Probative or Prejudicial? Prosectors Allowed To Show Picture of Tsarnaev Making Obscene Gesture Before Arraignment

220px-BostonSuspect2The 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?

Source: CNN

57 thoughts on “Probative or Prejudicial? Prosectors Allowed To Show Picture of Tsarnaev Making Obscene Gesture Before Arraignment”

  1. I don’t believe the gesture is particularly relevant, and if I were on the jury I would not interpret it as indicative of anything more than a young man expressing his resentment to his jailors at being locked up. While I’m generally uncomfortable with the death penalty, in this case I would vote for it because I believe there are some actions so egregious that society must send a powerful message. Moreover, I do not believe it is in the public’s interest to keep terrorists alive, as they will most likely later become bargaining chips. Some of the Gitmo terrorists who were swapped for Bergdahl are back fighting against the U.S. And finally, a terrorist with life in prison can serve as an instructor to alienate and radicalize “prison Muslims”; young men who go in for lessor crimes and return to the streets a few years later indoctrinated in anti-American radical Islamic political theory.

  2. “I think anyone who flips off the press should be awarded the Pulitzer Prize. I think it shows his good taste. His attorneys should show he is flipping off the press who are tormenting him with questions.”

    Mr. Schulte,

    I thought it was a picture taken by prison authorities… Nonetheless, I agree with your sentiment. Two birds would’ve been even better.

    Our values are clear when it involves the terrorism narrative, the rule of law is merely a public relations campaign run by the prosecutors. This is a joke. Taken in context, the kid makes other gestures during this recording, and mildly walks around the cell sometimes sitting in seeming boredom.

    I’m sure nothing will happen to the FBI

  3. bam bam – that’s right. I forgot about that “rock star” photo. Rolling Stone, wasn’t it? What is wrong with the media???

  4. On another note, has Tsarnaev been in solitary confinement all this time? I imagine the general population would dislike him . . .

  5. I think the note he wrote in his own blood inside the boat was relevant, this videotape was not.

    I heard this discussed on the radio this morning, which explained it best. There is no way we can despise Tsarnaev any more than we already do. If he acted repentant, we would assume he’s insincere, really unrepentant, and just because he was caught and trying to get out of the death penalty. If he acted insincere, then we would say he was unrepentant.

    I don’t think acting repentant matters when someone is already caught and on trial for his life. To me, it matters if they acted repentant or riddled with guilt before they were captured. An “I’m so sorry” note written in his own blood inside that boat, for example, instead of an “I’m so glad they’re all dead” note. Perhaps writing apology notes to the families of the slain, including that 8 year old child, and to those who were maimed, might help them with closure, but it should have nothing to do with his sentencing.

    This is separate, of course, from any discussion about the death penalty in general, as opposed to life without parole.

  6. I am still wondering, why did the FBi kill and unarmed friend of the accused? I first heard about this on NPR but look here:

    that man was an associate of Tsarnaev
    And they deported another Chechen he knew, and a Russian.
    What is the FBI trying to hide?
    Why would the well trained FBI over-react and shoot an unarmed suspect in his own apartment? The story is that he was writing up a confession. Who writes up a confession in their own apartment before they even get arrested?

    Seems to me– just like with OKC many years ago– there were may have been “Others unknown” and the government is looking forward to executing the accused so that he never has a chance to recant and spill the beans.

  7. What Explains the Power of Dzhokhar Tsarnaev’s Middle Finger?

    By Glenn Greenwald

    “That Tsarnaev is a Muslim accused of politically-motivated terrorism makes the image even more outrage-producing. Instead of bowing his head in repentance and submission to a more-powerful America, he’s using what CNN called a “salute”: a demonstration of military-like strength and defiant power that cuts deep at the core of the American psyche in profound and visceral ways, much the way that the collapse of the Twin Towers did.

    None of this is about the crime itself (which I’ve written about before), nor about whether there are mitigating factors for it. One can think Tsarnaev committed an atrocity quite independent of his fleeting bird-flipping gesture. It’s about why the image of Tsarnaev’s middle finger produced such potent reactions and dominated media coverage, at the expense (as usual) of compelling substantive questions that have been almost completely ignored. And the explanation says a great deal about the primitive, brutal, and quite definitively American views of the purpose of the criminal justice system and how and why punishment is administered.”

    But one should read the entire posting, IMO.

  8. When they drag the punk out of court after the penalty is read to him then the jurors will be entitled to flip him the bird. The bird is the word.

    I’m Tsarboy the 8th I am. Tsarboy the 8th I am I am.
    I got a broder whose dead today.
    Cause I ran over him when he was in my way.
    And as to you I am a Tsarboy.
    I wouldn’t be a Willie or a Fred.
    Cause there ain’t no name like Tsarboy.
    Tsarboy the 8th I am.


    After the next year in prison they will be calling him Rearend Boy. Perps in prison like dweebs like him.

  9. Why assume that jurors are incapable of evaluating the evidence the same way that Professor Turley does? Why assume that the defendant’s lawyer can”t/won”t make the same points about the evidence as the Professor does? The paternalism of many judges and lawyers is dismaying.

  10. Perhaps this is the better question:

    “Watertown police chief on the FBI and the Waltham murder investigation that wasn’t” (ACLU Mass blog)

    What follows is just a portion of the posting:

    “”The question pertains to a grisly, 2011 triple murder in Watertown’s neighboring suburb, Waltham, in which Tamerlan Tsarnaev’s best friend Brendan Mess was killed along with two other men. Those murders were never solved, but after the marathon bombings (18 months after the murders) law enforcement personnel leaked to the press that they suddenly had forensic and cell phone location evidence tying Tamerlan to the crime scene. Soon after that bombshell landed in the local press, two Massachusetts state troopers and a Boston FBI agent traveled down to Florida to interview a Tsarnaev associate. The FBI agent shot Ibragim Todashev dead as he was allegedly confessing to his and Tamerlan’s involvement in the Waltham killings.

    Braude: I wanna go back back even further for a second…We’ve discussed this much on this show. Three men were murdered in Waltham 18 months before this marathon bombing. The FBI says that the guy they killed in an apartment in Orlando about a month after the marathon was in league with the older Tsarnaev and they were responsible for the triple murder. If that were true, and had that case been solved, it’s pretty clear to me there would not have been a marathon bombing. Is that not a fair conclusion?

    Deveau: I think it’s very fair to say that.

    “Two years after the marathon bombings, the public still doesn’t have answers to basic questions about local and federal law enforcement’s competence before and after the attack. We don’t know why the FBI agents who interviewed Tamerlan didn’t recognize him, or if they did, why they didn’t act to apprehend him before Sean Collier was killed and Watertown was turned into a war zone. We still don’t know why police never bothered to investigate the gruesome triple murder in Waltham in 2011, or why they never interviewed Tamerlan about those murders. Stranger still, we don’t know who built the bombs that blew up the beloved Boston Marathon, or where they were built.

    “It took two years for local officials to start asking at least some of these questions publicly. Now we need answers. As the penalty phase of the Tsarnaev trial gears up, it’s possible that we might soon find some.”

    Asking tough questions and bringing pressure to bear on the right agencies is critical. Anything else is fluff and mere distraction.

  11. T Justice. Beings that I can’t use the Format of this stupid Blog with Google Chrome and I am too tired to change my Browser from one to another till I find one friendly with word press which I am rapidly coming to lose patience with, I have a present for you on the true meaning of What Darren was talking about with risk ratio. Why you feel sorry for these types of Anarchistic guys is beyond me but Hey – this is America 😉

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