I am opposed to the death penalty in all cases, no matter how egregious. I always have been. I oppose the death penalty for many reasons. Today, I’m going to talk about one of them with which most readers may be unfamiliar.
Trying a death case changes people, particularly prosecutors, and not for the better. I’m talking about prosecution blood lust and the desire to kill. Desire to kill the defendant, my client. The human being whose life I am desperately trying to save. I’ve seen prosecutors cheat to win by concealing exculpatory evidence and cutting secret deals with jailhouse snitches to reward them for falsely claiming that my client confessed to a murder he did not commit. I saw it on Monday morning when the prosecution attempted to bury Dzhokhar Tsarnaev beneath a mountain of blood soaked garments and ghastly autopsy photographs.
The prosecution went too far. The desire to arouse and inflame the passions of the jurors to kill Dzhokhar Tsarnaev prevailed over reason. The defense had admitted that Dzhokhar Tsarnaev had committed the crimes charged. The prosecution did not need to literally wave Martin Richard’s bloody, sooty and melted clothes in front of the jury, but they did.
Rule 403 of the Federal Rules of Evidence (FRE) requires the trial judge to weigh the probative value of the evidence against its prejudicial value. When the prejudicial value substantially outweighs the probative value, the judge should exclude the evidence. Judge O’Toole admitted all of it and it was unnecessary.
The ruling is discretionary and will not be disturbed on appeal unless the judge manifestly abused his discretion.
In deciding whether a trial judge manifestly abused his discretion by admitting gory and grisly evidence, an appellate court will consider whether the evidence likely affected the verdict. That is, whether the verdict would have been different but for the evidence.
I think the answer is the error likely will not affect the verdict in the guilt/innocence phase. But I cannot confidently say that about a death verdict in the penalty phase.
I think this is another example of Judge O’Toole navigating perilously close to reversible error.
Just because the government has a slam dunk case does not mean that the court can ignore the rules of evidence on the ground that any error is necessarily harmless.
The government should not be permitted to strip the defendant naked and flog him in front of the jury.
That is what basically happened on Monday and it was wrong.
For more information on what happened Monday, please read my article, Tsarnaev: Government rests after presenting graphic and disturbing autopsy evidence.
Frederick Leatherman Law Blog 
Latest talk in this case is that Tamerlan Tzarnaev’s widow might be charged. Report in the paper says her lawyer reports she hasn’t been asked to testify or been offered immunity to testify. He thinks the government is leaving the door open to charge her. Would you please write an article about what she could be charged with? Conspiracy? Accessory?
So, isn’t sentencing in this case happening now?
And Jodi Arias was sentenced to life imprisonment. Glad to hear that the bloodllust crowd didn’t win this one. Renews my faith in humanity and almost renews my faith in Arizona … well, almost. I hear their new governor is even crazier than the last one.
No, the Penalty Phase starts on 4/21.
Only one juror held out for LWOP for Jodi Arias and that was enough.
FYI, Author of “The Brothers” is on NPR discussing the trial, bombing etc…..very articulate, much focus on Tamerlin…..just listening, so I have not heard whole thing.
Two of the main reasons I oppose the death penalty (there are dozens) are:
1. Death should not be characterized, defined, or used as a punishment. We all die. Some of us die young. Others die by violence. Some, both. This should not be seen as a punishment, especially since a young person facing death often wonders “why me?” and it’s a short trip to, “What did I do to deserve this?” This is a horrible burden to place on someone. The death penalty preserves this kind of emotional response, which is a horrible cruelty.
2. The State forces someone to become a killer (the executioner). Whereas the “force” may only be incentive in the form of remuneration, it is still a form of force in that a person who does not have money and needs money may do it for that reason. (There are other, even worse, reasons to become an executioner, none of which the State should support.)
Thank you for a powerful ethical statement against the death penalty, on this site and elsewhere!
There’s been enough wild speculation on various sides of this case, from suggestions that the bombings were a theatrically staged event (just ask the victims!), to the prosecution’s encouragement for the jury to resolve every doubt about penalty-related issues in favor of death.
For example, while Jahar’s guilt is clear regardless, the prosecution has tried to use a tweet from April 16, 2012, as proof that he had already decided to target the Marathon a year before the actual attack.
The quote is actually from the Quran, something like: “They will spend their money, they will regret it, and then they will be defeated.”
