May 3 (Bloomberg) -- Boston Marathon bombing defendant Dzhokhar Tsarnaev’s foreign birth and immigration history are being misused by prosecutors who accuse him of betraying the U.S. in their bid to seek the death penalty, his lawyers said.
The government should be barred from using Tsarnaev’s path to U.S. citizenship to convince a jury that he is more deserving of the death penalty if he’s convicted of the April 2013 terror attack, the former college student’s lawyers said in a filing in Boston federal court.
The claim “openly invites resentment of Mr. Tsarnaev as an immigrant,” defense attorney David Bruck said in the filing. The language suggests Tsarnaev “is more blameworthy, and deserving of more severe punishment, than a native-born citizen who commits the identical crime.”
Tsarnaev’s star defense lawyers, who have worked on many of the U.S.’s highest profile death-penalty cases, are grappling with prosecutors over the wording of allegations and the exchange of evidence two weeks after Boston observed the first anniversary of the attack, which killed three people and injured 260. A trial is scheduled for November.
In a separate filing yesterday, his lawyers asked that the judge stop the “flow of leaks and inappropriate public comments” by law enforcement involved in the investigation, including on a “60 Minutes” segment last month, which they said may violate Tsarnaev’s right to a fair trial.
“The prejudice flowing from the inappropriate release of these investigative materials has been aggravated by emotional descriptions and opinions of law enforcement regarding the alleged evidence and the defendant,” according to the filing. “Both are highly improper and inflammatory.”
Tsarnaev, 20, received asylum in the U.S. when he was eight years old and took the oath of citizenship seven months before the attack. His immigration status is irrelevant to the case because prosecutors haven’t alleged it had anything to do with the bombing, Bruck said in the earlier filing on May 1.
In the government’s list of “aggravating factors” justifying the decision to seek the death penalty, prosecutors cited Tsarnaev’s “betrayal of the United States,” and his history of having “obtained citizenship and enjoyed the freedoms” of a U.S. citizen.
Prosecutors haven’t used such a factor when seeking the death penalty against accused terrorists who were born in the U.S., including Timothy McVeigh, a former member of the military who blew up the federal building in Oklahoma City in 1995, killing 168 people, Tsarnaev’s lawyers said.
Tsarnaev was inspired by al-Qaeda and motivated by the U.S. military’s killing of Muslim civilians, prosecutors have said. He pleaded not guilty in July to 30 counts, including allegations that he killed a university police officer in the days after the attack.
Last month, Tsarnaev’s defense team lost a bid to force the U.S. to turn over evidence that may show his older brother radicalized him and led the attack -- evidence they said may convince a jury to spare his life if he’s convicted.
The request for material about Tamerlan Tsarnaev, who was killed in a police shootout after the bombing, was denied by U.S. District Judge George A. O’Toole Jr., who didn’t elaborate on the decision.
The Tsarnaevs, immigrants of Chechen descent, had lived in the U.S. for more than a decade. After the attack, investigators began working with Russian authorities as they focused on a six- month trip Tamerlan Tsarnaev took in 2012 to Chechnya and neighboring Dagestan, both Russian regions roiled by Islamist separatist movements.
The case is U.S. v. Tsarnaev, 13-cr-10200, U.S. District Court, District of Massachusetts (Boston).