3.DiFava's Victim-Impact Testimony and Collier Photographs
25 lines(Discussion at sidebar and out of the hearing of the jury:)
MR. BRUCK: We have made a written objection to the testimony at this stage of the trial of Chief DiFava, and we'd like to renew it and make clear our grounds.
With respect to victim impact testimony, we believe both under Payne versus Tennessee and the Federal Death Penalty Act, victim impact evidence does not extend past family members. It does not go to employment or broader impact on the job. To the extent that the government wishes to -- I should say, in addition, Chief DiFava has already provided testimony of this nature at the guilt phase so that it's also cumulative as victim impact testimony even if it were admissible.
With respect to the non-statutory aggravating factor of Officer Collier having been killed as a police officer in the line of duty, we think that is -- the testimony is clearly cumulative and, in fact, can only be justified as victim impact, which as the -- a problem that I've already raised, there is -- it would be -- it would be cumulative and prejudicial to give an extremely detailed account of this officer's career and life and the impact on the force and the other things that we would expect Chief DiFava to testify to simply to establish the already well-established fact that Officer Collier was killed in the line of duty and was a police officer at the time, which is that statutory aggravating factor -- non-statutory aggravating factor.
So for all of those reasons, we think the testimony as a whole is inadmissible.
MR. WEINREB: Your Honor, Payne did not purport -- Payne held that victim impact testimony is admissible as a non-statutory aggravating factor, did not purport to put any limits on what victim impact testimony could be. Left that for another day. The lower courts have generally admitted testimony about impact on colleagues or impact on the community as a whole. For example, the Ronell Wilson case, which was a murder of a police officer case which was tried and then retried in the Eastern District of New York recently, is yet another case.
The government is not going to ask Chief DiFava to repeat what he said before. This will be a side that was not appropriate during the liability phase that is now in the penalty phase. So I don't believe that the cumulative objection is well taken on that ground.
And as for establishing that he was a police officer killed in the line of duty, although I do agree that there has been testimony about that already, the government is not limited to simply establishing a bare fact, but the jury has to determine how much weight to give that aggravating factor. And knowing about Officer Collier, something about his responsibilities, his duty, his career, that will help the jury in determining how much weight to give that aggravating factor and the way it processes.
THE COURT: Okay. I don't agree that the Supreme Court or the statute has limited testimony to family relations and may under some circumstances extend beyond that. Probably every case has to be judged on its own. I would be concerned about cumulativeness, but the representation is that they will try to avoid that, so we'll just have to see how that goes.
MR. BRUCK: Finally, we have consistently objected to the display of the American flag in the course of the evidence for reasons that the record already clearly reflects. And the graduation picture, I believe it is, is -- shows Officer Collier with -- the entire frame is filled by the American flag behind him, and we think that is not necessary and highlights the sort of otherness and unAmericanness, if you will, of our client's background and family in a way that is impermissibly intentioned with the nondiscrimination provision of the Federal Death Penalty Act about which the Court has already instructed the jury. We don't think it's necessary and we think it creates a subconscious but powerful discriminatory impulse in the very specific circumstances of this case.
MR. WEINREB: Your Honor, there's nothing gratuitous about the photo of the defendant [sic] standing in front of the American flag. It's his graduation photo --
MR. BRUCK: Mr. Collier in front of the flag.
MR. WEINREB: I keep saying that when I mean something else, so I apologize.
There's nothing gratuitous about Officer Collier standing in front of the American flag. It's both his graduation photo and therefore an appropriate and probative exhibit. There was also just testimony specific to him about his feelings about the American flag. And every single reference in this case to the defendant's foreign birth, to his so-called otherness, to his Chechen background and history has been from the defense's mouth. The government has never once said a single word about it in opening, in closing, in the testimony of any witness. And it is our understanding that the defense will be going into it in great, great detail in the penalty phase. So I do not believe that it fairly lies in the mouth of the defense to say that the government is unfairly uttering the defendant or calling attention to his foreign birth in contrast to the American birth of someone like Sean Collier. And it is entirely their doing that that information is in front of the jury.
MS. CONRAD: May I just say that that's just not true given the playing of the nasheed, with the showing of the Shahadah which, by the way, we still haven't gotten a copy from the government despite the Court's order.
THE COURT: So let me just broaden this a little bit because I guess the exhibits you propose -- I take that as an objection to one of the photos. Are there any others? Any other pictures?
MR. BRUCK: No.
THE COURT: Okay. You have a -- one of the photos, I think, that you intend to use is a photo with Officer Donohue?
MR. WEINREB: Yes. They were good friends.
THE COURT: Is that the same occasion?
MR. WEINREB: They were classmates. I'm not 100 percent sure that was taken at the same occasion.
THE COURT: I guess my thought is it's somewhat duplicative.
MR. WEINREB: Why don't I start with that one, and if it turns out that they were at the same occasion --
THE COURT: Then I think you don't need the second one.
MR. BRUCK: Officer Donohue, on reflection, and this was Ms. Clarke's witness -- that highlights -- the whole problem with victim impact testimony is -- and what makes it problematic is the fact that the defendant doesn't know about the facts and could not have foreseen the specific facts that are being proven. So it is intentioned with general focus of the criminal law and the principles of punishment and the defendant's intent -- his specific intent in what he knew.
Officer Donohue really compounds this because of the fact that while the evidence is murky on this record, it is quite well established that he was shot through friendly fire. And to bring, you know, very graphic testimony about how he was not merely dying but, quote, dead when he arrived at the hospital, then to bring back Officer Donohue in connection with this seems unnecessary and inflammatory. And to have their pictures together -- if it was -- it would be different if this was somebody who the defendant himself had intentionally targeted but that's -- those are not the facts. It's just too much.
MR. WEINREB: Your Honor, this isn't about the defendant, this is about the victim. And the government is not going to argue that there is any connection between the death of Sean Collier and the shooting of Dic Donohue although, in fact, Officer Donohue did respond to the crime scene at MIT. But we won't be eliciting that. It's simply to show that he was a very well-liked officer who had close colleagues, and Dic Donohue happened to be one of his closest -- one of his closest friends.
MR. BRUCK: Your Honor, I would add that there was already in evidence, just been introduced a picture of the MBTA police academy graduation, so this would be the second one injecting Officer Collier. So it's cumulative on top of everything else.
THE COURT: Yeah, I think the Donohue picture is not necessary. I think you can use the other one.
MR. BRUCK: Very well.
(In open court:)
MR. WEINREB: Your Honor, the United States recalls John DiFava.