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
Well said, bam. I just watched the video. I do think it was unfair to show the pic without playing the entire video. However, isn’t that defense counsel’s job to object?
Juris
I read the above article once more. It states that the video, not just a photo, was shown in court.
If one thinks about it, the testimonials presented by the maimed survivors and the friends/family members of the victims, during the penalty phase, is considered appropriate. Why? Those testimonials speak to the horrors that were committed by this individual, including the ongoing impact of his treacherous acts. And, yet, these testimonials are considered probative and not prejudicial.
I would argue that the same applies to the video, since it allows jurors to catch a glimpse of the defendant, declared by the defense as this malleable kid, who was unduly influenced by his older brother. He was, according to his defense team, a stooge, so to speak, without the evil and blackened heart of his older sibling. If that defense is going to be raised, then it is entirely appropriate to provide the jury with video proof that the rock star, portrayed on the cover of a rag magazine, is not the sweet, submissive little lamb that his attorneys have tried to portray. He clearly climbs up, to the camera, knowing that the authorities are watching him, and proceeds to flip them off. It is evidence, like it or not, of his unrepentant nature and lack of remorse for the mayhem that he helped to create. Remember, this video of him is three months into his captivity. Plenty of time to appreciate the severity of his crimes. The video is telling.
If the government ever executes this lame brain then we need to sing the Bird is The Word Song on the eve of his execution. Here are some lyrics from the Trashmen, Bird is The Word.
A-well-a, everybody’s heard about the bird
Bird, bird, bird, b-bird’s the word
A-well-a, bird, bird, bird, the bird is the word
A-well-a, bird, bird, bird, well, the bird is the word
A-well-a, bird, bird, bird, b-bird’s the word
A-well-a, bird, bird, bird, well, the bird is the word
A-well-a, bird, bird, b-bird’s the word
A-well-a, bird, bird, bird, b-bird’s the word
A-well-a, bird, bird, bird, well, the bird is the word
A-well-a, bird, bird, b-bird’s the word
A-well-a, don’t you know about the bird
Well, everybody knows that the bird is the word
A-well-a, bird, bird, b-bird’s the word
A-well-a
A-well-a, everybody’s heard about the bird
Bird, bird, bird, b-bird’s the word
A-well-a, bird, bird, bird, b-bird’s the word
A-well-a, bird, bird, bird, b-bird’s the word
A-well-a, bird, bird, b-bird’s the word
A-well-a, bird, bird, bird, b-bird’s the word
A-well-a, bird, bird, bird, b-bird’s the word
A-well-a, bird, bird, bird, b-bird’s
— it goes on but, you get the point.
The prosecution was doing their job. A close issue, but it’s the judge’s call, right? Or did the prosecution present this photo without any notice to defense counsel? On a more general level, isn’t this what prosecutors do – present evidence to support their theory (i.e., put their spin on it).
No way it constitutes reversible error.
Well, I guess I ought to do an Irish Poem on this:
A Sorry Knave???
An Irish Poem by Squeeky Fromm
Is “flipping the bird” superficial???
Not probative, but prejudicial. . .
Or, is it res gestae???
Whatever, it shows he,
Certainly ain’t penitential!
Squeeky Fromm
Girl Reporter
Note: For the non-legal types, “res gestae” pronounced here as “ray jess tea” is:
Definition of RES GESTAE
ˈrās-ˈges-ˌtī, ˈrēz-ˈjes-(ˌ)tē\
things done; especially : the facts that form the environment of a litigated issue and are admissible in evidence
Richard
Rick, evidence is not excluded because it may result in a finding of guilt or harsher punishment. It is excluded because there is something about that evidence that makes it likely to inflame the passions of the jury or otherwise have more of an impact than is warranted by the evidence.
I know what it’s supposed to be. But the arguments against allowing the evidence are overwhelmingly weighted to how damning it will be to the case. The correct response to these arguments should be “so what?”.
@PaulCS
As it says in the Bible, “Knock and ye shall receive!”
https://www.youtube.com/watch?v=kbwJ_lqe5pU
Squeeky Fromm
Girl Reporter
He should get to explain whom he was flipping off. Maybe someone was flipping him off.
