5.Survivor Testimony, Grave Risk of Death, and Medical Photographs
32 lines(Discussion at sidebar and out of the hearing of the jury:)
MR. BRUCK: We need to renew our continuing objection to what amounts to victim impact testimony from non-homicide survivors. We also have this -- I don't know if the Court has ruled on the exhibits, including the extremely graphic medical photographs of this survivor, including the open heel which we thought was --
THE COURT: I think I reserved it. I wanted to hear how the testimony lay at the time it was being offered to see what value it had.
MR. BRUCK: Here's my understanding. Mr. Whalley --
THE COURT: We've had similar kinds of evidence in the other phase.
MS. CONRAD: This photo, your Honor --
THE COURT: No, I've seen it. We've had some pretty gruesome pictures. So I think its relevance and probative value, that's what I want to hear before --
MR. BRUCK: Okay. We would point out for the most part, the most graphic evidence has been autopsy photos which concerns the homicides, and we're now in the sentencing phase for the homicides, not for Mr. Whalley's injuries or any other survivor victim's. It's this persistent problem that we're facing that the jury will find it impossible not to sentence this man in part for injuries and -- for which it has no sentencing authority; that is to say, they're non-capital offenses that are being depicted by -- I don't know how you draw the line when evidence this inflammatory is presented as something I cannot imagine.
We also have -- we've registered an objection to testimony about -- unless it's -- I'm trying to remember if your Honor has excluded the testimony about London in the 1970s. But this witness, as we understand it, is going to say he knew this was a terrorist attack because he'd been in one before, 40 years before in London.
MR. CHAKRAVARTY: We've directed him not to say that, your Honor. And just for the record, there are a host of other factors which are relevant, like grave risk of death, like the heinous nature of the crime, all of which the medical photos go to. The medical photos are going to be a guide to my witness as to the injuries that I'm going to be asking about, that he'll be talking about, all of which go to grave risk of death.
The only thing inflammatory about that photo is after multiple surgeries, it was inflamed, and as part of the healing process itself, he will use that to demonstrate to the jury all of the complexities to actually put a leg back together and that there are risks along the way, both from the complications with the procedures themselves as well as the long-term risk to both his leg -- because it still might be -- as has happened with other victims, it may still have to be amputated, as well as complications and issues that may jeopardize his life.
He's not going to talk about victim impact on his life; we're simply going to talk about, as we did in the liability phase, the procedures he went through, the risks attendant to those procedures, and what he's doing now in terms of where his medical status is now.
MR. BRUCK: Well, I know this Court will wait to rule, but even if we were wrong about the admissibility of this type of evidence in support of the grave risk of death factor or any other -- and I notice the government keeps citing the heinousness factor. And that specifically refers in this case only on the basis of aggravated battery to the victim, which is the statutory factor. So to be able to support that by showing aggravating battery to other victims just goes beyond the statute.
But all of that said, even if they establish a relevance, if the 403-type provision of the statute means anything, it has got to mean that photograph.
THE COURT: Can you tell me what the authority is for your argument that people who are not killed but were injured by the bomb were not victims of the capital offense?
MR. BRUCK: Well, there is no authority one way or the other on -- all of the grave risk of death -- you mean for --
THE COURT: For victim impact.
MS. CONRAD: -- victim impact?
THE COURT: Yeah.
MR. BRUCK: The victim impact provision of the statute refers to the crime which in context I think there's a --
THE COURT: Right. And so the crime -- let me just guide the question a little bit. The crime here, to pick one, is bombing a place of public use, that's the capital offense, resulting in death. I don't see why as a natural, ordinary matter, the law aside for a moment, it's not proper to regard somebody who is injured by the same bomb that killed somebody as a victim of the bombing.
MR. BRUCK: The way that -- and I'm not looking at the statute in front of me, but the way that language in the statute, referring to the victim impact testimony, is -- it refers to a victim of the offense within the meaning of 3591, I think it's (b) -- (a), (b), (c) -- or (2)(a), (b), (c) or (d) and (e), which refers to the homicide. That's the reason that we say -- and I think that's something that Judge Wolf in Sampson --
THE COURT: I've read the Sampson case and I've read the Gooch case, which you also cited to me.
MR. BRUCK: That is our authority.
THE COURT: And I think those are very different circumstances.
MR. MELLIN: Although, your Honor, I think it's very unclear at this point what the law is in this case and how you define "victim." But the way we had tried to compartmentalize this throughout is not to say that we're putting on victim impact through these witnesses who have not died but, in fact, put on evidence of the cruel, heinous and depraved nature of the offense as well as the grave risk of death to these people.
THE COURT: Are you aware of any cases besides Gooch and Sampson?
MR. MELLIN: There isn't a lot of case law, your Honor.
THE COURT: In both of those cases -- we'll take the Sampson case. Sampson was tried for the murder of McCloskey and Rizzo. And the government, I guess, offered evidence of the victim Whitney who was killed in New Hampshire, which was not one of the crimes of the offense. And that makes perfect sense to me. I agree with that outcome, that that was not the offense.
But we have an offense which not only killed people but maimed people. It seems natural that they fall within the scope. I recognize it's undecided, but that's why I was looking to see -- well, I guess now I recognize it's undecided. That's why I asked the question.
So I think -- the government may not like me saying this, I think that's an additional reason why it's admissible, but I will admit it to go to the grave risk issue.
MS. CONRAD: May I ask --
THE COURT: So the objection is preserved.
MS. CONRAD: As for the photographs, your Honor, even if the testimony -- assuming for the sake of argument testimony is relevant, the photograph -- showing the photograph is far more prejudicial than it is probative in terms of what the photograph adds to the testimony.
THE COURT: Well, maybe. That's what I'm reserving. Let me hear how it --
MS. CONRAD: It sounds like Mr. Chakravarty is planning on showing him the photograph and then asking him about it. That's what I heard. That's --
THE COURT: Let's see. It is that balance that I'm trying to assess. Okay.
(In open court:)