1.Waltham Records Request and Penalty-Phase Scheduling
41 linesP R O C E E D I N G S
COURT STAFF: All rise.
(The Court enters the courtroom at 11:05 a.m.)
COURT STAFF: You may be seated.
We're here for a conference in the case of United States versus Tsarnaev, Criminal No. 13-10200.
Would counsel identify yourselves for the record.
MR. WEINREB: Good morning, your Honor. William Weinreb for the United States.
MR. CHAKRAVARTY: As well as Aloke Chakravarty, your Honor.
MS. PELLEGRINI: Good morning, your Honor. Nadine Pellegrini.
MR. MELLIN: Good morning. Steve Mellin.
MS. CLARKE: Judy Clarke, Bill Fick and Tim Watkins for Mr. Tsarnaev.
THE COURT: Okay. Good morning.
UNIDENTIFIED ATTORNEY: Good morning.
THE COURT: The first matter is, there are a couple of ex parte motions by the defense, so I'd like to excuse the government briefly. My suggestion is that we kind of lock the courtroom so that we don't have people coming in. This is a lobby conference. There's a little side room I think you can just wait in. I don't think this will be long.
(Ex parte proceedings not transcribed and under separate cover.)
THE COURT: Okay. There's -- actually, one of the ex parte matters I've just ruled is not ex parte and so the government should be included in it but you haven't seen it yet, so I'll just tell you it exists and await an appropriate response. We won't deal with it now.
It's a motion for an order from me for materials from the Massachusetts State Police, Middlesex District Attorney's Office and Waltham Police regarding the Waltham murders. The defense seeks in camera review of those matters, so, yeah. But I won't expect an on-the-fly response to that.
MS. CLARKE: But I could show that I'm handing a hard copy --
THE COURT: Yeah. Okay. Fine.
Let me just say that on the docket, the document refers to an Exhibit 1 which apparently is a search warrant and application, but it's not included in the filing.
Before we get to specific trial evidence issues, can we talk a minute about trial management? I'd like to have an indication of who the first cadre of defense witnesses will be and what exhibits they'll use, just as we've been doing with the government's case. A couple of days' worth.
MS. CLARKE: We should be able to do that, I hope by the end of the day but it looks like it might be tomorrow. But we'll certainly send it. We've provided roughly in order of our anticipated order already the witnesses. And we've trimmed some. So we're trying to make some more cuts today before we provide it to the government. And we're trying to attach exhibits.
THE COURT: You know, there's always been some variance here and there. As long as it's within minor toleration, that's okay. The bulk of the information is useful to have sooner rather than later.
MS. CLARKE: Yes.
THE COURT: Let me just ask on the cuts department, have you revised at all your overall estimate for the case? I'm just trying to think global planning here. You had originally said a couple of weeks. Is that -- and that would be, I guess, eight full days. Is it still in that range?
MS. CLARKE: We still think it could be six or seven. It depends on cross-examination or lack thereof.
THE COURT: Okay. Again, I did some long-range planning for this as well. And actually, let me -- let me, just, as long as I broached that subject -- again, this is longer range, but at some point there will be a verdict, and it will be one thing or another. I would like to start giving some thought to how we schedule subsequent events. I mean, if the penalty decision by the jury is life imprisonment without parole, what does that mean for the other counts that have not been considered, victim participation and so on; and similarly, if the verdict is in the other direction, what steps occur before the formal imposition of that sentence and so on.
So I'd just like to begin thinking -- I know, I looked quickly at the Sampson case, and my recollection is that the jury returned its verdict just before Christmas and he was sentenced in February formally. I don't know whether that's a standard template, whether that's long or not, and so I would just like some thoughts on that.
MR. WEINREB: So, your Honor, I believe yesterday, or if not yesterday, then perhaps today, an email went out to all of the registered victims soliciting written victim impact statements. And I can't recall whether we gave a deadline. I think we did give a deadline of four weeks. It's possible we said six weeks. But we also informed them that the Court had not yet ruled on whether oral victim impact statements could be given at a sentencing hearing, and we asked them to indicate whether they would desire to give one or not.
