Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev are seeking a second delay in responding to the Justice Department’s request for the US Supreme Court to review a ruling that vacated his death sentence, legal filings show.
In a letter filed with the high court Monday, Tsarnaev attorney Ginger D. Anders wrote that her team’s asking for a 30-day delay in responding to the government’s request for Supreme Court review, known as a petition for a writ of certiorari.
If the Tsarnaev attorneys’ request is granted, their response would fall due on Jan. 6, records show.
“This is the second extension respondent [Tsarnaev] has sought,” Anders wrote. “Petitioner [the government] opposes this request. To accommodate the government’s stated interest in avoiding further delay, respondent will not seek any subsequent extension if this one is granted.”
In requesting the delay, Anders cited her team’s current caseload as well as the complexity of the Tsarnaev matter, which has generated more than 51,000 pages of briefs and appendices.
“Preparing an opposition to certiorari in a capital case, particularly one with such an extensive record, is a substantial endeavor,” Anders wrote. “Indeed, when the government is in the position of opposing certiorari in capital cases on direct review, it often seeks multiple extensions. That practice underscores the care and attention required to prepare a brief in opposition in a capital case.”
But Acting Solicitor General Jeffrey B. Wall, writing for the DOJ, said in his own letter filed with the high court Monday that the government believes time is of the essence.
Wall wrote that the “victims of respondent’s crimes, the potential jurors at a penalty-phase retrial, the district court, the government, and the Nation all have a strong interest in this Court’s hearing and deciding this case this Term, in order to avoid further delay in this long-running and critically important prosecution,” Wall wrote.
Anders, however, countered in her letter that another “brief delay” in responding to the government wouldn’t be burdensome, noting the July ruling that vacated Tsarnaev’s death sentence left “no uncertainty” about the admitted bomber’s guilt so that he’ll remain behind bars for life, whether he dies of natural causes or execution.
“It is difficult to see how six months would make an appreciable difference with respect to the availability of evidence or witness memories,” Anders wrote.
Tsarnaev, now 27, was convicted in 2015 and sentenced to death for his role in the April 15, 2013 bombings, which killed three people including an 8-year-old boy and wounded hundreds more people. 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.
Dzhokhar Tsarnaev is currently incarcerated at a federal supermax prison in Colorado.
The case has moved to a potential showdown before the Supreme Court, after the US Court of Appeals for the First Circuit ruled in July that Tsarnaev’s entitled to a re-trial for the penalty phase only, citing factors including revelations that two of the 12 jurors didn’t fully disclose what they knew about the case, or discussed it on social media before they were chosen to decide Tsarnaev’s fate.
If the high court does take up the case, the panel could reinstate the death penalty or leave the appeals court ruling intact, forcing prosecutors to decide whether to pursue a second penalty-phase trial or accept a life sentence for Tsarnaev.
Wall, in his letter, said the government, while opposing the Tsarnaev team’s request for a 30-day delay in responding to the DOJ petition for high court review, may be amenable to a shorter wait.
“The government appreciates the concerns raised by respondent’s counsel, and would not oppose a short additional extension of time to file the brief in opposition, so long as the extension would not prejudice the government’s preparation and filing of a reply brief or the Court’s ability to hear the case this Term,” Wall wrote.