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.