Accused Boston bomber to learn by January if U.S. will seek death

By Scott Malone

BOSTON (Reuters) - Accused Boston Marathon bomber Dzhokhar Tsarnaev will learn by late January whether the U.S. government wants to execute him if he is convicted in one of the largest attacks on U.S. soil since September 11, 2001.

Federal prosecutors in Boston, by the end of October, will pass on to the Justice Department in Washington their recommendation on whether to seek the death penalty. Attorney General Eric Holder will decide about 90 days after that, Assistant U.S. Attorney William Weinreb told a judge on Monday.

Prosecutors say that Tsarnaev, 20, and his 26-year-old brother Tamerlan planted a pair of homemade pressure-cooker bombs at the race's crowded finish line on April 15, killing three people and wounding 264. Three nights later, the pair killed a university police officer and later engaged in a shoot-out with police that left Tamerlan dead, prosecutors contend.

Weinreb told U.S. District Judge George O'Toole that the Justice Department believed it had authority to determine when it would make the decision on whether to seek the death penalty.

"We think that six months is a reasonable time," Weinreb said. Tsarnaev pleaded not guilty in July to 30 criminal counts.

Defense attorney Judy Clarke, a death-penalty specialist, told the court she was concerned that the prosecutors planned to decide whether to seek execution before the defense had finished reviewing the evidence.

"It's pretty stunning to say they can make a decision based on what they know without any defense input," Clarke said. "They may have an erroneous story."

RAISE THE STAKES

While jurors are supposed to consider guilt and sentencing as separate matters, the knowledge that prosecutors intend to seek the death penalty can raise the stakes in a jury's eyes, said Barry Slotnick, a defense attorney with Buchanan, Ingersoll & Rooney.

"If they are aware of the fact that the prosecution is going to ask for the death penalty, the jury may determine that there is a greater burden on the part of the prosecution to prove their case beyond a reasonable doubt," Slotnick said.

O'Toole also warned attorneys that he planned to review all requests to enter documents into the record under seal, which blocks them from public view.

"Before something can be filed under seal, there must be a motion to seal explaining the reason why the matter should be placed under seal ... and indicate when the matter might be unsealed," O'Toole said.

The initial charges against Tsarnaev, read to him as he lay badly wounded in a hospital bed three days after his arrest, were filed under seal.

Three days after the bombing, the Tsarnaev brothers are accused of killing MIT university police officer Sean Collier in an unsuccessful attempt to steal his gun.

Tsarnaev, who is being held at a federal prison west of Boston ahead of trial, was not in court on Monday. When he last appeared in court in July, he had a cast on his left arm and his face was swollen, the result of injuries sustained in the gun battle with police.

The three people who died in the April 15 bombing were 29-year-old restaurant manager Krystle Campbell, graduate student Lingzi Lu, 23, and 8-year-old Martin Richard.

After killing Collier, the Tsarnaev brothers engaged police officers in Watertown, Massachusetts, in a gun battle that ended when Dzhokhar drove off in a stolen sport-utility vehicle, running over his brother and contributing to his death, according to court papers.

The surviving Tsarnaev's escape prompted a day-long lockdown of most of the Boston area that ended when police found him hiding in a boat that was parked in a backyard.

(Editing by Maureen Bavdek and David Gregorio)

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