnaev made after his arrest and without a lawyer, could also skew public perception. “The near certainty of perception-altering events as this case unfolds militates in favor of deferring the change of venue filing date,” the lawyers said, adding that postponing the deadline could also allow for some of the pretrial publicity to abate.
Tsarnaev, 20, faces multiple charges that carry the possibility of the death penalty on accusations of planting the bombs April 15 at the Boston Marathon finish line, killing three people and injuring more than 260. He is also accused of shooting MIT police Officer Sean Collier before leading police into a firefight in Watertown. His older brother and alleged accomplice, Tamerlan Tsarnaev, was killed in the confrontation with police in Watertown May 19.
At a Nov. 12 hearing, O’Toole ordered US Attorney General Eric Holder to decide by Jan. 31 whether he will seek the death penalty in the case, which would influence the course of pretrial litigation. The judge also ordered the defense team to file any significant motions, such as a motion to dismiss the case and a motion for a change of venue.
A Boston Globe poll in September showed that 57 percent of Massachusetts respondents supported a life sentence for Tsarnaev, compared with 33 percent who favored the death penalty.
The defense lawyers argued in their filing Monday that they have not been able to investigate whether a change of venue request would be warranted, let alone prepare a request, pending the outstanding legal issues.
“The factual research required to support a motion to change venue is substantial,” the defense lawyers argued, saying it would include a review of pretrial publicity. “Given the saturation coverage that has attended this case, this task is formidable. Moreover, counsel must then assess whether a change of venue is warranted and, if so, desirable.”
Prosecutors have not yet responded to the request.