BOSTON — Boston Marathon bombing suspect Dzhokhar Tsarnaev, arguing jurors might resent him as an immigrant, persuaded a federal judge to throw out the government’s claim he betrayed his oath to the U.S. as a naturalized citizen.
Prosecutors had cited Tsarnaev’s “betrayal of the United States” and his history of having “obtained citizenship and enjoyed the freedoms” of a U.S. citizen in their formal list of factors justifying a possible death penalty.
“Drawing a distinction between naturalized and natural born is highly inappropriate,” U.S. District Judge George O’Toole said at a hearing Wednesday in Boston.
Tsarnaev’s 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 use of evidence two months after Boston observed the first anniversary of the attack, which killed three people and injured 260. A trial is scheduled to start Nov. 3.
The ruling doesn’t affect the charges against Tsarnaev, which include using a weapon of mass destruction. The decision alters what jurors may hear when they consider a sentence if they find him guilty.
Tsarnaev, a 20-year-old immigrant of Chechen descent, received asylum in the U.S. when he was eight and took the oath of citizenship seven months before the attack. He was inspired by al-Qaida and motivated by the U.S. military’s killing of Muslim civilians, prosecutors have said.
The betrayal claim “openly invites resentment of Mr. Tsarnaev as an immigrant,” defense attorney David Bruck said in a court filing in May. The language suggests Tsarnaev “is more blameworthy, and deserving of more severe punishment, than a native-born citizen who commits the identical crime.”
On Wednesday O’Toole rejected Tsarnaev’s request for a hearing on what the defense called a “flow of leaks and inappropriate public comments” by law enforcement involved in the case. The comments, including a “60 Minutes” segment in April, may violate Tsarnaev’s right to a fair trial, they said. O’Toole said he’d deal with the issue during the trial if needed.
The judge said he would rule later on several defense requests to throw out evidence in the case, including data from Tsarnaev’s laptop computer and other items seized from his dormitory room. The former college student’s lawyers claim the authorities exceeded the scope of their search warrant.
Tsarnaev’s lawyers said they will ask by Wednesday’s deadline to have the trial moved from Boston. O’Toole denied a request for an extension.
Tsarnaev pleaded not guilty in July to 30 counts, including charges that he killed a university police officer in the days after the attack. He is suspected of carrying out the bombing with his older brother Tamerlan Tsarnaev, who was killed in a police shootout.
Tsarnaev’s lawyers haven’t claimed their client didn’t carry out the attack. Instead, they have focused on ways to pin greater blame on Tamerlan Tsarnaev, saying there could be evidence he was an ardent extremist who manipulated his younger brother.
The case is U.S. v. Tsarnaev, 13-cr-10200, U.S. District Court, District of Massachusetts (Boston).