Defense plays down prosecutors' image of 'unrepenting' Tsarnaev flashing middle finger

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Dzhokhar Tsarnaev flashes his middle finger at the camera in a 2013 image shown to jurors on Tuesday.
Courtesy of the United States Department of Justice

Jurors saw a new face of Dzhokhar Tsarnaev in the opening statements of the marathon bombing trial’s penalty phase on Tuesday, when the government showed a photo of Tsarnaev flashing his middle finger at a holding cell camera shortly after his arrest two years ago.

The photo transformed the 21-year-old defendant, who usually appears subdued in court, into a defiant criminal that U.S. attorney Nadine Pellegrini characterized as “unconcerned, unrepenting, and unchanged.”

The defense countered that interpretation on Wednesday by providing the video associated with the photo. The full video clip offers a more benign view of the gesture and shows Tsarnaev pacing in the cell before checking his hair in what appears to be the reflection of the camera. His middle finger gesture is preceded by another sign in which he makes a V shape with two of his fingers.

The jury convicted Tsarnaev on all 30 charges against him two weeks ago. Just a day after Patriots Day and the 2015 Boston Marathon, the same jurors were back on Tuesday for the penalty phase in which they will decide whether to sentence Tsarnaev to death. The jurors must be unanimous in their decision to give him the death penalty.

In the time since the conviction, several families of victims in the bombings have come out in support of dropping the death penalty. Jessica Kensky and Patrick Downes, newlyweds who were made amputees by the bombings, claimed that life in prison for Tsarnaev would be “assuring that he disappears from our collective consciousness as soon as possible.” They said in their joint statement: “If there is anyone who deserves the ultimate punishment, it is the defendant. However, we must overcome the impulse for vengeance.”

Bill and Denise Richard, who lost their 8-year-old son Martin, also spoke out against the death penalty. “We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives,” they wrote in a letter to the Boston Globe last week.

The government is unlikely to take the death penalty off the table. The U.S. Attorney for the District of Massachusetts, Carmen Ortiz, was not able to comment on the Richards’ letter, but said she was “aware of their views” and that they, along with other survivors’ views, are “very important” to her. “As the case moves forward we will continue to do all we can to protect and vindicate those injured and those who have passed away,” Ortiz said.

Other survivors remain in favor of the death penalty. Kevin Corcoran, whose wife is a double amputee after the bombings, said: “We don’t want him to be able to communicate and possibly influence anyone. In 20 years, someone might interview him. He could write a book,” according to the Boston Globe.

On Tuesday, the government delivered its opening statements and framed Tsarnaev as “callous and indifferent to human life.”

“His destiny was determined by him, and he was destined to be America’s worst nightmare,” Pellegrini said before she closed by showing the jurors the photo of Tsarnaev’s obscene gesture.

The government transitioned directly into its testimonies, which are expected to last about a week. In contrast to the first phase of the trial — the guilt phase — this phase will include testimonies that focus more on the victims’ lives and less on the abundance of hard evidence.

“You need to know how [the witnesses] lived,” Pellegrini said. “You need to know why their lives mattered.”

For jurors, this means more tears. Several of them were seen crying on Tuesday when the father of the late Krystle Campbell, 29, testified. She “was the light of my life,” he said. “I never called her Krystle,” he added. “I always called her Princess … That’s what she was.”

Reporters could also be seen holding back tears in the media overflow rooms as video was shown of the up-close aftermath of the bombings. Wails could be heard from victims, including the screams of Gillian Reny, who was 18 at the time and one of the survivors to testify on Tuesday.

On Wednesday, jurors heard from MIT Police Officer Sean Collier’s stepfather, Joe Rogers, and his biological brother, Andrew Collier. Rogers testified that his wife was diagnosed with post-traumatic stress disorder and that the entire family of seven still has trouble coping with the loss.

Rogers talked about the strong moral compass Collier had from the time he was a kid. “Things were right or wrong,” he said, according to “He would tell us when other children were acting out … He was a cop at an early age.”

MIT Police Chief John DiFava also testified, saying that Collier was one of the best policemen he knew. “If I had to define Sean Collier in one word, I’d say character,” he said.

When it comes to making their decision on the death penalty, jurors will have to consider both “gateway” factors, which center around the defendant’s intent, as well as “statutory” factors, which could include aggravating factors demonstrating the “heinous, cruel, or depraved” manner of the crime. The government will have to prove the existence of both in order to make their case.

The defense, which is expected to begin calling its witnesses next Monday, will focus its testimonies on Tsarnaev’s life history and family dynamics to introduce mitigating factors that could warrant the lesser sentence.

Ultimately, the jurors will have make the life-or-death decision using a more holistic approach than some may like. “The law leaves this sentencing decision exclusively to you,” the judge told jurors. Although federal law outlines the types of aggravating and mitigating factors jurors should consider, it’s up to them to decide how to weigh the factors against one another.

Mark Azerty about 9 years ago

Judy Clarke's clients have collectively murdered over 3000 people.

The argument that life in prison is worse than death is a phony one. If life without parole is worse, then why does every last murdering scumbag sentenced to death row appeal to have their sentence commuted to life without parole?

Anonymous about 9 years ago

Judy Clarke's clients have collectively murdered over 3000 people.

So? Someone has to defend them.

If life without parole is worse, then why does every last murdering scumbag sentenced to death row appeal to have their sentence commuted to life without parole?

They don't. Lots of criminals commit suicide before they can be apprehended, they're clearly viewing death as a better alternative to jail.

Socialist Worker about 9 years ago

A defendant is allowed to put on a defense and has the right to the assistance of an attorney. Those rights come from the very essence of US Constitutional law.

In a police state you go to prison on the say so of the police. Its very similar to the Guantanamo Prison. You are accused, captured, locked up and game over.

Some Congressmen and Senators pushed to have him tried as an enemy combatant because then there would be no need of a trial.

Did they really believe that a jury would find him innocent? Or were they more interested in taking away the rights of their future 'Political Enemies'? President Nixon's term for people such as myself?