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Defense wants jury to see boat where Tsarnaev hid

Dzhokhar Tsarnaev was found hiding inside the 24-foot boat called Slip Away II that was owned by a Watertown resident.David L Ryan/Globe Staff/File

Lawyers for Dzhokhar Tsarnaev want the jury in the upcoming Boston Marathon bombing trial to have full access to the boat where Tsarnaev hid before he was captured in Watertown, saying jurors should be able to view the environment he was in when he allegedly scribbled confessions on the interior of the vessel.

Federal prosecutors had proposed cutting panels out of the wall of the boat to show the messages to jurors in the courtroom, but Tsarnaev's lawyers want jurors to see the bullet-riddled, blood-stained boat in its entirety, saying it could depict Tsarnaev's true state of mind at the time of his capture. They proposed bringing the boat to the federal courthouse in Boston, or having jurors tour the warehouse where it is being stored.

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"The evidence here, really, is the boat.  . . . It's very powerful," said William Fick, one of Tsarnaev's lawyers. "The boat should be viewed as the boat, and to do so otherwise could be prejudicial."

The request came as lawyers and prosecutors are scrambling to make last-minute preparations for the highly anticipated trial, which is slated to begin with opening statements on Wednesday. After nearly two months, the jury selection process is expected to be completed on Tuesday.

One of the key factors in that selection process has been whether prospective jurors would be willing to hand out the death penalty if they find it is warranted.

Tsarnaev faces 17 charges that carry the possibility of the death penalty, along with 13 more, in the April 2013 bombings at the Marathon finish line that killed three and injured more than 260 others.

Tsarnaev was found hiding in the shrink-wrapped boat in a Watertown backyard four days after the bombings, after a violent confrontation with police and a subsequent manhunt. He allegedly wrote what prosecutors say is a confession on an inside wall and beam of the boat, saying, among other things, "The US government is killing our innocent civilians.  . . . I can't stand to see such evil go unpunished. . . . We Muslims are one body, you hurt one you hurt us all. . . . Stop killing our innocent people and we will stop."

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Fick argued that the conditions of the boat could show Tsarnaev's state of mind, and "the context of how the writings were made will be the key piece."

Federal prosecutors opposed the request, saying it will be logistically difficult to bring the boat to the courthouse, and they argued that showing the jury the cut-out panels would still demonstrate the conditions of the vessel. US District Judge George A. O'Toole Jr. said he would consider the issue.

Also Monday, the defense team asked that prosecutors be prevented from showing autopsy photos of the three deceased bombing victims, saying they are too graphic and have no evidentiary value.

"They are horrific, they are disturbing, they do not go to any disputed fact in the case," attorney Miriam Conrad argued.

But Assistant US Attorney Nadine Pelligrini said any autopsy photo is disturbing, but such photos are necessary to prove the government's case. Tsarnaev is charged with using a weapon of mass destruction resulting in death, and Pelligrini said the autopsy photos would show that destruction. The photos that the prosecution wants to present would show the bodies of the victims scarred, burned, and laden with shrapnel.

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"They are important to the government's case," Pelligrini said.

O'Toole said he will consider whether the photos will be allowed.

The defense team also urged the judge to prevent prosecutors from playing video footage of the news conference held by former Boston FBI head Richard DesLauriers on the night that he broadcast photos of Tsarnaev and his brother, Tamerlan, identifying them as suspects in the bombing.

Attorney David Bruck said that DesLauriers gave a spirited, "impressive" plea for the public's help. The press conference turned DesLauriers into a central figure in the bombing investigation. For that reason, Bruck argued, the public has inappropriately aligned itself with DesLauriers.

For instance, Bruck argued, DesLauriers has spoken publicly about video footage that allegedly shows Tsarnaev placing a backpack containing a bomb near Martin Richard, the 8-year-old boy from Dorchester who was killed in the explosions. Some of the potential jurors have mentioned the footage, even though it has never been seen by the public. Bruck argued that the video, as DesLauriers described it, does not exist, implying that what is shown in the video is open to interpretation.

Federal prosecutors told O'Toole that they would work with the defense team to edit the video of the news conference so it does not appear sensational, but they also argued that showing the event to the jury is essential to the case. DesLauriers's news conference that included images  of the bombing suspects was what caused the Tsarnaev brothers to try to flee the area, prosecutors said, leading to the confrontation with police in Watertown. Tamerlan Tsarnaev was killed during that confrontation.

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The defense team has sought to lessen Dzhokhar Tsarnaev's culpability by placing responsibility on his older brother, whom they have described as domineering and coercive.

On Monday, prosecutors urged O'Toole to prohibit the defense team from offering that narrative during the first phase of the trial, known as the guilt phase. They argued that such mitigating arguments are more appropriate for the penalty phase, if Tsarnaev is convicted.

But Bruck argued that such an order would limit the core of Tsarnaev's defense, as he argued that if not for Tamerlan, the "Boston Marathon bombing would have never occurred."

"The government has known forever that this case is about sentencing, that's really what we're here for," attorney David Bruck argued. O'Toole said he would also take that request under advisement.

Late Monday, lawyers for Tsarnaev submitted their fourth request to relocate the trial to a district outside Boston. O'Toole has already rejected three similar requests, and an appeals court has twice refused to intervene.

Should Tsarnaev change his plea from not guilty to guilty?


Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.