3.Victim-Impact and Grave-Risk Evidence Scope and Pending Mitigation Objections
67 linesTHE COURT: Okay. Let me just ask the government, I'm not entirely clear what the objective is with respect to the victim witnesses, and I think the parties have some understanding about limits, but I'm not sure they have the same understanding. And so I just want to vet that a little bit.
First, for some of these people, I guess, they've already testified. Karen McWatters, for example, has already testified. I guess -- I presume she's not going to just repeat what she's already said, so what is it that you would offer through somebody like her?
MS. PELLEGRINI: Your Honor, with respect to Ms. McWatters, I know the little explanation there includes everything that she previously testified to. I think that the only thing that she would be testifying to is the inclusion of the true impact of Krystle's death as a friend and as a coworker, and following her death.
THE COURT: I see. Okay. So is that true of others who have --
MS. PELLEGRINI: Yeah, that would be true -- if Danling Zhou, for example, testifies, it would no longer be about her and her injury or about necessarily that day, but it would be about the loss and what it means to the family and friends. That's on victim impact.
THE COURT: Okay.
MR. WEINREB: Your Honor, it may be useful for the Court to note Lingzi Lu's parents are in China and not intending to come back over here for this for a variety of personal reasons, so the government is trying to find other ways to put on testimony about the -- about who Lingzi was and about the impact of her loss on the family and the community of which she was a part. So all of the witnesses who are listed on our list as victim impact witnesses, that only has to do with the impact of the loss of decedents.
THE COURT: Okay.
MR. WEINREB: With respect to witnesses who are listed for grave risk of death, we won't be calling all of them, so -- we'll only be calling a few who I think -- who we believe their injuries highlight and -- that are extremely probative with respect to that factor, that the offense created grave risk of death to others besides the decedents.
THE COURT: Okay. Well, that responds to one of my concerns which was cumulativeness.
Okay. I think that covers mostly what I had in mind. How long will the opening be? Who's giving the opening?
MS. PELLEGRINI: I am, your Honor. Approximately 30 minutes.
THE COURT: Thirty minutes?
MS. PELLEGRINI: Thirty minutes.
THE COURT: Can I just stay on the schedule for a minute? So there's been some suggestion from the government that you thought the case might be two, three days, something like that?
MR. WEINREB: Our case-in-chief, yes.
THE COURT: So you'll probably finish before -- I told the jury they'll have to be here on Friday, but they may well not.
MS. PELLEGRINI: It's possible; however, a few of our witnesses simply can't testify until Thursday so --
THE COURT: We could have shorter days, I guess. But the defense won't have to start until Monday, just so we have a predictable place to start. And I just want to run off the top, who's opening for --
MR. BRUCK: I am, your Honor.
THE COURT: Do you have an estimate yet?
MR. BRUCK: It will be more than 30 minutes. I think more like an hour, most likely.
The --
THE COURT: Okay. I wanted to go back to recognizing Mr. Weinreb who was next in line, if you're going to change the topic.
MR. WEINREB: Thank you, your Honor.
So there are just a few -- so we just got the defense exhibit list, and as we predicted earlier, there is certainly going to be items on which we want to move in limine. We don't have -- and it may also be true, frankly, with respect to some of the witnesses. For example -- it's a little hard for us to determine. There are four witnesses listed, for example, among the EMT personnel who transported Tamerlan Tsarnaev to the hospital. Even assuming any of them are offering testimony relevant to the defendant's character, of the circumstances of his offense or his history, it's hard to see why four would be needed. I assume they're all on there because the defense hasn't decided yet which one to call, but perhaps by conversing with them we'll be able to narrow down the scope of what we need to do here.
But there are a few things that jumped out at us, and it might be useful to voice them now to avoid some things down the road. There was a -- the government filed a motion in limine with respect to Dr. -- I don't know if it's "Giedd" or "Giedd."
MS. CLARKE: Giedd.
THE COURT: Giedd.
MR. WEINREB: And if the Court allows that testimony, then the government's going to be seeking an order to obtain films of CT scans that were taken of the defendant when he was at Beth Israel Hospital. We've previously obtained all of the defendant's medical records, but Beth Israel is quite concerned that it not exceed the scope of anything that it has previously been ordered to do, and it deems these films to be not a medical record but some other protected healthcare information. So I just wanted the Court to know that's coming.
THE COURT: Okay.
MR. WEINREB: And with respect to the exhibits that the government seeks to move in limine, we were concerned that some of them were ones that the defense might want to mention in their opening statements and that that would demand a quick ruling, but since -- I guess that will depend in part now on whether the defense is opening on Monday or the following -- on Tuesday or the following Monday.
