Marathon suspect: Statements should be thrown out

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Marathon suspect: Statements should be thrown out
FILE- In this Oct. 13, 2014 file photo, Ailiana Tsarnaeva, sister of Boston Marathon bombing suspect Dzhokhar Tsarnaev, departs district court in Boston's South Boston neighborhood. Tsarnaeva has been arrested in New York City for allegedly threatening to bomb a Harlem woman. Police say that she is charged with aggravated harassment for threatening the woman over the phone on Monday, Aug. 25. She was issued an appearance ticket and is due back in court on Sept. 30. (AP Photo/Steven Senne, File)
FILE - In this Friday, April 19, 2013 file photo provided by the Massachusetts State Police, 19-year-old Boston Marathon bombing suspect Dzhokhar Tsarnaev leans over in a boat at the time of his capture by law enforcement authorities in Watertown, Mass. Tsarnaev has pleaded not guilty in the April 15, 2013, Boston Marathon bombing, which killed three people and injured more than 260 others. His brother, Tamerlan Tsarnaev, died following a shootout with police. The Boston Marathon bombing has been selected the sports story of the year in an annual vote conducted by The Associated Press. (AP Photo/Massachusetts State Police, Sean Murphy, File)
Graphic shows photos of suspects; locates Watertown and Cambridge, Mass., where Boston Marathon bombing suspects exchanged gunfire and one is dead
This Friday, April 19, 2013 image made available by the Massachusetts State Police shows 19-year-old Boston Marathon bombing suspect, Dzhokhar Tsarnaev, hiding inside a boat during a search for him in Watertown, Mass. He was pulled, wounded and bloody, from the boat parked in the backyard of a home in the Greater Boston area. Two U.S. officials say the surviving suspect in the Boston bombings was unarmed when police captured him hiding inside a boat in a neighborhood back yard. Authorities originally said they had exchanged gunfire with Dzhokhar Tsarnaev for more than one hour Friday evening before they were able to subdue him. (AP Photo/Massachusetts State Police)
This still frame from video shows Boston Marathon bombing suspect Dzhokhar Tsarnaev visible through an ambulance after he was captured in Watertown, Mass., Friday, April 19, 2013. A 19-year-old college student wanted in the Boston Marathon bombings was taken into custody Friday evening after a manhunt that left the city virtually paralyzed and his older brother and accomplice dead. (AP Photo/Robert Ray)
FILE - This undated file photo provided by the Middlesex District Attorney's Office shows Massachusetts Institute of Technology Police Officer Sean Collier, 26, of Somerville, Mass., who was shot to death Thursday, April 18, 2013 on the school campus in Cambridge, Mass. Stephen Silva, a friend of Boston Marathon bombing suspect Dzhokhar Tsarnaev, was arrested Tuesday, July 22, 2014, and is believed to have provided the handgun used to kill Collier. (AP Photo/Middlesex District Attorney's Office, File)
In this April 19, 2013, Massachusetts State Police photo, state troopers prepare for the final assault on the boat where Boston Marathon bombing suspect Dzhokhar Tsarnaev was hiding in Watertown, Mass. Tsarnaev, 19, was captured later that night. (AP Photo/Massachusetts State Police, Sean Murphy)
In this Friday, April 19, 2013 Massachusetts State Police photo, law enforcement officials converge on the scene near where Boston Marathon bombing suspect Dzhokhar Tsarnaev was thought to be hiding in Watertown, Mass. Tsarnaev, was captured later that night, bleeding and hiding in a boat in a nearby backyard. Photos of the Boston Marathon bombing suspect's surrender have been posted on the Boston Magazine website. The additional images, made public made public Tuesday, Aug. 27, 2013, were among those released to the magazine last month by a state police photographer. (AP Photo/Massachusetts State Police, Sean Murphy)
Heavily armed police continue to patrol the neighborhoods of Watertown, Mass. Friday, April 19, 2013, as they continue a massive search for one of two suspects in the Boston Marathon bombing. A second suspect died in the early morning hours after an encounter with law enforcement. (AP Photo/Craig Ruttle)
A police officer runs with his weapon drawn as he conduct a search for a suspect in the Boston Marathon bombings, Friday, April 19, 2013, in Watertown, Mass. Two suspects in the Boston Marathon bombing killed an MIT police officer, injured a transit officer in a firefight and threw explosive devices at police during a getaway attempt in a long night of violence that left one of them dead and another still at large Friday, authorities said as the manhunt intensified for a young man described as a dangerous terrorist.(AP Photo/Matt Rourke)
