BOSTON (
MyFoxBoston.com) -- Defense lawyers for Boston Marathon bomber Dzhokhar Tsarnaev filed a motion late Monday afternoon asking that Martin Richard's victim impact be removed as an aggravating factor for the jury to consider since no one testified in the penalty phase on behalf of his friends or family.
Although Martin's father Bill testified during the criminal phase of the trial, no family or friends testified during the penalty phase, when the government presented aggravating factors that they hope would sway the jury to give Tsarnaev the death penalty.
After Tsarnaev was convicted, Martin's parents Bill and Denise
wrote an editorial in the Boston Globe asking the government to take the death penalty off the table.
"The government called no witnesses and offered no evidence to establish this allegation, and there is therefore nothing before this jury upon which it could reply to find this factor," Tsarnaev's lawyers wrote in the motion.
The motion continued that if presented, this particular aggravating factor would be a violation of Tsarnaev's constitutional rights.
"In a sense, the government's allegation is self-evidently true...for every person who is murdered, and for every grieving family member that murder leaves behind. But an aggravating factor violates the Eighth Amendment if it applies, without particularized proof, to every murder case."
Seventeen of the 30 charges against Tsarnaev carry the death penalty. The defense
rested its case on Monday. More than 40 witnesses testified for the defense in the penalty phase of the trial, which Tsarnaev's lawyers hope will illustrate mitigating factors that will convince jurors a life sentence in prison is sufficient punishment.
The argument in the motion continued that a jury can't weigh victim impact as an aggravating factor for Martin Richard "solely on the jurors' inevitably strong feelings of sympathy and grief for a young murder victim or for his family."
Both sides will present closing arguments on Wednesday.
