2.Plea-Offer and Remorse Evidence Hearing
16 linesTHE COURT: Okay. All right. I'll reserve on it.
I think the next -- actually, the next one in sequence on the docket is the government's motion regarding plea negotiations. That's repeated in the omnibus motion. I don't know whether -- why don't we address that.
Mr. Mellin?
MR. MELLIN: Thank you, your Honor.
Your Honor, as to that, there are actually three circuits that have kind of decided and discussed this issue. It's the Fourth, Sixth and Eighth Circuits have all come out with either one circuit saying that this information should not come in because it doesn't go to acceptance of responsibility, or the Fourth Circuit went a little more restricted in saying that the district court in the Caro case did not err in restricting that information from coming in.
The basis of the argument is, your Honor, that under Rule 410, plea negotiations are supposed to be kept private. I mean, that is the whole point of plea negotiations and that's the point of Rule 410, that the information is not supposed to be used by either side later on because that would tend to discourage plea negotiations and not encourage plea negotiations.
The Sixth Circuit and Eighth Circuit went a little further and said in addition to that Rule 410 issue, there's the bigger issue which is that a conditional plea agreement is not, in fact, evidence of acceptance of responsibility; it's evidence of a defendant making a determination of whether or not he wishes to roll the dice and be -- find out if the death penalty is going to be imposed or whether or not he's just willing to take life imprisonment in return. That does not go in any way towards whether or not the defendant accepts responsibility; it goes to him making a conscious decision as to whether or not he's willing to run the risk of the death penalty being imposed.
Further, the cases also discuss the issue that a conditional plea is not evidence of lack of remorse. And, again, it's also in line with the idea that a defendant who is weighing the idea of serving life imprisonment versus being exposed to the death penalty might decide to take the plea deal concerning life imprisonment, but that in no way shows that the defendant is accepting either responsibility or that there is no -- that there is remorse by the defendant.
So based on those three cases, that's the basis for our motion.
THE COURT: Okay. Mr. Bruck?
MR. BRUCK: Whether an offer to plead guilty and to accept a sentence of life without parole goes to remorse, we believe is an issue for the jury. The question of remorse is raised by the government's aggravating factor of lack of remorse, and it seems most unfair for the government to allege the non-statutory aggravating factor that the defendant demonstrated a lack of remorse and then keep out the fact that he offered to plead guilty. That is especially true because of the danger of the jury drawing the inference that the defendant's plea of not guilty was in some sense an act of defiance, or an attempt to roll the dice, or that he did not concur with his lawyer's concession of guilt.
There are any number of speculative interpretations so that the jury would wrongly draw from the course of this trial, like he did it because he wanted to put the victims through the experience of testifying. Of course we know that whether this case had been tried purely on a sentencing -- on the issue of sentence after a guilty plea, the victims would have been called to testify in any event and it would not have relieved them of the stress of these proceedings, but the jury doesn't know that.
I should add that the guilty plea offer was not simply an offer; it was in the course of the proceedings accompanied by a written statement of remorse by the defendant in which he in just three or four or five lines made very clear that he recognized what he had done was terribly, terribly wrong. And that was provided to the government. So to say that a bare offer of a guilty plea without more does not indicate remorse, doesn't really have too much to do with the facts presented by this case.
The government cites the Fell case, the only federal capital case, I think, for the proposition that this is not relevant information, but neglects the fact that in Fell the offer to plead guilty was put before the jury, and all that was kept out was an unconsummated plea agreement in which the government had drafted an agreement -- or there was a drafted agreement -- to which the local U.S. Attorney at one point had agreed enumerating mitigating factors that the government took into account. That was not approved by the attorney general; it was never consummated. Nevertheless, Mr. Fell wanted to introduce that. And it was that that the Court said was too far, went too far, and should not come in.
Rule 410, rules of evidence of course don't apply in a sentencing hearing; the issue is whether the evidence outweighs the prejudicial effect or the tendency to mislead or confuse the issues outweighs the probative effect. And I would note for this argument and for a number of others that the Federal Death Penalty Act is significant in its omission of the word "substantially outweighs," which is found in Rule 403. So there is clearly a lower standard in the balancing that is favorable to the defendant as far as the weighing process that is supposed to occur in the -- under the Federal Death Penalty Act.
In the situation where the government has affirmatively raised the question of lack of remorse, we think that the fact that the defendant was prepared to plead guilty and that the only condition was that the government withdraw -- or rather, not seek the death penalty in the first instance, is probative and relevant. And should we choose to do so, we think we have the right to introduce that fact to the jury.
THE COURT: And, again, exactly what would you do?
MR. BRUCK: We would introduce both the offer and the statement. That represents potentially separate issues and --
THE COURT: That's why I asked.
