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Tsarnaev intended humor in remark to sister, defense says

Attorneys for Boston Marathon bombing suspect Dzhokhar Tsarnaev say that what prosecutors have called a damaging statement he made during a prison visit with one of his sisters was actually just a humorous remark.

The attorneys say Tsarnaev has not made any statements “concerning the substance of the charges against him during visits with his sisters.”

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They called prosecutors’ description of Tsarnaev’s statement as “detrimental” to his case a red herring.

“Apparently, if Mr. Tsarnaev appears to be lighthearted in interactions with his sisters, this will be spun into an argument that he should be executed because he lacks remorse and is insufficiently serious about his predicament or his actions,” defense attorneys said in a filing Wednesday in US District Court in Boston.

“On the other hand, if Mr. Tsarnaev appears impassive or subdued, those observations also likely will be characterized as evidence that Mr. Tsarnaev is cold-hearted and more deserving of the death penalty.”

Defense attorneys are battling with prosecutors over special restrictions that have been placed on Tsarnaev in the federal prison facility at Devens where he is held.

Prosecutors say the restrictions are necessary due to security concerns, while defense attorneys say they are interfering with their preparations for the case. One restriction the defense wants lifted is monitoring of family visits by an FBI agent.

In a recent filing, prosecutors said that an FBI agent, present at a meeting between Tsarnaev and his sister, along with an investigator from the defense, overheard him making a statement “to his detriment.” What Tsarnaev allegedly said has not been disclosed by the prosecution or defense.

The defense said in its filing Wednesday that “on one occasion, as the [special restrictions] were being explained to one of his sisters [by the investigator], in an effort to put her at ease, Mr. Tsarnaev made a comment that might be characterized as jocular or gently mocking toward the purported security concerns that underlie the [restrictions] on repeating his statements to others.”

Tsarnaev, 20, faces a host of federal charges in the April 15 bombings near the Boston Marathon finish line that killed three people and wounded 260 others. Prosecutors say they will seek the death penalty if he is convicted. He also faces state charges in the slaying of an MIT police officer several days after the bombings.

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