Lawyers for Dzhokhar Tsarnaev, the accused Boston Marathon bomber, have asked a federal judge to hold a hearing to probe alleged grand jury leaks and public comments that “have plagued this case since its inception.”
“The public comments and leaks threaten Mr. Tsarnaev’s right to a fair trial, and the court should direct the prosecution to put a stop to them,” Judy Clarke, one of Tsarnaev’s lawyers, said in a filing late Friday.
Prosecutors did not immediately respond to the request. The new filing is one of several recent motions and responses that have been filed by both sides in the high-profile case.
Tsarnaev, 20, is being held without bail at the federal prison at Fort Devens in Ayer, facing multiple charges that carry the possibility of the death penalty. He is set to go on trial in November on charges of setting off the April 15, 2013, bombs, which killed three people and injured more than 260.
In the filing, Clarke cited a recent National Geographic Channel television documentary that featured former Boston FBI special agent in charge Richard DesLauriers and which showed previously unreleased video footage of Tsarnaev leaving a backpack at the scene of the bombings.
“In a somber voice, Agent DesLauriers describes the video footage as ‘a dramatic and tragic video. It was disturbing,’ ” Clarke wrote. She noted DesLauries is seen saying that the footage “brought tears to our eyes. It brought tears to our eyes each time we watched it.”
She also argued that some of the information that has been released to news media was secret grand jury evidence that has not yet been disclosed to the defense team.
“The prejudice flowing from the inappropriate release of these investigative materials has been aggravated by emotional descriptions and opinions of law enforcement regarding the alleged evidence and the defendant,” Clarke said.
The lawyer asked US District Court Judge George A. O’Toole Jr. to “hold a hearing to assess responsibility for the leaks and inappropriate public comments, direct that they be stopped upon the pain of contempt, and enter appropriate orders to protect grand jury secrecy and the defendant’s constitutional right to a fair trial.”
In a separate filing Friday, federal prosecutors urged another judge to reject a request from three friends of Tsarnaev to move their trial on lesser charges outside Massachusetts. Prosecutors, in the filing in US District Court in Boston, said the three friends — Azamat Tazhayakov, Dias Kadyrbayev, and Robel Phillipos — failed to show in their motion for a change of venue that pretrial publicity has “displaced the judicial process in this case.”
“While this case has received local and national press coverage, there is no reason to doubt that the court can empanel a fair and impartial jury drawn from Eastern Massachusetts,” prosecutors wrote.
Tazhayakov and Kadyrbayev attended the University of Massachusetts Dartmouth with Tsarnaev. They are charged with obstructing justice by removing evidence from Tsarnaev’s dormitory after the bombings, including a laptop and a backpack containing fireworks. Phillipos, who also attended the university, is charged with lying to investigators who questioned him about the alleged removal of items.
In a motion last month, a lawyer for Tazhayakov requested a change of venue for his client, arguing that “there exists within this district among a significant percentage of residents . . . so great a prejudice against the defendant that he cannot obtain a fair and impartial trial.”
Phillipos and Kadyrbayev later joined the motion.
The filing cited extensive pretrial publicity of the charges facing Tsarnaev and the lesser counts brought against his three friends. News stories and blog entries have focused on the trio “with nearly equal hostile fervor” as Tsarnaev and the obstruction allegations have “become psychologically identical with Tsarnaev’s crime, the bombing itself,” defense counsel wrote.
Prosecutors countered that “a juror of reasonable intelligence, properly instructed, will have no difficulty distinguishing between the allegations at issue here and the Marathon bombing.”