2.Hearing on Prejean Testimony and Remorse Documents
96 linesMS. CONRAD: Sure. Well, there are interrelated issues here between Sister Prejean and the statement of remorse, but let me focus on Sister Prejean first of all because with respect to the statement of remorse, I mean, if we were permitted to elicit that, we would elicit that from her, or certainly her opinion about whether he is remorseful. But we also are prepared to narrow that if the Court rules against us on this to essentially a character witness.
She has met with him, her impressions of him. The fact, I think, just alone that a Catholic nun has established what she will describe as an instant rapport with someone who the government has painted as an extremist Muslim terrorist I think is very telling, and I think the jury should be allowed to hear that.
THE COURT: So tell me the details.
MS. CONRAD: So the details are that she was contacted by -- she knows someone on the defense team. She was asked to meet with him simply because --
THE COURT: When?
MS. CONRAD: In -- she first met with him in March. Early March.
MR. WEINREB: Of this year?
MS. PELLEGRINI: Of this year?
MS. CONRAD: Of this year.
She is someone who works with prisoners, individuals not just on death row but also people serving life in prison who, as she puts it, accompanies them and essentially befriends them, works with them, helps them come to terms with what they have done. But not just that, but she works with them sometimes for ten years, sometimes is present at the execution. She essentially functions as a spiritual advisor --
THE COURT: With respect to this defendant, that's what I'm interested in. How many times has she met with him?
MS. CONRAD: She's met with him five times.
THE COURT: And what's the nature of the testimony?
MS. CONRAD: To talk with him.
THE COURT: No, her testimony. What would she say?
MS. CONRAD: Her testimony is that I've met with him five times, I have formed an impression of him that he is someone who recognizes the sorrow and pain that he has caused, that he deeply regrets it. Again, this is something that depends on the scope of the Court's ruling. That he was open to meeting with me. We discussed scripture. We discussed many things. We discussed what his life would be like going forward. We -- and that he is someone who she believes she can work with in the future.
So if she's not allowed to testify about either her opinion or about what he has said about remorse, then -- but I certainly have an argument about why she should be allowed to, then she could testify, essentially, as clergy, as a character witness, who has gotten to know the defendant over the last few months and sees in him human -- human qualities of dignity, introspection and a possibility -- although she wouldn't use that word and I wouldn't elicit it -- of redemption.
MR. WEINREB: That's not character testimony, your Honor, as the Court knows. We object to this because every single thing that she will say is based on things that the defendant has said to her which she -- the jury will necessarily be led to believe that he said things to her, words of remorse, words of regret, words of reflection, words of sorrow, and that she found them credible, that she personally believes him. And so instead of him expressing those words to the jury and allowing them to assess whether they believe them, whether this is something just being said for -- to obtain a benefit, whether it's sincere or insincere, how far it goes, whether he still harbors jihadi beliefs, any number of things that they would find out if they could see him testify under oath subject to cross-examination, they will instead again hear a one-sided self-serving presentation of what he had to say filtered through this person who can't be cross-examined about precisely what he said without getting into, you know, all sorts of out-of-court statements.
And she will -- essentially by being a Catholic nun will get up there and say, You know, I'm somebody who, if I swear an oath to tell the truth, you know, clearly I would never violate it. I'm a Catholic nun and you can believe what I say. The imprimatur of her robes, or her habit, and her celebrity, which inevitably will be brought up because it will be necessary to bring it out to impeach her, will be a stamp of sincerity or believability on everything that she says the defendant said to her. It's just incredibly unreliable information.
Of all the people to pick to give this character testimony, you know, an internationally known anti-death penalty woman of the cloth, and it's just -- again, it's a -- it's an attempt by the defense to block the jury from getting the full picture and to carefully filter exactly what it is that they hear through the mouth of somebody who will shield the defendant from having to really display who he is, what he feels like, what his potential for redemption is.
She has absolutely no expertise to testify as an expert. She's not qualified as an expert in anything. There's no science of anything that she can testify about. She has no better claim than anyone else to be able to detect things that are as ineffable as remorse or the capacity for redemption. She would essentially be -- there's no way that this could avoid issues of the morality of the death penalty, of morality in general, whether the Catholic church approves of the death penalty or not.
