5.Massachusetts Death-Penalty Law as Mitigation
3 linesTHE COURT: All right. Let's move to the omnibus motion. Let's take the issues one at a time, I guess.
So I think the defense in the response took some of them off the table, explicitly the reasonable doubt standard for the weighing. I think the defendant preserves his point of view but acknowledges that the law of the circuit is otherwise. I'm just tracking through the response to get the issues, I guess. So the evidence about -- or argument about the Massachusetts lack of a death penalty is a state law matter.
MR. MELLIN: I think that one is still in play, your Honor. And we would rely on the cases we cite, and in particular, the Sixth Circuit's en banc decision in Gabrion which lays out that there is a reason why this is not an appropriate mitigating factor. It's because it has nothing to do with the defendant's character, the defendant's history or the circumstances of the offense.
Whether it's the Commonwealth of Massachusetts or the State of Maryland or the country of France, it doesn't matter in the cases that Gabrion talks about what the actual diplomatic or political decision was made by that governing body; what's important is the evidence about whether or not the defendant has put on mitigating factors that deal with his background, his character or the circumstances of the offense. So I think it's very clear, especially in the most recent opinion of the Sixth Circuit.
MR. BRUCK: I think we can rest on our papers on this issue. The Court has already advised the jury that Massachusetts law does not provide the death penalty, so this is not a secret. This was done during your introductory instructions, as the Court recalls, to each panel during voir dire.
We are not asking to introduce evidence on the issue. The issue is already known to the jury. We do think that whether or not the requirements of justice in this particular case, given the harm to this particular community, which I know the government is going to probably have things to say during argument from its side, can take into account the fact that this punishment is not something which the people of Massachusetts are used to, feel that it's part of their arsenal against -- or something which historically has felt to be necessary in this Commonwealth. And looking to, in a holistic manner, as to what is fair and just and necessary in this case, I think that is something that can't be off limits. But as I say, we have authority in our brief that we've cited and we rest on that.