1.Charge Conference — Deadlock, Unanimity, Mitigating Factors, and Martin Richard's Victim-Impact Aggravating Factor
64 linesP R O C E E D I N G S
COURT CLERK: All rise.
(The Court enters the courtroom at 2:42 p.m.)
COURT CLERK: For a lobby conference in United States versus Tsarnaev, 13-10200.
Will counsel identify yourselves for the record.
MR. WEINREB: Good afternoon. Your Honor, William Weinreb for the United States.
MR. CHAKRAVARTY: As well as Aloke Chakravarty, your Honor.
MS. PELLEGRINI: Nadine Pellegrini, your Honor.
MR. BRUCK: Good afternoon, your Honor. David Bruck and Miriam Conrad for the defendant.
THE COURT: You've received a draft of 31?
MR. BRUCK: Yes.
THE COURT: We'll try to get you a draft of instructions hopefully by the end of the day as to progress. Both of them may be fine-tuned a little bit, but I think you'll get the general gist from them.
Let me just mention a couple of -- I don't want to go through all the potential instruction issues. If there are any, I think we can deal with them. So my proposal is we get together at 8:30 in the morning to do any last-minute business before the jury. I'd rather not take too much time, even out of the regular trial day. It's going to be a long process anyway, so I'd like to get an earlier start and resolve things before we do that.
(Interruption in the proceedings.)
MR. BRUCK: I guess this is why we have lobby conferences in the lobby.
THE COURT: All right. I shut it off and I don't know how to turn it on. We're trying to solve the music problem, the music dipping in volume, and the IT people were working on it. So just speak louder. Sorry.
So 8:30 in the morning we can iron out any last-minute issues. Just to highlight a couple of those items, though, that I think are perhaps more important, I am not going to instruct on the effect of the lack of unanimity. They will have the option, obviously, to indicate they are not unanimous, but I'm not going to tell them what the effect of that will be.
MR. BRUCK: I recognize the Court has ruled, but could we be heard on this issue?
THE COURT: Well, you have. I mean, I've read the papers. And I appreciate that a number of courts have done it. I read Judge Wolf's explanation in Sampson. I respectfully disagree with it. I think that the policy should encourage unanimity, encourage it to the extent it is possible conscientiously in each juror's sound judgment. And I think to suggest that this could be a truncated process by one juror simply deciding that the decision was his or hers I think undercuts what is the process anticipated by the statute, so...
MR. BRUCK: Well, as a fallback position, your Honor, Judge Sand proposes a -- not in the form that we submitted, but in the form that is in his Instruction 9A-20 proposes an instruction which says that if the jury -- well, I'll just read it, because it both does not mislead the jury, or allow the jury to be misled, and requires unanimous verdict as to either verdict. And he does it in this way: He would tell the jury "If, after engaging in the balancing process I have described to you, all 12 members of the jury do not unanimously find beyond a reasonable doubt that the defendant should be sentenced to death, then you may not impose the death penalty," which of course is uncontroversial.
THE COURT: Right.
MR. BRUCK: "In that event, Congress has provided that life imprisonment without any possibility of release is the only alternative sentence available. If the jury reaches this result, you should do so by unanimous vote and indicate your decision in Section..." so forth of the special verdict form.
So it preserves -- it follows the -- what's really only a recommendation of United States versus Jones, but it doesn't have the terrible vice which is more present in this case than perhaps any other that has ever been tried under the Federal Death Penalty Act of coercing the jury into unanimity by causing the minority jurors to feel -- to assume, as they will, that if they don't go over to the majority, this entire traumatic process will have to be repeated, and the victims and the family members and the government and the law enforcement and the entire community will have to go through this again because one, two or three jurors did not surrender their vote and go with the majority.
That's what the jury's going to think. And there's pressure in any case, and the law doesn't necessarily condemn that, but in this case the coercive effect of that misconception -- and it is a misconception -- is far more powerful than any -- any erroneous deadlock instruction or Allen charge that could ever be given in a normal criminal case. It will be overpowering. No one will have the ability to hold on to their conscientiously held belief in the face of that misconception. And of course it is a misconception.
