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    Tsarnaev’s lawyers won’t get more time to argue against death penalty

    Accused Boston Marathon bomber Dzhokhar Tsarnaev.
    FBI/AP File
    Accused Boston Marathon bomber Dzhokhar Tsarnaev.

    A federal judge refused to grant lawyers for suspected Boston Marathon bomber Dzhokhar Tsarnaev more time Friday to prepare a presentation opposing a death sentence, saying the court has no authority to extend a deadline set by prosecutors.

    US District Court Judge George A. O’Toole Jr. said in a four-page ruling that the US Department of Justice determines whether to seek the death penalty, and while the department may hear the defense’s opposition, it alone determines the schedule for a presentation.

    “The decision . . . rests with the prosecution,” the judge said, adding that the defense can ask the prosecution for an extension, but “it is not required by any constitutional, statutory, or decisional rule of law. It is essentially a matter of grace.”


    Federal prosecutors from Massachusetts indicated in a filing earlier this week, however, that they plan to make a recommendation on the death penalty to US Attorney General Eric Holder by Oct. 31 and that they gave defense attorneys until Oct. 24 to make a presentation. Holder will ultimately make the decision.

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    Lawyers for Tsarnaev, 20, would not comment on O’Toole’s decision Friday and have argued that they need more time and more evidence from prosecutors to make a presentation.

    The ruling came as senior US Senator Charles E. Grassley, a Republican of Iowa, has been pressing the FBI about what the bureau knew about Tsarnaev and his brother Tamerlan at any time before the April 15 Boston bombings and whether the bureau had been conducting surveillance of them in Cambridge.

    The two brothers are suspected of planting the bombs that killed three people and injured more than 260 during the Boston Marathon.

    Tamerlan was later killed in a gunfight with police, and Dzhokhar faces multiple charges that carry the possibility of the death penalty.


    The FBI has maintained that it learned the identity of the suspected bombers only after it released photos of them from the scene to news media on April 18. Hours after the photos were issued, prosecutors say, the Tsarnaev brothers killed MIT police Officer Sean Collier in Cambridge and led authorities into a gunfight in Watertown, where they threw explosives at officers.

    Grassley, a ranking member of the Senate Judiciary Committee, sent a letter Tuesday to James B. Comey Jr., recently appointed FBI director, pressing for more information about what the bureau knew of the Tsarnaev brothers and whether agents ever recruited them as informants or used them in sting operations. The senator noted that the FBI initially interviewed Tamerlan in 2011 after Russian authorities warned of his extremist views, and Grassley questioned whether they had been interviewed since then.

    Grassley also pushed the FBI on when investigators identified the Tsarnaev brothers as the bombers and whether the bureau had them under surveillance at any time prior to release of their photos on April 18. He said he has learned that FBI teams were in Central Square in Cambridge in the hours before Collier was shot and killed, after the photos of the Tsarnaevs were released. The senator questioned whether the teams were there investigating the brothers and whether anyone in the Cambridge Police Department knew that.

    The FBI responded in a pointed, joint press release with Boston police and State Police Friday that it has repeatedly said investigators did not identify the Tsarnaevs as the bombing suspects until they fingerprinted Tamerlan’s body after the Watertown gun battle. They also denied having any surveillance of him at any time after he was interviewed in 2011.

    The statement acknowledged that the FBI’s Joint Terrorism Task Force, comprising local, state, and federal law enforcement officials, was at the Massachusetts Institute of Technology campus in Cambridge on April 18, but the bureau said that it was for “a matter unrelated to the Tsarnaev brothers.”


    “Additionally, the Tsarnaev brothers were never sources for the FBI, nor did the FBI attempt to recruit them as sources,” the statement said. “To be absolutely clear: No one was surveilling the Tsarnaevs, and they were not identified until after the shootout. Any claims to the contrary are false.”

    FBI special agent Gregory Comcowich, a spokesman for the bureau, said later that the “appropriate personnel” at MIT and Cambridge police were aware that the task force was in Cambridge, but he would only say it was “unrelated to the Tsarnaevs.” He would not say if it was in relation to the bombing investigation.

    Cambridge and MIT police refused to comment.

    US Representative William Keating, a Massachusetts Democrat who sits on the House Committee on Homeland Security, said in an interview Friday that he has asked some of the same questions as Grassley, including in a July 31 letter to Comey, but they have also gone unanswered. Keating said he has had more cooperation from local police and from Russian authorities than from the FBI.

    “This is what happens when you don’t answer questions, the questions don’t go away, and in fact they can grow into other areas,” Keating said. “When it comes to law enforcement in particular, that can erode public confidence.”

    He added, “The reason for the letter, and the reason for my letter, was their lack of accountability in terms of anyone having oversight over them.”

    Milton J. Valencia can be reached at MValencia@