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Legal team for Tsarnaev seeks delay in responding to prosecutors' High Court filing

Dzhokhar Tsarnaev.
Dzhokhar Tsarnaev.AFP/Getty Images/2015 file

Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev, who had his death sentence overturned in July by an appellate court, are seeking a delay in filing their written response to the US Justice Department’s request to have the US Supreme Court review the matter, records show.

Attorneys for Tsarnaev, 27, recently submitted their motion to delay their filing deadline from Nov. 5 to Dec. 7.

“This is the first extension respondent [Tsarnaev] has sought,” the document said, adding that the Justice Department does not oppose the request.

Earlier this month, prosecutors formally filed their request for the Supreme Court to review the July decision from the US Court of Appeals for the First Circuit that vacated Tsarnaev’s death penalty and ordered a retrial of the sentencing phase of the case.

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The appellate court stressed that Tsarnaev will die in federal custody, its July decision notwithstanding; the only question is whether he’ll be executed.

Prosecutors' 424-page request to the Supreme Court, known as a petition for writ of certiorari, raises two questions for the panel to consider, should it decide to take up the matter.

If the high court does agree to review the case, it could affirm the appeals court ruling vacating the death sentence or reinstate it.

The petition from prosecutors asks whether the District Court should have allowed “evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted."

The document also asks whether the federal appeals court that overturned Tsarnaev’s death sentence made a mistake in concluding the District Court should’ve asked “each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.”

The move by prosecutors comes after the US Court of Appeals for the First Circuit on July 31 issued a 182-page ruling that infuriated some survivors, finding that George A. O’Toole Jr., who presided over Tsarnaev’s high-profile 2015 trial in US District Court in Boston, “did not meet the standard” of fairness while presiding over jury selection.

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Tsarnaev is currently incarcerated at a federal supermax prison in Colorado.

He was convicted for his role in the April 15, 2013, bombings, which killed three people, including an 8-year-old Dorchester boy, and wounded hundreds more. Tsarnaev and his older brother, Tamerlan, also killed an MIT police officer while they were on the run.

Tamerlan Tsarnaev died in a confrontation with police in Watertown days after the blasts. At trial in 2015, the younger Tsarnaev admitted through his lawyers that he took part in the bombings but argued that he was led by his domineering, violent older brother.

Prosecutors asserted that Dzhokhar Tsarnaev was a willing co-conspirator to the bombings who had become radicalized on his own.

The appeals court ruling in July suggested jurors should also have been told about the older Tsarnaev brother’s alleged involvement in a 2011 triple murder in Waltham.

“If the judge had admitted this evidence, the jurors would have learned that Dzhokhar knew by the fall of 2012 that Tamerlan had killed the drug dealers in the name of jihad,” the appellate ruling said, calling that evidence a factor that “might have tipped at least one juror’s decisional scale away from death.”


Travis Andersen can be reached at travis.andersen@globe.com. Follow him on Twitter @TAGlobe.