6.Hearing on SAMs Evidence and Limits on ADX Rebuttal
70 linesP R O C E E D I N G S
THE COURT: So I wanted to do this so we could be more efficient with the witness. So tell me -- I don't know who wants to go first -- the scope of the controversy here.
MR. BRUCK: I'm sorry?
THE COURT: I just want to get a sense of the scope of the controversy first.
MR. BRUCK: Right. We are proposing to put in evidence through our correctional expert, and possibly through some government witnesses as well, about the SAMs which we view as responsive to the aggravating factor that the defendant incited others to commit additional acts of violence. Now, I realize they were talking about the boat, but it raises the question will he do it again.
We think we're entitled to show that there is a procedure in place to which the defendant's already subject, the SAMs, which can be renewed indefinitely which would essentially cut him off from the outside world with very, very highly monitored exceptions. The way that is done after conviction is that he will be sent with virtual certainty, which we will explore, to ADX in Colorado where there is a special unit devoted to inmates who are under SAMs who are serving life sentences. And that is, you know, I'm going to say with great confidence, where he'll be sent. And then we want to walk through the specific restrictions on communication. That's the issue. So we think we're entitled to show -- we've already shown the jury the prison, we've shown it's an isolated location, which is what those pictures show. We have been given photographs of the interior, of the cells, of all the different visuals. We're not going to use any of that because it doesn't go to the issue of communication.
THE COURT: When you say "communication," are you talking only about communication with people outside the prison or people within it or both?
MR. BRUCK: He's restricted -- well, both. I mean, he's restricted from communication with other inmates by virtue of being isolated in a particular unit. We're going to describe that. We're not going to show it. And then he's single-celled and so forth. And there will be an acknowledgment that people talk through the pipe chase and there is various opportunities for inmates subject to SAMs to communicate with one another.
But the important thing is just that he is cut off -- his mail is very limited and closely scrutinized, his telephone communication, there is an absolute prohibition on communication with the news media and visitation, and then also, contact with other inmates. That is the restriction that we want to show. That's what the SAMs is. It isn't a general, you know, set of restrictions on his quality of life; it is a restriction on communication.
So we think we're entitled to show that. That does not open the door to his quality of life across the board. What the government sees this as an opportunity for is to introduce details which are extremely inflammatory which, if argued by a prosecutor, and we've given the cases, would be misconduct. You know, the victim is lying on the cold ground and here he's watching ESPN and ESPN2 and he doesn't have to pay for it. This is the sort of thing -- I mean, people -- which is so inflammatory and so prejudicial and has so little relationship to the matter at issue.
Now, the government may say, Well, it's not fair because it is very austere conditions and we're entitled to show that he'll get to watch, you know, cable television. But that's not the issue, and the probative value on the matter that is at issue is so minimal. It's not a security breach that he's allowed cable television within the discretion of the prison. We -- if need be, we can -- you know, there is a whole program statement which we're ready to put into evidence. We don't need to. We don't want to -- we don't see any reason to go through every aspect of daily life. We will if we have to. Television is not listed. It's something which is -- can be withdrawn across the board in the unit or for an individual inmate. It is a tool of correctional control. It is also a way to stave off insanity.
We can explore all that if we have to but it's not -- we shouldn't have to. And if we do, I think we're entitled to begin to show -- we provided an affidavit from an inmate describing his psychological decline under SAMs at H Unit. And I think our witness would be entitled to read that. This is a former warden who ran -- the predecessor at ADX, Marion, and helped populate ADX when they moved the inmates from Marion to ADX.
So we can go very far afield about all of the sort of psychological terrors inherent in prolonged isolation at ADX and the fact that allowing inmates to watch television is something that in sound correctional management is something that the prison wants to do. But the inflammatory effect of it is so great and the relevance to the actual issues -- we are prepared to constrain our showing very tightly to the question of -- goes to this location. The jury's already seen the location. We're not going to show what the cell's like, we're not going to show what the exercise yard looks like, we're not going to show what the millions of the bars in the hallways look like, we're not going to go into the isolation as such, but we just think there has to be a limiting principle and it should be one that doesn't impinge on this man's right to a fair trial. And if there is no limiting principle, I don't know how we could be kept from going on and on to create the full picture of what it's like, the psychological decline that is described by this inmate, Mr. Eyad, was -- occurred when he had television. So what do you make of that? It's just -- I think we need to keep this focused.
THE COURT: Who's -- Mr. Mellin?
