Tsarnaev defense asks for more time to defend against death penalty recommendation

Massachusetts federal prosecutors say they will push forward with an Oct. 31 deadline to decide whether to seek the death penalty against suspected Boston Marathon bomber Dzhokhar Tsarnaev, in spite of the defense team’s complaints that it is not getting enough time to prepare their arguments against the sentence.

US Attorney General Eric Holder will ultimately decide whether to pursue the death penalty against Tsarnaev, but he will base that decision in large part on input from US Attorney Carmen M. Ortiz of Massachusetts. Under the Justice Department’s death penalty case review procedures, when Massachusetts prosecutors send their recommendation to Washington, the file is also expected to include arguments from Tsarnaev’s team against the death penalty.

Lawyers from Ortiz’s office said during a federal court hearing today that they plan to make a recommendation by Oct. 31. They originally had set a deadline to hear from the defense team by August. An assistant US attorney said today that the defense had until Oct. 24 to submit its filing to them.

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But members of the defense team said they needed more time and requested more evidence from prosecutors, including grand jury testimony and interviews with Tsarnaev’s family, to help formulate their opposition to the death penalty.

The defense team today asked US District Court Judge George A. O’Toole Jr. to extend the deadline. But the judge gave no indication whether he would or whether he has the authority. He told lawyers from both sides to continue to share evidence in the case. He also said the defense team can file requests for more information with the court. O’Toole said he would decide on each request once it’s filed. A status conference is scheduled for Nov. 12.

The defense team also indicated that it would file documents asserting that the judge does indeed have the legal authority to extend the deadline.

“We’re really talking about a number of things here, including fairness,” said one of Tsanaev’s lawyers, Judy Clarke.

While acknowledging prosecutors may not be bound by laws to immediately turn over the information, Clarke argued that the “spirit” of the laws should persuade them to.

Assistant US Attorney William D. Weinreb argued, however, that the government had no obligation to wait for input from the defense team. Six months after the bombings, he said, the defense team has already had ample time to submit arguments against the death penalty.

Tsarnaev, now 20, has been charged in a 30-count indictment with multiple terrorism charges for the April 15 Boston Marathon bombing that killed 3 people and injured more than 260. His older brother, Tamerlan Tsarnaev, died in a gunfight with police days later. The two brothers also allegedly killed an MIT police officer.

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