We would very much like an opportunity for victims who want to give an oral statement to have some opportunity to do so. It might make sense to wait and see what we hear back from them to determine how much time might be needed, how much time should be allocated for a sentencing hearing and that sort of thing. Of course, it depends on what the Court's inclination is about -- I assume the Court will accept any written victim impact statements, and if we could have some guidance on oral victim impact statements, that might be helpful in coming up with how much time we'll need.
THE COURT: Well, it's not something I've given a lot of thought to, which is why I raised it. I mean, I guess I don't want to speak extemporary on the subject, so we'll think about -- but I guess the time frame that you suggested could put their response sometime after we get a verdict in this phase. So we wouldn't have that -- and I guess that concerns me a little bit because we would end with a verdict being delivered and not know what to do next.
MR. WEINREB: Well, we were initially just going to ask for -- well, let me step that back for a moment. So the Federal Death Penalty Act says that if it's in a capital case, there shall not be a pretrial -- or rather, a probation report. But of course, there were 13 counts that aren't capital counts, and under the federal rules normally there would be some kind of presentencing report. Normally it would take three months to produce that.
I think given the degree to which every aspect of the defendant's character and so on will be examined during the penalty phase, there's probably no need for --
THE COURT: Right. It can be waived under Rule 32.
MR. WEINREB: Exactly. But nevertheless, in order to fulfill our duties, and as we see it the Court's duties under the Victim and Witness Rights Act, we'd need some time to organize all the materials, make sure everyone's had an opportunity to present them. So we were going to just suggest 60 days from the date of the jury's verdict for a sentencing hearing.
THE COURT: And just run right through into the imposition of sentence, then, after that? In other words, I think -- again, this is a bit from memory so it's -- I'm not sure it's accurate, but I think in the Sampson case there was a hearing in January and then the sentence was actually imposed in February, but I don't know that there are any non-capital counts in that case. I just -- I don't know the answer to that.
MR. WEINREB: So I hadn't really given any thought to whether there would be time between the conclusion of the sentencing hearing and the imposition of sentence. In a way, that's really a matter for the Court, how much time the Court needs to respond.
THE COURT: Right. I guess I mean any substantial amount of time.
MR. WEINREB: I don't think the government sees any need for it. The idea -- we envisioned perhaps a multi-day sentencing hearing if there are quite a number of victims who want to be heard, but at the end of it sentence could be imposed from the government's point of view.
THE COURT: Okay. Ms. Clarke, any views?
MS. CLARKE: Not right now.
THE COURT: With either alternative.
MS. CLARKE: Judge, my experience is that typically the Court would -- having not experienced a death verdict, the Court would typically order a presentence report on the non-capital counts to make those sentencing judgments. And the Bureau of Prisons, my experience is, often wants some background information to follow the inmate to wherever he goes. So we might have to consider those issues. But I think we'll be better prepared to address it having had the Court raise the question later.
THE COURT: Okay. Good.
MR. MELLIN: Your Honor, if I may, just from my own experience in having two death verdicts that were returned, in one the court immediately imposed sentence just after the verdict was returned, and the other we waited until the next business day for the court to actually announce the imposition of sentence. Those were done quickly.
I think this case certainly is a little different in that you have the magnitude of the victims in this case that is just unheard of compared to other cases. So I do think there's certainly time for the Court to entertain additional victim impact evidence if the Court wishes to.
THE COURT: Do those cases involve non-capital counts?
MR. MELLIN: They did. They did. And the Court may wish to reach out to Judge Surrick in the Eastern District of Pennsylvania in the Kaboni Savage case. That case did involve additional counts, but like I said, Judge Surrick waited I think until the next business day, which I think was a Monday, to impose sentence.
MR. WEINREB: I guess as long as we're discussing it, I'll just add one other thing, which is to the extent there are any 924(c) counts on which a sentence of death is not recommended, there was conceivably room for dispute over what the actual sentence -- whether there's a mandatory minimum sentence of life imprisonment versus 30 years or so on for those, I don't know whether the defense will dispute it or not but it's just -- I'll preview that issue. And then there are a couple of counts for which a guidelines calculation would need to be made. There's no minimum mandatory at all. So we would want to leave some kind of room to do that.
MS. CLARKE: And one final thought, just for the Court to begin to think about is if there is a death sentence, I'm sure there will be some analysis of post-trial motions, so we'll need some time for the filing of those. So that could affect scheduling.