Certainly an Islamic cleric, including a supporter of al-Qaida like Anwar al-Awlaki, might quote such a passage: but unless and until we know the full context of this tweet, we can hardly judge whether Jahar’s meaning refers to the marathon, or to any planned attack at all. His web postings are also filled with lots of humor from Jay-Z or other pop culture sources. And there’s also an old Jewish tradition of witty quotes from Scripture, sometimes meant ironically or satirically, including one I recall from the 1st century CE about “throwing one’s money in the street.”
Of course, the bombings were highly preplanned and premeditated — that goes without saying. And they involve, of course, one of the classic aggravating factors in various capital statutes: “The defendant knowingly created a great risk of death to many people.”
But when it comes to judging the extent of Jahar’s planning and leadership role, I would say that the old common law maxim In favorem vitae, “In favor of life,” mean that we should really not give weight to aggravation not proven beyond a reasonable doubt. Reading tweets as tealeaves seems to me a gruesomely frivolous approach to the value of human life.
The eagerness of the prosecution to rely on speculative theories of aggravation going beyond any evidence needed to prove guilt — a kind of argumentative overkill that contrasts with the defense’s very limited guilt-phase scope for looking at relative culpability — reinforces further the conclusion you draw in a truly courageous statement from an experienced advocate for the defense.
Thanks. I believe criminal defense lawyers truly are liberty’s last champion. By vigorously defending our clients honorably with dignity and grace, we force the police, prosecution and the court to respect a defendant’s constitutional rights. Corruption sets in when we fail to do our job.
I’m sorry to say that one of the major reasons why the criminal justice system is so corrupt and broken is criminal defense lawyers have not been doing their jobs.
I always took my responsibilities seriously and still do, even though I no longer practice law.
I do believe that Dzhokhar Tsarnaev’s defense team is doing its thankless job very well. Their effort is heroic.
I’m sure this trial has been horrifying to the defense lawyers as well as to the spectators, jurors, court personnel, etc. etc. etc. It almost seems like the prosecutors are indulging in rage-fueled cruelty to “a large number of people.”
I have grown up with several horrifying images indelibly burned into my memory because of techniques that were supposed to teach people (even children) how wrong bad things were. My particular horrifying images came from the Holocaust reporting going on in the late 40s and for some reason people did not understand that a graphic picture of terroristic violence can itself cause a form of PTSD. Sometimes I still (60 years later and none of it was my personal experience!) see these images in nightmares. And I never had to listen to any of the victims actually speak about their personal experiences! I think people who survive this trial will need a lot of help to get over it, if ever they can.
I think you’re right.
The death penalty is wrong, always.No government should have the right to take away a human beings life, no matter what that human being has done.It cheapens the entire society. There is always a margin of error
Retaliating in kind cheapens and dehumanizes us. We should aspire to be like the Norwegians who handled Anders Behring Breivik with dignity and grace.
I read your article at firedoglake. The prosecution certainly wants the death penalty. I wouldn’t be surprised if some of the jurors end up with a form of PTSD after seeing all that was shown. It had to be traumatic.
Yes, that Monday session was truly horrendous.
I’m appalled at so many examples of how our justice system works around the country. This case is truly a slam-dunk life sentence case, so why should prosecutors go over the top with drama? It’s enough to have victims testify. Hopefully the jury has the decency and the balls to not seek the death penalty.
I’m getting extremely disillusioned with life in the good ole USA and feel our government needs to be cleaned out from top to bottom.
Me too.
BTW, it’s been fun to watch the Republicans thoroughly humiliate themselves with their ridiculous freedom of religion bills to discriminate against LGBT people.
What I found so surprising in the latest law is that it included, not just individuals or family owned businesses, but all corporations, as well.
Did the Hobby Lobby case (which allowed the employers to exclude certain forms of birth control from the company-provided insurance policy) open the door for this?
The idea of using the freedom of religion clause to create a ‘right’ to discriminate against others is an ALEC idea. I think ALEC was the source of the legal argument that the SCOTUS relied on in the Hobby Lobby case.
Thank you for your post and comments. I also ponder where there is any sense of humanity. The bombing crime was horrendous and evil, no doubt. That does not make the defendant an animal. One more human tragedy is ongoing in that court room; no winners. Nothing will bring back any of the victims or restore the wounded. Most calls for justice include an element of mercy. The state’s case was a given; no contest. I truly feel sorry for the juror experience at this point. I hope the call for vengeance, or apparent desire, does not prevail.
More killing is never the right answer.