How Photo of Boston Bomber Flipping Off Camera May Affect Jury

Dzhokhar Tsarnaev
Dzhokhar Tsarnaev flips off a jail security camera after showing a peace sign. YouTube

On July 10, 2013, a teenaged Dzhokhar Tsarnaev flipped off the camera in a holding cell at a Massachusetts courthouse. The video was recorded just months after he and his brother orchestrated the deadly Boston Marathon bombing. It would be almost two years before he would be convicted on numerous charges, and years before the video of him holding up his middle finger in jail would be shown to a jury.

"This is Dzhokhar Tsarnaev," prosecutor Nadine Pellegrini said as the jurors saw the middle-finger photograph. "Unconcerned, unrepentant and unchanged."

This image, though, is more complicated than it appears at first glance. It is taken from a longer video, in which Tsarnaev can be seen pacing the cell and discovering the camera. He then climbs onto the bench and flashes a peace sign while grimacing. Quickly thereafter, he flashes his middle finger and climbs down off the bench to sit back down in the cell.

Dzhokhar_Tsarnaev_gives_the_middle_finger_to_his_surveillance_camera (1)
In his cell, Dzhokhar Tsarnaev shows a peace sign, then a middle finger, to the camera in July 2013. YouTube

While most teenagers give the middle finger at some point, this kind of behavior in a holding cell before a trial is far from the norm, according to legal experts consulted by Newsweek. "It is extremely unusual, but, of course, this is the most unusual case," said Barry Slotnick, a shareholder at the Buchanan, Ingersoll and Rooney firm and a criminal attorney known for defending mob boss Joseph Colombo. "Clearly, this is a big piece of evidence because the jury will remember the agony portrayed in the trial juxtaposed with this lack of concern."

Randall Kessler, an attorney with Kessler and Solomiany, said that Tsarnaev was likely acting aimlessly and did not think of the long-term repercussions of the extremely brief gesture. "Just turn on YouTube. People do everything while being taped. Who knows what triggered his flipping gesture, but clearly he was not thinking that this image was going to help him obtain a more favorable sentence."

Though the fleeting middle finger was not intended to alienate jurors, both attorneys say that it will. The image, which rapidly spread across multiple media outlets, has become the public representation of Tsarnaev as he awaits sentencing. "He appears, in that photograph, as someone who doesn't care. The jury may return punishment based upon the fact that he didn't care," Slotnick said. "The image is extremely powerful, and the jury won't be able to put it aside."

Kessler agreed. "The bottom line may be that this incident reinforces or makes it evident that he is not remorseful and that he is and remains angry at others, when others are justified in being angry at him," he said. "This incident likely did not and will not help convince the court to show him mercy or leniency."

Though the defense team tried to put the image in context, noting it came from a video in which Tsarnaev also makes the peace sign, the impression on jurors' minds may already be made. Slotnick explained, "The judge will give them a good statement as to what they can do with that picture. He will say, you know, 'Don't give it any special feelings.' The jurors will shake their heads yes, but they will go on to give it special feelings. It's just especially shocking."