6.Execution and Future-Terrorism Mitigation
9 linesTHE COURT: All right. We've dealt with the plea issue. The next is the -- I guess it's the -- this is the last one, Number 7, on the -- in the notice letter of December 12th which is the circumstances -- under the circumstances executing the defendant would increase rather than reduce the danger of future terrorist attacks.
MR. BRUCK: I might be able to clarify this issue just a little bit.
THE COURT: Okay.
MR. BRUCK: That statement about the -- sort of the actual prediction that there would be more murders rather than fewer murders came at the end of Dr. Scott Atran's Rule 16 expert disclosure. It was a way of expressing conclusions that could be drawn from opinions that Dr. Atran will give which are largely responsive to those of Dr. Levitt. And really, this is an expert who has tremendous one-on-one firsthand face-to-face experience interviewing, evaluating, actually administering psychological testing to terrorists, to people who have been involved in religiously motivated acts of violence all around the world. And he is one of the foremost researchers on the whole question of radicalization and what actually moves people who hold radical views to take violent action. And contrary to Dr. Levitt, he will talk about the role of interpersonal relationships, and in a more general way will discuss what it is that moves people to action.
It will be inferential -- it could be inferred from his testimony that -- and indeed it's inferrible from just plain old common sense that the death penalty is a problematic response to a very specific form of crime which happens to be involved in this case, which is religiously motivated violence by people who seek martyrdom, who seek death, who are actually members of what one could describe as a death cult. And there will be evidence presented from Tamerlan Tsarnaev's computer that that describes him to a tee.
The government has introduced evidence claiming that in effect it also describes the defendant. I envy my brother. There is no getting out of this case the logical proposition that one would wonder about the utility of threatening or punishing with death people who commit a crime in order to die. So there's no way of disentangling that from the case. The government has joined the issue in various ways.
In closing argument, the government made the point about how the defendant was doing what terrorists do. He wanted his acts to stand for more than what people might think. There was a long discussion of messaging, of the effect on other people that the defendant wanted to have. There is just no way of unscrambling the egg.
And so we're not asking -- and I think maybe the government was responding to something which maybe is not really an issue in the case which is why I asked to speak out of turn here. We are not actually making an empirical prediction that there will be more terrorist attacks rather than fewer if the defendant is sentenced to death and executed; rather, it is -- Dr. Atran's testimony will simply deal with an area in which this question arises, as it already has arisen and must inevitably arise, from all of the evidence that the government has introduced in the case.
And all we're saying in responding to their motion -- and maybe we don't have to say it -- is that there is no way to elide this question from the evidence, from the jury's consideration or from closing argument. It is part and parcel of every case of this nature, and it would be very unfair and illogical for the government, in effect, to get a free pass on what is an issue that will be on everybody's minds, and should be, because it arises from the individual facts of this case.
This is not a categorical argument that the death penalty should never be imposed for terrorism. It has to do with the facts that have been introduced primarily by the government, so far, in this case, and that will also be explored by us, particularly when we look finally at the motivations of Tamerlan Tsarnaev. And so that's what this is all about, and I'm not sure that there's really a live controversy.
MR. MELLIN: Well, your Honor, there's a live controversy if the defense is asking for this mitigator. I'm not exactly sure what Mr. Bruck is saying right now, but if they are asking that this mitigator be put before this jury, we would ask that it be excluded. It's not appropriate. Mr. Bruck's argument to the Court is about some legislative impact or legislative concerns that may go on in deciding whether or not a political body wishes to have the death penalty, but that's not an issue for this jury.
The issue for this jury is to look at all of the evidence that deals with the defendant's character, his history and the circumstances of the offense, and decide what is the appropriate punishment in this case, not what some hypothetical third party may do or may not do.
Mr. Bruck just said that he would not be able to put on empirical evidence that there would be an increase in attacks. That takes care of this mitigator. They don't have a basis to claim this mitigator. Just because Dr. Atran at the end of some disclosure says this doesn't make it appropriate. We would move to exclude it. If they are going to call Dr. Atran to testify, we would move to exclude that statement from his testimony because there's no basis for it and it's not appropriate for him to make it. It's completely speculative and has nothing to do with the defendant's sentencing.
