4.Motion to Limit Dr. King's Penalty-Phase Testimony

MR. BRUCK: Yes. I don't think the fundamental issues really are very much different.

There are a number of questions here. I provided the background about Dr. King -- somewhat jumped the gun on this motion a few days ago when we were discussing what was pending -- and I won't go back over his background except to remind the Court that Dr. King is an especially attractive and I could even say sort of heroic figure in the history of the Boston Marathon, and this is all very much intermingled with his record as a United States Army airborne trauma surgeon in both Iraq and Afghanistan.

And the government proposes to intermix those -- the story of his activity and views and opinions about the injuries of the Boston Marathon with his career as a trauma surgeon in Iraq and Afghanistan. And we think this is bringing back the betrayal-of-the-United-States factor in another form. It is an attempt to sort of ramp up the patriotic them-versus-us theme which -- to which this defendant is especially vulnerable as a Muslim immigrant, and we think that simply the prejudicial effect of all of that -- those aspects of Dr. King's testimony far outweigh whatever added probative value he can bring.

Now, there are some legal issues here too. Most of Dr. King's testimony is offered as relevant to the question of grave risk of death, which is a statutory aggravating factor. That factor almost invariably in the past has been proven by evidence that people who were not hurt were in the zone of danger. And all the case law are cases like that, where even though the person wasn't injured, they could have been seriously injured or killed. A shot is fired and there are several people around and there were people that were not hit but could have been. That's what this -- that is the core conduct.

The aggravating factor, as I pointed out a few days ago when we started to talk about some of these issues, is -- focuses on the defendant's intent, his intent to cause a grave risk of death or his intentional action that caused a grave risk of death to others rather than the effect of the action. And what the government has really done here is to create a new aggravating factor which is not grave risk of death.

Let me be more precise about that. The aggravating factor alleged is, and I quote -- this is Number 4 from the Notice of Intent to Seek the Death Penalty. "Dzhokhar Tsarnaev intentionally and specifically engaged in acts of violence knowing that the acts created a grave risk of death to a person or persons other than one of the participants in the events such that the participation in the acts constituted a reckless disregard for human life and that the murder victims died as a result." The focus is on his reckless disregard, "and the deaths of the murder victims," not on the injuries that were committed to the other victims.

And so this cuts fairly widely for Dr. King to -- and for some of the other evidence that the government wants to introduce at the penalty phase from people who were grievously injured but not killed, and to justify it all as grave-risk-of-death evidence does not speak to the actual aggravating factor that's been alleged.

Now, I don't know and have had no occasion to research whether or not the government could have alleged as a non-statutory aggravating factor that had these -- you know, that the capital crime charged -- not other crimes but the capital crimes charged -- also caused grievous injuries to other -- to other people who did not die. But they didn't allege that. And the government is strictly bound by the notice that they have filed. They can't amend it without good cause, and they certainly can't amend it now. So to justify Dr. King's very -- what we expect to be -- we don't have a report, but we expect his testimony to be extremely graphic testimony linking IED damage that he saw overseas treating American troops to the damage to the victims -- the injuries to the victims of the Boston Marathon bombing. To try to get that into evidence on the grounds that it proves the grave-risk-of-death aggravating factor is both legally meritless and risks really inflaming the jury past the point that they already have been in this case. And simply laying on more pain and more horror and more sense of identification -- completely understandable identification with the surviving victims in this case as a reason to impose the death penalty, underlying all of this -- and this is the thing of which we must never lose sight, is that the jury does not sentence for the non-capital injuries. Those are crimes, had they been separately charged, that the Court would sentence for.

But to put these injuries before the jury both in the form of one victim after another, and of Dr. King describing in graphic -- what I assume to be the most graphic detail what the non-fatal injuries looked like, is to push the jury's ability to keep clear what they have sentencing authority for and what they don't way past the breaking point. And it guarantees in my view, in our view, that the jury will impose sentence partly for the injuries that were done to the people who lost limbs and who received other terrible injuries.

These people have a right to be heard and the injuries that they suffered have a right to be considered, but the time for that is the sentencing before the Court, not before the jury whose sentencing authority is limited to the four homicides that, of course, are charged various ways. But that's it. That's what the jury does. And I think it's terribly important that the -- both with respect to Dr. King and across the board the Court segregate that issue out so that the jury isn't overwhelmed with this highly emotional evidence.

So we have a whole mix of factors regarding Dr. King. There are some very specific things that the government intends to get from Dr. King, such as that Martin Richard was especially vulnerable. That's already in.

