2.ADX Photographs Permitted in the Defense Opening
31 linesMR. BRUCK: We're going to use two chalks, a map just to orient the jury, and a second map which just depicts schematically the wanderings of the Tsarnaev family in Russia over the 15 years between when the parents just met and when they left the United States. And the government has those.
Then we also intend to display two exhibits which I think are 3253 and 3254 --
MR. WATKINS: Unfortunately, I left that list in the --
MR. BRUCK: -- which are aerial photographs of ADX prison. One is a very distant view that shows the setting, and the other is a black and white that shows the prison in a relatively close-up aerial view. This is simply to illustrate the meaning of the jury's sentencing alternative. The government has said they were going to move to exclude the general subject matter of ADX but have not yet actually made that motion except with respect to these photographs. So we haven't really engaged the legal issue.
What this concerns -- we've briefed the issue -- I very -- we got this objection on Friday, and yesterday I was able to respond to it in writing. The government has a nonstatutory aggravating factor that the defendant incited others, made statements, in effect, incited others to commit acts of violence. We think that fair response to that is to show the extent to which the government can prevent the defendant from communicating and inciting others and in any way causing others to commit acts of violence in the future by virtue of the SAMS, which he has been on since August of 2013 and which he will be on at the discretion of the Justice Department for as long as they see fit. So we intend to put that into evidence.
Along with that, what goes with the SAMS are the ways where someone is held when they are under SAMS and have a terrorism conviction. We subpoenaed a witness back in January. We found out that the government proposes to give us three other witnesses whom we actually didn't want. We've -- and there -- there has yet been no written objection to any of this in terms of relevance except for this photograph.
Now, this is an extremely important part of our case, and it seems only fair that when there is so much attention focused on the defendant's statements, on his capacity to communicate with others, that we may be able to respond. This is not intended to show -- and we have removed the mitigating factor about conditions of confinement. It is not intended to show that they'll hammer him at ADX. It is intended to show that whatever he did in the past the jury should not give weight to the risk of recurrence in the future if for no other reason than because of the tools available to the government which we think should be made visual before they make this decision and weigh everything. So that's the gist of it.
And for -- the government says that this suggests a verdict based on emotion and sympathy. I mean, after what we've been through, I just was gobsmacked by that argument. That is not the risk that the jury is going to be unduly sympathetic to this defendant.
MR. WEINREB: Your Honor, generally speaking, information about the capacity of the Bureau of Prisons to incapacitate prisoners is not relevant to mitigation because it is not an issue about whether this particular murderer is more morally culpable for his crimes than another murderer, but it's a question about, in general, whether we need the death penalty at all given the ability of the Bureau of Prisons to incapacitate people.
The Supreme Court has held that if the -- or courts have held that if the government alleges as an aggravating factor that the defendant presents a risk of future danger, for example, to people within the institution of the Bureau of Prisons, and even if it doesn't allege it as an aggravating factor, if it, nevertheless, puts on evidence of it or suggests it in its opening statement or in its case in chief that it is fair rebuttal by the defense to show that the defendant will not be a future danger to others.
The government, however, has done none of those things. We have not alleged future dangerousness as a factor, and we have never suggested that once the defendant is incarcerated he will be a danger to others. The nonstatutory aggravating factor to which Mr. Bruck refers states that the defendant, in the boat, made statements suggesting that others would be justified in committing additional acts of violence and terrorism against the United States. It is a past tense, backward-looking allegation with respect to a circumstance of the crime, not with respect to his character as a person going forward, that he is a violent person and, therefore, the world needs to be protected from him beyond mere incapacitation in prison.