And just one other point, your Honor, concerning Dr. Levitt's testimony. At no point did Dr. Levitt say anything about the impact that sentencing the defendant to death would have on the actions of others. That is not at all what Dr. Levitt said. We will have no evidence that will claim that in our case-in-chief. And the actual aggravating factor that we have alleged says, "In conjunction with committing acts of violence and terrorism, the defendant made statements suggesting that others would be justified in committing additional acts of violence."
That has to do with the defendant's statements in the boat. What he wrote in the boat. That is what that is referring to, his actions in this case, and also his statements in the boat. That is it. We're not talking about anything anyone else is saying. We're talking about what the defendant intended and what the defendant wrote; not anything at all about actions of third parties not involved in this case.
MR. BRUCK: I should just say that the government's motion to which we were responding was to bar evidence and argument; it was not a motion to strike the mitigating factor. If there is a way of redrafting the mitigating factor to make it more responsive to what we intend to prove we can certainly do that, but we're not prepared to argue the striking of the mitigating factor in response to an argument which was actually addressed at evidence and argument, not at the factor itself.
THE COURT: Well, that conveniently brings me to another topic, and that is when we might have a final statement of mitigation factors and aggravating factors in the form that they would be put to the jury in the verdict slip. I think we should have that before openings. So to the extent that these do or do not match that criterion, I would like to include that in whatever is proposed from the parties regarding what should be said to the jury in the opening statements so it's clear from the outset what the template is and there's no argument later about things coming in that weren't identified to the jury at the outset.
Which brings me to my other question from everybody, is when we might have witness and exhibit lists sufficient to be advised prior to the instruction -- the preliminary instructions. And for that I would suggest I don't think there's any reason to stagger it. I would say both sides by the end of the -- by the close of business on Thursday, if I could have an expected witness and exhibit list for this phase.
And if possible, because I invariably referred to it in terms of the aggravating and mitigating factors that will be put to them, I don't know if you have prepared a proposed verdict slip, but that would be useful. That can be adjusted, I think, as we go along, depending on what happens in the course of the case. But I am particularly interested in the statement of those propositions, aggravating and mitigating, that will be the focus of the jury's attention when they finally deliberate.
So I guess we could make the same deadline, the end of the day Thursday, for that.
MR. WEINREB: Your Honor, that's fine by the government.
I'd just like to add, we intend to file a motion in limine by close of business today related to some of the expert testimony that the defense proposes to introduce in the penalty phase with one exception -- or two exceptions, I should say, and that's with respect to Mr. Spencer, who is the computer expert, and Mr. Grant, the cell phone extraction expert.
The defense has provided the government as evidence that it intends to offer at trial 18 gigabytes of information from Tamerlan Tsarnaev's computer and 16 devices, mostly cell phones. And as far as -- it has really not been narrowed down beyond that, so that we have no idea which of these items the defense actually intends to put in. And we're assuming, unless we hear to the contrary, all of them.
That is, in our view, on its face an offer of evidence that is both irrelevant and more prejudicial than probative in the sense that just a cursory glance at some of this material makes clear that it has little or nothing to do with this case. Innumerable photographs of the Tamerlan Tsarnaev with other people who have never been identified and probably never will be, photos of things that appear to have absolutely nothing to do with this case, thousands and thousands of files that have nothing to do with this case, Katherine Tsarnaev's entire Internet search history with tens of thousands of entries in it, I mean, just all sorts of things that are plainly on their face irrelevant and likely to mislead and distract the jury. The same thing with all of these devices.
The defendant, as the proponent of this evidence, has the burden of showing that it is relevant and noncumulative. We assume that when it comes down to it, the defense is only going to be offering a small portion of this evidence. But until we see each item, item by item, we can't say whether it's relevant; whether we believe that it's more prejudicial than probative; we can't assess whether it has been altered, meaning stripped, for example, of metadata that could help put it in context for the jury by informing us and them when it was created on particular devices; and whether it was deleted, in other words, whether it comes from someplace in the file structure or whether it comes from so-called CART space or it may have been deleted for days, weeks, even years. We have reason to believe that some of the images that they have all sort of noticed as potential exhibits are images that were converted into PDF files for purposes of presentation. That strips them of their metadata.
So before we can craft a motion in limine with respect to any of those items, we need an itemization of them. And it sounds like we potentially will get one on Thursday. We will then quickly endeavor to review them and file something. But I just want the Court to know that there's no possible way we could do it before Thursday -- or really before having that list and taking some time to review it.
THE COURT: Well, let me just note on our schedule the defense case will begin the 27th, so there will be some time to assess those things.