3.Marathon-Selection Aggravating-Factor Ruling, Supplemental Charge Requests, and Proposed SAMs Curative Instruction
48 linesMR. BRUCK: We've got a couple more things. We could do it in the morning but I think --
THE COURT: We can actually dispose of it now.
MR. BRUCK: -- if the Court has more -- will bear with me, we made a motion way back last year to strike the selection of the marathon non-statutory aggravating factor as duplicative of or encompassed within the substantial planning statutory aggravating factor. We -- the Court did not grant that motion at that time. We don't see this -- I realize the Court has told us to put our Rule 29 type motions in writing, and we still can do that, but I didn't really see this as a Rule 29 motion; it's a question of whether, sort of as the government has just done, whether there is -- the factors to be submitted to the jury in some way overlap or encompass one another.
And we really think that that non-statutory aggravating factor is -- relies entirely on facts which are also there to prove the substantial planning to cause the death of another person or -- and to cause an act of terrorism. It's a two-part aggravating factor. The government has alleged both parts here. And the way that was done was to attack the marathon according to the non-statutory aggravating factor.
Of course there are many ancillary facts involved with the marathon, but those are the facts which make this, according to the government, an act of terrorism. And that is the statutory factor. So there really isn't any daylight between the two factors. It allows double counting.
And for the reasons that we briefed in the motion to strike, we think that now the evidence is in, the Court should only allow one or the other of those factors.
THE COURT: Okay. I think they're distinct factors.
MR. BRUCK: We have just drafted, and I'd like to hand to counsel and pass up to the Court, a very short curative instruction dealing with this problem of the modification of the SAMs by the Court. So if I may.
(Curative instruction handed up to the Court.)
MR. BRUCK: As the Court will notice, the focus at sidebar was whether the statement was accurate or not, and the Court concluded after consulting the clerk's notes that you felt that it was. We accepted that ruling. But the focus here is not on whether it was accurate but whether it had any relevance to any issue in the case because of the fact that the entire subject matter of the controversy about the SAMs or the -- the only part that had any traction at all was having to do with the ability of defense counsel to prepare their case with the assistance of the defendant.
And that becomes moot. We're talking about postconviction. And we're talking about postconviction when he receives a life sentence where there will truly be little or no future litigation ever, and certainly none that will implicate these issues. So we think it is only fair for the jury to know that's water under the bridge and -- whatever happened, and that it shouldn't be taken as some indication that the Court is going to issue rulings or exercise continuing jurisdiction over whatever SAMs may be renewed or imposed if this young man is sent to prison for life.
MR. WEINREB: So, your Honor, the defense decided to open the door to a discussion by witnesses on the witness stand about a process that is largely a legal process but also it's a process that occurs behind closed doors in the Department of Justice involving communications among various branches, not something easily explained to the jury from the witness stand. But he decided to do it.
And then he called to the witness stand Mr. Bezy, a witness who really did not know what he was talking about, gave testimony that I think was obvious to everybody in the courtroom was based on virtually nothing more than a conversation he had had two days earlier with Ms. Nicolet who actually does know what she's talking about, and then regurgitated as much of it as he could or that he knew.
Then when the knowledgeable person was on the witness stand, the defense asked her on cross-examination the question that elicited the answer to which he now wants a curative instruction to be given, an answer that as far as the witness was concerned was an absolutely true answer and that the Court acknowledged up on the stand that she had a good-faith reason for believing was a true answer.
Now what he wants to do is he wants to single -- the Court said up at the witness stand -- I'm sorry. The Court said at sidebar that the back-and-forth among the witnesses on this issue had been somewhat illuminating and perhaps somewhat confusing, but that in the matter of the way things often unfold in court, the jury had gotten a mix of input and was in a -- things had been sort of left in equilibrium, and it was in a good situation to draw its own conclusions.
What the defense wants to do now is single out a particular fact that he considers bad for him and have the Court instruct the jury so that it's no longer even up to them to make these judgments, what matters and what should matter to them, what's true and what isn't true. That's just not fair. If we had known this was coming, we would have had our own curative instruction that emphasized the points that we think are favorable to us. It's just not how these things should be handled, back and forth like this, with asking the Court to tell the jury what they should believe and shouldn't believe and so on.
Personally, I believe this is misleading. The defendant could have plenty of litigation. People who are sitting in life in prison often have nothing to do, as the Court well knows, but file 2255 motions. And he may well have plenty of legal representation in prison and there may be plenty of issues involving modifications of the SAM.
This Court could get involved again if there's a retrial or an appeal or any number of reasons. It's simply not a fair or appropriate thing to do.
MR. BRUCK: If I could just -- the missing fact, without agreeing with any of Mr. Weinreb's characterizations, the important fact he left out is when Mr. Watkins interviewed Ms. Nicolet two days before, he got the opposite answer, that she never heard of a modification of a SAMs ordered by a court. That's the only reason he asked the question.
