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Deadline set for US to choose on penalty

AG must decide in bombing case

Dzhokhar Tsarnaev faces 30 charges in the April 15 bombings at the Boston Marathon.FBI VIA AP/FILE

A federal judge on Tuesday set a Jan. 31 deadline for Attorney General Eric H. Holder Jr. to declare whether he will seek the death penalty for Dzokhar Tsarnaev, the accused Boston Marathon bomber.

The judge set the deadline after local prosecutors representing US Attorney Carmen M. Ortiz said in court that they plan to make a confidential recommendation to Holder by the end of this week, past the Oct. 31 deadline they initially set.

Whether the Department of Justice seeks the death penalty in the high-profile case will dictate how the court, prosecutors, and defense attorneys proceed for a trial that, prosecutors said Tuesday, could last three months. The prosecutors said a separate sentencing trial could last an additional two months if they seek the death penalty.


“This is obviously a significant event in the life of the case,” US District Court Judge George A. O’Toole Jr. said Tuesday, in setting the deadline for Holder.

Tsarnaev, now 20, faces 30 charges, some of which carry the possibility of the death penalty, that he allegedly planted the bombs at the Boston Marathon finish line on April 15 that killed three people, injured more than 260, and sent Greater Boston into a weeklong terror. He was captured after a firefight with police in Watertown. His older brother and alleged accomplice in the bombing, Tamerlan, was killed during the firefight.

The brothers also allegedly shot and killed Officer Sean Collier of the MIT campus police.

During a 90-minute status hearing before O’Toole Tuesday, defense attorneys and prosecutors wrangled over evidence in the case and over a trial schedule.

They also argued over special restrictions that have been imposed on Tsarnaev in the prison in Fort Devens in Ayer, though prosecutors indicated they could come to an agreement with the defense over some of the restrictions, at the request of O’Toole.


Saying the case is moving along swiftly, the US attorney’s office proposed a trial for fall 2014.

Defense attorneys argued, however, that they could not meet that “rocket” schedule, especially without knowing whether the government will seek the death penalty.

“We’re simply nowhere near the point where we can sensibly address where we are, where we aren’t,” said Tim Watkins, one of the defense lawyers.

The defense attorneys also argued that prosecutors have failed to turn over evidence in the case in a timely manner, delaying their preparations.

They argued, for instance, that prosecutors have failed to provide interviews with and reports about Tsarnaev’s family, including immigration records that should be readily available.

They also called on prosecutors to turn over information showing Tamerlan Tsarnaev’s involvement in a 2011 triple homicide in Waltham.

One of Tamerlan’s friends, Ibragim Todashev, implicated him in the shooting before being killed in a shootout with the FBI in May, authorities said.

The defense attorney said information about Tamerlan’s involvement would shed light on the older brother’s character leading up to the bombings.

Miriam Conrad, head federal public defender in Boston, said that prosecutors are trying to move forward in the case without properly sharing evidence, which she called an attempt at a trial advantage.

“It seems to me basic fairness is at the core of this,” she said.

But Assistant US Attorney William D. Weinreb argued that the government has complied with all of its requirements and that the defense attorneys are not entitled to all the information they are seeking.


“Under the adversary system, they don’t have to open all their files to us, and we don’t have to open all our files for them,” he said.

O’Toole took the matter under advisement.

He also set a deadline for Feb. 28 for defense attorneys to file motions to dismiss the case or for a change of venue, saying the defense team will have had enough time by then to review the evidence.

A status conference is slated for Feb. 12.

Milton J. Valencia can be reached at mvalencia@
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