4.Victim Montage Limits, Lu Eulogy, and Deferred Medical-Image and Survivor-Testimony Rulings
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MS. CLARKE: I'm told that Ms. Pellegrini will use some photographs of the victims in her opening. There are some photographs of the victims in evidence already and she was not sure that they were the same ones, offered us an opportunity to look. But it seems like the Court ought to rule on the admissibility of those photographs if they're not ones that are already in evidence.
MR. WEINREB: Your Honor, they're just innocuous family photographs that don't show anything inflammatory. Just pictures of victims and life.
THE COURT: Yeah. Some number of pictures. I mean, I think it can be overdone. And actually, an issue I had with the montages was that it was just too much. I think photos in the montages can be used, but I think the compiling of the montages was an emotional impact that is separate from the informational value. So I would -- I think there's an objection to that, and I think the montages themselves are a little too emotional, but individual pictures from them can be selected and the witnesses can talk about them.
MR. WEINREB: Right. So we -- one thing we could do is essentially use the montages like a PowerPoint, and basically one photo at a time in still, not rolling through it.
THE COURT: Yeah. But even then, however many are in any given montage may be too many, is what I'm saying. In other words, take the shortest one, which is Martin Richard. There's some information value pictures in there. I guess one people have seen is with his siblings. That shows something about their closeness and that's an informational value that the jury should understand, this is a close family and they'll miss him and so on and so forth. Every charming photo of him doesn't necessarily convey the same information value, I guess is what I'm saying. And that's true of the others as well. It's true of -- I think I'm thinking of Krystle Campbell. A lot of nice photographs, nice memories and so on, but it's a little too much.
At some point I think that the emotional tug outweighs the informational value, is all I'm saying. Giving another example, there's a picture of her with her extended family. That's informational value. All of these people are affected by this crime. Her, you know, dancing or saluting somebody with a drink, less so.
MR. WEINREB: Although I think you'll find, your Honor, that those photos were selected because they are the anchor for testimony.
THE COURT: Fine. If they illustrate a point that the witness will make, then that's something else.
MR. WEINREB: Yes.
THE COURT: But just playing them straight through.
MR. WEINREB: This was a selection from among hundreds of options because they zero in on particular facets of the person's character, the loss of which is felt by --
THE COURT: Fine. The last thing is the Lingzi Lu's father's eulogy I've looked at again, and I think that can be played as-is. To the extent there's an objection to that, it's overruled.
So her montage -- so the Collier, Lu, Campbell and Richard montages should be disassembled, I guess. Individual pieces can be used.
MS. CLARKE: Judge, I guess there's -- I'm not sure whether there's a reason for the Court to rule now on the objections to the Marc Fucarile and Eric Whalley X-rays and medical pictures.
THE COURT: Yeah, tell me how those will be used.
MR. WEINREB: Those will be used to talk about grave risk of death.
THE COURT: Who will use them?
MR. WEINREB: The witnesses themselves will be on the witness stand. This is shrapnel that is in their bodies currently. With Marc Fucarile, for example, they were able to remove some of those pieces of shrapnel but he still has a piece of shrapnel in his heart that can't be removed. Mr. Whalley had a BB, actually, pierce his skull and travel through his brain.
THE COURT: Yeah. So normally this would be through a witness with medical competency.
MR. WEINREB: This is the phase of the trial when the rules of evidence are not strictly applied. So these are witnesses who have been told by their physicians what the medical significance of this is. They're not going to be offering expert medical testimony about it.
THE COURT: Right. I just want to isolate off that objection to what I think is the objection. In other words, the objection is not that it's the wrong witness; you object to the evidence itself for its --
MR. BRUCK: I have to say there is a threshold. It's true that the rules of evidence don't apply, but the confrontation clause applies to eligibility because under Ring v. Arizona, eligibility factors are constitutionally the equivalent of elements of a greater offense of capital murder, and there is a fair amount of case law that -- in the circuit courts that say that the Sixth Amendment right of confrontation does apply to the extent that the government is proving eligibility for the death penalty. We understand that this --
THE COURT: Are you talking about the gateway?
MS. CLARKE: Both.
MR. BRUCK: Yes, both gateway factors. Gateway and the statutory aggravating factors. Non-statutory aggravating factors, the law is weaker on that, and that's not the primary point we're making. But to the extent that the eligibility factor of grave risk of death is being proven by hearsay, we think that is a confrontation clause violation.
MR. MELLIN: Your Honor, it's not being proven by hearsay. These witnesses are getting on the stand and saying, "Yes, that is a photograph of me and that is a photograph of my injuries." I don't understand what the hearsay is necessarily. From Mr. Whalley -- Mr. Whalley has an MRI of his skull and there's a BB in his skull which he knows is inside his skull, so, from the damage from the -- entered in his temple and embedded in the side of his head.
THE COURT: It may depend on the particular image whether a layperson -- you know, you could go in and have an X-ray of your wrist done and then you could later see the product of that process and you could say, "That's my wrist because I was there and I can see the break." So it's possible for a witness to do that.
To the extent the witness only knows something because a doctor said that's what this is, I think there might be a problem. It's interesting whether that's hearsay or just foundation.
MR. WEINREB: And if the defense would prefer we put in medical testimony how gravely these people were injured and how close they came to death, we could probably arrange a doctor to examine the films and the medical reports and give testimony about how close they came to death.
MR. BRUCK: It's a little late for that now.
