Marathon bombings: Special restrictions harming Tsarnaev defense, lawyers say

A day after Boston marked the anniversary of the marathon bombings, Dzokhar Tsarnaev’s lawyers were in court fighting the restrictions under which he is being held, arguing they hinder their work.

Tamerlan (r.) and Dzokhar Tsarnaev (l.) are seen in a photo released by the FBI, dating from when they were being sought for questioning for the Boston Marathon bombings in this April 18, 2013 photo.

Dzhokhar Tsarnaev is not far from Boston. He is just 30 minutes from the city whose marquee event, its marathon, he and his older brother are accused of bombing a year ago.

But, given the extremely limited contact he has with the world outside the Federal Medical Center in Ayer, Mass., Mr. Tsarnaev might as well be much farther than that.

Just one day after Bostonians, runners, and other Americans marked the anniversary of the Boston Marathon bombings with ceremonies, speeches, and prayer, Tsarnaev’s lawyers were in court fighting the special administrative measures, or SAMs, under which he is being held, arguing they are detrimental to his defense.

Under the SAMs, Tsarnaev is not allowed to pray with other inmates, share a cell with them, or communicate with them in any way. That includes sending notes, “making statements audible to other inmates,” and sharing reading materials.

He is not allowed phone calls unrelated to his legal status to anyone but his immediate relatives, and he can receive no non-legal visitors besides those relatives. Except for legal mail, he is not allowed to write to anyone besides those family members, and, even then, he can send them no more than one letter per week – three pages, double sided, on 8-1/2” by 11” paper.

Neither his lawyers nor his relatives can share any of that correspondence with third parties.

SAMs are often applied in terrorism-related cases on the grounds that curtailing such an inmate’s contact with the outside world is paramount in order to stop them from communicating with terrorists still at-large.

In Tsarnaev’s case, those restrictions, put in place in August, have become flashpoints in a broader and bitter sparring match between his legal team and prosecutors over whether his lawyers have a fair shot at building a defense for the November trial.

His lawyers, who have repeatedly accused the government of foot-dragging in handing over all the evidence in a massive case that sprawls across cities, continents, and cyberspace, say the measures are yet another barrier to their doing their job well.

Tsarnaev, an ethnic Chechen, is accused of planting two pressure cooker bombs at the Boston Marathon last year that killed three people and wounded at least 264, and of killing a Massachusetts Institute of Technology police officer. If convicted, he faces the death penalty.

The other suspect, Dzhokhar’s older brother Tamerlan, was killed in a shoot-out with police a few days after the bombings.

In a court filing in August, federal prosecutors contended that the special measures were needed to prevent Tsarnaev from communicating with sympathizers, since “there is a substantial risk that his communications or contacts with persons could result in death or serious injury to persons.”

The filing, which portrays Tsarnaev as influenced by and popular with Al Qaeda, quotes messages he allegedly wrote in pen on the boat – located in a Watertown backyard – in which he hid from police after the shootout, including: “We Muslims are one body, you hurt one you hurt us all.”

The August filing goes on to mention Tsarnaev’s interview with the FBI on April 22, 2013, in which he allegedly said he hoped the bombings “would inspire others to engage in violent jihad.”

The filing also cites the hefty volume of mail Tsarnaev had received as of August – over 1,000 letters – as evidence that he has supporters outside the detention center.

But in both electronic filings and in court, Tsarnaev’s defense team has disputed that he is a threat while locked up, calling the special measures less preventative, more punitive.

“There were two people, and one of them is dead, and that’s that,” defense lawyer David Bruck said in a district court in Boston Wednesday, arguing that there is no evidence that Tsarnaev has at-large conspirators.

Though the defense is fighting to dismiss the restrictions altogether, Mr. Bruck said his team is at the very least asking that some of the most trying measures be dropped – namely, the requirement that an FBI agent be present for conversations between Tsarnaev, his two sisters, and his lawyers.

“The case is very much a story about a family and the relationships between them,” said Bruck, arguing that a linchpin in Tsarnaev’s defense will be understanding his family. The FBI’s presence has made the defense’s conversations with Tsarnaev and his sisters “stilted” and “fearful,” he said.

Tsarnaev’s lawyers are expected to portray him as highly influenced by his older brother, who has been implicated in a 2011 triple homicide.

“Often, family dynamics and facts about the defendant’s life become very important in capital cases,” said Matthew Segal, legal director of the American Civil Liberties Union of Massachusetts, which has submitted a court filing supporting the defense’s stance on the measures.

“The defense team would be very sensitive to having someone from the government present when it’s trying to get that information,” said Mr. Segal.

District Judge George O'Toole said in court that he would likely grant the defense’s request to adjust that particular restriction, but gave the prosecution two weeks to present an argument that having an FBI agent there would be important for national security reasons.

Prosecutors said in court that the special restrictions have already been eased enough at the request of Tsarnaev’s lawyers, noting that at least a dozen lawyers and other personnel, including mental health counselors, have been approved to see the alleged bomber. The prosecution also noted in an October court filing that from April 26, 2013 to October 2, 2013, at least one member of Tsarnaev’s legal team visited him on 80 of those 162 days.

In that filing – openly wry, at times – prosecutors also said that what Tsarnaev’s lawyers are contesting are not actual barriers to their work, but some inconvenience to it.

“Inconvenience to Tsarnaev is not the touchstone of the inquiry under the Constitution,” the filing says, “nor does the law require deference to Tsarnaev’s judgment of which restrictions are needed and which are not.”

Also Wednesday, the defense sought access to the full FBI interview with Tamerlan's friend, Ibragim Todashev, who was shot and killed in Florida last May after attacking the agents sent to question him about the grisly 2011 murders in Waltham, Mass. Tsarnaev's lawyers said in court that his brother's alleged involvement in the murders could be relevant to his defense. The judge said he would weigh the request.

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