Even assuming for the sake of argument that what Mr. Bruck alleges is true, that they will be able to prove, for example, that SAMS exists at the discretion of the Attorney General or actually subject to review and often terminated by courts, and even assuming for the sake of argument that it's admissible for them to put in evidence about the SAMS at all, an aerial view of ADX prison has absolutely nothing to do with the defendant's ability or inability to offer encouragement of incitement to the outside world. The photos that Mr. Bruck wants to use are calculated to make ADX look like an extremely forlorn, forbidding institution. They in no way relate to anything that he has said is an actual issue in the case. It's simply an effort to convince the jury that life imprisonment is a bad enough punishment as a kind of moral proposition that the death penalty is unnecessary. And that is not -- that is something that the defense is able to argue with respect to the defendant in particular based on his character, based on the circumstances of the crime, based on his history, that given all those factors, that life imprisonment is a sufficient punishment for him. But that's different from photographs that try to suggest that, as a general matter, life imprisonment is a -- that the death penalty is an unnecessary punishment given how forbidding ADX prison looks from the sky. That's a public policy argument. That's not something that helps distinguish him from other murderers.
THE COURT: Well, no. So, again, there are, I think, two issues. I disagree with that. I think it goes to the weighing that the jury will ultimately do, is, do the aggravating factors outweigh the mitigating so that the death penalty is the preferred punishment in this case or is life imprisonment without possibility of release sufficient. And I think that's inherent in what the judgment will be, so I think that's a legitimate consideration for the jury.
The second reason, the quality of the evidence itself and whether it's misleading or accurate and so on and so forth -- so I don't know whether those things are mixed. If you put aside the first --
MR. WEINREB: Very well, putting aside the first, the defendant will never see the outside of ADX prison. How it looks like from the sky is utterly irrelevant to what his life will be like. In fact, Mr. Bruck is correct that we have not objected to the defense putting on photographs and evidence of what the inside of ADX is like, in other words, the parts that the defendant will actually experience. We haven't okayed to it putting aside whether a legal objection could be made. All we've said is that, if they intend to put in that evidence, then we assume and assert that it opens the door to us putting it in context and challenging it and so on. But these aerial shots of ADX are utterly irrelevant to what the experience of this defendant will be inside ADX. He's not going to be viewing it from a helicopter.
THE COURT: Are they misleading, in your view?
MR. WEINREB: Yes, they are. The ADX -- the photos are designed to make it look like ADX could be on the moon. They are, again, completely isolated from surrounding areas and that's simply not true. I think ADX is located within 40 miles of the nearest town.
MR. MELLIN: It's in the foothills of Colorado, pushing up against the Rocky's. The photo is taken in such a way that it looks --
THE COURT: Do you have the photo?
MS. CLARKE: Yeah.
MR. BRUCK: We have it on poster boards. We're not using it on poster boards. We're using it on the system, but we have a mockup.
I have to say, it shows the Rocky's. It shows the prison. It is -- I don't know how you could depict the prison in its setting without a picture almost exactly like this. The New York Times used this exact photograph, and we think it's accurate. It's not the only thing the jury is going to hear about it, but it simply says, This is where he's going, and it is what it is.
If we -- I mean, I'm at a loss to know how we can depict the alternative to the death penalty without showing a view. Obviously, if the government has views of ADX that make it look like a pleasant place to be --
MS. CLARKE: It does not have a feel of a resort.
MR. WEINREB: The defense has put on their exhibit list numerous photos of ADX --
MR. BRUCK: Interior shots.
MR. WEINREB: -- that we have not objected to as being accurate photos. That's the part that the defendant will actually experience. That's the point.
MR. CHAKRAVARTY: Another point, the ADX photos, to suggest that ADX, which is a place that he will be going to, is the place where he will spend the rest of his life is --
THE COURT: Does look like the moon.
MR. BRUCK: It is like the moon. I've been there.
MR. CHAKRAVARTY: The fact that he's going there, over time that could change.
MR. BRUCK: All of that is going to be made known.
THE COURT: I'm sorry?
MR. WEINREB: We're just talking amongst ourselves.
MR. BRUCK: There's also a black-and-white shot.
We propose to do a little close-up to show the exercise --
THE COURT: I'm sorry?
MR. BRUCK: We're going to do a little close-up on TrialDirector just to show the outdoor areas of the unit. I mean, after a proceeding -- I don't know if the Court needs to hear more from me.
THE COURT: You can use it.
MR. BRUCK: Great.
THE COURT: Okay. Is that it?
MR. WEINREB: Yes.
THE COURT: Can we start?