7.Life-Sentence Security, Prison Conditions, and Pending Penalty-Phase Evidence Requests

MR. WEINREB: And then in addition, we know, as the Court does too, that the defense intends to call various witnesses from the Bureau of Prisons as well as potentially an expert, a former employee of the Bureau of Prisons, to talk about, it appears, the capacity of the Bureau of Prisons to incapacitate defendants of all nature to the point where they are not capable of doing harm to others within the institution or outside of the institution.

As the Court may be aware, there is a great deal of case law that rejects that as relevant mitigating evidence because, again, it doesn't have to do with the character of the defendant or the nature of this crime; it simply has to do with essentially a policy matter of whether the death penalty is needed at all given the capacity of the Bureau of Prisons to incapacitate people. It's true with respect to every defendant. There's nothing individualized about it with respect to this defendant.

Whether or not we seek to exclude that evidence as being essentially categorical evidence, not individualized to this defendant, depends in part on whether the defense, by offering it, is -- it's proposing to open the door to a robust examination of what it really means to spend your life in prison. We're not actually opposed to that. We're not opposed to it in part because the jury seems to have exhibited a lot of curiosity about it during voir dire, and we understand why the defense might want the jury to feel secure that the defendant, if he is incarcerated for the rest of his life, will not pose a threat or a danger to others. But by the same token, the jury should not be given a one-sided presentation; in other words, they should not be fooled into thinking that prison is one thing when it's really another thing. They should have the whole picture.

And so I guess what I'm asking here is really for the Court to inquire of the defense whether that is what they are proposing, is a sort of complete examination of what it will mean for this defendant if he is sentenced to life imprisonment, or whether they intend to try to narrowly put on evidence solely of something that they think will make the jury believe that life imprisonment is one thing when the government, through cross-examination and rebuttal testimony, could offer what we believe to be a complete picture of what that will be. And that will determine for us whether we seek to exclude this evidence as being impermissible categorical evidence or not.

MR. WEINREB: So, your Honor, obviously we don't intend to put on evidence all about the entire Bureau of Prisons, including statements that don't have any potential relationship to the defendant in this case, but we would intend to offer evidence of things that do potentially relate to the defendant's likely course of incarceration through his lifetime in the Bureau of Prisons. And for everything that we seek to offer, we'll have some kind of foundational evidentiary basis for it.

There will be an expert, or someone from the Bureau of Prisons or somebody, who will -- obviously we're not going to put on evidence about a minimum-security work camp somewhere if nobody's going to say there's any realistic possibility the defendant will be there, but there may be something other than an entire lifetime spent in the highest level of super max in Florence, Colorado, that the defendant can look forward to.

In addition, the SAMs process, which is what the defense is referring to when they talk about control over the defendant's communications, it would of course be inaccurate to suggest to the jury that that is simply something that the government, including the U.S. Attorney's Office, manipulates at will and can keep in place for somebody's entire lifetime. As the Court I'm sure is aware, the government cannot do that. There's judicial review of it. SAMs have been removed over time. The government sometimes loses SAMs litigation. And all of that is something that the jury should be aware of.

So I know that the defense naturally would like to focus very narrowly on all the restrictions that will be on the defendant. My whole point is that those normally would be excluded as being evidence not relevant to his character or to the nature of the crime or to his criminal history. They are about the ability of the Bureau of Prisons as a whole to manage its population. We would only not be objecting to it, not seeking to exclude it, if the jury is given a complete, full picture of just how restrictive the defendant's incarceration is likely to be realistically over the history of his time there and what the conditions of that confinement will be like.

So I think because we're talking about it somewhat in the abstract, I'm not sure it's possible to be clearer than that, but I believe the parties' positions are clear. We will, I guess, make the motion to exclude it, and in the alternative, if the Court does not exclude it, seek permission to put on a -- to robustly cross-examine and rebut testimony in the nature -- in the manner that I have stated, and we'll leave it at that. If the defense wants to oppose our right to do that, then I think they should make clear exactly what limits they're seeking to put other than irrelevant material, which is all that I heard Mr. Bruck say just now.

MR. WEINREB: Well, I guess there's one other thing. Mr. Bruck sent us a letter the other day asking for proffers as to what government witnesses would be testifying about with respect to lack of remorse -- or what evidence the government intends to put on with respect to lack of remorse and what evidence it intends to put on with respect to risk of severe -- bodily harm to others as opposed to the victims, the matter we argued about earlier.

The government, likewise, is in a position of not knowing what many of the defense witnesses are going to say. In particular, there are a number of the foreign witnesses who are being brought over who we don't have the slightest idea of what they're going to talk about. For example, there are four of Zubeidat Tsarnaeva's sisters. We don't know whether they're going to be talking about the defendant, we don't know if they're going to be talking about the defendant's grandparents, we don't know if they're all going to be saying different things or if they're all going to be saying the same thing. And so we have no way in advance of seeking to challenge their testimony, if that's an appropriate thing to do. They also noticed any number of domestic witnesses where we don't know what they intend to seek from these witnesses.

I think that both sides are entitled to some kind of notice of where the other -- where it's not self-evident, what witnesses intend to say. And I would ask that that be part of the disclosures that are required to be made along with the witness list and the exhibit list themselves. They don't necessarily need to be made to the Court unless the Court wants them. I think they can be exchanged between the parties. They don't obviously need to be scripts of what every witness is going to say, but I think that, you know, as experienced counsel, we have some sense of how to give the other side enough notice to potentially object if an objection is warranted.