In a federal court filing dated November 7th, alleged Boston Marathon bomber Dzhokhar Tsarnaev's defense team is pushing back against what they say has been a "spotty and inconsistent" pattern of disclosures made by prosecutors.
Excerpts from the court filing made by defense attorneys:
- "The defense believes that documents concerning numerous law enforcement interviews of witnesses in the categories identified by the government for “voluntary” disclosure — “teachers, neighbors, classmates, and friends” — still have not been produced."
- They argue that "the government continues to withhold reports and testimony of the greatest utility and interest concerning those closest to Mr. Tsarnaev, including his parents, siblings, sister-in-law, and other family members."
They go on to state: "[I]t is difficult to understand why the government would resist or delay broader, comprehensive disclosures in a case such as this one, where a stringent protective order is in place, and fairness as well as the appearance of fairness are paramount."
- They cite as an example the failure of prosecutors to turn over evidence in the case of Oklahoma City bomber Timothy McVeigh. "Despite the greater openness of prosecutors in McVeigh, subsequent events in that case further illustrate the peril of even inadvertent failures to disclose information to the defense in a death penalty case. McVeigh’s execution was delayed when it belatedly came to light that the FBI had failed to turn over more than 3,000 pages of interview reports." The filing quotes a news report: "Prosecutors in the McVeigh case admirably agreed to turn over all evidence, regardless of whether it would help the defense. Yet even in this high-profile case, prosecutors could not guarantee complete compliance by law enforcement investigators. All signs suggest the Federal Bureau of Investigation worked in good faith to turn over everything but was overwhelmed by the extraordinary volume of material.”
- They cite the "extraordinary size and global scope" of the "required investigation" and urged disclosures to be made as early as possible so that the defense team can travel to interview witnesses and "obtain documents in foreign countries."
- "[T]he defense needs to gather and place in context all available sources of information to depict Mr. Tsarnaev in all his complexity, to assist the Attorney General and possibly later a jury to see Mr. Tsarnaev as a complete human being who should not be sentenced to death. The government’s selective and narrow approach to disclosure of life history information — attempting to categorize facts as either “favorable” or “unfavorable” without acknowledging that these lines are unclear, especially when the information is viewed as part of a fabric, rather than individual threads — is both quixotic and perilous."
- They are seeking information as to the government's interrogation of Tsarnaev after he was initially apprehended: "Given the national publicity about the government’s announced intention to interrogate Mr. Tsarnaev without reading him his rights, it strains credulity to think that the agents who questioned him did not convey to anyone else in the government — or consult with them regarding — his affirmative requests for a lawyer. If any representatives of the government urged the Court either directly or indirectly to delay appointment of counsel prior to the initial appearance without informing the Court that Mr. Tsarnaev had affirmatively requested counsel, any such communications also should be disclosed."
- They are seeking "all documents and reports concerning surveillance of and/or interviews of Tsarnaev family members by law enforcement before April 15, 2013." With regards to this request, defense attorneys for Tsarnaev state: "Past law enforcement surveillance of or interactions with the Tsarnaevs would be material to the defense to the extent, for example, that they shed light on Tamerlan’s alleged motive, the duration, extent, and timing of Tamerlan’s alleged radicalization, and other matters that may bear on the relative roles of Tamerlan and his younger brother. These issues would be relevant and material both in the government’s case-in-chief and for sentencing mitigation."
- They are seeking "audio recordings of telephone calls from FMC Devens and reports/transcripts concerning/comprising those calls if/as they are created." The filing explains this request as follows: "Whether or not Mr. Tsarnaev’s recorded calls are “innocuous” vis a vis the allegations of the case, they are still relevant. The absence of problematic statements would tend to support the defense Motion to Vacate Special Administrative Measures. The recordings will also shed light on family dynamics in aid of the sentencing mitigation investigation. The government routinely produces recorded jail calls in criminal cases and it is difficult to comprehend why it resists doing so here."
- They are seeking "all documents concerning or comprising “tips,” warnings, or other information provided by Russian authorities concerning Tsarnaev family members."
- The filing also raises the issue of whether the defense counsel is entitled to information about Tamerlan Tsarnaev's "alleged involvement in the triple homicide" that took place in Waltham in September 2011. Prosecutors have objected to turning over documents related to the triple murder investigation, but defense attorneys argue The government is required to make the disclosure "in order to determine whether the government’s interest in protecting details of the investigation outweighs the defendant’s interest in disclosure."
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