MR. WEINREB: I don't think so.
THE COURT: Let's see how it goes.
MS. CLARKE: Well, Judge, is that a situation where we just have to object?
THE COURT: Yeah, I think so. We'll see what they found -- what the government offers before --
MR. BRUCK: There are some particular -- there's a picture of Mr. Whalley's heel which you cannot -- it's a grievous, hideous injury, and the picture -- I don't know if the Court has seen it.
THE COURT: I have.
MR. BRUCK: You know what I'm talking about. It goes to grievous injury which is not an aggravating factor. It does not tend to show grave risk of death. Whether it did or not, the probative effect of that -- I don't think that's the one you're offering but it's one where the heel is sewed up.
MS. CLARKE: That's 1599.
MR. BRUCK: Is it?
MS. CONRAD: Yeah.
MR. BRUCK: I mean, the prejudicial effect of that so far outweighs its probative value that I don't think it's a close call under the Federal Death Penalty Act. It wouldn't be a close call under 403.
MR. MELLIN: Your Honor, to the contrary, I think this shows the grave risk of death these people are facing.
MR. BRUCK: Even if it did, that should not come in.
MR. WEINREB: Your Honor, we have a limited number of photos to choose from. Virtually all of them show some kind of -- some body part in some state that could -- is not what jurors are accustomed to seeing. So we have tried to avoid the bloodiest, the goriest, you know, the most shocking and picked ones that are relatively antiseptic. And for Marc Fucarile, for example, the X-ray photos are, by far, the least graphic of the many, many photos of his injuries that are utterly extraordinary in their -- we think the probative impact they would have on the jury but potentially an emotional one.
THE COURT: Well, I think -- I'll assess it as he testifies. We'll just see what the photo will add, if anything, at the time it's offered.
MR. BRUCK: May I ask you, with respect to this same witness, we have been told that he knew this was a terrorist attack because he had been present at a terrorist bombing in the past. We have no further information about that.
MS. CLARKE: In London in the 1970s.
MR. BRUCK: Well, we think that serves no probative value whatsoever and is merely an inflammatory detail that should be excluded.
MR. WEINREB: One of our aggravating factors is that this was an act of -- there was substantial planning and premeditation to commit an act of terrorism. That's something the jury needs to hear evidence on. This is somebody who has --
THE COURT: I'm not sure --
MR. WEINREB: -- basically a lay expert, his firsthand experience of it from his own experience.
THE COURT: Again, we'll see how it is when he testifies.
MR. WEINREB: The defense is proposing to put on an expert to compare the defendant to other terrorists and say that evidently he wasn't as bad as them, so I think the comparison of this event to other events is something that they're planning on doing.
MS. CONRAD: I don't see how -- I guess we'll just have to object.
THE COURT: Okay. So how far do you think you'll get this morning, that is, up till one o'clock?
MR. WEINREB: Yes. Just up until one o'clock? I think --
MR. MELLIN: It's ten o'clock now.
MR. WEINREB: I think through the Campbells.
THE COURT: Through the Campbells?
MR. WEINREB: I would think so.
THE COURT: This is probably going to move along fairly quickly.
MR. WEINREB: Yes.
THE COURT: You may even be done tomorrow.
MR. WEINREB: We have several witnesses, four witnesses, in fact, who can only testify on Thursday.
THE COURT: On Thursday?
MR. WEINREB: Yes. That are flying in from various places.
THE COURT: Okay.
MR. WEINREB: Marc Fucarile --
THE COURT: So we might have a pause in the middle.
MR. WEINREB: Well, Wednesday I think we may finish at the lunch break. We've tried to time it so that the jury won't waste their time here. So the way that we anticipate it is that today we'll go nearly to the normal time, perhaps, tomorrow likely just through lunch, and then Thursday at least to the break.
THE COURT: I'm thinking this is Monday. Sorry. I dropped a day. I got it.
MR. WEINREB: Right. So they'll hear -- their time won't be wasted on any day.
THE COURT: Okay.
MS. CLARKE: Two other very quick matters, Judge. Michelle Gamble on the witness list is shown with the Martin Richard montage as an exhibit. I'm not aware that she is a victim impact witness and wouldn't be able to put those pictures in. We would object to that, to the use of an FBI official to introduce victim impact testimony which is not victim impact testimony.
MR. WEINREB: She would only be called to authenticate that the photos are, in fact, photos of the person depicted in them. We would be offering no testimony about them at all, it's really just to spare the surviving family members.
THE COURT: We're going to do that a different way anyway now.
MR. WEINREB: We weren't going to actually publish them to the jury through her. So she's just authenticating the photos. Frankly --
THE COURT: Well, you said 1603 and 1605 you're going to do a different way. Those are the other -- the injured people --
MR. WEINREB: Right. Right.
THE COURT: -- right?
And as to 1604, you were going to not use the montage as such but use pictures, so I'm not sure there's much for her to authenticate.
MR. WEINREB: Well, the pictures themselves to the extent they need authentication.
THE COURT: Well, isn't Mrs. Richard going to testify?
MR. WEINREB: Well, the people, the family members themselves could authenticate them, but we're hoping to spare them the pain of having to do that.
THE COURT: I see. All right. She could probably do that.
MS. CLARKE: Well, I don't know how an FBI official gets to introduce or authenticate photographs that are to be victim impact testimony, and we'd object.
THE COURT: We'll have to hear what she says, about how she can authenticate them.