Day 48 - April 17, 2015

The court excluded reference to the Waltham triple homicide, finding insufficient evidence of Tamerlan's participation, but left other alleged bad acts for individual consideration. If the government pursued absence of remorse as an aggravating factor, the defense could introduce an offer to plead guilty, and the government could explain attached sentencing conditions and refusal to participate in a proffer. The court preferred a stipulation, while the government anticipated witness testimony. Dr. David King was permitted to testify, with limits on background testimony and directions to address medical evidence rather than recount his marathon-day experience. The court also excluded evidence or argument about Massachusetts lacking a death penalty and effects on future terrorism risk as outside mitigation's scope. Counsel disputed whether preliminary penalty-phase instructions should list aggravating and mitigating factors. The court took the issue under consideration without announcing a decision. The defense also sought assistance obtaining entry to the United States for Elmirza, who was in Kazakhstan, with video testimony a possible fallback. No publication ruling was announced on the defense's request to delay release of its overinclusive, annotated witness list. The government said its victim-impact witnesses would address losses from deaths and that only a few injury witnesses would address grave risk of death. The court said the latter plan addressed its concern about cumulative evidence and stated that the defense would not have to begin until Monday. A dispute over prior statements by planned defense witnesses ended without an express production ruling; the government also raised an unanswered reciprocal request.