1.Motion to Exclude Guilt-Phase Mitigating Evidence
16 linesP R O C E E D I N G S
COURT CLERK: All rise.
(The Court enters the courtroom at 10:03 a.m.)
COURT CLERK: The United States District Court for the District of Massachusetts. Court is in session. Be seated.
For a motion hearing in the case of United States versus Dzhokhar Tsarnaev, 13-10200.
Would counsel identify yourselves for the record.
MR. WEINREB: Good morning, your Honor. William Weinreb for the United States.
MR. CHAKRAVARTY: As well as Aloke Chakravarty, your Honor.
MS. PELLEGRINI: Good morning, your Honor. Nadine Pellegrini for the United States.
MR. MELLIN: Good morning, your Honor. Steve Mellin for the United States.
THE COURT: Good morning.
MR. BRUCK: Good morning, your Honor. Appearing on behalf of the defendant is Judy Clarke, Miriam Conrad, Bill Fick and Tim Watkins.
THE COURT: Good morning.
So there are some in limine issues that we want to address that need to be addressed, as I understand it, or ought to be addressed before opening statements. This is not one, I guess, but it's a place to start.
There is a -- well, let me start with the government's -- the government has a motion regarding the exclusion of mitigating evidence in the guilt phase. Why don't we start with that. Mr. Chakravarty?
MR. CHAKRAVARTY: Good morning, your Honor.
Your Honor, the Federal Death Penalty Act makes clear about the bifurcated nature of death penalty cases. There is a liability phase which is a guilt -- the burden on the government is to prove beyond a reasonable doubt that the defendant has committed a crime, and the jury is narrowly focused on the issue of whether the defendant did, in fact, commit those crimes.
Only after that phase, as the jurors have been reminded throughout the voir dire process, does the issue of sentence -- what the appropriate punishment if somebody's found guilty of a capital offense -- take place. And it is throughout the history of the Federal Death Penalty Act, certainly in the last 20 years, that that second proceeding in which aggravating evidence and mitigating evidence is presented, is the forum in which any evidence of relative culpability or other mitigating factors related to sentencing -- where those issues are aired.
What the government is concerned about, and it's -- the defense response to its motion in limine bears that concern out, is that the defense will intend to use the liability phase, the guilt or innocence -- guilt or not guilt phase of the trial, to advance its theories of mitigation. And it's one thing to simply challenge the admissible evidence in a guilt phase of any trial, any criminal trial, by legitimate relevant and non-prejudicial evidence, but it is another thing entirely to advance an agenda, a didactic agenda, of the mitigation theory of the case during that initial liability phase.
The concerns are, number one, the legal concern. There is a reason for this bifurcation. The jury ought not move on and skip ahead to a penalty phase before a fair trial both for the government as well as for the defense is had with regards to the germane issues. And the germane issues in the liability phase are whether the elements of the indictment have been proven.
But the other is a pragmatic concern, your Honor. This jury is going to be instructed that they are not to not only move on, but they are to consider the evidence related to the elements of the offense. Motive is not an element of an offense but it is a concept, and evidence of motive feeds the circumstantial evidence which is nature -- necessary in every criminal case -- or many criminal cases I should say, to demonstrate somebody's intent. And so for that reason, the government will present motive testimony.
The defense's rejoinder to that is they ought to be able to present contrary testimony, whether it to be to the defense's motive or other evidence in the case, which will further advance their mitigation case. And I think that goal is both clear as well as is inappropriate under our jurisprudence regarding criminal trials.
The sentencing factors ought not infect the jury's consideration. And you could imagine the circumstance where during cross-examination or in argument the defense suggests something to the jury which legally makes no difference with regards to liability, only makes a difference with regards to mitigation, and the jury is left trying to decipher what they should be considering with regards to the liability of the defendant. That's the situation that we're trying to avoid.
Further complicating that, if the defense introduces on cross-examination or in their case evidence of mitigation, it would place the government in an awkward posture of having to, frankly, invite error by introducing evidence of aggravation as aggravation evidence. And I think the point here is the touchstone of the liability phase has to be the defendant's culpability and the acts that relate to the defendant's culpability.
The defense, in their papers, have clearly made the point that they want to advance the theory of the coconspirator's culpability in the liability phase. And that simply -- that person's character, his actions outside of the context of the criminal conspiracy charged are simply not relevant. And even if there was some marginal relevance on some of these facts, which the Court will assess as the trial proceeds, then the risk of prejudice and the confusion to the jury is so high that it would -- it should be -- under 403 concerns it should not be admitted. And the pragmatic concern that the jury will not be able to be sufficiently instructed either curatively or precautionarily with regards to how they are to assess mitigation evidence in the liability phase, your Honor, is ultimately the reason why there is no case that the government -- the government's searches have ever revealed this expansion of capital case law to bring in mitigation evidence into the liability phase of a capital case in order to help lay the groundwork for a penalty proceeding.