Ross, Amen brother. The death penalty is extremely flawed for many reasons. One, in my opinion, is because seldom does the system then prosecute those that helped put the person to death when they are later found innocent. Woops!!! The continually rising number of people that are given the death penalty and later found innocent is proof the judicial system is flawed and cannot be relied upon enough to warrant the death penalty which is really then, just flat out murder. Those that support the death penalty, with all we know today about the dysfunction within the judicial system, are still apparently willing to and knowingly sacrifice/kill innocent people for purely revenge, I guess it’s revenge. What amazes me is just how many government prosecutors appear to be apart of this group. Of course, their case never involves an innocent person? Are there that many sociopaths that are prosecutors? Is not the lack of empathy for potentially putting an innocent person to death an example of sociopathy?
“I believe he is mentally ill because he is dangerous.”
Dangerous ≠ mentally ill, and mentally ill ≠ dangerous.
Mass murder doesn’t mean mental illness per se.
I have seen no evidence of mental illness in this case reported.
“His act of flipping the bird reflects his situational anger and frustration at the time”
Actually, no one has any idea about the context, which is the point.
it could have been situational, or lack of remorse, but lacking other data it’s worthless.
If he had said aloud “I’m glad I murdered all those people” and flipped the bird saying it, sure, that would then be relevant for determining whether he should be put to death.
Pogo – lacking any context, a photo of him flipping the bird is meaningless. For all we know he was flipping off his old girl friend.
In my view, this case is another example of the troublesome interface between mental illness and evil and how the legal system sorts between the two for purposes of doing justice. There can be little doubt that Tsarnaev believed he was doing something appropriate, based on his extreme religious fervor, fueled by the influence of his older brother. His thinking is disordered, and I believe he is mentally ill because he is dangerous. His act of flipping the bird reflects his situational anger and frustration at the time, but is not proof of lack of remorse, nor is it relevant for determining whether he should be put to death. Of course, the photo is prejudicial.
Rick, evidence is not excluded because it may result in a finding of guilt or harsher punishment. It is excluded because there is something about that evidence that makes it likely to inflame the passions of the jury or otherwise have more of an impact than is warranted by the evidence. For example, in a murder case the court often limits which photographs of the decedent may be shown. Gruesome photographs can be effective in creating a desire to believe the prosecution has the right person, and wanting to give the decedent’s family a sense that the murderer has been caught and punished which all makes conviction more likely. However, often the photos don’t really add much information which actually goes to whether the defendant actually committed the murder.
he posting of the pic is more prejudicial than probative.
DS is right, if you want more dead at the hands of the state, that is.
Interesting that you view a death sentence as a reward, that’s exactly what these brothers thought about killing people too.
#civilizedhuh
The risk / reward ratio is unfavorable in showing these images.
Well, being a good little Girl Reporter, I first confirmed that Tzarnaev was being tried in FEDERAL court, and then looked up in the Federal Code where the mitigating and aggravating factors are. Which, if I have the right one, it is 18 U.S. Code § 3592 – Mitigating and aggravating factors to be considered in determining whether a sentence of death is justified , here:
https://www.law.cornell.edu/uscode/text/18/3592
“Giving the finger” type activity is NOT among the 16 aggravating factors found at paragraph (c). If you read those factors, you will notice that they are all things which happened either PRIOR TO or DURING the subject crime. None of them are specifically “being a jerk” AFTER the crime. However, there is some catch-all language following the list of 16 factors, to wit:
IMHO, this could provide a legal basis for introducing the flip-off as an affirmative aggravating factor although the post-crime aspect of it bothers me.
However, the flip-off could also be used as a response to the Defense’s mitigating factors, specifically the catch-all mitigating factor.
Which doesn’t prove that Tsarnaev wasn’t under his brothers Svengali-like spell pre-crime. Sooo, unless time really is all wibbly-wobbly as Dr. Who claims, you are punishing someone for being a post crime jerk, which probably isn’t proper.
Now, here is the most interesting point of all about this issue, and all the probative and prejudicial stuff. Some lawyers just presume that all the usual regular rules of evidence apply in these cases, and apply in the usual way. NOT NECESSARILY SO! Sooo, for those people who are really interested in the nuts and bolts of this particular aspect, should read this Law Review Article:
http://www.cardozolawreview.com/content/36-2/MCCORD.BENNETT.36.2.pdf
Which, is only fun for certain kinds of people.
Squeeky Fromm
Girl Reporter
His whole life is prejudicial.
I don’t understand why the law classifies facts likely to lead to conviction (or more punishment) as “prejudicial”. A fair trial does not mean the chances of conviction are as close to 50-50 as possible, and therefore the goal is not to prohibit evidence because admitting it will tend to increase the chances of a harsher penalty.
Sorry. Not photo, videotape. My bad. 🙂