1.Rulings on Sister Helen Prejean's Remorse Testimony
161 linesP R O C E E D I N G S
THE COURT: So let's start with the Sister Helen Prejean issue. First of all, just to put it aside, I overrule the government's objection to the timing. So with respect to the substance, it seems to me that the government acknowledges that she could give a lay opinion on remorsefulness, and I think that's then appropriate. She may do that. But it will be a lay opinion.
MS. CONRAD: Of course.
THE COURT: And a consequence of that is that she cannot vouch for it by reference to her particular experience in talking with death row inmates. To the extent there's an appeal to experience, it seems to me it places at 702 rather than 701, and that would be inappropriate. So she may testify to her lay opinion based on her observations of him as it equates to perceptions in Rule 701 but not with reference to experience with other death row inmates.
MS. CONRAD: May I just be heard very briefly? First of all, to clarify, just so that isn't coming out of completely left field, may she testify that she just -- by way of her background and why she's meeting with him in the first place, that she has a prison ministry and she has worked with prisoners?
THE COURT: Well, it will come out, I expect on cross-examination. I anticipate she has a policy viewpoint.
MS. CONRAD: I don't plan to elicit that on direct.
THE COURT: I expect the government will. You will tell me whether you will or not. More precisely, the question is if you will if I enforce the limitation that she can't refer to it on direct.
MR. WEINREB: The only thing that we intend to elicit on cross is that she is a leading opponent of the death penalty in the United States, not anything about her prison ministry or her ministering to prisoners. In other words we do not intend to elicit at this point, assuming -- I should say this: The cross always depends on the direct. The direct is going to depend on the Court's ruling. I'm not sure we've heard all of it.
But assuming that the direct testimony is the portion of the proffer that the government proposed would be part of a proper lay opinion, not channeling of hearsay, not vouching for her experience, then we would not be bringing out anything about Dead Man Walking or about how that all got started, simply the fact that she speaks, writes, lectures against the death penalty.
THE COURT: Right. So I think it's best limited because otherwise it gets close to experience and, therefore, expertise. She is entitled to put in some background, and I think perhaps without getting -- I don't know if this goes over the line or not, but she can say she has been in her order for a long time and that includes spiritual counseling of people on a one-on-one basis.
MS. CONRAD: Including prisoners?
THE COURT: I would allow including prisoners, but no more than that.
MS. CONRAD: May I just on this point of experience, just point out that, for example, you know, experts rely on things that are outside their personal experience. Lay witnesses rely in giving lay opinion on their personal experience. For example, Kevin Roche testified that his interpretation of Mr. Tsarnaev's actions in the cell block were informed by his experience in a full-blooded Irish household of what that gesture means. So, you know, which it seems to me that experience comes into play in lay opinion.
THE COURT: Well, it may -- yes, in some general sense it does. I don't think he gave the opinion that -- he got cut off, in fact. I was interested in where he was going with it as a personal matter.
MS. CONRAD: I don't think he got cut off. He said it was a defiant gesture based on his experience.
THE COURT: Anyway, what distinguishes a lay opinion giver from an expert opinion giver is that the lay opinion giver is just the same as the jury and so, therefore, just as the jury could tell whether someone is exhibiting anger or not, the lay witness to events can do the same. But to the extent the witness is different from the jury because of experience, then it crosses over into 702 as a general proposition, so...
MS. CONRAD: Presumably, if the government asks about her views on the death penalty, we can then inquire on direct as to why -- how she formed those opinions?
THE COURT: We'll cross, and then redirect depends on what happens in the preceding --
MR. WEINREB: So we have a request there, your Honor, which we believe the government should be entitled to ask questions to elicit her anti-death penalty -- the fact that she is an opponent of the death penalty without opening the door to her explaining the reasons why she is against the death penalty. The reasons why she is against the death penalty are wholly irrelevant. They have nothing to do with making her more or less biased and they're improper for the jury to consider. The government can do -- there's a very simple way in which the government can do that, is by simply asking yes-or-no questions, and we would ask that either the judge instruct the witness or the judge have counsel instruct the witness that if she's asked a yes-or-no question, she should give a yes-or-no answer.
THE COURT: Well, you can do it too by prefacing it, "I'd like you to answer this question yes or no, please."