Officials wearing tactical gear stand near an armored vehicle as they search an apartment building for one of two suspects in the Boston Marathon bombing, in Watertown, Mass., Friday, April 19, 2013. Two suspects in the Boston Marathon bombing killed an MIT police officer, injured a transit officer in a firefight and threw explosive devices at police during a getaway attempt in a long night of violence that left one of them dead and another still at large Friday, authorities said as the manhunt intensified for a young man described as a dangerous terrorist. (AP Photo/Julio Cortez)
BOSTON - APRIL 15: Police walk through the evacuated scene at Exeter and Boylston Streets after two explosions went off near the finish line of the 117th Boston Marathon on April 15, 2013. This image was taken at 3:05:12 p.m. (Aaron Tang for The Boston Globe via Getty Images)
BOSTON, MA - APRIL 7: People attend the Boston Marathon memorial exhibition, 'Dear Boston: Messages from the Marathon Memorial,' at the Boston Public Library April 7, 2014 in Boston, Massachusetts. Three spectators were killed and more than two hundred sixty injured when two bombs exploded on Marathon Monday, which prompted a massive manhunt for suspects later identified as Tamerlan and Dzhokhar Tsarnaev, two brothers from Chechnya, living in Cambridge, Massachusetts. Photo by Darren McCollester/Getty Images)
LOWELL, MA - NOVEMBER 9: Kevin Corcoran leans over to kiss his wife, Celeste, during a Tsongas Arena hockey game and an event called Riverhawks Strong to honor victims and first responders of the Boston Marathon bombing. Celeste, who lost both her legs in the attack, was tired after being on her legs more than 12 hours. (Photo by John Tlumacki/The Boston Globe via Getty Images)
BOSTON - FEBRUARY 12: Boston Marathon bombing survivor Marc Fucarile attended a hearing for suspect Dzhokhar Tsarnaev in US District Court, on Wednesday Feb. 12, 2014, where the judge set trial for Nov. 3. Fucarile declined to speak to media outside the courthouse. (Photo by Pat Greenhouse/The Boston Globe via Getty Images)
WATERTOWN, MA - APRIL 7: The home on Franklin Street where Dzhokhar Tsarnaev was found hiding in a boat in the backyard is seen April 7, 2014 in Watertown, Massachusetts. Dzhokhar Tsarnaev, along with his deceased brother Tamerlan, are accused of setting off two bombs at the 2013 Boston Marathon finish line that killed three spectators and injured over two hundred and sixty. Following a shootout with police just a few blocks from this home, Tamerlan was run over by his brother while fleeing, prompting a day long manhunt through the streets of Watertown. Photo by Darren McCollester/Getty Images)
CAMBRIDGE, MA - APRIL 7: A stone memorial honors Massachusetts Institute of Technology police officer Sean Collier April 7, 2014 in Cambridge, Massachusetts. Collier was killed on the night of April 18, 2013, as he sat in his patrol car in the plaza at the intersection of Vassar and Main Streets, when two suspects in the Boston Marathon bombings attempted to steal his weapon. The two men were later identified as Tamerlan and Dzhokhar Tsarnaev. (Photo by Darren McCollester/Getty Images)
LOWELL, MA - NOVEMBER 9: Celeste Corcoran waves to a standing ovation at Tsongas Arena during an event called Riverhawks Strong to honor victims and first responders of the Boston Marathon bombing. Celeste, who lost both her legs in the attack, holds onto her husband, Kevin, as daughter Sydney, rear, looks on. (Photo by John Tlumacki/The Boston Globe via Getty Images)
BOSTON - APRIL 15: Emergency personnel respond to the scene at Exeter and Boylston Streets after two explosions went off near the finish line of the 117th Boston Marathon on April 15, 2013. This image was taken at 2:57:25 p.m. (Aaron Tang for The Boston Globe via Getty Images)
BOSTON - APRIL 15: Emergency personnel respond to the scene at Exeter and Boylston Streets after two explosions went off near the finish line of the 117th Boston Marathon on April 15, 2013. This image was taken at 2:52:36 p.m. (Aaron Tang for The Boston Globe via Getty Images)
BOSTON - APRIL 15: Emergency personnel respond to the scene at Exeter and Boylston Streets after two explosions went off near the finish line of the 117th Boston Marathon on April 15, 2013. This image was taken at 2:58:34 p.m. (Aaron Tang for The Boston Globe via Getty Images)
BOSTON - APRIL 15: Emergency personnel respond to the scene at Exeter and Boylston Streets after two explosions went off near the finish line of the 117th Boston Marathon on April 15, 2013. This image was taken at 2:52:19 p.m. (Aaron Tang for The Boston Globe via Getty Images)
BOSTON - APRIL 15: Emergency personnel respond to the scene at Exeter and Boylston Streets after two explosions went off near the finish line of the 117th Boston Marathon on April 15, 2013. This image was taken at 2:52:07 p.m. (Aaron Tang for The Boston Globe via Getty Images)
In this magazine cover image released by Wenner Media, Boston Marathon bombing suspect Dzhokhar Tsarnaev appears on the cover of the Aug. 1, 2013 issue of "Rolling Stone." (AP Photo/Wenner Media)
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By Denise Lavoie

