Is Dzhokhar Tsarnaev getting fair trial? Judge sympathetic to concerns.

A hearing in the Dzhokhar Tsarnaev trial Tuesday touched on the possibility of the death penalty, and concerns about whether the defendant is getting due process.

Federal prosecutors said at a Tuesday hearing in Boston that they will decide by next week whether or not to recommend the death penalty for Boston Marathon bombing suspect Dzhokhar Tsarnaev.

That recommendation will then go to United States Attorney General Eric Holder, who will have until Jan. 31 to review their proposal and make a final decision.

Prosecutors are aiming to put Tsarnaev on trial next fall, according to The Boston Herald. The trial is expected to last 90 days, plus an additional 60 days if the death sentence is under consideration, Assistant US Attorney William Weinreb told US District Court Judge George A. O'Toole Jr.

For now, Tsarnaev is being kept in solitary confinement in a prison near Boston, without access to media or prayer services, as per a government "Special Administrative Measure" designed to prevent incarcerated terrorists from inciting violence. The measure also prevents him from speaking confidentially with his lawyers, and prohibits them from discussing their conversations with Tsarnaev, or relaying messages from him.

Tsarnaev's lawyers challenged that measure last month and argued at Tuesday's hearing that it prevented them from building a fair case in his defense.

"This is not a level playing field," defense attorney Miriam Conrad told the court. "It appears the government is trying to retain every possible advantage in this case for itself."

"I agree enough with the defendant," Judge O'Toole said, according to ABC News. "It may concern adequate preparation for the case."

The Atlantic found troubling implications in the government's choice to restrict Tsarnaev's communication with lawyers.

"In the 17 years since SAMs were first authorized their scope has been expanded by the terror attacks of September 11, 2001 and by the sort of "mission creep" that is inevitable whenever bureaucracy is combined with a lack of strong judicial oversight. Where exactly does that put us today? If the government is permitted to impose restrictions on Tsarnaev's fair-trial rights based upon the justifications it has offered in this case it could very well impose such restrictions on virtually any criminal defendant awaiting trial in a capital case."

But the Justice department opposed the legal challenge by Tsarnaev's counsel, arguing that his scrawlings on the night of his capture demonstrated a clear desire to incite further violence:

"Tsarnaev’s desire to inspire others to commits acts of terrorism is evident in the message he wrote in pen on the inside of the boat where he took refuge after his own ability to commit terrorist acts was exhausted. He wrote: The 'U.S. government is killing our innocent civilians but most of you already know that. As a M[uslim] I can’t stand to see such evil go unpunished, we Muslims are one body, you hurt one you hurt us all.... [T]he ummah [i.e. the Muslim people] is beginning to rise.... Know you are fighting men who look into the barrel of your gun and see heaven, now how can you compete with that. We are promised victory and we will surely get it.'"

O'Toole barred the American Civil Liberties Union, which has been fighting against the conditions of Tsarnaev's confinement, from making a statement at today's hearing.

After Mr. Holder makes his recommendation, Tsarnaev's defense team will have until Feb. 28 to notify O'Toole if they plan to petition for a change of venue, in search of an impartial jury.  

Tsarnaev is the surviving suspect in the April 15 bombing near the finish line of the Boston Marathon, which killed three people and wounded more than 260.