12.Guilt-Phase Limits on Victim-Impact and Iraq Testimony
8 linesMR. BRUCK: If it please the Court, we have a matter arising once again concerning victim impact testimony and testimony about the intertwining of our soldiers' experience in Iraq with this crime, all in the same witness, which was Officer Lauren Woods. Ms. Woods seems like a wonderful young woman and a great officer, and there's no criticism intended of her at all. But the question, why she had a -- why she tried to contradict or argue with her superior was probative of absolutely no issue in this case, and it produced a series of statements from the witness which included victim impact testimony about or led to Ms. Lingzi Lu. And, more importantly, the story about how she had lost a cousin in Iraq and had never been able to see him before his death -- and, therefore, she had -- it had particular meaning to her that if Ms. Lu's body was left and there was a third bomb and her face was damaged and her family wasn't able to see her, that really hit home. This is not relevant testimony for this part of the trial, and it's falling into a pattern. Now, it could well be that Mr. Chakravarty didn't know that that story was going to come out, but he could have avoided it by not asking a question that had no relevancy in the first place.
Secondly, there was a series of questions designed to elicit what is only able to be described as victim impact testimony, very touching, moving testimony about the service that was held on Boylston Street, that Officer Woods helped the parents of this young woman arrange. You know, I don't know what to do.
The last thing I want to say is that there is no way to object to this in the presence of the jury without greatly increasing the prejudice, and so we're just sort of helpless if we don't have opposite counsel who are following the rules and preparing their witnesses to avoid these topics.
The last point to make about this military theme -- it seemingly keeps coming back in again and again -- is that this is peculiarly prejudicial in a case involving an immigrant Muslim defendant. It is -- it creates a frame that -- in which this case is about us versus them, and the defendant is them. This operates very, very powerfully even if at a subconscious level. And for the government to continually stoke that paradigm is extremely unfair and will make it very hard, even harder, for the jury to abide by the statutory requirement of the Federal Death Penalty Act that it sentence without regard to the religious faith or the national origin of either defendant or victim in the case.
MR. CHAKRAVARTY: Your Honor, first, on the relevancy, the government knew the story that Miss Woods obviously lived through. The intention was not to elicit a statement about her cousin who died in Iraq, although it just so happens that that cousin had a memorial at a scholarship breakfast this morning from which the police officer had just come from. When we prepped, it was intended that she would say that she knew from personal experience.
The line of questioning, however, your Honor, was probative of the fact that Miss Lu is a foreign national. She had died already at that time so it was not victim impact testimony. It could not be. And it was simply to recount the events of that day and to relay that -- through this witness, a witness who is going to testify about a victim whose parents are 10,000 miles away, about the fact that they came here from China. And she showed them where her -- Miss Lu expired. That was the purpose for which that testimony was being offered. And that's the purpose for -- the fact that the devices created by -- used by the defendant actually led to that death is what's on trial here, and that was the purpose for which it was offered.
The government is cognizant -- and we've had conversations with the defense about some of the concerns that they have raised with the Court. And we will do our best for -- if there is not a highly probative value -- excuse me, to only offer such testimony if there is a probative value, as we see it, and to alert the defense before we anticipate that happening so that if there are any issues that can be raised with the Court before they're elicited.
THE COURT: Well, this is getting into the, I guess, related and perhaps reverse issue that we discussed, I guess, at the beginning yesterday about mitigation evidence for the defense being not relevant to the question of guilt or not. And some of this evidence, while perhaps were it properly relevant to aggravating factors, may not be relevant to the question of guilt. There's -- as I said yesterday, there are no bright lines necessarily on this measure in either direction. Sometimes -- and the government should have a full opportunity to present a case convincingly so that a jury can be convinced beyond a reasonable doubt on the question of guilt or not. So I don't think it should be limited too strictly. But I think several times we've gotten into matters that are more relevant to potential punishment than to the question of guilt or not. I ask the government to be aware of that and consider that in their preparation of witnesses.
As to the -- we had two Iraq incidents this morning. One was -- they were both with Boston police officers. I think that's entirely unnecessary, and the witnesses should be counseled against volunteering those matters. There will be a time, I expect, from what the government's opening was, that discussions of Iraq may be appropriate in connection with review of materials on the defendant's laptop and so on. But with victims, I think it is not relevant. And so I don't want to hear the word "Iraq" or "Afghanistan" without prior permission until we get to that other stage of the case. Okay.
Who's the witness?
MR. WEINREB: Officer Tommy Barrett.
(The jury enters the courtroom at 2:14 p.m.)
MR. WEINREB: Your Honor, may I call the next witness?
THE COURT: Yes.
MR. WEINREB: The government calls Officer Tommy Barrett.