Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev encountered a legal setback Friday when a federal appeals court denied their request to unseal portions of a document they believe would bolster their argument that Tsarnaev, who is facing a death sentence, was under the sway of a violent, domineering older brother when he joined him in the deadly 2013 attack.
The attorneys had sought to unseal parts of a search warrant for Tsarnaev’s deceased brother’s Honda CR-V. Law enforcement officials were looking for possible “forensic evidence” in the vehicle linking Tsarnaev’s older brother, Tamerlan, to a 2011 triple murder in Waltham, the attorneys said.
Dzhokhar Tsarnaev’s lawyers contend the jury in his 2015 trial should have been told of the suspicions about Tamerlan Tsarnaev, which could have cast Dzhokhar in a different light.
The two brothers carried out the April 2013 bombings, which killed three people, including 8-year-old Martin Richard of Dorchester, and wounded more than 260 others. Tamerlan Tsarnaev was killed days later in a confrontation with police in Watertown; Dzhokhar Tsarnaev escaped but was later captured not far from the scene.
Dzhokhar Tsarnaev, now 26, is currently incarcerated at a federal supermax prison in Colorado .
Dzhokhar Tsarnaev’s attorneys’ request to partially unseal the warrant had been submitted Tuesday to the US Court of Appeals for the First Circuit, which will hear oral arguments in December in Tsarnaev’s appeal of his conviction and death sentence for his role in the 2013 terror attack.
On Friday, the court issued a brief order denying the request. But the court said the lawyers could file the motion in US District Court in Boston and, if they did, “we request that the district court act promptly on it.” The lawyers filed the motion in the lower court late Friday afternoon.
Tsarnaev’s lawyers had said in a filing Tuesday that partially unsealing the warrant would help them “effectively and publicly address his claim that the exclusion of evidence of Tamerlan Tsarnaev’s involvement in the Waltham triple homicide violated” Dzhokhar’s due process rights during his 2015 trial.
Dzhokhar Tsarnaev’s legal team argues the trial judge improperly barred the defense from introducing evidence at trial that Tamerlan Tsarnaev was involved in the 2011 triple slaying in Waltham.
The search warrant, Dzhokhar Tsarnaev’s lawyers wrote in Tuesday’s filing, set forth “probable cause to believe that Tamerlan and his friend Ibragim Todashev had been involved in a triple homicide in Waltham, Massachusetts, in September 2011, and that forensic evidence of their involvement in this crime might be present in Tamerlan’s car.”
According to Tuesday’s filing, the government relied in the warrant application “on Todashev’s statements to the FBI” in May 2013 “as the basis for probable cause to believe that Tamerlan and Todashev had participated in the triple homicide.”
Todashev was shot and killed by an FBI agent in his Orlando, Fla. apartment after he allegedly attacked the agent during the May 2013 interview.
In court papers filed in June, prosecutors insisted the trial judge properly shielded jurors from hearing information about the Waltham case.
“The district court correctly concluded that evidence of the Waltham murders, which arose out of a drug-related robbery and were completely unrelated to the marathon bombing, was not relevant mitigating evidence,” prosecutors wrote. “Contrary to [Dzhokhar] Tsarnaev’s claim, the Waltham evidence did not show that Tamerlan ‘influenced’ or ‘intimidated’ him into committing the crimes in this case or that [Dzhokhar] Tsarnaev played a lesser role in the bombing.”
Rather, prosecutors wrote, “the evidence showed that Tsarnaev was independent, did not follow his brother’s strict religious lifestyle, and was a willing and eager participant in the marathon bombing. And even if the Waltham evidence had some minimal relevance, the district court correctly concluded that its probative value was outweighed by the risk of confusing the issues and misleading the jury.”