MR. BRUCK: -- of course, whether or not the statement would come in might depend on what that would open the door to. But at a minimum we think the offer itself should be admitted.
THE COURT: And the offer was -- this is in the course of the DOJ capital committee proceedings?
MR. BRUCK: Yes. Yes. It was first made orally to the government in October of 2013 at the meeting to discuss authorization, and then it was then followed up in writing to the government and presented to the attorney general in due course before the decision to seek the death penalty was made. It has been continually renewed in -- on a number of occasions, even including during the progression of this trial. It has never been abandoned or withdrawn.
THE COURT: And did the statement accompany the written presentation or did that follow later?
MR. BRUCK: I think the letter went first, and the statement followed it by a few weeks.
MR. MELLIN: And, your Honor, that's exactly why we object to this, because they're trying to abuse and misuse plea negotiations as a way to backdoor an unsworn allocution. That is the point of what Mr. Bruck is now getting to. He wants to bring out the plea negotiations, one, to say he was willing to plead to life, but in addition, here's what he would say about that. And that's why it's completely inappropriate and that's why we would ask the Court to exclude it.
What Mr. Bruck is overlooking is as part of those plea negotiations in which the defendant offered to plead guilty to life, the government turned right around and said, Well, before we do that, we want a chance to have a proffer of the defendant, and the defendant refused. So that where there was an offer to plead, we said before we do that, there's a condition precedent to even going down this path, which is the government having the chance to have a wide-open chance for this proffer of the defendant, that did not occur.
So the whole point is that there is no reason to open this Pandora's box. There's no harm to the defendant in not having this brought out because there are three cases that stand for this, and Mr. Bruck says if you look at the Fell case, it doesn't stand for that. But there's the Owens case, which is Owens v. Guida from the Sixth Circuit, which specifically addresses this issue; there's the Hall versus Luebbers case from the Eighth Circuit; and recently there's the Fourth Circuit's opinion in Caro that talks about this specific point.
There's a reason why these courts do not want this information brought before a jury. It's because it opens up the entire Pandora's box of what goes on behind the scenes regarding plea negotiations. If they are going to bring out that the defendant offered to plead guilty, then we would be permitted to bring out the fact that before we even began that process we asked for a proffer and the defendant refused.
MR. BRUCK: I have to correct the record. I know it wasn't intentional, but I think Mr. Mellin has gotten all of the facts and a number of different transactions mixed up, and so I hadn't planned go into all of this but now clearly I must.
There are two separate things that have occurred between the government and the defense. One was a plea offer that was made, as I say initially in October of 2013. It was followed up in writing to the attorney general. It included, in the course of the process, the furnishing of a handwritten statement by the defendant expressing remorse. That's the plea offer.
In September of 2014, very shortly after we received a Rule 16 expert notification about terrorism experts who at that time intended, among other things, to testify about the exploitation that had been made by the defendant -- by -- of the defendant's actions, of the Boston Marathon bombing, by al-Qaeda in the Arabian Peninsula, Inspire magazine and similar AQAP publications extolling the Boston Marathon bombing and urging other people to follow suit and take similar -- large, similar attacks on the United States, and there was also exhortations to attack Great Britain, the defense provided the government with a handwritten statement in the defendant's hand, from him, which did not have anything to do with the guilty plea; it was rather a statement repudiating this propaganda from AQAP, and it was addressed to whoever might be out there saying, "Don't do this. This is not -- I do not agree with this. Attacks of the sorts that are being urged based on the Boston Marathon bombing would cause only more suffering and pain and cannot be justified."
Our idea and our proposal to the government is that the government ought to take advantage of this. If they were actually concerned -- and we had no reason to doubt that they were -- about the possible repercussions of this AQAP propaganda about the Boston Marathon bombing, then perhaps the government would either wish to publicize this repudiation by Mr. Tsarnaev or allow the defense to do so by making public this or some similar statement.
Now, we could not do so because of the SAMs. We are not allowed to make public any statement on the part of the defendant because of the terms of the special administrative measures which the government imposed about four months after his arrest. So all we could do and what we did do was to make this available to the government.
We received no response whatsoever for three or four months, and finally we renewed the request and said, "If you're not going to use this, will you allow us to make use of it?" There was no connection to plea negotiations. The government responded finally -- we actually set a deadline. We were considering applying to the Court for authorization to release this information ourselves, not respecting -- you know, despite the SAMs, and felt obviously we had to have legal authority to do that.
The government finally wrote back and said -- and so we said, "Will you please respond by," you know, "three days from now?" And we did receive a letter back from the U.S. Attorney which said, "We do not authorize you to release this," and set forth various reasons.
