by Woody Box
In my last BBN article I hit on the idea that the mysterious photos presented by defense lawyers immediately before they rested - but were not exhibited in the courtroom - would bear explosive proof for Dzhokhar's innocence. However, the now published transcript of the day in question (Document 1575, March 31, 2015) falsifies this speculation.
The transcript includes the then hidden sidebar talks between judge, prosecution, and defense. It turns out that the photos were already broadly known and show Dzhokhar climbing out of the boat immediately before his arrest. The photographer was Sgt. Sean Murphy of the Massachusetts State Police, and he published them without authorization in July 2013, allegedly to counter the Rolling Stone cover featuring Dzhokhar like a "rock star". Murphy was praised by most media outlets for this act, but nevertheless disciplined and placed on restricted duty. The following dialogue from the sidebar shows that his photos were the ones that the defense wanted to show to the jury.
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The defense intended to introduce the photos without an accompanying witness (Sgt. Murphy in this case). The prosecution objected and insisted to either call Murphy to the witness stand to show the photos or to deny their presentation. After a short deliberation the defense forwent to call Murphy, and the photos were not shown.
This insight is fairly disappointing, but it raises a couple of interesting questions instead:
- Murphy's photos show a weak, hurt and unarmed Dzhokhar. They are perfect for generating sympathy, but of no relevance for the guilt question. Yet the defense decided to show them in the guilt phase, not in the penalty phase. Why?
- After the sidebar, the defense waived the offer to summon Murphy in order to be able to show the photos. They could have done that in the guilt phase - or, more appropriately as being said, in the penalty phase. Were the photos not so important at all?
- Despite an obvious defeat with regard to their concern, the defense team including the defendant displayed an upbeat behavior, smiling, chatting, while the prosecution looked "uptight" (according to twitter messages). Why this paradox behavior? Who lost the battle for the photos actually?
So we are forced to enter speculative terrain again. Is it possible that the defense's purpose was not to show the photos, but enter them into evidence to meet a certain deadline? In this context it is notable that the defense filed a motion for judgment of acquittal (Rule 29) one day before and renewed it after the photo skirmish. It was the last action before they rested in the guilt phase.
These questions obviously need a judicial expert to be answered.
That the photographs Tsarnaev's defense were barred from showing to the jury and the court that day would turn out to be those taken by Sgt. Murphy was certainly not something I had anticipated. Knowing the subject matter of the photos, as WB suggests in this post, provides few answers and raises additional questions. Were these photographs as important to the defense as they seemed at the time? If so, (and I am inclined to think they were), in what context?
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