5.Morgan Question — Mitigation and Case-Specific Follow-Up
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MR. WEINREB: So we wanted to actually revisit for one moment the issue of how the Morgan question should be asked because I think that in the back and forth that the parties engaged in over how it should be asked, there's a formulation that the government had proposed that also didn't make it into the questionnaire. And although I think the Court has effectively asked it in the way that it has questioned the jurors so far, I think that in an excess of caution, to make sure that the record is clear, that the defendants are being asked the precise question that Morgan require it be asked, we would ask that each juror be asked that, if the defendant is found guilty of a capital crime and the case proceeds to a penalty phase, would you be able to meaningfully consider both aggravating and mitigating factors in reaching a penalty decision?
"Meaningfully consider" is the phrase that Morgan calls for. It's the ability to meaningfully consider mitigating factors that was the essence, the key question, at issue in Morgan. And we do believe the jurors should be asked on the record if they will meaningfully consider mitigating factors without further elaboration.
MR. BRUCK: Well, we think there are two things missing from that. One is: Found guilty of what? A capital crime doesn't tell the juror anything. And the capital crimes charged in this case include use of a weapon of mass destruction. If we conceal that from the juror in asking the question, it doesn't tell us anything that is legally significant under Morgan.
The second thing is that Mr. Weinreb's formulation doesn't include the possibility that, after considering the aggravation and mitigation, the juror could potentially vote for a life sentence rather than the death penalty. That's what Morgan is all about.
The problem with not being able to consider a life sentence is that the juror wouldn't consider mitigation, but you can't substitute "would you meaningfully consider mitigation" or "could you ever impose a life sentence on someone that you convicted of using a weapon of mass destruction resulting in death?" That's the Morgan question.
MR. WEINREB: If I could briefly respond, your Honor. So I understand that that is Mr. Bruck's understanding or theory of what Morgan holds, but I don't believe that is literally what Morgan holds. I believe that would be an extension of Morgan beyond what the Supreme Court held; and, therefore, there's no existing legal problem with the Court asking the question the way that the Supreme Court in Morgan said it needed to be asked.
And that's why -- and there is case law, as the Court is aware and has cited, that disapproves of asking these kinds of case specific questions because it asks the jurors to stake out a position ahead of time. And so we continue to oppose that.
As for the issue that one must go beyond asking whether the jurors could meaningfully consider mitigating factors and ask them if they could, in addition, sentence the defendant to life imprisonment without parole, that is subsumed in the Morgan question.
So what was at issue in Morgan was that defendant's -- a juror's ability to follow the law as the Court gives it to the jurors. And the question in Morgan was -- the holding in Morgan was that if jurors could not meaningfully consider mitigating factors they effectively could not be fair and impartial jurors because they were not following the law which requires them to balance or weigh mitigating against aggravating factors.
So if they say they can meaningfully consider mitigating factors, that is what the law requires. And that's all that they, in the government's view, Morgan requires that they be asked.
THE COURT: Well, I think we -- I understand the defendant's position. I think we've talked about this a couple of times. I do think the additional specifics referencing the specific -- drawing attention to specific circumstances, either by the nature of the offense or by the identifying categories of victims and so on, is more specific than is called for and gets into the stakeout territory.
I would, I guess, add that the jurors know that this is about a bombing, and they know that there are three people who were killed in the bombing. So in light of what we've also heard about, what people understand from the media about the case, is they have those specifics already in their minds as they would answer the question about the ability to meaningfully consider life imprisonment in this case. In other words, what they've -- even just as it's been framed in my preliminary instructions, by telling them what the offenses were in general, they have those specifics, and I think that's sufficient under the circumstances.
Okay. Let's proceed with No. 11.