Putting her on the witness stand necessarily injects into the case all sorts of unreliable, inadmissible kinds of evidence, things the jury should not be focused on. It's hard enough for them to understand their task in this case, that there are aggravating factors that have to be proved by a certain quantum of evidence, mitigating factors, that they get weighed. To, at the end of the whole process, inject this wrath of irrelevant and distracting and misleading and confusing issues, putting it all before them is not something that the defense should be able to do, especially spring it on us at this incredible late date.
I mean, if she testified -- the time for noticing experts is eight months ago.
MS. CONRAD: She's not an expert; she's a lay witness.
MR. WEINREB: We were told she's going to give an opinion about whether he was remorseful.
MS. CONRAD: A lay opinion.
MR. WEINREB: The time for noticing witnesses of any kind was four months ago, especially celebrity witnesses. This was the woman who wrote the book Dead Man Walking and then was featured in it by a famous actor. This was a popular movie that got nominated for four Academy Awards and won two of them. Many of the jurors probably saw it and have an impression of this woman based not on what they're going to see in the courtroom but of their memories of Susan Sarandon who played her in the movie.
And that movie was a fiction, and yet because she wrote the book and then the movie was made about it, any juror who sees, Oh, my God, this is the woman I saw in that movie, that woman who I thought was so wonderful, was so believable, was such a great woman who could see something that nobody else could see, that this guy on death row who for years and years and years denied that he had committed this murder and finally came around under her tutelage to admit what he had done, to accept it moments before his execution, that -- it is hard to imagine anything more prejudicial than that.
If they wanted to call her, the time to notice it was four-plus months ago and we could have asked the jurors if they saw the movie, if they knew who she was, if they had memories of the movie. It's just too late. She's the wrong person. It shouldn't come in.
And to the extent that she testifies, gives character testimony -- character testimony can be limited to -- based on whether -- it is normally limited not to examples, not to have spoken to him and I've seen his sorrow and pain. He deeply regrets it. We discussed scripture. That's not character testimony; that is just somebody talking about their conversations with somebody and essentially channeling what he said to her to the jury, shielding it from all forms of scrutiny.
MS. CONRAD: May I respond? First of all, I don't know if the government's objection -- it sounds like they're saying no clergy can ever testify because their testimony would carry too much weight. That can't possibly be true in the penalty phase of a death penalty case -- of a capital case or because she's famous.
Now, the jury has been exposed to all kinds of information about this case and they have said that they understand that they are to decide this case solely on what is presented in court.
With respect to the late -- so-called late disclosure, we provided notice of April 22nd, the day after the government's opening statement in the penalty phase when we first realized what the government was doing and where the government was going with lack of remorse, when they displayed over our objection the still from the cell block video.
Now, this leads to -- and I think this is important, Judge -- to the larger question of how we rebut lack of remorse. The government chose to identify lack of remorse as an aggravating factor in this case. The government chose -- and this is what really prompted us to notice her as a witness. We initially were not planning to call her as a witness. She met with him and she will testify to this as part of her ministry, to minister to people who have committed horrible crimes and to help them on their journey.
But Ms. Pellegrini in her opening said the defendant is unchanged. And that, your Honor, put us on the spot to try to show that he has changed. When the government filed the notice of lack of remorse as an aggravating factor, they had in their hands the statement that we seek to introduce, 3249, the handwritten statement of remorse. The government's position is that we cannot -- the only --
MR. WEINREB: I prefer we move on to the statement. I would just like to briefly respond to the points.
MS. CONRAD: I'm not moving on because I'm talking about why this is --
THE COURT: So your analog is lay opinion, I gather?
MS. CONRAD: Correct.
THE COURT: Do you have any case law about this kind of circumstance?
MS. CONRAD: Well, it's character. I mean, character --
THE COURT: No, that's different from lay opinion.
MS. CONRAD: Character evidence is lay opinion. Do you have an opinion of his character? That's lay opinion.
THE COURT: Well, in very limited circumstances. I have to look at the rule. Usually it's reputational.
MS. CONRAD: No, in a guilt phase reputation for honesty, but not in a penalty phase. In a penalty phase, what could possibly be more relevant than the defendant's character?
THE COURT: Cases?
