Marathon Bombing Defense Can’t Take Own Photos of Suspect

Boston Marathon bombing suspect Dzhokhar Tsarnaev’s defense lawyers won’t be allowed to take periodic photographs of their client in prison to use as evidence of “his evolving mental and physical state.”

U.S. Magistrate Judge Marianne Bowler in Boston ruled yesterday that their taking pictures would violate rules of the Federal Medical Center Devens in Ayer, Massachusetts, where Tsarnaev, 19, is recovering from wounds he suffered trying to elude capture last month. Prison officials will instead take the pictures in the lawyers’ presence, Bowler said.

“It is true that photographs may provide probative evidence to support sentence mitigation arguments,” Bowler said in the ruling. Allowing prison staff to take the pictures will “adequately address” the need of defense lawyers to document Tsarnaev’s condition, she said.

Tsarnaev and his older brother, Tamerlan Tsarnaev, who died after a police shootout, are suspected of setting off two bombs near the marathon finish line on April 15, killing three people and wounding more than 260. The surviving brother was captured and charged with conspiring to use and actually using weapons of mass destruction resulting in death. He faces the death penalty if the U.S. decides to seek it.

‘Work Product’

Tsarnaev’s lawyer, Federal Public Defender Miriam Conrad, had sought an alternative court order stating that if prison officials took the photographs instead of the defense team, the images should only be shared with the defense and not with the government. Bowler also rejected that request, saying the images didn’t qualify as protected “work product.”

Conrad declined to comment on the ruling when reached by phone yesterday in Boston.

“FMC Devens rules expressly prohibit visitors from bringing or using photographic equipment,” Bowler said in a five-page ruling. “There is little, if any, reason to suspect that officials at FMC Devens are exaggerating the risk posed by cameras at the facility.”

In a sealed request filed May 7, Tsarnaev’s lawyers argued that his Constitutional right to effective legal counsel, including the ability to carry out an “adequate investigation,” should trump the prison’s policy against cameras, according to yesterday’s judgment. Bowler disagreed.

“Defense counsel’s duty to the defendant however does not justify overriding the legitimate security concern posed by cameras at FMC Devens,” Bowler said.

‘Physical State’

Tsarnaev’s lawyers argued images of his “injuries over time” would give evidence of “his evolving mental and physical state,” which could in turn be used in arguments about the “voluntariness” of his earlier statements, according to yesterday’s ruling. Bowler didn’t specify which statements the legal team was referring to in their request.

After his arrest, Tsarnaev was questioned by federal agents in the hospital over a period of about three days before being apprised of his right to remain silent.

Tamar Birckhead, a former Boston defense attorney who represented Richard Reid, the man accused of attempting to blow up an airplane with explosives in his shoes, said pictures of Tsarnaev as an injured 19-year-old could be important defense evidence in a federal death penalty case.

“If he’s in a terrible state and doing self-harm or not eating or having a psychotic break, then it might not matter who takes the photo,” she said in an interview yesterday. “They’ll be able to use them as evidence to support an argument he shouldn’t be executed, or any statements he’s made in the past are not true and voluntary.”

The case is U.S. v. Tsarnaev, 13-mj-02106, U.S. District Court, District of Massachusetts (Boston).

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