1.Mistrial Motion Denied Over Bezy Cross-Examination

MR. WEINREB: I'll start with the cost issue. The government does not dispute -- the government agrees that the jury should not take into consideration the cost of incarcerating the defendant as an alternative to the death penalty, but that was not what the nature of the questioning was about.

Mr. Bruck has decided to make an argument to the jury, to offer evidence to the jury that if the defendant is put in -- is sentenced to life imprisonment, he will be under certain restrictive conditions. He'll go to ADX Florence, he will be put in H Unit and he will remain there for the rest of his life.

The reality is that he will likely be stepped down at some point over time. And it was fair to ask their expert whether the Department of -- the Bureau of Prisons tries their best to step people down and to ask them why they try to do that.

That was all that questioning was about. So there was no effort or intent to suggest to the jury that should be making their decision based on the cost of incarcerating him; only to suggest that the Bureau of Prisons would itself try to step him down if it could because they have -- and to explain why they try to do that. They don't do it out of the kindness of their heart, they do it because they have an incentive to do it.

In addition, the questions really never got anywhere because the defense made an objection. Although the Court overruled it, the witness by that point seemed to have forgotten the question. It was rephrased, asked another way. There was an objection, it was sustained, so no answer was given. And the defense -- the jury has been repeatedly told by the Court that the questions are not evidence, only the answers are evidence.

So all in all, I can see why Mr. Bruck would want to seize on this issue given that it's one of the clear-cut areas where you're not supposed to argue about something to a jury, but in this case it's a tempest in a teapot because it didn't happen.

Also, we were handed a proposed requested penalty phase instruction by the defense to instruct the jury not to speculate about the cost of incarceration or to take that into consideration. Although we believe no error occurred in this case and the instruction is not necessary, it is a fair statement of the law. We don't object to it.

When it comes to the jurors' potential misunderstanding of the SAMs, first of all, we dispute many of the factual assertions that the -- it's unclear whether they're really factual assertions or legal assertions that Mr. Bruck has made today in this lobby conference about how the SAMs process works, and this is really an illustration of why this is a problem of the defense's own making.

The manner in which SAMs are obtained, are imposed, are reviewed, are modified, are abandoned is largely a matter of law. It's really not an appropriate matter for a witness to be testifying about because it's not a factual matter. And yet the defense chose to call an expert to instruct the jury about it and, unfortunately, they chose an expert who really doesn't know what he's talking about. This is not a person who has ever been involved in SAMs, who really has any expertise about them. He basically just studied up on them to give his testimony here, and he really doesn't know much what he's talking about, whereas Mr. Mellin and the rest of us on this team have a lot of experience with SAMs. We know just how the process works, and there was a good-faith basis for every single question that Mr. Mellin asked of this witness.

The truth is that it was Mr. Bruck who created an extremely misleading picture of how the SAMs process works by suggesting to the jury that it is essentially just entirely up to DOJ to decide whether a SAMs is in place and whether it's in place year after year forever. The truth is that there are regulations that have the force of law that govern whether a SAMs can be imposed or not. The U.S. Attorney's Office has to follow them, the FBI has to follow them, the attorney general has to follow them. And if he doesn't follow them, there's judicial review, as there is any time the executive branch violates something that has been -- that has the force of law.

When I say it has the force of law, I mean there are regulations that were enacted by an administrative agency that -- or in some case, pursuant to an authorizing statute. They're just like any other regulation in the C.F.R. They can't simply be ignored at will. The fact is that SAMs are very frequently not renewed and are abandoned because the factual -- the basis -- the requirements for keeping them in place no longer exist or the government no longer believes that it can prove the existence of it by the necessary standard to a court. A good example, although I don't know that any are needed, would be the Richard Reid case. I'm just familiar with it because it was prosecuted by the U.S. Attorney's Office in Boston.

Richard Reid was in Florence at ADX in H Unit under SAMs, but eventually those had to be -- for one thing, those were overseen by Judge Young who ordered changes to them, and eventually those SAMs had to be relieved. And he's -- Richard Reid, you know, a convicted terrorist, tried to murder many, many people, has been stepped down and is in the general population, as Ms. Conrad who was the attorney on that case, knows well.

MR. WEINREB: She was the attorney in the case.

In any event, there is SAMs litigation ongoing in Colorado right now. It's absolutely a false impression to suggest that the judicial branch exercises no oversight over the SAMs process, that the government can do things at will. And the reality of the SAMs process is that the U.S. Attorney's Office and the FBI, when they submit their recommendations to the Department of Justice or to the parts of the Department of Justice that review them, sometimes get feedback saying, This isn't not going to -- this isn't sufficient under -- it's -- they are the guardians of the SAMs process. It's their job to review whether the facts exist, just like the OEO, the Office of Executive Operations in the Department of Justice reviews Title III wiretap applications and will not allow the government to submit them to a judge if it believes that the probable cause plus standard has not been met.