MR. MELLIN: Your Honor, there's really only one issue at play now. The jury has to decide between life imprisonment or the death penalty. Allowing us to explain to them what life imprisonment will be like for Dzhokhar Tsarnaev, if he goes to ADX, is very important. The defense had opened saying -- and this is Mr. Bruck saying, He will be facing a lifetime of unrelenting punishment. That is what Mr. Bruck said. He went on to say that he will be severely punished. And then finally, he comes back to say, "Years and years of punishment, day after day, while he grows up to face the lonely struggle of dealing with what he did."
Mr. Bruck has created an impression with this jury that is a false impression, and we have a right to rebut that. We're not looking to go far afield but we are planning on talking about the amenities, the privileges, the things that this individual would be getting if he is at ADX. Mr. Bruck knows better than anyone it's not even clear right now that this defendant would necessarily be assigned to ADX. It's certainly highly likely, but it's not a determination that BOP has even made yet. But Mr. Bruck wants to go to the most extreme example, as far as he can go, go as far to the H unit, which is the most secure unit that BOP has, he wants to leave the impression with the jury that the defendant will be single-celled, have no contact, he said in his opening, with the outside world at all, and that is just not true. And we have a right to show this jury exactly what Mr. Tsarnaev's life will be like at ADX. That's all we're trying to put forward.
THE COURT: What is the process for classifying someone who is convicted of the offenses this defendant has been convicted of?
MR. MELLIN: The process is the information is sent down to Texas where they have a central processing area. They receive the information, they make a recommendation to Washington, D.C. The person in Washington, D.C., then makes an ultimate call as to whether or not he will be designated to ADX.
I think we all know that it's incredibly highly, likely if not certain, that he will be at ADX, but BOP cannot say that because they have standard procedures that they follow when it comes to these designations. So they will go through their process. The recommendation will go to D.C., someone in Washington will then make the determination if he will be sent to ADX.
MR. WEINREB: May I add something briefly? A couple of things to keep in mind. Mr. Bruck is saying that the -- they are about to introduce evidence related entirely to the SAMs and, therefore, rebuttal should be limited to the issue of communication with the outside world. But we're entitled to rebut anything the defense has put in, not just what they happen to be putting in with these witnesses right here. I think Mr. Bruck had a choice of trying to portray to the jury a certain image of what life would be like if the defendant were sentenced to life imprisonment or not. He made that the centerpiece of his opening statement, no doubt because so many of the jurors during voir dire expressed the view that life imprisonment under the conditions that they assume it will be would potentially be worse for him than a death even if it took years for it to occur. By putting that in play, by making it an issue in the case, he's opened the door. So the question isn't is it responsive to the SAMs testimony, but is it responsive to the defense case, the defense argument.
The second thing: The fact that the defendant may go to ADX initially is almost certain to go to ADX initially, does not mean he'll remain there his entire life. ADX has a limited number of beds, and they need to use that prison for prisoners who cannot be in the general population: Prisoners who have killed other prisoners, prisoners who attack guards and for other reasons. So there is the chance, a -- potentially not -- it is not unlikely that he will step down and can continue to step down over time. And as he continues to step down, everything will change for him.
And these are all things that are fair rebuttal not just to the opening statement but to this portion of the case.
Another thing that's fair to respond to in this portion of the case is that SAMs are not forever. The argument that they can be renewed indefinitely at the discretion of the attorney general is not true. They're subject to judicial review and they can be renewed. So the defense is saying once the government opens the door to a discussion of life in ADX, then there's no limiting principle, but if the defense is opening the door, and has already opened the door.
THE COURT: Let me start at the last and move backwards. If the proposition is that the SAM is being in place, the possibility to communicate and, therefore, incite or whatever is controlled --
MR. BRUCK: Yes.
THE COURT: -- then the government should be able to offer evidence that might lead the jury to conclude that it is uncertain whether the SAMs will remain in place?
MR. BRUCK: Well, sure. But we're entitled to show that essentially -- that it is the government's call. It's the FBI and the U.S. Attorney and the Attorney General; it's not the prison system, it's not some faceless bureaucracy. If they decide he doesn't need it, great.
THE COURT: The SAMs might -- the law and the structures allow the SAMs to be relieved --
MR. BRUCK: Or to put --
THE COURT: -- possibly.
MR. BRUCK: Or it expires every year and has to be renewed. So that's built in. Sure. We'll cover that.
THE COURT: So I don't think that's a problem.