That, I submit to your Honor, is a strategic choice. And to the extent that we are going through with this liability phase trial, then it should stay clean and it should stay like every other criminal trial, not prejudging of somebody's -- of the sentencing consequences of somebody's conduct and it should stay focused on whether he actually committed the crimes.
Thank you, your Honor.
THE COURT: Mr. Bruck?
MR. BRUCK: Thank you, your Honor.
Well, since Mr. Chakravarty begins by invoking the history of the Federal Death Penalty Act, I think it's probably worth observing that not only has no court ever granted a motion like this, but so far as we've been able to tell, since the passage of the Federal Death Penalty Act in 1994, no lawyer for the government has ever filed such a motion.
What the government is actually asking for is to sanitize the liability phase evidence of any fact which places any part of the defendant's side of the story into evidence so that the jury will have for six weeks or two months or however long it takes a completely distorted, one-sided and unrealistic picture of the defendant's culpability and of his role in this case.
This is a conspiracy case, and the notion that in a conspiracy prosecution the defense is not allowed to present through argument, evidence -- on cross-examination or perhaps even evidence information about the relationship between the two alleged conspirators is, to say the very least, a novel proposition. And it's not surprising that Mr. Chakravarty's been unable to find a single case standing for that prosecution.
Moreover, this notion that the government only will present its sentencing case at the sentencing phase is nonsense. Of the 12 statutory and non-statutory aggravating factors, all but 11 will probably be entirely proven by the government's evidence at the liability phase. That's -- the government has known forever that this case is all about sentencing, that that's really what we're here about, and their liability phase will be aimed at the question of sentence. And every tactical judgment, every witness, every direct examination will be focused on increasing the jury's sense of the personal blameworthiness of the defendant. And now they say, Well, we can't respond to that. Taken literally -- and not literally, what they say is that we can't even mention to the jury that the defendant was 19 years old until it gets to the penalty phase.
The government's problem with respect to the death penalty, that they've also known since the very beginning of this case, is that the lead conspirator, the person who started this whole thing, and but for whom the Boston Marathon bombing would never have occurred, was the older brother who's dead, and the defendant is the teenaged younger brother. And that presents a logical issue, a problem for the government's request for the death penalty.
So their response is to file this unprecedented motion to present the defendant's liability in artificial isolation in the hopes that by the time we get to the penalty phase, as the government knows we will, in six weeks or two months or however long it takes, the jury's concept of Jahar Tsarnaev's individual personal blameworthiness and responsibility and role in the offense will be completely distorted and will have set in like concrete and it will be impossible, or very difficult, for the defense by presenting the real facts of this story then to change the jury's mind.
Mr. Chakravarty refers to motive, as well he might. The government doesn't have to prove motive. It's not an element of any of the 30 crimes alleged in the indictment. But the government chooses to go into motive, and that opens the door for us to respond. The government says the motive is extremist jihadi ideology, and we are entitled to respond by showing that a large part of the motive may well have been the defendant's domination by, love for, adoration of, submissiveness to, whatever, his older brother. That is fair game. If the government goes into it, we can go into it. And the idea that the Court should somehow police the evidence so as to allow the government to put every bit of their -- or almost every bit of their case on -- or almost every bit of their case on aggravation into the guilt phase, but the moment we try to respond, whether in argument or cross-examination or in any other way, the boom comes down, they object and we have to sit back down and pretend that there's nothing to be said, well, it's not surprising that no motion like this has ever been filed, let alone granted. And that's why Mr. Chakravarty can't find any case law on it. This would, to say the least, be breaking new ground, and it's ground that shouldn't be broken. We also point out that we do know something about how juries make decisions in capital cases and there are dangers to be navigated. The Capital Jury Project, after interviewing nearly a thousand jurors who actually sat on capital cases in 11 states found that a great number of jurors make their decision about penalty during the guilt-phase evidence, during the evidence, before they've even heard guilt-phase instructions in closing argument, let alone the entire penalty phase.
Now, there may be nothing we can do about that problem. It seems to come with the territory. It's a very disturbing finding. But if there's one way we want to guarantee that it's going to happen in this case, it's to allow the government to present their full case to exaggerate and distort the defendant's personal culpability and role in this offense by eliding, pretending as though none of the other evidence exists, letting the jury hear that, deliberate on it, come back with a guilty verdict, and then -- if that's what they do, and that's what the government expects -- and then see if we can dig our way out of the hole by presenting the rest of the story sometime in late April or May. It is extremely unlikely that this problem of prejudgment can be prevented under those unnatural and unfair conditions.
This -- when I first got -- when we first received this motion we thought, well, maybe the government's filing this because they think that we're going to call, you know, expert witnesses or social history witnesses or to present our full mitigation case at the penalty phase -- at the guilt phase. And we thought, Well, you know, maybe the motion's really moot. All we need to do is say we're not going to do that. But we come to find out that they actually want this to be a completely one-sided and distorted evidentiary presentation of a sort that has never occurred in any prior case, and we don't think this should be the first one.
Thank you.
THE COURT: Anything else?
MR. CHAKRAVARTY: No, your Honor.