In the first indication of a tactic that lawyers may use to defend Boston Marathon bombing suspect Dzhokhar Tsarnaev, his legal team won permission Friday to have the 19-year-old periodically photographed in prison to document his recovery, in an effort to challenge whether his initial statements to investigators were made voluntarily.
Defense lawyers, in arguments made public in a federal judge’s ruling on Friday, argued that the photographs, contrasted with images of him shortly after his capture, would provide evidence of his “evolving mental and physical state” since that time, and call into question his ability to make any admissions of guilt to authorities.
By underscoring his weakened condition shortly after his arrest, images of his improved health could also bolster the defense’s arguments against the death penalty, a federal judge ruled.
“It is true that photographs may provide probative evidence to support sentence mitigation arguments,” US Magistrate Judge Marianne Bowler wrote in a five-page decision.
Tsarnaev and his older brother, Tamerlan, are accused of planting the bombs that killed three people and injured more than 260 at the Marathon finish line on April 15. The brothers are also accused of killing MIT police Officer Sean Collier.
Tamerlan Tsarnaev, 26, was killed after a shootout with police in Watertown several days after the bombings. Authorities said he was also run over by his younger brother, who was making a desperate bid to escape police in a sport utility vehicle.
Dzhokhar Tsarnaev, captured hours later near the shootout scene inside a boat parked in the backyard of a home, faces federal charges that could carry the death penalty.
Under questioning by FBI agents, Dzhokhar Tsarnaev allegedly admitted that he and his brother were behind the bombings. Those statements came before investigators informed Tsarnaev of his rights to counsel and to remain silent, which could make them inadmissable in a trial.
Evidence of his injuries, which included a gunshot wound to the neck, could be used to argue that Tsarnaev was in no condition to make statements to investigators, legal specialists said.
“The argument would be that you weren’t in the appropriate mental state, given your physical health, to voluntarily agree to anything,” said Robert L. Sheketoff, a prominent Boston attorney.
Tsarnaev reportedly gave statements to investigators after his arrest and prior to his first appearance before Bowler, when defense lawyers were finally by his side.
Law enforcement officials said Thursday that Tsarnaev scrawled a note on the side of the boat where he was captured that also seemed to take responsibility for his role in the attack.
Documenting his current health condition establishes a baseline for improvements, Sheketoff said. Sheketoff briefly assisted the defense of serial killer Gary Lee Sampson, the first person to be sentenced to death in a federal court in Massachusetts, a case that is under appeal.
While granting the defense’s motion, Bowler ruled that the US Bureau of Prisons must take the photos, rather than Tsarnaev’s lawyers, to comply with security policy at Federal Medical Center Devens, the detention facility where the bombing suspect is being held.
Bowler ruled that defense lawyers can be present when the photos are taken. Initially defense lawyers sought to keep the photographs private under attorney-client privilege, however the judge ruled that prosecutors could have access to the photographs.
The full nature of the defense request, which was filed in secret on May 7, was not known. The judge shared the request with prosecutors so they had the opportunity to raise objections.
Specialists said photographic evidence of injuries, particularly serious and lasting ones, could help the defense as it builds a case against the death penalty.
“If you have some permanent injury, in a sense you’ve paid a price,” said Sheketoff, who is not involved in Tsarnaev’s defense. “If you sustained that punishment during the capture, you could argue that it’s some retribution that’s already been exacted, especially if it resulted in a permanent injury.”
US Attorney General Eric Holder Jr. would make the final decision on seeking the death penalty, after a recommendation from the US attorney. In Massachusetts, the US attorney has traditionally appointed a committee to hear defense arguments on why the defendant does not deserve the death penalty. That committee then makes a recommendation to the US attorney.
The office of US Attorney Carmen M. Ortiz in Boston said she will seek the advice of senior counsel in making her recommendation.
In other developments Friday, Transit Police Officer Richard Donohue is now being treated at Spaulding Rehabilitation Hospital in Boston, 28 days after he was rushed, nearly lifeless, to the hospital.
Donohue was shot in Watertown on April 19 as he and other police officers faced off against the Tsarnaev brothers.
When Donohue arrived at Mount Auburn Hospital in Cambridge, he had lost a significant amount of blood and barely had a pulse. But hospital medical staff stabilized and revived him, setting the stage for what his wife, Kim, called “Phase 2’’ of his recovery.
“Gooooood morning, Spaulding Rehab! We are now on to ‘Phase 2’ — working out those legs to get him in shape to go home,’’ Kim Donohue posted on Facebook. “Take the most beautiful rehab facility you can imagine and add in a water view of the Boston skyline, and that is Spaulding-Charlestown.’’
In the coming days and weeks, her husband will undergo intensive physical therapy, she said in her post.
“It’s time to wake up and smell the PT! We hear the Physical Therapists kick butt first and take names later,’’ Kim Donohue wrote.