BOSTON (AP) - Lawyers for Boston Marathon bombing suspect Dzhokhar Tsarnaev argued Wednesday that statements he made to authorities after he was arrested should be thrown out because he was questioned for 36 hours in a hospital room while suffering from gunshot wounds and without being told his rights.

The lawyers said in a flurry of pretrial court filings that federal agents began questioning Tsarnaev about 20 hours after he arrived at the hospital in critical condition and his statements can't be considered voluntary.

Federal investigators questioned him days after last year's deadly bombing without formally telling him of his right to a lawyer under a public safety exception allowed when there's concern about an ongoing threat. But defense attorneys said the questioning continued "despite the fact that he quickly allayed concerns about any continuing threat to public safety, repeatedly asked for a lawyer, and begged to rest." They said his treatment included painkillers that impaired his judgment and increased his susceptibility to pressure.

Tsarnaev was shot and his brother, Tamerlan Tsarnaev, was killed during a gunbattle with police on April 19, 2013, four days after the marathon bombing. His lawyers said he had gunshot wounds to his head, face, throat, jaw, left hand and legs.

The lawyers said his rights also were violated when his appearance in court was delayed to complete the interrogation, during which he told authorities about how the bombs were built and about the brothers' activities before and after the bombing.

"Agents made clear by word and deed that they would not allow him to see a lawyer until they had finished questioning him," his defense team's filing said.

Also on Wednesday, the defense asked the judge to declare the federal death penalty unconstitutional, citing recent bungled executions and arguing there's mounting evidence innocent people have been executed.

Tsarnaev's lawyers said the U.S. Constitution's protection against cruel and unusual punishment prohibits the application of the death penalty because it's not authorized under Massachusetts law. They cited "worldwide revulsion over the recurring spectacle of botched executions," including one that left an Ohio inmate snorting and gasping during the 26 minutes it took him to die in January and another that left an Oklahoma inmate straining to lift his head off a pillow after supposedly being rendered unconscious last month.

The lawyers also asked the judge to bar federal prosecutors from arguing that targeting the crowded athletic event last year is a factor a jury should consider when weighing his possible punishment if he's convicted.

The lawyers said the decision to bomb the marathon shouldn't be an "aggravating factor" in determining whether he should receive the death penalty because prosecutors also argue he committed the offense after substantial planning to cause death and commit an act of terrorism.

"Stated differently, the allegation that Tsarnaev targeted the marathon is simply a more specific statement of the substantial planning allegation," Tsarnaev's lawyers wrote in a court filing.

Federal law requires the jury to reach its sentencing decision by weighing each aggravating factor cited by prosecutors against mitigating factors cited by the defense. Tsarnaev's lawyers said having duplicative aggravating factors "can have no other effect than to introduce arbitrariness and unfairness into the jury's sentencing deliberations."

Federal prosecutors are expected to respond in their own filings.

Last week, the defense asked a judge to eliminate another aggravating factor cited by prosecutors: Tsarnaev's alleged betrayal of the United States. Tsarnaev's lawyers said prosecutors, by citing his status as a newly naturalized U.S. citizen, are implying he's "more deserving of the death penalty" than a native-born person who commits the same crime.

Tsarnaev, 20, has pleaded not guilty to several federal charges. Prosecutors allege he and his brother, 26, planted two pressure cooker bombs near the marathon's finish line, killing three people and injuring more than 260.

Tsarnaev's lawyers acknowledge that a federal appeals court rejected a challenge to the federal death penalty in another Massachusetts case in 2007. But they asked the judge to eliminate the death penalty as a possible punishment if they can show prosecutors gave erroneous instructions to the grand jury that indicted him.

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