Tsarnaev prosecutors urge judge to deny bid for delay

Federal prosecutors indicated in court filings Tuesday that they plan to proceed with self-imposed deadlines to recommend whether to seek the death penalty for Dzhokhar Tsarnaev, the alleged Boston Marathon bomber.

The prosecutors asked US District Court Judge George A. O’Toole Jr. to reject a request by Tsarnaev’s lawyers to postpone deadlines set by prosecutors, saying that he has no authority to grant such a request. They also argue that, even if he did, the defense team has already had ample time to prepare their own recommendation by the deadline.

“Defendant is accused of one of the most serious terrorist attacks against civilians on American soil since September 11, 2001,” the prosecutors said in a 13-page court filing. “The victims, who were most affected by the charged crimes, as well as the general public, are entitled to see justice done in this case without undue delay.”


Tsarnaev, now 20, faces a sweeping 30-count indictment, with some charges that carry the possibility of the death penalty, related to the April 15 bombings that killed three people and injured more than 260.

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The indictment also charges him with the shooting later that week of an MIT police officer and the explosions and gun battle that followed in Watertown. His older brother, Tamerlan, was killed in Watertown.

Under US Department of Justice guidelines, US Attorney General Eric Holder will ultimately decide whether to seek the death penalty against Tsarnaev, and the guidelines allow him to hear recommendations from US Attorney Carmen M. Ortiz. as well as from defense lawyers.

Prosecutors had planned to make a recommendation to Holder by Oct. 31, and they gave Tsarnaev’s lawyers until Oct. 24 to make a presentation on “mitigating factors,” arguments why Tsarnaev should not be subject to the death penalty. The prosecutors argued that the deadline would give Holder enough time to review the recommendation before making a decision.

Last month, Tsarnaev’s lawyers asked O’Toole to postpone the deadline, saying they are waiting for more evidence from prosecutors so that they can build their presentation. They also filed a separate request asking the judge to order prosecutors to turn over the information.


But prosecutors argued in the Tuesday court filing that O’Toole has no authority to influence the scheduling of the recommendation, because it is the jurisdiction of the Department of Justice. They also argued that they are not bound to turn over evidence related to the death penalty arguments and that Tsarnaev’s lawyers have had enough time in the six months since the attacks to build their cases. They said defense lawyers have been meeting with Tsarnaev “nearly every day or every other day.”

“The six months during which the defense team has been diligently working on this case have given them a reasonable opportunity to marshal such information,” the prosecutors argued. “Defendant thus has no enforceable right to make a mitigation presentation to the United States attorney at all, let alone to do so on a date of his (or the court’s) choosing.”

Milton J. Valencia can be reached at mvalencia Follow him on Twitter @miltonvalencia.