THE COURT: Right.
MR. WEINREB: So I don't know how quickly we need to get that matter resolved.
THE COURT: Well, in the usual course we need to get it resolved before the opening.
MR. WEINREB: Yeah. So I mean, we'll -- so we'll just let you know. Today's Friday. You know, it's a weekend, a holiday, and then Tuesday. So we'll file something with the Court over the weekend in the fashion we've been doing previously, and we'll let the defense have it as soon as it's ready.
THE COURT: Perhaps you can get a better answer in a day or so from the defense as to what their plans are.
MR. WEINREB: We'll --
THE COURT: That would be nice.
MR. WEINREB: Yeah, that would be helpful.
THE COURT: I'll invoke the nice rule.
MR. WEINREB: In addition, we will have a motion to strike some of the mitigators. Just to give a preview, primarily we're looking at the range of 11 through 15, the ones at the end which -- except for 12. To the extent that 12 relates to the defendant's character, meaning his propensity for future violence based on things that people may have to say about him or have observed about him in the past or anything related to that, then we wouldn't have an objection to it, but to the extent that it deals with the capacity of the Bureau of Prisons to incapacitate people in general, we would have an objection to it as being not a proper mitigator.
And then we believe the same is true with respect to 11, 12 -- I'm sorry -- 11, 13, 14 and 15. In our view, none of those relate to the defendant's character, criminal history or the circumstances of the offense, but largely relate to general, more policy arguments. So --
THE COURT: Okay.
MR. WEINREB: -- that again we thought would be something that would need to be resolved before the --
THE COURT: Now, of course, it will depend on whether they get mentioned at that point or not.
MR. WEINREB: Well, they would be mentioned in opening statement.
THE COURT: In the opening, right.
MR. WEINREB: But -- or in the Court's --
THE COURT: Well, the earliest point would be if I put it in the preliminary instructions because that would be Tuesday. It might be as late as next Monday if it was an issue about the opening.
MR. WEINREB: Right.
(Counsel confer off the record.)
MR. WEINREB: One -- there's...
(Counsel confer off the record.)
MR. WEINREB: One of the exhibits that the defense put on its list is a note that the -- I think it was Mr. Bruck mentioned in our last hearing. This was something that the defendant wrote and presented to the government through his attorneys. We regard that as an unsworn allocution by the defendant. We had understood the defense to say that they were not going to be offering any unsworn allocution evidence, and so that's something that I believe -- that's the kind of bell that can't be unrung once the jury's heard it. So that's something that we think --
First of all, we're confused about whether we now need to renew our motion with the Court to bar unsworn allocution testimony when the defense already seemed to have conceded that they weren't going to do that, and if not, then have some kind of clear understanding among the parties that that's not going to be mentioned or offered.
THE COURT: Okay. Mr. Bruck, you had something?
MR. BRUCK: Well, to respond to those matters, I should -- I can make things a little simpler for Mr. Weinreb by advising that we intend to withdraw, or at least not to allege, at least at this point, Number 13 on our list of mitigating factors. As far as the -- and I should say generally that the matters that Mr. Weinreb is objecting to are certainly litigated in the vast majority of federal capital cases. It would -- I suppose we'll have to brief the issue, but this is not -- these are not unusual or uncommon facts to be litigated at a sentencing hearing.
In fact, as to Number 11, I think the Court will note in Judge Sand's treatise that he actually recommends that with respect to Number 11, that the Court issue a peremptory instruction directing the jury to find that as a fact rather than allow that to be something that the jurors think they can either find or not, depending.
I just mention that as some indication of the fact that these factors, whether they concern the defendant personally or not, are very commonly litigated. And in that connection, I just should mention that this is an area that the Supreme Court really has spoken in, and in the case of Simmons v. South Carolina, which is the case that said that the defendant is entitled to show that he's not eligible for parole if he gets a life sentence. It's an example of how the court has taken a common sense approach to this rather than a rigid doctrinaire and limiting approach to the issues that are relevant to the jury. I realize this should probably await full briefing, but I did want to respond to that -- so much of the argument that Mr. Weinreb just made.
As far as the note that the defendant wrote, it gets complicated because there was an expression of remorse that he submitted in connection with plea negotiations. And I suppose one could view that as somewhat closer to -- well, it's not allocution, but a statement. The statement that he submitted, or that we submitted on his behalf, that is in the evidence list is not that; it is an offer to the government to use a statement as a way of counteracting propaganda that had -- that was exploiting -- jihadi propaganda that that was exploiting the Boston Marathon bombing. And so it's one of those things that is not -- was not made sort of for the truth of the matter asserted, but rather as a statement that the government could use, if it wished to do so, in furtherance of counterterrorism programming policy.
