9.Mistrial Motion over Survivor Testimony and Objection Requirements
28 lines(Discussion at sidebar and out of the hearing of the public:)
MR. BRUCK: We move for a mistrial based on the testimony of the last witness, Celeste Corcoran. We think it was -- you know, partly restating the objections that we raised -- have raised consistently and previously concerning what we described as victim impact relating to the survivors, we think that the -- any arguable relevance to any statutory aggravating factor was exceeded by the excessively detailed, excessively graphic and excessively prolonged-in-time testimony. In other words, the testimony went beyond describing her injuries or the risk of death from her injuries and became victim-impact testimony of which we received no statutory notice which is not relevant to any statutory aggravating factor.
The underlying harm that comes from this and where the line was far transgressed by this testimony is that it pressures the jury and induces the jury to sentence the defendant for the murders, for the crimes against these surviving victims. They do not sit as sentences for the injuries to Ms. Corcoran or to any of the amputees or to any of the many people that were injured that did not die; they are sentences only with respect to capital counts which involve homicides. And that is where the line must be drawn and where it was transgressed here.
We think it invites not only a violation of the statutory scheme under the Federal Death Penalty Act but also invites arbitrary decision-making in violation of the Eighth Amendment. There was no possible way that we could have jumped up repeatedly during Ms. Corcoran's testimony without drawing the wrath of the jury, not only upon the lawyer making the objection, but also vicariously on the defendant.
We had made our objections prior to the testimony. I point out that in addition to all of this, the witness was permitted to give a narrative that went on and on without being interspersed by -- with questions, and across the board this was way over the top. And it is prejudicial and we think requires a mistrial.
If the mistrial should be denied, we are asking that the government be instructed to keep their testimony from this category of witness with far stricter bounds than was true of this last witness if there is any hope of maintaining the focus on the actual capital counts that the law requires.
MR. MELLIN: Your Honor, we disagree. Her testimony was tied to the injuries for herself and her daughter. And explaining all of that, that's important for us to prove the cruel, heinous and depraved manner in which the victims died, in addition to also just proving the grave risk of death to each of these individuals.
I disagree with Mr. Bruck saying that the only thing these jurors are to consider is -- are the decedents. There is a specific aggravating factor tied to the 17 amputees which talks about grave risk of death.
MR. WEINREB: Your Honor, if I may just add one thing. The government does not accept that the defense need not make a real time objection. And if they believe, for example, that a particular question or -- has pushed -- gone over a line that the Court has drawn, or a motion to strike testimony if they believe it's gone over the line, or, for example, if a witness is giving narrative testimony and they believe that that's improper and more questions should be asked, these are precisely the kinds of objections that need to be made in real time; cannot be made ahead of time. And they are waived if not made.
And the defense's concern that the jury be -- resent them for bringing objections to be dealt with by the Court's instruction to the jury that they should not hold objections against the attorneys. There is nothing different about this case than every other case. No party ever wants to object and be seen as objecting in front of the jury and yet that's part of how trials work in an adversarial system. They're not excepted from it just because they have a special sensitivity to it.
THE COURT: Okay. First, I agree with that general observation. It would be prejudicial to repeatedly stand up and object. I don't think that means you're excused from doing it at least once, because it calls the issue to the Court's attention while it can still be addressed and perhaps remedied. And as a matter of fact, I believe the Supreme Court in Payne actually acknowledged the dilemma, was the word used, but brushed by it, frankly, saying that's a decision you have to make.
MR. BRUCK: They're referring there to victim-impact testimony. That's not what --
THE COURT: And I think it was with respect to how you object.
As to the substance, I agree, essentially, that it is relevant to statutory factors as well as grave risk.
MS. CLARKE: So in other words, it would have done no good to object?
MR. BRUCK: And a great deal of harm.
THE COURT: Well, I don't see how that helps.
MS. CLARKE: Well, that's what I'm hearing. Because I don't want to have to do it to this next witness when the exact same kind of --
THE COURT: If it's the same ground, yeah. But it won't be a basis for a mistrial motion after the testimony either. If you think it sometimes -- with each witness it gets worse and, therefore, may support more radical action, then I think you do have to call it out and it can be headed off.
MS. CLARKE: Can the government be instructed not to allow the witness to go on with a narration as opposed to answering the question?
THE COURT: Well, that's a whole different area. And I noticed that myself, actually, that she was going on a little bit.
MS. CLARKE: That's Mr. Mellin's specialty.
MR. MELLIN: Narration is my specialty?
THE COURT: Watch it. I do agree with that objection.
MR. MELLIN: Excuse me.
MS. CLARKE: The confrontation clause.
MR. BRUCK: We also want to renew the point that the confrontation clause is violated to the extent the testimony is relevant to an eligibility factor and invokes hearsay or testimony absent witness cross-examination. We want a continuing objection to anything --
THE COURT: Well, I don't think you can have a continuing objection on that basis. It will have to be made when hearsay is offered.
MS. CONRAD: Your Honor, could we have a continuing objection to the government eliciting testimony about the impact on the surviving victims of their injuries? Because what I hear your Honor saying --
THE COURT: Well, it has multiple purposes, this evidence. You're seeing it as the bad purpose that you think is objectionable, they're seeing it as legitimate purposes under the statute, including supporting some alleged statutory aggravating factors. That --
MS. CONRAD: I didn't hear anything about grave risk of death. I only raise this when she talked about her hearing loss. I didn't hear about grave risk of death when she talked about the scars that her daughter has on her. I didn't hear about grave risk of death when she talked about how upset she was that she couldn't go to help her daughter when she was violently ill in the hospital. So I don't see how that's grave anything other than victim impact.
But I'm just saying they're offering something that doesn't address grave risk of death or heinous or depraved, that -- as to that, we have a continuing objection.
MR. WEINREB: And, your Honor, I would just like to add not every word out of a defendant's mouth has to be directly --
THE COURT: Out of a witness's mouth.
MR. WEINREB: I'm sorry. Out of a witness's mouth has to be directly relevant to a factor. They're allowed to give some narration and context to what they're saying so the jury can understand the situation when the issue arises. That's why real time objections are needed.
THE COURT: I agree. Right. Okay.