Legs blown off below the knee, mutilated feet dangling limp, blood seeping from shrapnel wounds: Prosecutors have used an abundance of grisly images from the 2013 attack on the Boston Marathon to make their case against the accused bomber. But some are starting to wonder, how much gore is too much?
It’s not just a matter of decency on the part of the judge presiding over Dzhokhar Tsarnaev’s trial. Federal prosecutors have already presented the jurors with a number of powerful and potentially disturbing videos and pictures of the wounded and dying. Keeping the amount of gory footage in check is, some argue, critical to ensuring that the trial remains fair.
“The prosecution is entitled to prove their case and, out of necessity, that will deal with some unsettling injuries. The defendant’s right to a fair trial means that a jury makes its decision based on the evidence rather than sympathy,” said David Siegel, a professor at New England Law. “The government is attempting to develop as much outrage as possible and the defense is trying to avoid it.”
At some point, experts say, U.S. District Judge George O’Toole may halt the U.S. attorney’s office from introducing additional images, because Tsarnaev’s defense acknowledged in opening statements on March 4 that he bears responsibility for the attack. His admission reduces the need to use graphic photos to prove the defendant's guilt, some say.
“There’s always a point in any trial where enough is enough. There’s a point where you get to overkill,” said Brad Bailey, a former federal prosecutor and now a private criminal defense attorney. “The defense can say some of these [images] are significant, but do we really need to see them for each witness?"
Prosecutors are armed with a 30-count indictment against Tsarnaev, including 17 charges carrying the death penalty. The April 2013 attack killed three spectators and wounded 264. Tsarnaev is also accused of fatally shooting Sean Collier, an MIT police officer, several days after the bombing.
The defendant has entered a not guilty plea, and his lawyers are seeking to avoid a death sentence by portraying him as having been influenced by his older brother Tamerlan Tsarnaev, who had adopted militant Islamic beliefs and may have been involved in a 2011 triple homicide. (Tamerlan died in a showdown with police in Watertown, Massachusetts, days after the marathon. )
In response, the prosecution has argued that the brothers were “partners” who planned and carried out the attack together. The federal prosecutors have amassed a large collection of evidence, some of it highly graphic, from security cameras, cell phones and other devices held by spectators watching the marathon along Boylston Street.
STORY CONTINUES BELOW. WARNING: SOME IMAGES ARE GRAPHIC AND MAY BE UPSETTING.
The debate about limiting sensitive visual imagery also includes questions about how much material the public should be able to see. In court on Wednesday, prosecutors wanted to show autopsy photos of Collier's body. O'Toole ruled that jurors would see the pictures, but the evidence would not be released publicly out of concern for his family, according to trial attendees.
The controversy over public access began last week, when news organizations attempted to publicize restricted images that had been shown in court.
Jurors were shown surveillance footage recorded at a bar near the finish line that showed a man on fire and two brothers, Paul and JP Norden, moments after the bomb ripped off their legs. However, the clip wasn’t made publicly available.
TV networks ABC, CBS, NBC and CNN filed court papers last week demanding that all of the exhibits shown to the jury be released to the public, according to WCVB.
However, some survivors of the attack and relatives of the victims said it would be insensitive to broadcast the carnage.
“I think the victims should be able to see it and for them to decide," Liz Norden, the mother of Paul and JP, told WCVB.
A representative of U.S. Attorney Carmen Ortiz’s office told The Huffington Post that some evidence will remain off-limits, such as images of the three people killed in the attack: Krystle Campbell, 29, Lingzi Lu, 23, and Martin Richard, 8.
"We always intended to give out exhibits as long as it didn't show the deceased or minors in distress," said spokeswoman Christina Sterling. "The others we will withhold.”
Tsarnaev’s defense team did not respond to emails from HuffPost.