Whether the defense evidence -- putting aside the opening for now, just the evidence -- permits a wider discussion of BOP regulations generally, including the steps, I think is a closer question, and it may depend on what we actually hear in the defense direct testimony. I can conceive of circumstances where it might invite a clarification, if that's what you think it is, by greater detail about the opportunities that are afforded to step down when the SAMs are removed. So that I put in the middle ground.
I don't think you're entitled now to rebut the opening where there is no evidence in support of the opening. We tell the jurors that that's not evidence. You may have had an opportunity to do it in your direct case when it was right after the opening, but I think now that we're in the defense case, I don't think it's proper rebuttal to the defense case to address not evidence but opening statements. Whether in your rebuttal case you have that opportunity again, I don't know. I think probably not, but that may be an opening.
So the fact that we're talking about the prisons and the comparison you're talking about, I think it seems to me to be maybe an unsettled issue under the statute whether just general evidence about how life in prison is for an inmate is relevant under 3593(c). I think there's a good argument that it is, but I don't think the way this case has proceeded it should be produced only in response to limited defense evidence about the SAMs.
MR. MELLIN: Your Honor, can I say in response --
THE COURT: So -- but, again, you have to be careful because --
MR. BRUCK: I will. And I'll need to confer with my witness one more time.
MR. MELLIN: Your Honor, the concern that we have is that given the opening, we had to decide when we could rebut that appropriately. We did not allege future dangerousness. And so we have to make the right determination, which is we could not in our case-in-chief put forth this information because we didn't allege future dangerousness. It's only the statements of Mr. --
THE COURT: Well, I guess -- I'm not sure you couldn't have, but that's -- you'd have to strategize --
MR. MELLIN: It's fraught with danger.
MR. WEINREB: Frankly, we also dispute that the government alleged anything that makes any of this information relevant. And so what's happening here --
THE COURT: Well, it's a mitigating factor, though, that they've suggested. They've affirmatively proposed that they should rest easy he can't be --
MR. WEINREB: Yes, but I think the cases that talk about what is and is not proper mitigating evidence allow the defense to allege lack of future dangerousness as a mitigation factor only insofar as it relates to the defendant's character that he's a peaceful person, he's not the kind of person who is violent; not the ability of the prison system to secure prisoners, because that applies to everybody equally. And the whole point of the Federal Death Penalty Act and the whole system that the Supreme Court has mandated is to figure out ways to distinguish murderers who deserve the death penalty from those who don't. All of them are going to encounter the same level of security, so it can only be their characters that distinguish them one from the other.
MR. MELLIN: And the cases that --
MR. WEINREB: I'm sorry. I'm not finished. One more thing I want to add, which is the combination of the opening statement and now, where we were told that this would be a bleak existence with nothing to do but sit around and stare at four walls and think about your crimes for the rest of your days, which is precisely what many of the jurors during voir dire said that they would rather see him do than get the death penalty, is what Mr. Bruck is going to try to convince the jurors through this testimony is going to happen, because he's going to say he's going to be cut off with all communication from the outside world. He will lead a lonely existence where he does nothing but sit around and stare at the wall.
And that is so misleading and so -- it will simply -- I mean, it could literally lead jurors to make a different decision in this case than they would make if they knew the truth, and it's not the truth.
THE COURT: Well, that's all premised on the immutability of the SAMs, though, which you could counter.
MR. WEINREB: No, but he's not staring at the four walls; he's staring at a color television all his days. That's what they're trying to do. That's the misleading picture they're trying to --
MR. MELLIN: Mr. Bruck says there's a place so secure that he won't even be able to glimpse the outside world; all you could see from the narrow cell -- from the small, one-man exercise cage is a patch of sky. That's not a true impression of what ADX is like.
And so we have the right to rebut these claims that create false impressions. That's all we're trying to do, your Honor, is respond to his opening statement. And we understand the cases that Mr. Bruck is talking about where there is a link drawn between the defendant's day in the life versus Martin Richard. No one is going to argue that. No one is getting close to that. The point is to clarify for the jury exactly what is the determination they're making. They're making a determination between life in prison or the death penalty, and when they're deciding that, they have the right -- and especially given his opening, they have a right to know what really life imprisonment is for each of these individuals.
MR. WEINREB: They shouldn't have a misimpression, they shouldn't be making the decision based on a lie.
MR. BRUCK: I have a response to every point that has made, but I generally follow the practice of not arguing when the Court has ruled provisionally in our favor. So if the Court wants to hear further argument, I've got it, but I'm inclined not to prolong this unduly.