MS. CONRAD: I don't have them. Mr. Bruck may know them but I can't imagine --
THE COURT: I'm just looking for some guidance, is all. I mean, if someone who has considered this position before, I would like to see it.
MS. CONRAD: I can actually give you one example which comes from the government's motion in limine in which they cited -- I believe it was United States versus Lighty, and their citation of it was kind of misleading. First of all, it was plain error review. In that case the defendant --
THE COURT: I've looked at that case.
MS. CONRAD: There they said it wasn't remorse because it wasn't truly remorseful, it was character evidence and it was cumulative of other character evidence. And I would note that many of the cases the government cites on statements about lack of -- about remorse are cases in which there were precisely the type of unsworn statements that they object to in this case and, therefore, an unsworn allocution to the jury would be cumulative.
So the government to say that the only way a defendant can ever confront an allegation of lack of remorse is by taking the stand, first of all, would severely burden, obviously, the Fifth Amendment privilege; and, second of all, is not supported by the cases that they cite. And I can go into more of that as far as the statement itself. But on the character, I think, you know, Lighty talks about it, there certainly are many cases in which clergy testify.
But we also have another challenge in this case, which is the SAMs. So in order to show who -- what the defendant's character is now, what the defendant's remorse is now, the universe of people with whom he has had contact since this crime is extremely limited.
THE COURT: Okay.
MS. CONRAD: Obviously we can't testify.
THE COURT: So let me ask you about the argument concerning notice to the jury pool and, therefore, the opportunity to voir dire about this rather notorious movie and person.
MS. CONRAD: First of all, I don't plan to bring out any reference to Dead Man Walking. I don't plan to bring out any reference to the books that she's written. I don't plan to focus on her fame or celebrity. The fact of the matter is she is who she is. The government added people to the witness list for the penalty phase such as Gary Oliveira who I don't believe were ever on the witness --
MS. PELLEGRINI: He is. He was on the master list.
MS. CONRAD: Before voir dire?
MS. PELLEGRINI: Yes.
MR. WEINREB: We couldn't add anybody after voir dire because of the statute.
MS. CONRAD: Well, there were a number of people added and there were statutory objections that we raised that we made --
MS. PELLEGRINI: With respect to Gary Oliveira, he was there. He was on the list.
THE COURT: Okay.
MR. WEINREB: Your Honor, lack of remorse was identified as a non-statutory aggravating factor I believe in January of 2014. All Ms. Pellegrini said in her opening statement was to -- all she did was to put up the photo of the defendant giving the camera the finger and saying that as of July of 2013, the defendant was unremorseful and unchanged. She did not say that today he was unremorseful and unchanged, that we were planning on putting on in our case-in-chief and so it wasn't said. That was the evidence that we had of lack of remorse, that's what we put in. That did not open the door to all of this.
If the Court is looking for case law guidance, we think the most appropriate cases to look at are the three circuit court opinions stating that it's improper to allow unsworn allocution, because the kind of so-called character evidence -- that's just, you know, putting the wolf in sheep's clothing. This is an attempt to put before the jury what the defendant has said to Sister Prejean.
The only way she has any impression of him, the only way she has any impression of his character, of any of the things she's going to talk about are by talking to him and believing the truth of what he is saying to her. So it is essentially statements of remorse, statements of reflection, statements of contrition being made to her. She is judging them to be true and then she is presenting them to the jury in the disguise of a character opinion. That is just a way of putting in unsworn allocution and it should be barred for all the reasons that those courts on whose cases we rely on have -- and there are state court cases as well which we didn't bother citing which held that unsworn allocations should be barred.
MS. CONRAD: That's not what they say. They say that --
MR. WEINREB: I'm not done.
As for Ms. Conrad's argument that these jurors said that they wouldn't be affected by prior publicity about the case, there were plenty of jurors who didn't say that and they weren't allowed on the jury. These jurors were not asked a different question, which was whether a very powerful and moving film depiction of somebody is something that they could put aside in hearing her testimony on the witness stand.
They also were not asked, and we would surely have requested that they be asked it, especially the ones who are Catholic on the jury, is whether they would treat the testimony of a nun differently from the testimony of another witness simply because she's a nun. I'm not saying that no one from the clergy can ever testify, but we're entitled to jurors who can judge all witnesses fair and impartially.
