1.Penalty-Phase Evidentiary Rulings and Public Filing of Defense Witness and Mitigating-Factor Lists
32 linesP R O C E E D I N G S
COURT CLERK: All rise.
(The Court enters the courtroom at 12:08 p.m.)
COURT CLERK: The United States District Court for the District of Massachusetts. Court is in session. Be seated.
For a lobby conference in the case of United States versus Dzhokhar Tsarnaev, 13-10200. Will counsel identify yourselves for the record.
MR. WEINREB: Good afternoon, your Honor. William Weinreb for the United States.
MR. CHAKRAVARTY: As well as Aloke Chakravarty, your Honor.
MS. PELLEGRINI: Good afternoon, your Honor. Nadine Pellegrini.
MR. BRUCK: Good afternoon, your Honor. David Bruck, Judy Clarke and Tim Watkins for the defendant.
THE COURT: Okay. Let me begin by resolving some of the issues that were discussed the last occasion. The government's motion in limine to preclude reference to the Waltham triple homicide or other alleged bad acts is granted as to the Waltham events. The reason is that there simply is insufficient evidence to describe what participation Tamerlan may have had in those events. I know that the defense has a theory about what those things were, but I don't believe there's any evidence that would permit a neutral finder of fact to conclude that from the evidence.
From my review of the evidence, which includes an in camera review of some Todashev 302s, it is as plausible, which is not very, that Todashev was the bad guy and Tamerlan was the minor actor. There's just no way of telling who played what role, if they played roles. So it simply would be confusing to the jury and a waste of time, I think, without very -- without any probative value.
As to other bad acts, it will depend. I mean, I see on the witness list witnesses who might be able to testify to behavior of Tamerlan that would be relevant to the defense theory of domination. So I'm not going to, as a blanket matter, exclude all bad acts. We'll deal with those issues as they arise.
With respect to the government's motion to preclude reference to plea negotiations, to the extent the government presses its non-statutory aggravating factor of absence of remorse, I think it's fair that the defendant could respond by showing an offer to plead guilty, but it would then be open to the government to explain the conditions that were attached, including with respect to the sentence and the refusal to participate in a proffer. If that goes forward, let me just suggest that the best way to handle that, if the parties wanted to, would be by stipulation, perhaps.
MR. WEINREB: Your Honor, I consider it unlikely the parties will be able to agree on a stipulation of what actually happened. There was so much back-and-forth over this over time, plus there are additional documents, draft proffer agreements, that went back and forth. It's going to be too complicated. It's going to require witnesses.
THE COURT: Well, I didn't say that I thought it was a likely way of proving it; I said I thought it would be the best way.
With respect to the defendant's motion to exclude the testimony of Dr. David King, that's denied, but I do want to emphasize that he's got to stay on relevant message for this phase. And so some background to support his testimony is appropriate, of his experience in Afghanistan and Iraq, but I don't want it overdone. And I don't think there's any need to tell the story of the day, which includes his having finished the marathon and so on. I think he can testify to the medical evidence without telling the tale of the day and its particulars.
With respect to issues raised in the government's omnibus motion with respect to the evidence of -- or argument about Massachusetts not having a death penalty, the motion in limine is granted as to that, to exclude that, as well as to the -- any evidence or argument about the effect on the risk of future terrorism attacks. That is not, in my view, evidence about the defendant's personal background or character or about the circumstances of the crime and, therefore, is outside the scope of mitigation under the law as I regard it.
Now, let's get on to the -- so later today, I guess, we'll get from the defense a response to the motion in limine and the defense experts which was filed, I think on Monday, and we set today as the date for response.
So you have both now filed witness lists and exhibit lists. With respect to the issue of how they should be filed, my inclination is that they be filed in the open docket. I mean, they'll soon enough be open to the public. I don't see why they now need to be under seal.
MR. WEINREB: We have no objection to them being filed on the open docket.
MS. CLARKE: We do, your Honor. They're defense witnesses. We struggled as it is to get people to respond to us, talk with us and come in with subpoenas, and the press being all over them is not appropriate. I mean, the Court --
THE COURT: I don't know whether that's true, that it's not appropriate. But let me just say that it's the normal course of events.
MS. CLARKE: Well, the Court ordered us to provide a witness list, and no rule requires that, and we think the Court would be putting our case at great risk by publicizing that list at this point.
THE COURT: Okay. Well, I think it should be public, but I will do this: We will docket it on Tuesday rather than -- so it doesn't get any press over the weekend.
All right. And the same -- I guess I have the same issue with respect to the mitigating factors. I believe the government's, at least, statutory factors are probably in the indictment?
MR. WEINREB: That's correct, your Honor.
THE COURT: So they're public. I don't think -- are the non-statutory as well?
MR. WEINREB: They're in the notice of intent.
THE COURT: And that's public?
MR. WEINREB: That was public.
THE COURT: Okay. So there's a new -- there's a, I guess, substitute list now from the defense of mitigating factors.
MR. BRUCK: Yes, your Honor, there is. Of course, again, there is no rule or statute that requires us to provide these prior to the submission of the case to the jury. The Court, of course, ordered us to provide those, my understanding was in fairness to the government's ability to prepare to meet them. We expect to revise these factors to conform to the proof, and I may withdraw some. Indeed, we've decided -- we wish to withdraw one of those on the list right now.
This is provisional, in other words, and --
THE COURT: Well, at some point Tuesday morning, as a matter of fact, there will be an opening statement. I assume the defendant will outline the mitigation at that point, or perhaps after the government's -- maybe -- you can defer your opening, I guess, until the beginning of your case.
MR. BRUCK: We are considering doing that.
THE COURT: Okay. But at least at that point -- I mean, the jury has to know what to listen for.
MR. BRUCK: Yes. Yes, we'll make sure they know what to listen for in our case.
THE COURT: Well, I'd do this: I'll defer until then, but I think then they ought to be a matter of record. After all, it would be on the verdict slip.
MR. BRUCK: Well, the verdict slip, of course, is -- the jury receives that at the end of the case.
THE COURT: Right. But there will be -- in other words, there will be a specification of propositions that the jury will be asked to consider.
MR. BRUCK: Absolutely.
THE COURT: And my only point is I think it makes sense just from -- for the jury's purposes that they have some information about that before the defense evidence begins so they can listen to the evidence with those things in mind.