MS. CONRAD: It seems to me that opens the door. That's a choice the government makes if they choose to ask about it.
THE COURT: No, I think a limited inquiry may be okay to the extent that it may test a layperson's conceptual bias, but it would have to be limited to avoid opening the door --
MS. CONRAD: Doesn't that then --
THE COURT: For example --
MS. CONRAD: -- open the door to her experience even if it's not her moral reasons for her opposition?
THE COURT: No, I don't think so.
MS. CONRAD: Her experiential reasons for an opposition?
THE COURT: No, I don't think so.
MS. CONRAD: Well, then, am I allowed to elicit on direct that she is an opponent of the death penalty in order to avoid --
THE COURT: Lancing the boil?
MS. CONRAD: Exactly.
THE COURT: I don't see why not.
MR. WEINREB: As long as --
THE COURT: It's limited to that.
Yeah. So just as a perception of a police officer as to whether someone was intoxicated or not may be informed by his point of view, I think point of view can influence a lay opinion. That's all I'm saying.
MS. CONRAD: Of course. It's also informed by his experience.
THE COURT: I think usually they're admitted as lay opinions to the extent those kinds of things -- my point is that your predisposition -- a layperson's predisposition to a particular opinion might be something that a fact-finder would evaluate in deciding on and considering an opinion.
MR. WEINREB: Your Honor, if defense counsel does intend to lance the boil, so to speak, on direct, all we'd ask is they do it through leading questions so that we don't risk getting into impermissible areas.
THE COURT: Okay. Now --
MR. WEINREB: I had one request which is with respect to the basis for her lay opinion that the defendant is remorseful, it's one thing to say: I've had conversations with him, I have observed him, and based on those conversations and observations I believe he's sincerely remorseful, it's another thing to say: We have discussed matters such as his regret or such, as how he experiences the pain and suffering of the victims, and channel his statements to get them in front of the jury, essentially allowing him to testify through her, we would ask that that be precluded, or in the alternative, that we then have an opportunity to cross-examine him about his statements to -- because she's obviously accepting them for the truth and then repeating them to the jury.
MS. CONRAD: That's just -- I mean, I know there's one case in which the government requested to cross-examine the defendant about out-of-court statements, actually, about an unsworn allocation, which as I've noted -- and I won't belabor the point. In these cases it's not. It's an out-of-court statement. It goes to state of mind, it affects her opinion how he said it and what he said.
And the government wants, essentially, her to offer a sanitized opinion so that then it has less credibility with the jury. And the whole point of this is for her to be able to explain how and why she concluded that he was sincerely remorseful. The government wants this to be sanitized to the point where they can simply say, "She's a death penalty opponent. Of course she's going to say he's sincerely remorseful. And what did he tell you that can help you decide for yourself whether he's sincerely remorseful?"
They have to be able to evaluate the testimony based on what she relays to the jury.
THE COURT: If she were to say, for example, "I have formed my opinion because I believed him when he said" whatever --
MS. CONRAD: Right.
THE COURT: -- that puts the believability of the statement in issue for the jury to evaluate. If they found that it was an unbelievable statement, then they would devalue her opinion. So it seems to me to raise legitimately believability. There are a couple of ways of proceeding from that point: One would be to sanction the cross-examination, another would be to give a cautionary reliability instruction as we did for 302s about the jury not having seen the statement themselves or so on and so forth. But I think that's hazardous for the defense as well.
MS. CONRAD: Well, the statement -- the only statement that she would testify to is that he said "No one deserves such suffering." It's not a statement of fact; it's what he said. It's --
THE COURT: Whether she believed it or not?
MS. CONRAD: It's not whether she believed -- she of course believed that no one deserves such suffering. We all agree no one deserves such suffering. It's not a factual statement; it's a statement of his state of mind.
MR. WEINREB: Your Honor, the point is that if you put the statements in front of the jury, then they don't need an expert to tell them whether it's sincere or remorseful or not. That the jury can determine. You don't need a lay opinion of something that the jurors are in such a good position to decide for themselves. If you have a lay opinion and the jurors are hearing something that they didn't experience for themselves, they didn't get to hear, they don't know what it is. That's the first argument.