It's the same thing with the -- part of the Department of Justice that reviews FISA warrant applications. They exercise a very, very high standard of review and no warrant is even given to the FISA court unless it is certain that it has sufficient basis to be granted. And that's true with the SAMs also, and that's why SAMs don't get granted.

So it's creating a completely false impression to say that if the U.S. Attorney's Office or the FBI wants it, they get it, and that the proof of that is that they never get turned down. Well, we do get turned down, but it's done in an internal process, in a way in which you don't have a judicial record of it. So, again, it is Mr. Bruck, I think, who has been creating the misleading impression in front of the jury.

And one of the big problems is that he is trying to put on evidence of a process that takes place outside of his sight, outside of Mr. Bezy's sight, outside of a lot of people's sight through an expert witness who knows nothing, really, or very little about what he's talking about.

So it's not fair for the defense to put on a one-sided self-serving presentation of the evidence and try to block the government from challenging it. If they put a witness up there, we're entitled to cross-examine him. If we ask him a question and he says, "Possibly. I don't know," that's the witness he put up there. That's the answer they get. If they wanted a different answer, they should have prepared him better or have the facts be different, but they're not.

Excuse me one second.

MR. WEINREB: I think that it is perfectly fair for the jury to hear that in this case the defense moved to modify the SAMs pretrial. They claim that -- because one of the things that they argued in their motion was that SAMs are subject to review pursuant to the constitution and pursuant to the laws of the United States; in other words, it's not a purely discretionary thing, again, with the Department of Justice, that we just decide we want it and we get it, and the only way it goes away is if we decide we don't want it.

This is a perfect example for the jury to see, that, no, it is possible to go into a court, to tell a judge that the U.S. Attorney's Office, the FBI, the Department of Justice in seeking a particular restriction under a SAMs is violating the Constitution, is violating the law in getting a judge to order the office to do it differently. And they're entitled to hear what often happens in situations like that is you don't necessarily get a ruling from the court, but you get a compromise. The parties work it out. They modify things. Because that happens all the time.

So again, you know, it's not fair for the defense to come up here and say, you know, The mitigation phase allows us to put all sorts of information in front of the jury. Whatever might seem to be mitigating. But we get to put in a one-sided, uncross-examined, unchallenged version of it. We get to put in the information. You have to sit silent. That's simply not the law and that would not be appropriate. The jury needs to make a quality sentencing decision here. They need to have all the information in front of them.

MR. MELLIN: Your Honor, can I make one additional point, which is that the defense has changed course in the way in which they wanted to present this evidence. They submitted a Touhy request, the government responded and identified three witnesses that could talk about either ADX or SAMs or how they are implemented, how someone is designated to ADX, what happens if they are designated to ADX on SAMs.

We provided those witnesses. The defense was given multiple opportunities to talk to those witnesses. That was something we voluntarily allowed to happen. There was a time where Mr. Bruck was on a conference call with the three witnesses; there's another time just recently on Tuesday that Mr. -- the defense was given another chance to sit down with these witnesses and talk to them. It's at that point that Mr. Bezy sat in on these interviews of Ms. Nicolet and -- as well as Warden Oliver and David Schiavone.

Mr. Bezy then is now being called to regurgitate what those witnesses said and put a certain spin on it even though Mr. Bezy is not an expert in SAMs, and Mr. Bezy has had very little, if any, involvement in the SAMs implementation during his career with BOP. So what the defense is trying to do is trying to use their witness to put a spin on what the government's witnesses would have said if the defense had called them, and it's, frankly, not appropriate.

MR. WEINREB: Well, your Honor, before we leave the topic entirely, the one area that I think is fair for the government to get into, because Mr. Bruck has made such a point of showing to the jury this image of ADX in a freezing cold, snowy environment that looks like Siberia or the moon, that prisoners inside the prison are kept comfortably warm, that they have a bed with a blanket on it, that they're not freezing in the cold like you might think looking at the outside of it, and furthermore, that if people want to visit, it's not like they have to travel to Siberia or the moon; that the prison is located conveniently to an airport, that it's possible to get there without too much trouble. I mean, those are things that are -- that Mr. Bruck is clearly trying to suggest through that particular picture. There are plenty of pictures of ADX that don't show it in that kind of environment. Even the Court said it looked like it was on the moon.

We know that we're being at least during this phase, as opposed to rebuttal, limited to some degree in discussing what the conditions of the prison are like inside, but at a minimum, we should be able to respond to those that the defense has fairly invited response to by putting in, again, a one-sided self-serving portrait of what it is and trying to require us to leave the jury with that instead of providing them with relevant information that will enable them to make a decision about whether they think this is an accurate picture of it or not.