Dr. King did not see any of the homicide victims, including Martin Richard. He treated victims who survived and went to Mass. General. He was not involved in any of the autopsies; he didn't see any of the autopsies. The doctors who actually conducted the autopsies have already testified.

If the forensic pathologist who has already testified regarding the Richard child -- if the government feels that he did not make clear enough that Martin Richard was especially vulnerable, of course he could be re-called. He testified about the loss of blood, that a small child would lose his blood more rapidly. And the evidence of particular vulnerability is already there.

It is not necessary to call this veteran of Iraq and Afghanistan to describe what IED wounds do, to bring all of those powerful but extraneous emotional issues into this case simply to have him say what any doctor could, is that a child is more likely to be hit by more shrapnel because he's closer to the ground, that he has less blood in his body. That is -- I think that is a sort of make wait reason, additional reason, for calling Dr. King when that's not any part of the actual reason.

I said at the beginning that we remain extremely concerned about the potential -- about what is becoming -- what we think is almost the impossibility of the jury abiding by the non-discrimination requirement of the Federal Death Penalty Act. And when Mr. Chakravarty's closing argument ended with the juxtaposition of this nasheed over a fast photo -- a photo montage of the carnage on Boylston Street, we really had a moment in which the uttering of this defendant, the emphasis on his foreignness, on the strangeness of his religion and of his religious beliefs, in addition to everything else in evidence, had really gone too far. And now to add this, to bring in the United States Army, a man who also, while he was at it, ran the marathon that day before going to his post as a trauma surgeon at Mass. General, and just to try to present this idea of this is the heroism of the American military. Here is a man who saw the way our soldiers have been afflicted -- the government actually went so far in their papers as to say the one thing he can do is to say that these injuries -- that this defendant had made statements, the boat writing which extolled the actions, the attacks by Muslim extremists on our troops, or words to that effect, and here is a witness who can say that these are the sorts of injuries inflicted by Muslim extremists in Iraq.

Now, there was nothing in the boat specifically about Iraq. It's the government's conclusion that that is what he was referring to when the writings referred to "killing our innocent civilians" and so forth, but the government's papers really close this circle and make it very, very clear that there is simply no way to avoid the conclusion that bringing Dr. King into this mix where there's no need for his testimony on any issue pointing towards -- for the most part toward a statutory factor that doesn't fit is really simply an effort to inject prejudice and bias into the sentencing proceeding.

We think it would violate the Eighth Amendment to go down this road, but much more immediately, I think it is a clear example of where the Court should exercise its gatekeeping function under the Federal Death Penalty Act because this evidence has far more prejudicial effect than probative value.

MR. BRUCK: I do stand corrected. I had read the wrong aggravator, but the argument is identical. The grave risk of death statutory eligibility factor, which is 3592(c)(5), is materially exactly the same as the threshold factor that I read to you, which was that the defendant knowingly created a grave risk of death to one or more person in addition to the victims of the offense. The focus, again, is the knowing creation of a grave risk of death; not on the consequences.

The government has established in spades that exploding a bomb, which actually killed two people in one instance and another one in the other, in a crowd establishes a grave risk of death to other people. That is not something which has to be proven over and over again by exploring the actual sequelae for each of the people that was injured. As I say, that proves another aggravating factor and one that the government has failed to allege.

The government now says, Well, okay. So it proves the heinous, atrocious -- the heinous, cruel and depraved manner of committing the offense, but the problem with that argument is that it does not comport with the terms of the statutory aggravating factor, which is that the defendant committed the offense in a especially heinous, cruel and depraved manner in that it involved serious physical abuse to the victim. And what is meant by "victim" is the victim of the capital count, that is to say, the decedent. That is the focus.

This has been the most constitutionally problematic statutory aggravating factor in all of death penalty law for the last 35 years because of its inherent vagueness and susceptibility to being applied to every murder case. And there are a number of U.S. Supreme Court decisions reversing death sentences where the jury could have used this aggravating factor to sentence anybody to death for any murder.

The way that the Federal Death Penalty Act controls that is by specifying very specific facts that must be proven as a predicate for a finding of this aggravating factor, and it is in this case limited to serious physical abuse and it is limited to the victim. The victim of the murder. So it simply doesn't help the government to say that there's that other aggravating factor that they can hang all of this very, very emotionally overwhelmingly powerful evidence on because it's not relevant to that factor either.

For all those reasons, we think that Dr. King's testimony should be excluded and that the government's proof concerning non-homicidal offenses generally -- non-homicide injuries generally should be limited accordingly.