Dzhokhar Tsarnaev, the accused Boston Marathon bomber, repeatedly requested a lawyer and complained of his deteriorating medical condition while he recovered from gunshot wounds to his head, face, throat, and jaw in the hours and days after his arrest in Watertown. Yet he was continuously interrogated by FBI agents who told him he needed to answer questions to ensure that there was no longer a public safety threat, his lawyers say in court filings Wednesday.
The FBI agents told him his brother Tamerlan Tsarnaev, who had been killed earlier, was still alive, and they turned away defense lawyers who arrived at Beth Israel Deaconess Medical Center on his behalf, according to the court documents, with one agent saying Tsarnaev was not even in custody.
"Despite Mr. Tsarnaev's entreaties to be left alone, allowed to rest, and provided with a lawyer, the agents persisted in questioning him throughout the night and into the [next] morning," Tsarnaev's lawyers said in the court filings.
The lawyers urged US District Court Judge George A. O'Toole Jr. to strike any of the statements Tsarnaev made in the hours after his arrest and before he had access to a lawyer, saying law enforcement officials violated his constitutional rights. The court documents provide the most descriptive account to date of Tsarnaev's health, mental state, and interaction with law enforcement officials in the days after his arrest.
The documents state that Tsarnaev's condition declined after he was brought to the hospital the night of April 19, 2013, four days after the bombings, to the point that he needed to be intubated to keep him alive.
By 7:22 p.m., April 20, agents with an FBI "high value interrogation group" began questioning Tsarnaev, and the interrogation continued, with breaks ranging from 30 minutes to 3 hours, until 7:05 a.m. The agents returned the evening of April 21 and continued questioning him until 9 a.m. the next day, when Tsarnaev was appointed counsel, the documents indicate.
In that time, according to the documents, Tsarnaev was prescribed powerful medications including Fentanyl, Propofol, and Dilaudid. His left eye had been sutured shut, his jaw was wired closed, and he had suffered a gunshot wound that fractured the base of his skull, probably causing a concussion and brain trauma, the lawyers said. He was handcuffed to his bed railing.
He wrote his answers to questions in a notebook, because he was unable to speak. In the notebook, according to court documents, Tsarnaev assured agents that there was no longer a public safety threat, and he asked for time to rest and for a lawyer. At one point, he asked, "Is it me or do you hear some noise?"
"In all, he wrote the word lawyer 10 times, sometimes circling it," the lawyers said. "At one point, he wrote: 'I am tired. Leave me alone.' . . . His pen or pencil then trails off the page, suggesting that he either fell asleep, lost motor control, or passed out."
The interrogation included questions about his activities with his brother in the days after the bombings, the shooting of an MIT police officer, and how and where the bombs were made, his beliefs about Islam and US foreign policy, his sports activities, future career goals, and schooling.
The FBI did not record the interrogations, and "Tsarnaev's handwritten notes provide a much clearer picture of the circumstances of the interrogation" than the FBI reports do, the lawyers allege.
Federal prosecutors did not immediately respond to the court filing Wednesday, though US Attorney Carmen M. Ortiz has said before that the Department of Justice allows officials to cite a public safety exception in cases of terrorism and other threats in interrogating a suspect before reading him his Miranda rights.
Tsarnaev, whose family is from Kyrgyzstan, is a naturalized US citizen.
Gerard T. Leone Jr., a former state and federal prosecutor who has worked on terrorism cases, said the defense motion may be moot. He cited a passage in the filing indicating that prosecutors have told Tsarnaev's team that the government does not plan to use his statements at the hospital during the trial or sentencing.
"You'd be hard-pressed not to say that to allow these statements in would require a wide expansion of the law as it presently exists," said Leone, now a partner at Nixon Peabody.
He added, "In matters like this one, particularly in terrorism matters, the goal isn't always to obtain information to be used later at trial. The goal is to save lives."
The court filing was one of several by both prosecutors and defense lawyers Wednesday to meet a deadline O'Toole set for substantive motions, part of his effort to keep the scheduled November trial date on track. The defense team is also expected to file a motion to suppress digital evidence from 35 different searches by May 12.
Tsarnaev, now 20, faces multiple charges that carry the possibility of the death penalty if convicted of setting off the April 15, 2013, bombs that killed three people and injured more than 260. He and his older brother and alleged accomplice are also accused of shooting and killing an MIT police officer before attempting to flee the area. Tamerlan Tsarnaev was killed during a confrontation with police officers in Watertown.
Though prosecutors are seeking the death penalty, a jury would ultimately have to decide whether Tsarnaev should be executed.
In one of the requests Wednesday, Tsarnaev's lawyers urged O'Toole to strike down the Federal Death Penalty Act as unconstitutional, saying the US government should not be pushing a punishment abolished in Massachusetts.
The lawyers acknowledged that federal courts have already upheld the use of the death penalty, but they argue that their request is amplified by the federal government's increasing reluctance to seek the death penalty nationwide, while individual states continue to abolish capital punishment. Massachusetts does not allow the death penalty, but Tsarnaev has been charged in federal court.
"The Supreme Court has placed renewed emphasis on respecting the limitations of federal authority in areas that have traditionally been consigned to the states," the lawyers said.
Separately, the defense team urged O'Toole to order prosecutors to outline the evidence they plan to use to support so-called aggravating factors that justify the death sentence. Prosecutors were required by law to state the aggravating factors justifying the death penalty when they said in January they would seek capital punishment, and the defense lawyers argued prosecutors have failed to provide the supporting evidence and have duplicated the factors in an attempt to prejudice a jury in their favor.
Prosecutors, for instance, have cited Tsarnaev's alleged "premeditation" of the bombings in listing one factor, while also saying he "targeted the Boston Marathon" in another, the defense lawyers argued.
"The Federal Death Penalty Act does not authorize the government to charge, or the sentencing jury to weigh, multiple aggravating factors that mean the same thing," the lawyers argued.
In another filing, defense lawyers sought the suppression of evidence the FBI obtained during searches of Tsarnaev's Cambridge home and University of Massachusetts Dartmouth dormitory room.
• Read Tsarnaev's motion (pdf)
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