The testimony at the penalty phase for Boston Marathon bomb Dzhokhar Tsarnaev could not be more damning in terms of the pain and suffering that he and his brother caused. Survivors detailed their suffering from injuries as well as lost loved ones with pictures that left many in tears. Such evidence is entirely appropriate as the jury debates whether to impose the death penalty on the 21-year-old defendant. One piece of evidence, however, is more controversial: the court allowed the prosecutors to show the jury a videotape of Tsarnaev flipping the bird at a camera shortly before his arraignment to show that he was not repentant after his arrest. The question is whether such a videotape is clearly probative or too prejudicial for the jury. It is a demonstration of how far the prosecutor is willing to go (even in the creation of an appellate issue) to secure a death sentence in the case.
The videotape was taken when Tsarnaev was being held a holding cell in the courthouse on July 10, 2013 — awaiting his arraignment. Prosecutor Nadine Pellegrini argues a photo of Tsarnaev shows Tsarnaev was “unconcerned, unrepentant and unchanged . . . Without remorse, he remains untouched by the grief and the loss that he caused.”
Of course, the gesture could have been a reflection of his view of his jailers or his treatment. The use of such an image is always risky but prosecutors clearly view the risk as justified in this case. First, Tsarnaev was easily convicted and there is little question that he will receive either life or death. This is only being used in the penalty stage where evidence rules are more relaxed. Second, the prosecutors are clearly concerned that this is a state (Massachusetts) with a strong opposition to the death penalty. They clearly felt that they needed more than the incriminating note that Tsarnaev wrote on the side of the boat where he was hiding as well as the heart-wrenching accounts of the victims. Finally, prosecutors know that under the harmless error standard, court routinely brush aside such issues on the ground that the defendant cannot show that, but for the image, the result would have been different. Given the deaths and injuries caused by Tsarnaev, there are ample other reasons for a jury to sentence him to death. That is why this standard is so controversial. In strong cases, prosecutors know that they can get away with a great deal without facing a reversal.
On the other hand, prosecutors can show that part of the determination of the death penalty is not just the harm causes but the mind of the defendant and lack of remorse. This picture can be viewed as being illustrative of that lack of remorse.
The question is whether the court should have allowed this piece of evidence to be thrown into the mix. The photo does not establish that it was a reference to the crime or the United States as opposed to being such to constant surveillance or to the treatment in the prison. I have no sympathy for Tsarnaev or his unhinged family back in Dagestan. However, this image strikes me as having less probative value than an image for example of brandishing weapons or use of drugs where the images are connected to the underlying crime.
What do you think?