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?
Source: CNN
I would claim that the photo did, in fact, have probative value. His defense team is arguing that he was merely the unfortunate puppet of his older brother and that mercy should be granted due to that influence. The unconcerned, unrepentant and unchanged part is demonstrated, by the prosecutor, in showing that approximately three months after the bombing, in mid July, the defendant still showed no signs of remorse with regard to his actions, which is proven by his display of contemptuous and vulgar behavior. Given the jury’s composition, however, consisting of members of a community so against the death penalty, he will get life.
bam bam – he probably is influenced by society which has a low opinion of newspapers, tv news, etc. He could just have been showing his contempt for the press. We just had a manager for a baseball team who showed his.
Whatever happens to him, please no more glowing Rolling Stone cover stories.
I’m hoping for life in prison rather than death, because the latter is too easy.
I too am hoping he gets life in prison AND that he should be maimed in just the same way that some of his victims have been. Amputate his leg above the knee and cut off his dominant arm above the elbow. Maybe also his other foot. Live the rest of his miserable life as a cripple.
Feel the pain that he inflicted on innocent others who were just going about their daily lives before he and his disgusting brother decided to make a political statement by killing and maiming innocents.
Death IS too easy.
DBQ – don’t hold back now, how do you REALLY feel? 😉
I’m with Mike Appleton. The photo is blatantly prejudicial, and in the absence of any context, not probative. How do we know what he meant by flipping the bird? Was he tired of being spied upon by Big Brother? Did his ankle bracelets bind? Did he just lose a bet to his cellmate? To conclude that it meant he was unrepentant and without remorse is a stretch of the imagination, and definitely prejudicial.
What Tsarnaev wrote inside of boat while hiding, before capture was worse than bird flip.
Meantime, learn how to use a pressure cooker properly.
Whether the evidence is prejudicial or probation is moot; sentencing has been passed. The prejudicial effect is of no legal consequence and thus can be used for sentencing purposes. Will it sway the jury to impose the death penalty? Possibly, again, they have already rendered their decision of guilt.
Doesn’t seem relevant to me. Not the sort of argument I’d allow as judge. All just a waste of taxpayer dollars. Should just sentence him to life and be done with it. But, instead we’ll spend millions of dollars over a decade or so just to kill him.
Paul, you “worked” on a rape case? In what capacity? You a PI too? Hmmm.
I.Annie – who the hell are you?
Reblogged this on Oyia Brown.
Laws and rights are often perverted by the guilty, with ‘good’ lawyers. An obvious and provable case of fraud in the hundreds of millions can go unpunished because the guilty party ‘takes the 5th’, sometimes dozens of times. Case in point, Rick Scott now two time governor of Florida. Rick Scott can get away with fraud because ‘it is only money’ and fraud seems to be acceptable among the ‘movers and shakers’ of our society.
However, this is terrorism and murder. The man is guilty, a threat to society, and his punishment represents more than the issue of his attitude. The most important message his punishment will send is to the threat of terrorism. Others contemplating performing such acts must realize what the cost will be to them. Unfortunately those that will welcome martyrdom will be invited to perform such acts if Tsarnaev is executed while some may be deterred. The opposite is also the case if he gets life.
Given that the US has acted in a manner where there is no forgiveness for terrorism that costs lives of our citizens and pursued the guilty to their deaths, Tsarnaev should get the death penalty. His attitude in the past or the present should not factor into his punishment. Repentant or not, he should be punished for the crime and this most heinous crime must be addressed. The US and most of the Western World, today’s cradle of civilization, is at war with extremists who consider it an honor to not only slaughter innocents but to die while so doing. This is the issue, not a boy who was lead astray by an older brother, or someone who may or may not recognize what he has done.
So, given that the law and the question of whether or not the issue is probative or too prejudicial is often a playground, sometimes out of necessity and rightfully so, for the legal profession, in this case it was not only a boy who ‘flipped off’ society, it was an act of terrorism that cost innocent lives. He should forfeit his life and terrorism should be addressed in the most forceful manner available.
Goes to state of mind – shows contempt. If given the death penalty under our current practice he will live longer than if sentenced to life without parole.
The justice system is a “system” based primarily on legal precedence. It’s never about a single case but about thousands of cases. Even if the death penalty is legitimate in this single case, the American justice “system” is currently so dysfunctional that it harms thousands of other defendants where the evidence is less certain. That’s why the death penalty “system” should be abolished.
The losers of the current “system” are primarily poor African-American defendants. For example, most poor defendants that receive a public defender only meet with their attorneys 15 minutes to 2 hours on a felony charge. Many poor defendants meet their attorneys on the day of the trial. Meanwhile the taxpayer funded prosecution team has vast resources to game the system by abusing the plea bargain process. Wealthy defendants may have a quality defense team that can challenge such a well funded prosecution while the poor defendants usually plea bargain never receiving a jury trial.
Until we improve the public defender and legal aid system to level the playing field, the death penalty should be abolished. Even if this case did have adequate legal defense, the “system” harms thousands of people that couldn’t afford such a defense.
Recent revelations by the Washington Post of a 96% inaccuracy rate of the FBI forensic lab and prosecutorial misconduct only support the abolition of the death penalty “system” that harms far more people than it helps.
The picture is definitely on the line, but the simple fact is that this is how he chose to represent himself–unrepentant and defiant. That said, I’m hoping for life in prison rather than death, because the latter is too easy. Super Max isolation for the half century or more he’s got left fits the bill. I don’t think the “it’s bad to kill so we’ll kill you if you do” brand of justice is morally compelling, let alone a discouragement to others. We must lead by example. Would I enjoy my own hands around his neck? Absolutely, but it’s hardly practical. These guys, we kill them and they become martyrs. Lock ’em up forever and they’re forgotten–and that’s pretty fine punishment indeed.
It doesn’t prove anything, just shows the mood of a teenager who is condemned to spend all day long in cage, being filmed by a camera…
I really feel pain for him: do not use this video as an evidence cause it’s not an evidence.If the accusators just have this kind of ” evidences” to prove he deserves the death penalty, its really sad. They have already condemned it.Poor justice…
Professor, my feeling is that it should be allowed as going to the issue of his lack of remorse. A convicted person often tries to save his skin by claiming he’s really sorry for what he did. This picture goes a long way toward undermining any such claim.
James Strnal – lack of remorse is an interesting problem. I worked on a rape case where I am firmly convinced the guy did not do it. Since he pleaded innocent and continued to maintain his innocence even in prison, he was penalized by the system because of his lack of remorse. It is hard to be remorseful when you didn’t do it. However, in this case the guy did it, but the flipping off has nothing to do with his remorse or lack of it.
Prosecutors have taken too much of a risk here.
My view is that it should not have been admitted. It is not probative of anything because it lacks any context. In view of the overwhelming evidence in the case, however, admission of the photograph would likely be ruled harmless error.
If the question is whether the picture should have been allowed, then sure, why not? The issue is still whether death or life in prison is the more appropriate punishment. Persons have received both types of sentences in more or less heinous crimes.
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.
Why is that picture more orejudicial l that probabitve when the issue is repetence? I think it is an obvious sign of his view that killing those people was nothing to him. Seems a fair use.