So this proposal by Judge Sand is a middle ground, and it simply tells the jury, just as the jurors were told in voir dire -- and as the government was careful to point out, to jurors who were weak on the death penalty in voir dire -- that if it's not unanimous, you know, there's no death penalty, it says that. And then it says that if that's where you come to rest, then by unanimous vote indicate that the life sentence, which is the other alternative, is the option you've reached.
There is no misconception. It is accurate. It, as Judge Sand says in his comments, upholds the preference for unanimous verdicts while at the same time not subjecting holdout jurors to that tremendous pressure which, as I say, will be exponentially greater in this case than in any other.
This is -- the case comes down to this instruction, I think. I mean, Sampson -- the Sampson case resulted in a death verdict even with this instruction. So it hardly makes, you know, the government's burden all that heavier, but it makes our burden extremely unfairly heavy because we have to overcome the false belief that if this juror can't agree -- if this jury can't agree, everything will have to start from the beginning again with a new jury.
The sense of public failure, of failing to do their job, of having been entrusted with this high responsibility for this community and having failed to discharge it, will be overpowering. And it's all based on a false assumption, that this case is like every other, when it's not. It's different from every other. So we really implore the Court to consider using Judge Sand's middle-ground instruction.
MS. CONRAD: May I just confer with Mr. Bruck for one second?
(Counsel confer off the record.)
MR. BRUCK: Thank you.
THE COURT: Anything from the government? No?
Well, I think the concern is addressed more properly at the -- with a very strong instruction about each individual juror must give his or her own and not agree just to agree with others. I think that's the place where that danger can be satisfied.
MR. BRUCK: In that case --
THE COURT: It's a balance. I acknowledge. I mean, I understand the considerations, but I think they're considerations in the direction that I've been persuaded to as well, and so we'll...
MR. BRUCK: In that connection, defense counsel has planned to argue this point to the jury in argument.
THE COURT: No. That would be improper. If I am refraining from instructing on it, it's improper to argue on it.
MR. BRUCK: Well, if we may for the record have the record reflect that in addition to all the arguments that we've advanced in favor of the instruction, we also submit that ordering defense counsel from -- to refrain from informing the jury of the consequences of a deadlock has the further constitutional harm of violating the defendant's Sixth Amendment right under Herring versus New York to a full closing argument and the assistance of counsel at the -- in summation.
THE COURT: I don't think that could be true in the light of Jones.
MR. BRUCK: I must say that at oral argument one time on one of these Simmons cases, I was berated by Justice Scalia for not having raised that precise claim rather than the claim I was actually raising. So I've resolved that next time we're going to raise it.
THE COURT: Okay.
I think the next thing I'd like to address is the government's -- which I think it's a recent -- second motion to strike or modify certain mitigating factors. I guess that was filed today?
MR. WEINREB: Yes, your Honor.
THE COURT: Last night? Today?
MR. WEINREB: We received the mitigating factors yesterday.
THE COURT: Yesterday. Okay.
MR. WEINREB: So we filed this today.
THE COURT: Though you have a response.
Let me say that I guess -- let me give you my disposition before hearing from people, is that what is identified as Mitigating Factor 19, which is this -- which is the proposition that if he's not sentenced to death, the only other punishment will be imprisonment for the rest of his life without the possibility of release, I think we've talked about it in the past. I regard that as a proposition of law and not a factor to be proved. It is true, but I don't think it's something the jury has to consider. So I would be inclined to strike that.
As to the others, I think that the general structure and gist of the statute is to allow the defendant pretty much to propose anything that might be found to be mitigating, and I don't think there's -- should be much policing of those propositions as long as they're matters of fact that could be determined from the evidence. So I would be inclined not to strike anything else. If you want to come back at any particular one...
So the distinction I draw is between what is really not a mitigating fact but a mitigating proposition of law, on the one hand, which I think is not proper for consideration, and mitigating possible facts that -- as to which there would be dispute how mitigating they were if they were true, so...
MR. WEINREB: Well, your Honor, with that guidance in mind, although I think there's a very good argument that the cases make clear that mitigation may be broad, but it's not an empty vessel that you can just pour anything into. It's not a rubric for everything. I'll focus my attention on a couple of things, and that is the way that some of these are worded.
So we object to the way some of these are worded because they essentially state several propositions. They sort of bundle two or three propositions into a single mitigating factor, but they phrase one or two of them as if they're already true and then ask you -- ask the jury to find if the third is true. And that's an improper way of essentially requiring the jury to assume the truth of something that they may not believe in. And I think it's unnecessarily confusing for the jury.