The second argument is that this is not like the ordinary case. The defendant's own words about his state of mind could not possibly be of greater interest to the jury. And to give them a one-sided filtered presentation of solely what the defense wants them to hear coming through the mouth of a nun is entirely -- is so prejudicial and the -- that the likelihood that the jury will not take it for the truth of the matter asserted and will take it only to evaluate the opinion of this person is zero.
They don't care what Sister Prejean thinks if they're hearing what the defendant has to say; they care about what the defendant said. They can judge for themselves. They've been sitting through this trial since January, when she's just stepping on this witness stand today.
THE COURT: Is that the only statement?
MS. CONRAD: Yes. And can I just say --
THE COURT: No. You can have it.
MS. CONRAD: Thank you.
THE COURT: And the reason is that it's a verbal -- if it only goes that far, it's like a verbal act, in a sense, and it can form the basis for the opinion.
MR. WEINREB: That's the only statement?
THE COURT: That's what I've been told.
MR. WEINREB: And we're not going to hear --
THE COURT: And the statement was?
MS. CONRAD: "No one deserves such suffering."
THE COURT: So the witness will say, "I base my opinion in part on the fact he said to me, 'No one deserves such suffering'"?
MS. CONRAD: Then his demeanor when he said it and so forth.
THE COURT: If those are just the observations, then she may --
MR. MELLIN: Your Honor, can we ask how often he said this and when he said this, because the proffer --
MS. CONRAD: You can cross.
MR. MELLIN: Well, we were supposed to get a detailed proffer.
MS. CONRAD: I think it was a pretty detailed proffer.
MR. MELLIN: It was two sentences.
THE COURT: If it's limited to that and no other statements of facts by him about things, then I think that's --
MS. CONRAD: Correct.
THE COURT: -- okay. All right?
MS. CONRAD: Thank you.
THE COURT: Any other issues with her?
MR. WEINREB: Yes. So there were other things she was proposing to say which seems completely unacceptable. She planned to give an opinion -- first of all, she planned to say that the defense asked her to see him to help him continue to process the pain and grief he has caused indicating that the defense believed that he was already in the process of -- already processing pain.
THE COURT: Yeah. I see the quote. It's on page 5. I would agree that that should not be -- that that's an argumentative --
MS. CONRAD: I'm sorry. Page 5 of --
THE COURT: Paragraph 2.
MS. CONRAD: I'm sorry. From the government's? Not mine? I'm looking at mine.
THE COURT: Yes, the government's.
MS. CONRAD: I'm sorry. Can I just clarify? I mean, she didn't just parachute in. She was asked by the defense to see him.
THE COURT: To meet with him, not to continue his remorseful process. That's argumentative.
MR. WEINREB: And then this Paragraph 6 or, no -- Paragraphs 9 and 10 which I believe are the second-to-last and last paragraphs.
THE COURT: The proffer? Okay.
MR. WEINREB: Of the proffer.
MS. CONRAD: I'm sorry. I'm still -- now I'm on the government's. I just want to make sure I'm in the right place. So all right. I just want to catch up. Go ahead.
MR. WEINREB: In fact, it might make sense to just go through the proffer paragraph by paragraph because I think that's the simplest way.
So we objected to Paragraph 3, which the Court already ruled is inadmissible as part of the first experience paragraph.
THE COURT: Right.
MR. WEINREB: Four, more experience; and 5, which is more experience. Then the next one is the one that has the "continue to process the pain and grief."
THE COURT: Right. In the hope. That would go out, right.
MR. WEINREB: Then --
MS. CONRAD: Well, but the next you agreed to. To see if he would be open to working with her would be okay?
MR. WEINREB: Yes, we don't object to that.
THE COURT: Okay. So the rest of that paragraph. Yeah.
MR. WEINREB: Then the next paragraph, we have gotten the stipulation that that will be reduced to one sentence the Court has approved.
MS. CONRAD: I'm sorry. Which paragraph are we on now?
MR. WEINREB: The top of page 3.
THE COURT: What the discussion was? About what the discussion was?
MS. CONRAD: So what's the proffer with that?
THE COURT: In other words, to the extent the discussion -- as I'm understanding it, to the extent discussion calls -- could call for evidence of what he said specifically.
MS. CONRAD: But these are just topics.
THE COURT: Right.
MS. CONRAD: The topics are okay?