The opening statement was factual. It was -- what was being talked about was the fact of that a life sentence. He would have his lifetime --
THE COURT: Well, no. I think it was pretty emphatic. I mean, I agree generally with the characterization of it --
MR. BRUCK: It is also not evidence, and we are not putting in evidence that does anything more than what we've described, which is the limitations on communications. They are not absolute limitations; they are restrictions. There is family phones, family visiting. All of that is going to be discussed.
MR. WEINREB: The opening statement is the roadmap of the evidence they're going to see. Here comes the evidence, and they will take that as proof of what was argued in the opening statement unless we have a chance to rebut it. That's the problem. What the opening statement was not: He won't be a danger to people in the outside world. If it were limited to that, that would be a different story, but it wasn't about that at all. It was about the thing that Mr. Bruck knew the jurors cared about and it was intended to create a misimpression, and that's what it will do if this evidence goes in unrebutted.
MR. MELLIN: And, your Honor, I don't think there's a case out there that says that we're not entitled to bring out this information about what privileges that someone would have or anything along those lines. You can't bring it out to make that link. We're not going to make any link.
THE COURT: Well, I mean, part of this is just normal trial sequencing, and I think that probably would have been appropriate, probably. I don't have to rule because we're past that point in your presentation to --
MR. WEINREB: Well, we could do it in our rebuttal case.
THE COURT: I'll reserve that possibility.
MR. WEINREB: Yeah. I mean, we're willing to do that.
THE COURT: I don't know. Let's see what this is like. But today, with the defense witness, you can show that the SAMs are not immutable, that the premise on which the reassurance depends, is questionable; and, therefore, they should be careful of drawing the conclusion. I mean, you could do all of that with respect to the SAMs without getting into general classification conditions and so on and so forth. I'll think further about whether that's an appropriate rebuttal matter.
MR. MELLIN: The concern I have there, your Honor, is that this defendant, even if he goes to ADX, will be able to step down even in ADX. So there will be more communications he could have, things along those lines. So I just want to make sure that I understand where the Court is coming out on that.
THE COURT: Well, I think -- if the premise -- I think it's fair for the jury to understand the significance of the lifting of the SAMs. As I understand it, one of the significances of the lifting of the SAMs is it opens the possibility of an administrative adjustment farther -- or wider than it would if the SAMs remained in place.
MR. MELLIN: Correct.
THE COURT: And so I think that's legitimate.
MR. MELLIN: Which will increase his communications abilities and all --
THE COURT: I think that's legitimate.
MR. BRUCK: Of course, we'll bring out that would be a problem of the government's own making because they have the ability to keep the SAMs in place. And the business of the court -- there has never been a court that has limited the SAMs. There has been one court order requiring the FBI to reconsider a limitation on communication, on mail, or visitation, which the FBI was not required to do and didn't do, and that's the extent of the judicial review in the entire history of the program.
So this idea that courts can -- we asked for discovery from the government, and I've received no response on any court order that has lifted the SAMs from an inmate.
MR. WEINREB: The problem is that just like when it comes to, let's say, wiretap warrants, we don't seek them if we don't see there's probable cause to seek them. The government doesn't seek to renew SAMs when it believes that it can no longer justify the need for their existence. That's how they get lifted for the most part.
We have one other issue, which the defense made a request for several BOP witnesses. We have supplied them. One of them, we informed them, had personal issues, family issues. She needed to testify yesterday and then leave. We kept her around for another day because of the delays that occurred with the Russian witnesses. If she does not testify today, she needs to leave.
THE COURT: Who is she?
MR. MELLIN: Michelle Nicolet.
MR. BRUCK: We'll know after Mr. Bezy if we need her.
MR. MELLIN: The list we got last night had Michelle Nicolet listed before Mr. Bezy.
THE COURT: What's her contribution?
MR. MELLIN: She is the chief for the FBI overseeing the SAMs determination. So she would be able to explain the SAMs program and how it --
THE COURT: Let's get going.
MS. CLARKE: I think we'd better get going. We could take it up at sidebar?
THE COURT: What?
MS. CLARKE: I just had other things to do.
THE COURT: No, let's do this thing.
(The proceedings adjourned at 2:18 p.m.)
COURT CLERK: All rise for the Court and jury.
(The Court and jury enter the courtroom at 2:22 p.m.)
COURT CLERK: Be seated.
MS. CLARKE: Your Honor, the defense would call Eric Traub.