5.Bombing Video Audio and Grave-Risk Evidence Rulings
34 linesMS. CLARKE: The other thing, Judge, and I don't -- maybe this isn't an issue, is the government has listed 11B. That was the -- remember the video that was taken by this guy Kilgore and it kind of was --
THE COURT: We shut down the sound.
MS. CLARKE: We shut down the sound. And I assume the government will continue to shut down the sound.
MR. WEINREB: No. At this point, your Honor, our argument is that to whatever degree the probative value of that evidence might have been outweighed by its prejudicial potential for undue fair prejudice, now that we're in the penalty phase that the balance has shifted in the other direction, now it is -- the jury is being asked to focus on the circumstances of the offense and what effect they have on people in terms of it being an act of terrorism, creating substantial danger, injury through just the panic and the response to the event as well as the event itself.
THE COURT: How long is it?
MR. WEINREB: Short.
MR. MELLIN: Maybe two minutes.
MR. WEINREB: Two minutes at the most, I think.
MS. CLARKE: Well, it doesn't go to an aggravating factor. It's clearly more prejudicial than probative. The Court already kept out the sound, and we would object.
THE COURT: I think it's probably admissible so I think it's a different calculus on this -- on this phase. It shows the horror of the event.
MS. CLARKE: That's not an aggravating factor.
THE COURT: Heinous.
MS. CLARKE: That's to the homicide victims, Judge.
MR. MELLIN: No, your Honor, it puts into context the homicide victims' pain.
MS. CLARKE: One last thing, Judge. On the grave risk of death argument as we have made it to the statutory aggravating factor, we have made the argument that that occurs when the act occurs and not the result of the act. And I take it the Court is ruling against us on that?
THE COURT: Yes. I think the attending consequences are part of understanding the act.
MS. CLARKE: Including the medical complications suffered by someone as a result of the act?
MR. WEINREB: Yes, your Honor. Just as if somebody's injured and has a bullet in their body and 20 years later they die from it, they can be charged with murder. It's the understanding under the law of medical sequale that results from the act itself.
THE COURT: Okay. All right. So take a couple of minutes to get set up. We'll be out and we'll bring the jury out and I'll have the preliminary instructions and then I guess the opening.
MR. WEINREB: Okay. How long do you expect the instructions to be?
THE COURT: Not that long. About 20 minutes? 15 minutes.
(The proceedings adjourned at 9:57 a.m.)
P R O C E E D I N G S
COURT CLERK: All rise for the Court and the jury.
(The Court and jury enter the courtroom at 10:08 a.m.)
COURT CLERK: Be seated.
THE COURT: Good morning, jurors.
JUROR: Good morning.
THE COURT: Welcome back.
JUROR: Thank you.
THE COURT: I must ask you: Have you all been able to abide by my instructions to avoid any publicity about the case?
JUROR: Yes, your Honor.
THE COURT: Yes? And any communications with anybody about the circumstances or the substance of the case?
JUROR: Yes.