So I don't think it's really fair to say that we invited this. Well, that's what happened.
THE COURT: Well, I'm inclined not to do it. You just proposed it. I haven't thought about it for very long. I will think about it a little more, but my current inclination is not to use it.
MR. WEINREB: There were two other defense requests for instructions.
MR. BRUCK: Oh, well -- Mr. Weinreb points out that we had a total of five --
THE COURT: Right.
MR. BRUCK: -- supplemental requests.
I took the Court to be saying that we'll get the answer on that shortly.
THE COURT: You're right.
MR. WEINREB: Okay.
THE COURT: I think most of those I have done something with and they're in there and you'll see what I have done.
MR. WEINREB: Very well.
MR. CHAKRAVARTY: Your Honor, one thing I should have raised when you asked whether the parties had exchanged exhibits. We have. We think we're in a pretty good place. Just one issue that we're going to have time tomorrow to resolve expeditiously, so I wanted to get ahead of it is that with regard to some of the computer exhibits that the defendant introduced, some of them are not JERS compliant so they're going on to the stand-alone computer, like the government exhibits and all of that is worked out. However, some of them appear to not be on the stand-alone computer, so it looks like they're kind of bifurcated. So some are on JERS and some are on the stand-alone computer.
The government doesn't think that's ideal. The government thinks they should be in one place. The other risk it creates is one of double-counting, like there might be exhibits in both places, which we want to avoid. Mr. Fick, I think, is the most knowledgeable on this. And I don't know what the status is currently but I know that's a concern which I'm alerting the Court because if the Court has a preference one way or the other, then it's best to tell the parties now.
THE COURT: No. My concern is if the jurors want to see a particular exhibit, they know where to go to get it. That's my concern. I don't really care if those of a feather flock together or not. But my interest is in assisting the jury in their job. And if there's an impediment to that, then I'm concerned about it. If it's just a quirk of indexing or something, then -- but doesn't substantially interfere with their ability to find what they want, then I am less concerned about it. It would be nice -- perfection is nice but -- you know, we've had the problem both with respect to compatibility with the system and volume in this case that is maybe a new experience for jurors and its custodians. And so they're doing the best they can.
But I believe that I have been assured the jurors will have a master list of the exhibits and they will know where to look if they're looking for something.
MR. CHAKRAVARTY: Okay. Thank you.
MR. BRUCK: I have one -- go ahead.
MR. WEINREB: I just had a very brief thing. Inquiring minds are again asking me whether the Court's given any more thought to when the sentencing hearing will be regardless of whether we have a death verdict or a life verdict.
THE COURT: No, other than what we talked about. I mean, and -- well --
MR. WEINREB: We're still hoping for somewhere in the order of 30 to 60 days.
THE COURT: Yeah, I've been having in my mind July. Mid-July.
MR. WEINREB: I'm sorry? Mid-July?
THE COURT: Mid-July.
By the way, I have jury duty on July 14th at Suffolk Superior Court, so it won't be that day.
MR. WEINREB: The only concern we have is the scheduling of -- whether victims can be here or not. Can we take a moment to -- I mean, not a moment, but -- well, why don't we vet that --
THE COURT: What's your concern, summer vacation?
MR. WEINREB: Exactly.
THE COURT: Well, you know, it's not a perfect world and --
MR. WEINREB: I understand.
THE COURT: -- I don't know that you can -- the alternative would be to put it off until September.
MR. WEINREB: No. No, we would be thinking June. Late June, for example.
THE COURT: Well, it depends. I mean, I'm not sure I should be doing this speculating on the record, but if there were a death penalty verdict, for example, I would expect that we would probably see a motion for a new trial or something of that sort, okay? That will take some time to resolve, presumably, and so the sentencing would have to await that and whether -- and that might be an uncertain schedule, okay?
On the other hand, if the judgment is in the other direction and a life sentence, I expect there will not be a motion for a new trial and things can be scheduled sooner rather than later. So we're really operating in a range. So I guess the possible range is maybe mid-June to late July, is the target window.
MR. WEINREB: We'll stick with that. We just need to say something to the victims who are inquiring.
THE COURT: Mr. Bruck?
MR. BRUCK: If you'd bear with me just a moment.
(Counsel confer off the record.)
MR. BRUCK: I had one procedural question. We've been filing requests to charge, memoranda, exhibits, informally with the Court. I can't say for many of these I could come up with a justification for sealing, and I would propose to go ahead and file them all on the public docket, but if the Court would prefer we not do that, then we won't.
THE COURT: No. No. No, I think for proposed verdict slips, proposed instructions, those are all matters for the public record, it seems to me.
MR. BRUCK: Very well. We'll go ahead and just file them.
THE COURT: Okay. Thank you.
COURT CLERK: All rise for the Court.
(The Court exits the courtroom at 3:38 p.m.)
COURT CLERK: The Court will be in recess.
(The proceedings adjourned at 3:38 p.m.)