What Ibragim Todashev’s FBI Interview Means for Dzhokhar Tsarnaev’s Life

Dzhokhar Tsarnaev’s trial may take years to arrive—but events unfolding now may decide whether he lives or dies.

That’s because the government has set an October 31 deadline for prosecutors to recommend to US Attorney General Eric Holder whether they will seek the death penalty in Tsarnaev’s case. And prosecutors, in turn, gave Tsarnaev’s defense a deadline of last week to show why they shouldn’t seek it.

And the fallout from this preliminary legal battle is already evident: As a direct result of skirmishing between prosecutors and the defense, federal prosecutors last week put in writing what FBI agents had anonymously leaked to reporters months ago—that before his death, Ibragim Todashev implicated Tamerlan Tsarnaev in a 2011 Waltham triple murder.

“ … According to Todashev, Tamerlan Tsarnaev participated in the Waltham triple homicide,” prosecutors wrote in a court document filed Monday. But the prosecution offered no details about what exactly Todashev allegedly said to the FBI, or why he was shot to death by an FBI agent during a questioning session in his Orlando home on May 22.

The 23-page document came as a response to a motion filed by Dzhokhar Tsarnaev’s defense team, asking the FBI to turn over its files on Todashev, as well as records of FBI interviews with Todashev’s girlfriend, Tatiana Gruzdeva—who was deported after giving an interview to Boston magazine.

The defense has argued that such information could be relevant to “mitigation”—essentially, the testimony about the defendant’s character and particular situation that could be taken into account during sentencing. The defense is projected to use Todasehv’s interview to argue that at the time of his “terrorist killing spree” Dzhokhar was acting under the influence of his murderous older brother, and so is not culpable enough to deserve death.

The prosecution countered the motion, saying that releasing files on Todashev and Gruzdeva would jeopardize the investigation of the Waltham murders. “Any benefit to Tsarnaev of knowing more about the precise ‘nature and extent’ of his brother’s involvement does not outweigh the potential harm of exposing details of an ongoing investigation into an extremely serious crime, especially at this stage of the proceedings,” prosecutors wrote.

But the prosecution also gave another argument for withholding the files: “Information about his brother’s criminal history will be relevant, if at all, only in a future sentencing hearing to determine whether Tsarnaev himself should receive the death penalty,” they wrote, adding: “A death penalty hearing in this case is not imminent. The government has not yet indicated that it will seek the death penalty.”

The problem with this argument is that Attorney General Holder’s decision to try Tsarnaev capitally, or not, will dictate the shape of the trial from the get-go, not just at a future sentencing hearing. If Holder decides in favor of a capital case, only jurors who are morally in favor of using capital punishment in certain situations will be selected for the jury. Then the trial itself will be bifurcated; in the first half, lawyers will present arguments about Tsarnaev’s guilt, and if he is found guilty, then there will be a second, separate part of the trial in which lawyers make arguments to the jury for and against recommending the death penalty.

In rare cases, even after the attorney general decides on a capital trial, the defense can strike a last-minute deal with prosecutors, in which a suspect can plead guilty in return for avoiding the death penalty. That’s the agreement Tsarnaev attorney Judy Clarke came to when she was defending Ted Kaczynski, otherwise known as the Unabomber, who pleaded guilty in exchange for a life sentence without parole.

But the government also argued that even in the case of mitigation, according to the law they are only compelled to release the names of witnesses, not records of interviews with them. Quoting a previous ruling to prove their point, the prosecution wrote, “Once the Defendants are aware of the existence of such witnesses, the Defendants may attempt to interview them to ascertain the substance of their prospective testimony, or subpoena them if the Government does not intend to call them as witnesses at trial.”

Unfortunately for the defense, they can’t interview Todashev themselves, since he is dead.