US Attorney Ortiz to make death penalty recommendation this week in Boston Marathon terror bombing case

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

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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 October 31 self-imposed deadline they initially set.

Whether the Department of Justice seeks the death penalty in the high-profile case will ultimately dictate how the court, prosecutors and defense attorneys proceed for a trial that, prosecutors said Tuesday, could last three months. The prosecutors said a seperate sentencing trial could last another 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 which carry the possibility for the death penalty, for allegedly planting 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 ultimately 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 MIT Police Officer Sean Collier.

During a 90-minute status hearing before O’Toole on 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 put 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 the fall of 2014. The defense attorneys argued, however, that they could not meet that “rocket” schedule, especially without knowing yet whether the government will seek the death penalty.

“We’re simply no where 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 timely turn over evidence in the case, delaying their preparations. They argued, for instance, that prosecutors have failed to turn over 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 he was 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, the head federal public defender in Boston, said that prosecutors were trying to move forward in the case without properly sharing evidence, what 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 February 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 February 12.

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