If they have a police uniform on, they're not entitled to more credibility simply because of that. And if they wear a nun's habit, they're not entitled to more credibility. They weren't asked that, and I guarantee you that there would be Catholics on that jury who potentially would not feel like it was appropriate to disbelieve what a nun said even if, frankly, they may believe that they could not. That is a very, very powerful association for some people.
THE COURT: Okay.
MR. WEINREB: And then there's one other thing I would like to point out which is that the fact that Ms. Conrad says she's not going to elicit that this is a nun who wrote Dead Man Walking and all of that, that's a specious kind of argument to make because the government has to elicit that to show her bias. We have no choice. How else are we going to get the jury to doubt that this nun has any reason to say anything other than the truth or that she has any reason to not filter what she's hearing? She is a committed death penalty abolitionist. She's made it her life work. She's given hundreds, if not thousands, of speeches against it. The jury needs to know that.
MS. CLARKE: Judge, I hate to weigh too much into this but I have a little bit of history how she came to be involved in our case. You know, this trial started in January and this young man sat and watched the voir dire and he sat and realized that he was -- you know, ultimately this trial was going forward. And in my experience, and in this case, it's very difficult for the accused, particularly someone that young, to understand what they're going through.
So we had a connection to Helen Prejean and asked her to come, you know, work with him and see if he could see a path forward. I mean, you know, it's a very challenging time. And I'm sure the Court's looked at him and watched him and, you know, you see a kid struggling with connecting to what's going on around him. So Helen Prejean did not come into this case to be a witness; she came into this case to help us help him.
And when she connected so quickly with him -- she would be the first to say that she doesn't always connect, that there's not always remorse, that there's not always an understanding of the depth of the harm someone has caused. When she said that, you know, we thought, Oh, my goodness, we've got the potential for remorse here. And then the government came out swinging in opening in the penalty phase that he was unchanged, unrepentant and uncaring. And that's not the truth. And that's just not where we're at.
THE COURT: Let me move to a different question, and that is the two exhibits. How would you propose -- or under what authority would you propose those would be admissible?
MS. CONRAD: Well, your Honor, you know, again, the government talks about this unsworn allocution. Hall, which is sort of the major case on this, in Hall there actually -- it was an unsworn allocution. And the cases talk about that there is no right to an unsworn allocution, no First Circuit case on point, an unsworn allocution to the jury by the defendant. In Hall there was testimony, I believe by the sisters of the defendant, about his remorse. There was no discussion in that case about whether that's an unsworn allocution.
In Lawrence there was evidence introduced, a journal entry. It's the same as the journal entry. In Bolden the statement was excluded but there was other testimony regarding remorse. The government's position is we can't offer any evidence of remorse.
MR. WEINREB: That's not true.
MS. CONRAD: Other than live testimony from the defendant on the witness the stand.
MR. WEINREB: Not true.
MS. CONRAD: Well, I don't know what other option the government proposes if we're not allowed to offer a handwritten statement by the defendant which the government has had in its possession for a year and a half.
And so the only reason I provided the email was because I thought the government wanted to -- us to put out -- or for the jury to know that this was in the context of a plea discussion, and also essentially to authenticate that this was provided to the government, that they received it, it was accepted as a statement of the defendant.
It's in his handwriting, it's on his signature. There are other examples of his handwriting in evidence. And the government can certainly argue -- you have the statement, he -- we -- it's not under oath, we don't have the opportunity to cross-examine.
THE COURT: Well, that was the question I was going to ask. Can the government call him?
MS. CONRAD: I'm sorry?
THE COURT: Could the government call him?
MS. CONRAD: No.
THE COURT: Why?
MS. CONRAD: Because he has a Fifth Amendment right not to testify.
THE COURT: Once he's offered the testimony through the exhibit.
MS. CONRAD: It's not testimony, it's a statement. There is absolutely no case law that would say --
THE COURT: It's offered to the jury as a statement by the defendant.
MS. CONRAD: And the government can --
THE COURT: And that doesn't open up the question?
MS. CONRAD: No, absolutely not.
MR. WEINREB: What if we went back into court and he sat down and wrote the same note today and handed it up to somebody to read on the witness stand?
