Federal prosecutors on Friday fought a request by Dzhokhar Tsarnaev, the accused Boston Marathon bombing suspect, to have some of the charges in his case dismissed, saying he is appropriately being charged with his crimes.
“The number of charges in the indictment reflects the number of crimes Tsarnaev committed – nothing more,” the prosecutors said in a court filing Friday.
Lawyers for Tsarnaev had last month filed a court motion to dismiss what they called “surplus” counts in his 30-count indictment, alleging prosecutors double-counted some of his crimes to “put a thumb on the scales of justice in favor of the death penalty.”
Of the 30 charges Tsarnaev faces, 17 of them allow for the death penalty, and defense lawyers say prosecutors stacked the charges “as a tactical measure” that violates the Double Jeopardy Clause in the Constitution.
In their filing Friday, prosecutors called the suggestion “nonsense.”
“The evidence will show that Tsarnaev committed deadly crimes of mass destruction, deadly crimes of terrorism, deadly crimes of bombing, and multiple acts of murder,” the prosecutors said. “Having done so, he can hardly blame the government for the number of capital charges in the indictment.”
The prosecutors added, “If he is ‘prejudiced by the number of capital charges in the indictment, it is prejudice he has brought upon himself.”
Tsarnaev, now 20, is being held without bail at the federal medical prison at Fort Devens in Ayer for allegedly setting off the April 15 bombs that killed three people and injured more than 260. His brother and alleged co-conspirator, Tamerlan Tsarnaev, 26, was killed in a confrontation with police in Watertown on April 19.
US District Court Judge George A. O’Toole Jr. set a trial date for November. Prosecutors had decided in January that they will seek the death penalty, though a jury will ultimate have to make that decision.
Tsarnaev’s lawyers had argued in their court request that, though a judge may recognize the possible prejudice of repetitive charges, a jury might not, and, “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.”
O’Toole had already set a hearing for April 16 on the defense request. The judge will also hear a request by Tsarnaev’s lawyers to lift some of the special administrative measures, or tight restrictions, that have been placed on him while in prison, saying the measures have interfered with Tsarnaev’s access to defense counsel.
Earlier this month, Tsarnaev’s lawyers and prosecutors from US Attorney Carmen Ortiz’s office feuded in court papers over the meaning of a comment Tsarnaev made while his sisters visited him. Under the special restrictions, the meeting was observed by an FBI agent and a defense investigator.
Prosecutors suggested that his comment strengthened the government’s case, but the defense said it was just a humorous remark.
Separately Friday, victim rights advocates from Ortiz’s office sent a letter to victims of the bombings updating them with developments in the case, and alerting them to the continuing media coverage.
“Leading up to the trial, there will be much information about this case in the media, especially as we approach April 15,” the letter said. “Please know it is our intention to keep you apprised of significant court proceedings and pertinent information relating to the case.”