MR. WEINREB: Well, I think if they -- if the topics are at this level of generality.
MS. CONRAD: They are.
MR. WEINREB: They spoke about spirituality, religion, and then, you know, but without regret indicates that he was pressed for regret. I think anything that gets -- that is a feeling imputed to him.
MS. CONRAD: Well, but we discussed just to say they discussed religion and spirituality makes it sound like this was a theology class. They discussed what he did.
MR. WEINREB: That's fine. They discussed religion, spirituality and the circumstances of the crimes.
MS. CONRAD: Well, not the circumstances of the crime. It's, you know, his feelings about the crime.
THE COURT: Without giving content.
MS. CONRAD: Right. His feelings about the crime.
THE COURT: Without giving content to his feelings about the crime.
MR. MELLIN: That's the problem, your Honor. Sister Prejean may --
MS. CONRAD: I'll speak to her.
THE COURT: I assume she'll be talked to.
MS. CONRAD: And I'm sure the government will be --
THE COURT: And the only other specific thing here is -- no, I guess it comes to the next --
MR. WEINREB: Right. Then the next paragraph is fine. Then in these two paragraphs that she sees in him an awareness of the pain and anguish that he has caused, we would argue that is not a helpful opinion based on rational observation but is simply speculative and argumentative.
MS. CONRAD: May I respond? I mean, that's part of why she thinks it's sincere. To basically say "He said these words, I believe he's sincerely remorseful," and not be able to say, you know, what it is she sees in him that makes her believe he's sincerely remorseful.
THE COURT: To the extent -- and this is hard to place on one side of the line or not. To the extent it is perceptions, yes; to the extent it is evaluation, no, so...
MS. CONRAD: Well, evaluation is lay opinion.
THE COURT: So processing herself and her -- maybe goes too far into expressing her own opinion about things, you know. As an overlay her opinion is about his remorse, which she can say, and she can say -- I mean, again, she can -- for example, she could say he looked pained or something like that. That's a physical observation.
MS. CONRAD: Also an awareness of the pain and anguish.
THE COURT: I guess to the extent her observation may include a moral component --
MS. CONRAD: Right.
THE COURT: -- that would go too far.
MS. CONRAD: Correct. And certainly she wouldn't be saying "I believe he's sincere because I believe all people, you know, come to realize" -- you know, it's not a generality; it's what she saw in him.
THE COURT: Physically saw in him.
MS. CONRAD: Well, saw on him. And also based on their relationship, which is a big part of it, that they met a number of times, they established a rapport, they established a level of honesty. That all goes into how you evaluate what someone says to you and you know --
THE COURT: Fine. To some extent, yes. I guess a lot of this is going to depend on how it actually comes out, but I think she could probably say "In my opinion we developed a level of trust" or something like that.
MR. WEINREB: See, your Honor --
MS. CONRAD: It's not a moral judgment; it's --
MR. WEINREB: -- one of the problems here is who they picked to be this witness. "See" is a very freighted term when it comes out of the mouth of a religious figure. Catholics, as well as those in adherence of other religions, are told that God sees in us, God's representatives on earth can see in us. When she says she sees in him, that can be taken as you may not see it, but I see it. I can see something in him that the ordinary person cannot see.
So to say that he looked pained is -- I think conveys something quite different from I see something in him that you should believe is there. "I'm a nun. I know."
MS. CONRAD: This is not a script. This is not verbatim. These are -- you know, I think we provided what the Court asked for and, you know, if we're going to start nitpicking every word because it might be spun this way or that way, you know, I think we're never going to get through this direct, for one thing.
THE COURT: Yeah, I don't -- I think that's fine-tuning it a little too much. But I do want to emphasize the next sentence, we talked about the second part of it. But that he regrets his actions you think is an affirmative statement. That's a cross-examination problem.
MS. CONRAD: And I think actually the words she's most likely to use is "no one deserves to suffer like that." I think that's his quotes -- comes as close to a direct quote as it's going to be, which is probably less offensive to the government, that no one deserves the suffering that he realizes he caused.
MR. WEINREB: We don't object to her saying she believes that he's sincerely remorseful, but we object to that that he will painfully remember his actions and the harm he caused for the rest of his life. That is just speculative.