Be all that as it may, whether we make the opening statement next week or the week after that, we're not going to mention it in the opening, so there's no pressing decision on that one way or the other.
One matter we had to raise with respect to victim impact testimony, of course we've already argued and the Court has heard the reasons why we don't think that the actual injuries to people within the zone of danger is what is encompassed by the grave-risk-of-death aggravator. So we think that all of it is key, but the issue is whether there were people within the zone of danger that -- not actually the horrific details of some of the injuries that were caused.
The one other matter is that the father of Lingzi Lu has a videotaped elegy memorial talk that he gave at a very large public gathering at BU before an enormous audience shortly after her death, and we think it inappropriate to play so public a videotape as opposed to simply introducing the statement that he made. It reflects, you know, the feelings and emotions, or at least the honor being accorded to this young lady and to her father by a very large group of people who are not part of this case and should not be part of the jury's considerations.
It is tearful, not inappropriately so considering what it was. But since it is on video and the Court can control for displays of emotion by other means, and because this is at a very large public gathering which injects the issue of public opinion into the judicial proceeding and lets the jury know the presence of hundreds, thousands of people who are -- who were grieving along with this man and are going to perhaps have reactions to their verdict, we think it better to simply submit the statement. The statement itself also includes a poem that Ms. Lu's father described as having been published by a newspaper in his hometown in China. It doesn't tell who the author is. It's basically offered as sort of a public expression from China of emotion and sorrow. And it seems that that once-removed public expression should not enter into these proceedings.
So for all those reasons, we think the statement should be edited and should be read to the jury rather than played as a videotape from a public forum.
MR. WEINREB: I can respond briefly just to two things. On that last point, the government disagrees that a transcript is any substitute for seeing the actual statement of Mr. Lu. First of all, he's -- for the jury to know what weight to assign his expressions of concern or his statements about his daughter, they need to see his demeanor and his presentation and how he speaks. He's not overly emotional, and among other things, he's speaking in Chinese. So the government has -- there was a -- he gave the speech entirely in Chinese. It was followed by a translation that was given by somebody at BU who is fluent in both languages who spoke without any tears or any emotion. And we have essentially overlaid the translation as if -- over the image of the father speaking. So --
THE COURT: The audio of the translation over the video of the father?
MR. WEINREB: Correct. Although it's true -- for the most part the video remains a close-up of his face. From time to time it pulls back and shows a portion of the crowd, and then sometimes an even larger portion of the crowd. To the extent that it shows a portion of the audience, we believe that it's not the least bit prejudicial. When people die, there are funerals, and everybody knows that they're attended by a number of people. There's no reason to pretend that nobody besides Mr. Lu was affected by the death of his daughter; and, in fact, the entire community at Boston University was affected, and there's no reason why the jury shouldn't know that. That was part of the loss that was experienced by the community as a result of her death.
To the extent that any portion of it -- that some shots are so wide or taken of so many people that it could be said that there is a prejudicial impact that outweighs the probative value of the evidence, then the government can always -- we can always cut to a still shot of Lingzi Lu, substitute that for the video portion, just for those few seconds when the shot is that wide. But we really don't think it's necessary at all.
THE COURT: How long is it?
MR. WEINREB: It's about ten minutes?
MR. CHAKRAVARTY: Ten minutes.
MR. WEINREB: Ten minutes.
THE COURT: Okay. The best way to resolve it is for me to look at it, I guess.
MR. WEINREB: Yes. And it's on the --
MS. PELLEGRINI: It should be on the disk.
MR. CHAKRAVARTY: Your Honor, it's on the disk. And I don't know why we didn't have a copy when we came down, when we gave it. So right after this hearing we'll get another copy.
THE COURT: Okay.
MR. WEINREB: And then the only thing I would add, since Mr. Bruck discussed it at some length, with respect to Mitigating Factor No. 11, the only reason we cited that as an improper mitigating factor is precisely because it's a matter that the judge should instruct the jury; it's not a matter for them to determine whether it exists by the preponderance of the evidence.
THE COURT: Okay. I think that's it.
MR. CHAKRAVARTY: Your Honor, just to clarify so I understand, in terms of -- there's some exhibits that we would have some of these concerns that Mr. Weinreb articulated earlier that we would file something over the weekend on. That may result in the defense, if they want to modify their witness and exhibit lists before they're made public, of actually removing some of these exhibits and witnesses from the -- I just wanted to both alert the Court that there are some exhibits as well as some of the witnesses that they noticed that the government has concerns about.
THE COURT: Okay. All right. Very good.