Amid a national firestorm over a botched execution in Oklahoma, lawyers for Dzhokar Tsarnaev are asking a federal judge to declare the death penalty unconstitutional, citing a slew of issues with how capital punishment is practiced in the US.
In several court filings on Tuesday, the legal team for the accused Boston Marathon bomber, who is facing the death penalty if convicted, presented multiple challenges to the government’s case, including asking the judge to ban capital punishment in the US outright, or at least toss it out in Mr. Tsarnaev's case.
Defense attorneys also asked that a glut of evidence against Tsarnaev be thrown out, alleging that authorities violated the suspect’s rights during interrogation over a period of 36 hours in a hospital bed, as well as by searching his home and dorm room after his arrest.
Tsarnaev, an ethic Chechen and naturalized US citizen, is accused of placing two pressure cooker bombs hidden in backpacks at the Boston Marathon last year, killing three people and wounding at least 264. He is also accused of murdering a Massachusetts Institute of Technology police officer while fleeing authorities.
The other suspect, Dzhokhar’s older brother, Tamerlan, was killed in a shootout with police a few days after the bombing.
Well ahead of Tsarnaev’s Nov. 3 trial date, the his defense team has waged an aggressive legal war with the government over numerous issues in the case, arguing both in court and in filings that prosecutors have dragged their heels in turning over all evidence and have, in general, stood in the way of their putting together a strong defense.
But perhaps the defense team’s biggest request yet is that a federal judge rule the Federal Death Penalty Act unconstitutional, arguing that it violates the US Constitution’s ban on “cruel and unusual punishment” and is beset with issues that include racial bias and the risk of putting innocent people to death.
A similar request in Massachusetts was turned down in 2007, the lawyers acknowledge, but they write that factors such as “public and worldwide revulsion over the recurring spectacle of botched executions” and “mounting evidence that innocent people have actually been executed in recent years in the United States” have now bolstered the argument for doing away with capital punishment.
The filing cites a number of recent news articles that raise questions about possible injustices inherent in the death penalty, especially after an Oklahoma inmate died in apparent agony during a bungled execution last month. President Obama called on the Justice Department to “ask hard questions” about the future of executions in the US, citing concerns similar to those raised in the Tsarnaev defense filing.
In a separate filing, the lawyers also argue that Tsarnaev should not face the death sentence, saying that it’s not clear if the grand jury in Massachusetts that indicted him on 30 counts was aware that the accused bomber would face the death sentence. Massachusetts is one of 18 states that has abolished the death penalty, but Tsarnaev is being tried in a federal court, which allows for capital punishment.
The lawyers also argue that several aspects of Tsarnaev’s alleged crimes, including targeting a crowding sporting event, should not count as so-called "aggravating factors" that could factor into a jury’s decision to opt for the death penalty, if found guilty.
The defense has also objected to prosecutors' claims that Tsarnaev, who received asylum from the US and then obtained citizenship, had "betrayed his allegiance to the United States" by killing and maiming people. Using "betrayal" to justify the death penalty suggests that a recent immigrant is "more blameworthy, and more deserving of severe punishment" than a American-born citizens who committed the same crime, a defense motion said.
In another set of filings, lawyers are also asking that pieces of evidence be kept out of court, including all of the statements Tsarnaev made during 27 hours of interrogation over a 36-hour period, with breaks for medical treatment, from his bed at a Boston hospital.
Tsarnaev’s jaw was still wired shut when investigators began questioning him about 20 hours after he was admitted to the hospital “in critical condition with “gunshot wounds to his head, face, throat, jaw, left hand, and both legs,” according to the filing.
The defense team says that Tsarnaev, communicating through pen and paper, “begged to rest” and was on narcotic pain medications that cause “confusion” and “dizziness.” His scribbled notes trail off when “he either fell asleep, lost motor control, or passed out,” they say.
The lawyers also say that Tsarnaev, handcuffed to a hospital bed, “repeatedly asked for a lawyer,” but that FBI turned away all of the defense attorneys who tried to visit him the hospital while he was being interrogated.
Attorney General Eric Holder has said that Tsarnaev was questioned under what’s known as a "public safety exception" that allows authorities to interrogate suspects before reading them their Miranda rights or getting them a lawyer, if they believe there is still a threat of further attacks.
But his lawyers argue that Tsarnaev “quickly allayed concerns about any continuing threats to public safety,” writing that there were no more bombs. They also note that the interrogation occurred five days after the bombings.
His lawyers also said that the search warrants for Tsarnaev’s Cambridge, Mass., home and dorm room at the University of Massachusetts at Dartmouth were unconstitutionally broad and vague in what investigators could look for and take, and that investigators still overstepped the bounds of those warrants. They ask that none of the physical evidence collected during multiple searches of those residences be allowed in court, including samples of “reddish-brown powder” found in the dorm room.
Federal prosecutors have not yet responded to the filings.