That -- at the same time the U.S. Attorney -- oh, I should say that our original offer included -- or was followed up by an offer for a clean team debrief of our client; in other words, if the government would designate a walled-off person or people to question our client about possible value that he might be able to offer the government, to its counterterrorism efforts, we would make him available to do that. We just wanted to make sure that we weren't going to furnish more evidence and aggravation for the death penalty phase or for any phase of his trial. So we insisted that it be -- if this was going to happen, it be done by a so-called clean team. The government's response was that they would not agree to a walled-off interrogation, that if there was to be any interrogation of the defendant by the government, it had to be done by the trial team and by the investigating agencies. And the government's response made clear that the reason that -- the focus the government had was on investigative issues; in other words, who else might have been involved in the marathon bombing and issues of that nature rather than the questions -- the issues for which we had offered the defendant, which was his potential value in counterterrorism efforts going forward and countering the sort of jihadi propaganda that had triggered this entire episode.
That is the disagreement to which I think Mr. Mellin is referring. And we are reasonably certain that there was no other discussion of the sort to which he has referred having to do with the plea negotiation process itself. So I don't think there is the danger of sort of litigating all of the various other offers and counteroffers that were made because these discussions did not concern the guilty pleas, were two separate issues.
What possible relevance to the trial this second offer of cooperation may have remains to be seen. We haven't yet reached a judgment about that. But the guilty plea effort -- the guilty plea offer is a separate quest.
MR. WEINREB: Your Honor, I'm sorry. If I might weigh in because to the extent it's necessary to have a clear record on this, things transpired before Mr. Bruck was appointed counsel in this case, before Mr. Mellin joined the team. The initial discussions about a potential plea offer took place between me and Ms. Conrad in Beth Israel Deaconess Medical Center before the defendant even had his initial appearance. I asked if the defendant was willing to proffer and help the government. This was in the days immediately after the bombing when there was enormous concern that there might be additional bombs out there, there might be additional people out there who might be involved in the bombing plot, there might be additional components for building a bomb available. There were many, many, many things the government very badly wanted to know.
Ms. Conrad immediately responded, "Will you take the death penalty off the table?" and that began what has become a series of ongoing plea negotiations, essentially, between the government and the defense in which the defense has persistently refused to allow the defendant to be proffered except under conditions which in the government's view rendered the proffer useless. The government has refused to consider a plea agreement in the absence of certain consideration from the defendant including a complete, honest and open proffer of the type that we demand from virtually every defendant who seeks a benefit for cooperation.
As for this very lengthy account of this offered statement repudiating what was in al-Qaeda -- in one of the Inspire magazines, I think it's -- there have been two written statements offered by the defendant over the course of time. One was offered in conjunction with an offer to plead guilty, and it is essentially a very carefully worded statement about what he has and has not repudiated, in our view in any event. That is the unallocuted -- the statement that the defense now proposes to introduce as part of plea negotiations that we believe is totally unfair because the defendant can't be cross-examined about what he really meant about it and how far it goes. And that's something that is really -- has a great danger of misleading and confusing the jury if they just hear his carefully worded phrase without knowing exactly what it meant.
This second thing, this offer to repudiate what was in Al-Qaeda in the American Peninsula [sic] -- as we informed the defense in a letter sent to them, we believe that it would not in any way benefit the public safety for that to be out there -- that experience had shown that when defendants who are incarcerated issue statements of repudiating their terrorist beliefs, that everybody in the terrorist community assumes that they're being tortured or they're being coerced and it's not to be believed, and it simply draws attention to them and to their accomplishments and it helps them become a rallying point for terrorists outside. We informed the defense of that, and that's why we did not use that statement.
Over time there have been other attempts to have some kind of sort of very, very carefully hedged offers to have the defendant be proffered. We have come back and said we are not going to agree to these conditional proffers where he's only questioned by people who are not investigators in the case and don't know the right questions to ask and don't -- are not in a position to know whether he's telling the whole truth, part of the truth, shading the truth, and they've never amounted to anything because the defense refuses to accept the government's offers and vice versa.
All of this will be brought before the jury if the defendant is allowed to introduce evidence of his offer to plead guilty. We would argue certainly not his statements. Those, I think, should very clearly be excluded. And, in fact, the defense has said that it's not going to seek to offer statements of the defendant that is essentially an unsworn allocation, which this plainly would be. But the whole history of attempts to proffer the defendant, of his offer to plead guilty only in exchange for certain consideration that the government was not prepared to give and our request for certain things from him that he was not prepared to give, all of this will come out in front of the jury, and we submit that in the absence of a legal requirement that it be put before the jury, it is more prejudicial than probative in this case. It's not relevant and it has more of a likelihood of confusing and misleading the jury, distracting them and wasting time than it does of helping them decide any fact that is actually at issue in the case.
THE COURT: All right. I'll reserve that as well.