I wasn’t going to write about Dzhokhar Tsarnaev’s flipping off of a security camera. I’m against the death penalty, but the state does far worse things all the time than it would do if it decides to kill him. But then I saw the video from which the photo was taken. And it is clear that the photo should never have been allowed into evidence. It is a total distortion of what Tsarnaev was doing. This, my friends, is why we can’t have nice things. This is why law enforcement is able to use pseudoscience to convict people. This is why police officers almost never even get charged for killing innocent people. This is why after years of appeals, the state still kills innocent people. Because our system is not about justice. It is about establishing who has the power and who does not. Justice just doesn’t matter.

You know how you go to the the DMV to get your picture taken for your driver’s license? And in almost all cases, it just looks bad and generally weird? But you know that this is not how you look all the time. As you are moving from one expression to another, your face does all kinds of strange things. But we don’t notice this as we look at each other because it is fluid — we see the context. Well, that is exactly what happened to Tsarnaev in the picture above. Compare it to the 36 second video from which it was taken:

Given that video, does this look like something that CNN should have described as, “He glares into the camera defiantly, his middle finger raised in a profane salute.” But at least CNN is right: that is kind of what the single image looks like. The real problem here is the judge who allowed the photo into evidence. It is prejudicial and totally distorts what was actually going on: he was checking out his image in the only mirror around. Further, it allowed the prosecution to claim that it showed an unrepentant Tsarnaev. But it doesn’t show that at all. It may well be that Tsarnaev is unrepentant. But that photo sure doesn’t show it.

Glenn Greenwald nailed it when he wrote, “It was, explicitly, the prosecutors’ intent to provoke exactly this reaction: this one photo, standing alone, was designed to produce a visceral, bottomless contempt for Tsarnaev which even disgust at his actual crime could not achieve.” This doesn’t seem like a real trial to me. It seems like a kangaroo court. If the judge had decided that Tsarnaev is to die before the trial even started, he should have just announced it. But of course, he wouldn’t. Because he, like pretty much everyone else in the criminal justice system, is determined to make it appear neutral, even while it isn’t in the vast majority of cases.

As for the other side of this is: so what? What if Tsarnaev was doing just what he appears to be doing in that photo? Suppose it is clear that he thinks the Boston Marathon bombing was great, that he wishes he had killed more, and if he ever gets out he will kill everyone. What does that prove? I’ve never understood this part of the criminal justice system. Jeffrey Dahmer became a Christian in jail. Did that take away from the heinousness of his crimes? Was his conversion even real? I think the answer to both is, “No!” But it does matter to the courts.

And what it shows about the courts is how it is all about power. Sparing the lives of people who come to court and repent is very much like the fake confessions of Stalin’s show trials — or any number of other scenes like them that show up. It doesn’t matter than the confesser actually believes what she is saying. It is like a religious rite: yielding officially to power. And that is the business of a sick institution — be it a terrorist group, or the United States of America’s criminal justice system.