MS. CONRAD: Well, then you could elicit that it was just written today and, you know, and maybe there's even an instruction -- and some of the cases suggest that with respect to unsworn allocution -- I do want to point out there are several courts that have allowed unsworn allocutions to the jury, although I stand by the argument that that's not what this is. One is United States versus Chong, which is District Court of Hawaii, one is United States versus Gabrion, which is the Western District of Michigan. I have the cases. Another is United States versus Whitten. Now, Whitten, which is Eastern District of New York, was reversed by the Second Circuit because after the unsworn allocution the government in the view of the Second Circuit improperly argued that the defendant did not take the stand. I think the line was something, well, like the path to the witness stand was never blocked. So it seems to me that Whitten, which is W-H-I-T-T-E-N -- I can provide the citation -- Whitten clearly stands for the proposition that, A, it's permissible for a district court to allow an unsworn allocution to the jury, which is not what we're asking for; and second of all, that if that happens, the government cannot say, But he chose not to testify.
Now, you know, the case law on that is a little unclear going forward in other circuits, perhaps. There's a Supreme Court case that talks about an instruction, but if the Court and the government were correct in the theory that if he submits a statement -- in that case a live statement to the jury, the government can then call him to the stand and cross-examine him? I don't think Whitten would have affirmed -- excuse me -- reversed for prosecutorial misconduct in calling attention to his failure to testify.
You know, it's not just the unchanged, whatever, you know, comment that Ms. Pellegrini said in her statement, it's also the government cross-examining one of the relatives and saying, Oh, but he is indifferent. He is indifferent to the suffering of the victims in this case. The government wants the jury to look at him as someone who is indifferent, who is unremorseful to this day, and they want them to impose the death penalty on that basis.
The cases the government cites are not cases in which the government alleged lack of remorse. The government chose to cite that as an aggravating factor. The government argued it in their opening, the government opened the door. We have a rebut -- right to rebut it, and I do not think that the defendant can be required to testify in order to rebut it.
MS. PELLEGRINI: Then how could the government say to the jury that we have no ability to cross-examine? It forces us to make a choice of either skating so close to the line that we're going into irreversible error -- I'm commenting on the fact that he's not testifying -- or we get to say to the jury that we weren't able to cross-examine him. It makes no sense.
MS. CONRAD: It's just like the 302s. The Court told the jury that the 302s were statements that were not made under oath and that the witness was not subject to cross-examination.
MS. PELLEGRINI: Those witnesses don't have the same right.
THE COURT: All right. With respect to the two documents, they're not admissible. I won't admit the two documents. I want to reflect on the argument about the witness.
If the witness were to testify, how long would it be?
MS. CONRAD: Not very long. Half-hour, maybe? Can I just --
THE COURT: And if -- I just want to explore what's happening here.
MS. CONRAD: Yeah.
THE COURT: If the witness is not permitted to testify, is Bezy the last witness, then?
MR. BRUCK: Yes.
THE COURT: Okay. I'm partly thinking just of logistics with the jury.
MS. CONRAD: May I just respond to one --
MS. CLARKE: We have some technical stuff to take care of --
THE COURT: Yeah. No, there's a lot of stuff to take care of.
MS. CONRAD: May I just respond to one point Mr. Weinreb said that I don't understand because they don't have any choice but to bring out the books she wrote and the movie that she was in? I mean, they can certainly bring out her anti-death penalty views for bias without going into movies and books.
THE COURT: I understand his point.
So I think -- to be productive, I think we should go and do Bezy, finish that, and then we'll probably take a break and I'll look at a few things before I rule on the other motion. So I don't know how much time it will be but at least we'll get the jury doing something and then suspend again for some necessary period of time.
(The proceedings adjourned at 10:20 a.m.)
P R O C E E D I N G S
COURT CLERK: All rise for the Court and the jury.
(The Court and jury enter the courtroom at 10:27 a.m.)
COURT CLERK: Be seated.
THE COURT: Good morning, jurors.
JUROR: Good morning, your Honor.
THE COURT: Again, we appreciate your patience. The lawyers and I had some things to discuss and we're ready now to resume where we left off yesterday afternoon with the examination of witnesses.