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Dzhokhar Tsarnaev lawyers seek dismissal of indictment

Dzhokhar Tsarnaev.

FBI via AP/file 2013

Dzhokhar Tsarnaev.

Lawyers for accused Boston Marathon bomber Dzhokhar Tsarnaev want a federal judge to dismiss the sweeping indictment against him, citing concerns about the selection of grand juries in federal court in Boston, where their client faces a possible death sentence, if convicted.

In a motion filed Friday, defense attorneys identified several concerns about the manner in which grand juries were selected between 2011 and 2013, including in his case. Among the issues was the fact that qualified jurors over 70 years old were automatically excused upon request.

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More than 96 percent of prospective jurors older than 70 chose not to serve in the three-year period, and a nearly identical percentage opted out when Tsarnaev’s grand jury was selected, said the defense motion.

“Being over age 70 — like race, sex, and national origin — is an immutable characteristic — one cannot get younger — and exclusion on the basis of such a characteristic gives rise to the appearance of unfairness," Tsarnaev’s attorneys wrote.

They also argued that African-Americans have been underrepresented in the selection process.

“This underrepresentation, [Tsarnaev] submits, is constitutionally significant,” the lawyers wrote, adding that “underrepresentation in municipal resident lists is attributable to some form of official action or inaction in the jury selection process and is, therefore systemic exclusion.”

In addition, about 5 percent of the 400 summonses used to create the grand jury pool in Tsarnaev’s case were returned as undeliverable by the US Postal Service, and there were no draws from a supplemental group to fill the gap, defense attorneys say.

They are asking US District Court Judge George A. O’Toole Jr. to “dismiss the indictment returned in this case and stay further proceedings” pending changes to the selection process, according to the filing.

Prosecutors did not immediately file a response Friday, and a spokeswoman for US Attorney Carmen M. Ortiz declined to comment.

O’Toole has yet to rule on a defense motion to move Tsarnaev’s highly anticipated trial to Washington, D.C., on the grounds that there is an “overwhelming presumption” of guilt in Massachusetts, among other factors.

Tsarnaev, 21, faces charges that could bring the death penalty for his alleged role in the April 15, 2013, bombings, which killed three people, including an 8-year-old boy, and wounded more than 260. He has pleaded not guilty.

Tsarnaev and his older brother and alleged accomplice, Tamerlan, are also accused of fatally shooting an MIT police officer. Tamerlan Tsarnaev died in a violent confrontation with police in Watertown days after the blasts.

Martin Finucane of the Globe staff contributed to this report. Travis Andersen can be reached at travis.andersen@globe.com.
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