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Photo of Tsarnaev flipping the bird should be reversible error

During its opening statement yesterday in the penalty phase, the government exhibited a photograph of Dzhokhar Tsarnaev flipping the bird at a video camera in his holding cell prior to his arraignment on July 10, 2013. The prosecutor flashed the photo to the jury stating, “Tsarnaev was and is unrepentant.”

I believe that was improper and should be the basis for reversible error vacating the sentence and remanding the case for a new sentencing hearing, if this jury sentences him to death.

The court should have excluded the photo pursuant to Rule 403 of the Federal Rules of Evidence (FRE 403) because its prejudicial value far outweighs any probative value that it might have. The incident occurred almost two years ago and is an expression of emotional immaturity that should never play a role in determining whether a person lives or dies.

The prosecution’s blood lust to kill is disgusting and the judge’s unwillingness to curb their uncontrolled meaner instincts demonstrates his lack of judicial fitness.

We are witnessing a circus, not a trial.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.