Tsarnaev lawyers allege government interference in prep work

Originally published Feb. 24, 2014 in the Cambridge Chronicle.

Defense attorneys for alleged Boston Marathon bombing suspect Dzhokhar Tsarnaev have again asked a judge to remove certain restrictions on their client, saying the FBI and Bureau of Prisons are monitoring the defense’s preparations.

In the court documents filed Feb. 20, Tsarnaev’s lawyers said the restrictions, which are above and beyond typical prison rules, interfere with his constitutional rights to a fair trial. Specifically, they said the FBI is monitoring their preparation of the case and the Bureau of Prison asked to screen digital documents they were bringing in to review with Tsarnaev.

“These obstacles thwart preparation of the important parts of the defense case in mitigation and also threaten the integrity of attorney work product,” the documents read. The motion cites several Supreme Court cases that have upheld the right for defense lawyers to have a “privileged area within which he can analyze and prepare his client’s case” without undue interference.

The American Civil Liberties Union of Massachusetts filed an amicus brief with the court Nov. 6 arguing the restrictions violate Tsarnaev’s constitutional rights. The defense lawyers first filed a motion to relax some of the restrictions in October.

At a hearing on Nov. 11, Judge George O’Toole said he was mostly interested in whether or not there was any “practical interference to any substantial degree” and how the restrictions might affect the defense’s ability to prepare the case.

“Not whether they are annoying, but whether they are inhibiting,” O’Toole told the lawyers at the hearing, according to the documents.

The defense lawyers said after the hearing the government did agree to relax some of the restrictions, including allowing additional defense team members to talk to third parties about their conversations with Tsarnaev in order to prepare his defense. The government also agreed to add additional defense team members to a list of pre-cleared people who are allowed to visit with Tsarnaev in prison, they said.

But, they pointed to FBI monitoring as interfering with their preparation of Tsarnaev’s defense. All of the specific details relating to the extent and nature of the FBI monitoring have been redacted from the documents.

Lawyers said they tried to review certain digital documents with Tsarnaev on Jan. 24, but a Bureau of Prison employee asked to screen the content of the CD beforehand. The defense counsel said they have asked the government to provide a “taint team,” essentially a team of trained personnel who would act as a buffer between the government and the defense counsel, but the government has not yet provided one.

“In the absence of a taint team, defense counsel declined to submit to the review and therefore were unable to review the material with the defendant,” the documents read.

Government prosecutors did not immediately respond to the defense team’s motion.

Tsarnaev’s lawyers are due back in court in June.

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