THE COURT: I think that goes too far.
MR. WEINREB: And then in the final paragraph, we also believe -- object to she "sees in him a very good man with a potential to grow and mature and to continue to grasp and face up to the harm he caused." That is not a lay opinion.
THE COURT: I agree. The potential is not a lay opinion.
MS. CONRAD: What about the next sentence?
MR. WEINREB: And then if she is allowed to she will visit him in the years to come and will accompany him along his way. That has nothing to do with a lay opinion. It is also entirely speculative and misleading. The reality is this is a 76-year-old woman. What does it even mean to say she'll visit him. What, once? 100 times? What does it mean to accompany him on his way? Is he going somewhere? She's implying there's a spiritual journey, he'll get somewhere. "I'll accompany him as far as I can." All of that is complete -- it's argumentative. It's not a lay opinion.
MS. CONRAD: Your Honor --
MR. WEINREB: It's not something the jurors themselves could come up with.
MS. CONRAD: If I may, the government having alleged as an aggravator that the defendant demonstrated, past tense, lack of remorse, and then in its opening squarely put their feet down on was and is unrepentant, untouched, uncaring, and unchanged at one point, the government essentially opened the door to saying not only that he is unchanged but that he is incapable of change. The government did not have to argue it that way but they chose to do so.
THE COURT: That goes beyond a lay opinion.
MS. CONRAD: Well, how about "would be willing to work with him in the future"?
THE COURT: I think it's irrelevant. So I would agree with the government. So I think the last paragraph does not have --
MR. WEINREB: Your Honor, without belaboring things, I would like to clarify the record in one respect. The government does not -- although I know the Court has ruled that the late notice issue is gone, so we're not arguing it, but I want the record to be clear that the government does not concede that it opened the door to anything. When Ms. Pellegrini said in her opening statement "is unrepentant, unchanged" and so on, she was pointing at the picture of him in the lockup, and that was what she was suggesting.
The aggravating factor in this case is the defendant demonstrated a lack of remorse, and we have only argued to the jury and will only argue to the jury that he demonstrated a lack of remorse in the days after the marathon bombings and the murder of Sean Collier and when he was in the lockup. We don't dispute that the defense can put on character evidence of the defendant's remorsefulness independent of the government having opened the door to it. The government doesn't have to open the door to it. His character is at issue. But we don't believe that this whole open-the-door argument is productive and I don't want the record to be left with the impression that we do agree to it. The defense --
MS. CONRAD: I want to be clear that the transcripts show that the statements that I quoted in my motion -- or my reply, opposition, as the government put it, all came before the jury saw that photograph. When Ms. Pellegrini says he was and is indifferent, it was before that moment. The record speaks for itself. That's what the transcript says.
THE COURT: I think we've had a little bit of this on both sides in terms of the openings being a little exaggerated, perhaps.
But anyway, so after the testimony of Sister Helen, the defense will rest?
MS. CLARKE: That's correct.
THE COURT: Any cleanup matters we need of any kind?
MS. CLARKE: I think everything has been denied by now.
(Laughter.)
THE COURT: That just -- this is not germane really to the present business, but it's soon to be future business. As we look at the verdict slip and so on, is there any dispute or, contrary, is there a stipulation that the defendant was 18 at the time of the events or will that be an element that the jury -- we should instruct the jury on --
MR. MELLIN: Your Honor, I think we have to.
THE COURT: -- because I noticed in, I think it was the form, verdict form, that the defense suggested it was not in there. It is in some of the ones, other models we've looked at.
You don't have to answer right now but tell us whether you want the jury to answer that question or not or whether they can be told --
MR. WEINREB: I think whether stipulated or not, I think they have to find it.
MR. MELLIN: Agreed.
THE COURT: You want it in there no matter what?
MR. WEINREB: Stipulating means it's not in dispute and they can accept it as true, but I think they have to find it, and we would be concerned if they didn't.
MS. CLARKE: I think there was a question, and maybe we can talk about this when we talk instructions, but I think there was a question when the victim impact regarding Martin Richard goes to the jury because victim impact was not put on as to him.
THE COURT: Okay.
MR. BRUCK: We will have the final list of mitigating factors to provide to the Court today. We're going to have one more request in the charge with a memo we'll also get to you at some point in the day.