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Defense contests death for Tsarnaev

Dzhokhar Tsarnaev.

FBI via AP/file 2013

Dzhokhar Tsarnaev.

Lawyers for Boston Marathon bombing suspect Dzhokhar Tsarnaev say that his alleged “betrayal of the United States” should not be factored into the decision on whether he receives the death penalty.

In a motion filed in US District Court in Boston Thursday, the lawyers said that since 1988 the federal government has filed notices of intent to seek the death penalty against 493 defendants.

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“But in not one of the 492 cases before Mr. Tsarnaev’s has the government cited the fact of a defendant’s American citizenship, the way he became a citizen, any aspect of his immigration history, or his enjoyment of the freedoms of an American citizen, as a reason to sentence him to death,” they said.

Tsarnaev, 20, is a naturalized American citizen who immigrated to the United States from Russia with his family in 2003.

Federal prosecutors are seeking the death penalty for Tsarnaev if he is convicted. Tsarnaev and his late brother allegedly planted the bombs at the Marathon finish line that killed three people and wounded more than 260 others on April 15, 2013. They also allegedly killed an MIT police officer several days later.

Tsarnaev has pleaded not guilty to all charges and is being held in a federal prison at the former Fort Devens in Ayer.

In their notice of intent to seek the death penalty, prosecutors had cited as an aggravating factor Tsarnaev’s “betrayal of the United States.”

“Dzhokhar Tsarnaev received asylum from the United States; obtained citizenship and enjoyed the freedoms of a United States citizen; and then betrayed his allegiance to the United States by killing and maiming people in the United States,” prosecutors said.

If Tsarnaev is convicted, a jury will determine in the sentencing phase of the trial, after weighing both aggravating and mitigating factors, whether he should receive the death penalty, rather than life without parole.

Defense lawyers said the allegation suggested that “an asylum seeker and naturalized citizen who commits a fatal bombing is more blameworthy, and deserving of more severe punishment, than a native-born citizen who commits the identical crime.”

The lawyers said the allegation violated Tsarnaev’s constitutional rights and is likely to create “unfair prejudice” and distract the jury from impartial consideration of the case.

Martin Finucane can be reached at martin.finucane@
globe.com
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