An FBI agent heard accused Boston Marathon bomber Dzhokhar Tsarnaev make a compromising statement when his sister and an investigator from his defense team visited him in prison, prosecutors said Friday.
In a court filing in federal court in Boston, prosecutors said that “Tsarnaev, despite the presence of an FBI agent and an employee of the federal public defender, was unable to temper his remarks and made a statement to his detriment which was overheard by the agent.”
The filing did not specify when the visit occurred or what Tsarnaev said.
Prosecutors said they believe Tsarnaev’s remark is “the driving force” behind his lawyers’ pending motion to lift or modify special administrative measures that are currently in place.
Those measures allow the FBI to monitor Tsarnaev’s visits with family, even if a member of his legal team is present, among other measures that the government says are necessary for security reasons.
Miriam Conrad, the head federal public defender in Boston and one of Tsarnaev’s lawyers, pushed back against prosecutors’ statements about her client’s remark.
“Our most recent motion regarding the [special measures] was not prompted by any comment that Mr. Tsarnaev made during a family visit,” Conrad wrote in an e-mail. “We have continuously opposed the imposition of the [measures], which we believe impermissibly interfere with our representation of our client.”
Defense attorneys also object to a requirement that prison staff be allowed to review digital material the lawyers seek to share with Tsarnaev as part of trial preparation, among other issues.
The defense had filed a motion last October to ease the special measures, and prosecutors later agreed to loosen them.
A spokeswoman for US Attorney Carmen M. Ortiz declined to provide details of what Tsarnaev said during the visit.
Tsarnaev, 20, faces charges that could bring the death penalty for his alleged role in the April 15 bombings, which killed three people and injured more than 260. He has pleaded not guilty and is being held at the federal prison at Fort Devens in Ayer.
Tsarnaev’s attorneys, in a Feb. 20 filing again challenging the special measures, wrote that he is entitled to private visits that include both his legal team and family members.
The defense contends that FBI monitoring of those visits impedes its ability to gather evidence that it would present to help him avoid a death sentence if he is convicted.
For example, their filing said, “evidence regarding family dysfunction, mental illness, and the impact of family chaos on the defendant” has long been recognized as mitigating evidence.
But on Friday, prosecutors rejected the notion that FBI monitoring is an obstacle to gathering such evidence.
“Social conversation in the presence of a defense investigator is not a mental process,” prosecutors wrote. “There was no review of the [defense] investigator’s notes, no interference with the manner or nature of her remarks.”
Gerard T. Leone Jr., a former state and federal prosecutor who helped secure a guilty plea for Richard Reid, the so-called shoe bomber, said Reid was held under the special measures during a different political climate.
“It’s 100 days after [the] Sept. 11 [attacks], you’ve got an admitted Al Qaeda terrorist,” said Leone, now a partner at the Nixon Peabody law firm.
“So it was a lot easier to make the argument to fit the standards in that context than I think it is now.”
Reid also spoke candidly with law enforcement about his desire to spread extremist views, “and that’s one of the primary reasons’’ for such measures, Leone said.
Tsarnaev has made prior alleged statements that were incriminating.
Officials say he scrawled a note on a boat shortly before his capture, in which he admitted to his role in the attacks and referred to the Marathon victims as “collateral damage,” likening them to Muslims killed in the wars in Iraq and Afghanistan, according to published reports.
He also allegedly admitted his guilt to the FBI, before being advised of his rights to counsel and to remain silent.
Separately on Friday, lawyers for Tsarnaev filed a motion to dismiss “surplus” charges in the 30-count indictment, arguing that in some instances, multiple charges are alleging the same criminal act.
The tactic “appears designed to put a thumb on the scales of justice in favor of the death penalty,” the lawyers wrote.
They added that while a judge may be immune to the prejudice of repetitive charges, a capital sentencing jury might not be.
And, the lawyers wrote, “in this case, a jury, not a judge, will be imposing a final sentence and weighing two possible sentences, life imprisonment without the possibility of release or death.”