I think the best example is Number 12, which is on the bottom of page 1, says "Mental illness and brain damage. Disabled. Dzhokhar Tsarnaev's father." So that's a proposition of fact that the jury can either decide is true or not true. Then the next one says, "Dzhokhar Tsarnaev was deprived of needed stability and guidance during his adolescence by his father's mental illness and brain damage." So Number 10 assumes the truth of Number 9. That seems to be improper. It's sort of saying to the jury, essentially, you have to accept the premise that his father had mental illness and brain damage and now you need to decide whether he was deprived of needed stability and guidance.
And furthermore, frankly, the fact that he was an adolescent in need of stability and guidance is itself a proposition that the defense may or may not have proved. I mean, when these crimes occurred, he was 19 years old and, in the years leading up to them, he was arguably no longer -- he might not have been an adolescent in the jury's mind, or certainly not one in need of stability and guidance.
And so we attach to our motion a red-line version of these which proposes a way to basically re-list each of these as propositions, each one of which the jury has to find to find that the mitigator's been proved by a preponderance of the evidence. That seems both clearer and fairer. Frankly, it tells the jury exactly what they're supposed to do as opposed to these which I think can be quite confusing to the jury as to whether, you know, they have to take the premise as given and just focus in on the ultimate conclusion or whether they're also being asked to decide whether the subsumed premises are true before they -- or in the course of deciding whether the conclusion is true.
So we'd ask for those rewordings. I think that's a fair request.
THE COURT: Well, okay. I mean, I understand the point. I think of the two possibilities you just posited, that I would rate it as the second; that is, the premise is put in the question as well. It's not given to the jury as a premise but they -- if they find the premise, then they can think what it means. But again, I think it -- my disposition is to permit the defendant to propose whatever factors he thinks might be mitigating and then see if he can persuade the jury, or some of them, to that conclusion.
In other words, the authorship, I think -- within reason. I mean, I think it can be exceeded under certain circumstances, but I don't think that's the case here.
MR. WEINREB: The other ones that we object particularly to are 10 and 11, that his teachers and friends still care for him and his aunts and cousins love and care for him, in part because of the main argument that we have been making, which is that it doesn't go to his character, his history or the circumstances of the offense. These are propositions about these people, what they feel about him, not about who he is or anything about him.
But more importantly, you know, these factors might as well have been read: His family and his teachers and friends don't want him to get the death penalty. They still see value in him. They want him to live. And if not that, then at the very least, that they will be impacted by his execution. And both of those are the types of arguments that courts routinely hold are not appropriate to put in front of the jury. In fact, we filed a motion in limine to exclude execution impact evidence. The defense said it wasn't going to put on execution impact evidence, and yet this is a way of trying to smuggle those issues into this case.
The fact that his teachers and friends still care for him today tell you that they're loving, compassionate people and that they are forgiving people, and they don't want to -- you know, no matter what he did, just as if your own son had done something, you might feel like no matter how bad it was, I can't bear to see him go to the gallows. And these people are like that. They were in loco parentis, or they are related to him.
But their feelings should not become a proxy for what the jury does. They're supposed to be trying to distinguish this murder and this murderer from others, and, you know, making a reasoned individualized judgment about him based on him, not based on what the impact's going to be on other people or what other people happen to feel today.
THE COURT: Do you want to address those two?
MR. BRUCK: I mean, it is clearly the significance of these that the unspoken part of these mitigating factors are based on their knowledge of him, based on how they remember him, based on what they know about him, they still care for him, they love and care for him. That does not have to be spelled out. That's obvious. That goes without saying. The reason it is a mitigating factor is it reflects well on him. And nobody is going to argue this, and I don't think any reasonable juror would interpret this to mean that the jury should weigh this as mitigating because of the effect on the people who feel this way. It's a way of talking about him.
We could rewrite these to make them extremely wooden and awkward by spelling all of that out, but that's not the way people talk, and I think we should just leave it the way it is.
THE COURT: Okay. I think we'll leave them in. I understand your -- essentially for the reasons that Mr. Bruck just mentioned.
