2.Closing Argument Exhibits and Penalty-Phase Argument Limits

MR. WEINREB: Your Honor, it's my understanding Mr. Mellin does intend to do it. And I think there's no merit whatsoever to that argument. The clothes are in evidence. It would be odd, indeed, if the government could put something into evidence and then was precluded from showing it or highlighting it to the jury. That's the whole purpose of closing argument, is to distill for the jury what the government believes is the most important pieces of evidence in the case and to weave them together into a narrative that helped to bring all of the evidence together.

It would be one thing if the government intended to display them in some kind of misleading way. I could see a motion in limine to prevent the government from blowing them up on a giant screen or from enhancing them in some way or anything like that, but the bare evidence itself is by definition a proper matter for the jury's consideration. And the jury may well be inhibited from handling these things because they're -- you know, they're biohazard to some degree, you need to wear gloves to handle them. And it's perfectly appropriate for the government to display them.

And furthermore, they've been displayed before. One could easily take the opposite instinct that Mr. Bruck voices may also be true, that the impact of these kinds of things diminish with repetition. So I don't think it's self-evident that showing them to the jury will somehow magnify any kind of impact that it previously had. They've seen them before.

But it is an important part because one of the main arguments that the government -- many of the aggravating factors in this case depend on the government proving that this was not just any old murder. This was a murder done in an especially cruel, heinous and depraved fashion. This was a murder committed with a device that can permanently disfigure people. This was a murder done with a device that has a grave -- poses a grave risk of death to other people because of the manner in which it kills.

All of those things are the very things that we have to prove in this phase. And so a vivid piece of evidence that helps to compactly make some of those points is precisely the kind of thing we should be allowed to show the jury.

MR. WEINREB: So we don't intend, either Mr. Mellin or I, to use any of the autopsy photos except one which is the photo of Sean Collier. He -- I think even in the defense's initial motion to exclude autopsy photos in general, the motion -- there was no motion to exclude the Collier autopsy photos because it was not a full-body photo and it didn't show what the defense described as unusually gruesome damage. It's bullets wounds which is something a little more common that people see.

So we would ask leave for that one photo which also is in evidence. It's not blown up and it's a clean -- it's a bloodless photo.

MR. WEINREB: So with respect to many of these, I'll just say -- first of all, we oppose in general a motion in advance to preclude the government from engaging in prosecutorial misconduct. That's a specious kind of motion and it's dangerous because we're not flyspecking the exact words of every one of these things. I mean, these things are always subject to interpretation. It also would seem to excuse the defense from making contemporaneous objections to anything it finds objectionable, and they should not be permitted to do that for reasons we said before. The Court can't correct something, sustain an objection, give a limiting instruction or anything like that without a contemporaneous objection.

So we -- for all those reasons we would ask that the motion not simply be handled in this way but it be denied without prejudice with instructions to the defense to raise any objections in the moment that they might have...

With respect to some of these things, like urging the jury to ignore or disregard legitimate mitigating evidence, suggesting that mitigating evidence requires a nexus to the crime or the defendant's culpability, we understand that if the Court deems something to be a legitimate mitigating factor, it's not for us to tell the jury it's not potentially -- it's not a legitimate mitigating factor if they find it, by if it's proved. But the government does intend to argue that some of these mitigating factors deserve no weight. That's a different story from saying it's not a mitigating factor. I just want to make that clear. And I think it is proper to argue that a mitigating factor with no nexus to the crime deserves less weight than one that has a nexus to the crime, for example.

MR. WEINREB: Well, suggesting additional evidence beyond that adduced at trial, that's a routine argument that lawyers sometimes make during closing arguments that there's no evidence of that. And courts almost always instruct the jury that it's their memory of the evidence that controls, and the argument will just fall flat if the jurors find that there is no evidence of it. So we would object to that one specifically.

The denigrating defense counsel -- or the defense, that's another one where lawyers very often call into question whether the other side has actually proved something or that sort of thing. We object to that one in particular. That's the kind of thing which is very subject to interpretation, and there's room for argument over what would count as unfair or impermissible denigration. We're all experienced attorneys here. I think we know how not to cross that line.

And then commenting on the alleged costs or alleged comforts of life imprisonment, obviously, we won't be commenting on the alleged costs, but the alleged comforts is another matter because I believe the defense has introduced as a mitigating factor something we object to, which is that the government has the power to severely restrict Dzhokhar Tsarnaev's communications with the outside world. That's his proposed Mitigating Factor No. 21.

We've taken the position from the outset that arguments about what the Bureau of Prisons can or can't do are not individualized to this defendant. They're true for every murderer; and, therefore, they do not provide a rational basis to assist the jury in reaching a non-arbitrary, non-capricious sentencing judgment. Whatever they say -- whatever they -- this would be true for every murderer in every case and, therefore, doesn't really help them. Furthermore, it has nothing to do with his character, his history and so on.

The Court, however, has let in a lot of evidence. Having done that, and now having allowed the defense to list it as a mitigating factor, I assume we're going to hear argument about it from the defense. Many of the things that the jury heard about in the course of that back-and-forth could be described as comforts for the defense. Having communications with family, with friends, with being able to write a book, being able to educate himself so that he can write a better book, I mean, all of these things can fall under that rubric.

So we won't refer to anything not in evidence, but I think everything that is in evidence should be considered fair and that's why it was allowed into evidence in the first place.