Feds refuse to share secret files with Tsarnaev lawyers

Federal prosecutors are refusing to turn over to convicted marathon bomber Dzhokhar Tsarnaev’s appellate lawyers 13 “classified” documents that are still sealed nearly two years after he was condemned to death.

The secret government filings were part of Tsarnaev’s case in U.S. District Court for the 2013 Boston Marathon bombings that killed three spectators, wounded hundreds more, and were followed by the murder of an MIT police officer and wounding of a transit cop.

Without knowing what they are, the 23-year-old death-row killer’s lawyers insist to the U.S. Court of Appeals for the First Circuit they “will not be able to meaningfully represent Mr. Tsarnaev on appeal ... There is no precedent for allowing secret information in a case under the Federal Death Penalty Act.”

But in their opposition filed late last week, prosecutors for acting U.S. Attorney William D. Weinreb and the U.S. Department of Justice contend, “The fact that this is a death penalty case changes nothing. Although defense counsel in capital cases have a duty to advocate vigorously for their client, they do not have an unqualified right to access classified and otherwise confidential information.”

The documents, which prosecutors have shared only with Tsarnaev trial Judge George A. O’Toole Jr., are described along with “the reasons for their continued non-disclosure to the defense” in a filing with the appellate court. It, too, is sealed; however, prosecutors did disclose that none of the disputed information was used against Tsarnaev at trial and none of it is “helpful to the defense.”

O’Toole issued an order last month denying Tsarnaev’s public defenders access to the paperwork.

Although Tsarnaev’s lawyers are appealing his 30-count conviction and death sentence, no brief has been filed and no date has been set for when one is due.