The defense has a motion to strike the aggravating factor concerning victim impact of Martin Richard's death. And I guess now there's been a recent government response to that?
MS. PELLEGRINI: There has, your Honor.
MR. BRUCK: Well, as the Court will recall, no evidence was presented other than some photographs of Martin Richard at the penalty phase, at the victim impact phase of the trial. The government stoutly denied all through the guilt phase that it was introducing victim impact testimony, and now we discover that its entire victim impact case, or almost all of it, or almost all that -- everything they point to regarding Martin Richard was actually introduced at the guilt phase.
If it was admissible at the guilt phase, it wasn't victim impact. One could only treat the record concerning Martin Richard as victim impact evidence if one takes the view that every time there is a murder, the defendant -- which obviously shows the impact on the victim, and inferentially on the people around him, that that ipso facto satisfies the evidentiary requirements for victim impact testimony under the statute. That's not what victim impact testimony is.
And for the government just to say that, Well, a tragic murder has been shown and, therefore, the -- it has met its burden to prove this factor beyond a reasonable doubt doesn't wash. They presumably had a case to present. In the end they, for whatever reason, did not call the witnesses and did not present them. And that's the end of the factor.
MR. WEINREB: Your Honor, evidence introduced during the guilt phase can serve more than one purpose. Evidence in the guilt phase is admissible in the penalty phase. Many of the aggravating factors we're going to prove in the penalty phase were already proved in the guilt phase. Mr. Bruck has made that point innumerable times in trying to block us from putting in evidence at the penalty phase.
As for whether there was actual evidence of impact on the Richard family, it would be one thing if -- sometimes a decedent could have no survivors. It could be an anonymous person found in a ditch. Sometimes a decedent -- it may be that all the family members of a decedent find it too painful to testify for one reason or another. That's not the end of the story.
In this case the jury heard from the defendant's father and --
MS. CONRAD: Victim's.
MR. WEINREB: I'm sorry? Heard from the decedent's father.
And they saw images of the decedent, they heard about the suffering that the decedent himself went through. There was plenty of evidence from which the jury could conclude that this had a profound impact on Martin Richard and on his family and friends. It doesn't have to be the kind of presentation for one witness that it is for another witness.
THE COURT: Well, okay. I essentially agree with the proposition that evidence can serve multiple purposes, and there is evidence in the record which the jury is entitled to consider which would support a conclusion about the impact of Martin Richard's death on his family properly.
I would propose to send the same redacted indictment to the jury room just for their reference purposes. Is there any objection to that?
MR. WEINREB: No.
MR. BRUCK: No, sir.
THE COURT: I do not propose to send the government's notice of intent which outlines the aggravating factors. The aggravating factors will be first summarized by me. They will again get a copy of my oral instructions. They are extensive and it will be important for them to be able to go back and review them. And in addition, the verdict slip will have relevant aggravating factors set out, so I don't think there's any reason for the notice of intent.
MS. CONRAD: May I have one moment, your Honor, to confer with Mr. Bruck?
(Counsel confer off the record.)
MR. BRUCK: I assume that the wording of the aggravating factors, statutory and non-statutory, will be exactly the same as they were in the notice? The -- I mean, the government is bound by the notice that they gave and --
THE COURT: I'd have to check. I mean, I think in preparing the verdict slip we relied principally on -- or substantially, I guess I should say, on the defense proposal and Judge Sand, and we copied the language from those sources without checking it against the notice of intent. I don't know how much substantial difference there is in the formulations.
MR. BRUCK: I'm actually referring to the non- --
THE COURT: Oh, non-statutory?
MR. BRUCK: The non-statutory factors. And the slip I think tracks them exactly, and we're just assuming that that will continue to be true.
THE COURT: I think so but I'd have to check.
MR. BRUCK: Sure.
THE COURT: But it's the statutory -- sometimes it's the statute's language, sometimes it's a slight modification of the statute's language, so...
MR. BRUCK: Sure.
THE COURT: I understand you've been working to harmonize exhibits, et cetera, and that the physical exhibits have been made available for the jury and have been reviewed?
With respect to closing arguments: First, if you haven't, I hope you will exchange whatever demonstratives you intend to use just so if there's any issue, we can deal with it before it's shown to the jury. I mean, it has to be something in evidence so I doubt it will be a problem, but I just mention that.