4.Objections to Mellin's Closing, Mistrial Denial, and Curative Instruction and Surreply Requests

MS. CONRAD: Sorry. This is awkward.

When Mr. Mellin said that there was no evidence that Tamerlan influenced Mr. Tsarnaev in his -- in the crime, that it's a direct comment on the defendant's failure to testify, and the First Circuit has repeatedly held that when a prosecutor comments that there's no evidence of something that only the defendant could provide evidence of, that is a comment on the failure to testify. There certainly was plenty of evidence in this case about Tamerlan's influence overall, but when Mr. Mellin points specifically to this offense, it's a comment on the failure to testify.

His discussion, although he didn't name the case of Roper v. Simmons, and the reason why the law requires that one must be over 18 in order to have the death penalty imposed was inaccurate and misleading, and I would ask for the opportunity to submit a curative instruction.

Roper does not just say that someone over 18 -- someone must be over 18 to get the death penalty because they are responsible. It also talks about the capacity for change of younger people. And it also talks about the fact that 18 is a bright line that they must set. And for Mr. Mellin to mislead the jury about what the law -- why the law requires someone be over 18 I think is a serious error that the Court should correct.

Third, Mr. Mellin, despite the Court's very clear position yesterday, again stepped over the line with respect to conditions at ADX by saying that he can, quote, view prison programming. Again, trying to highlight his improper cross-examination -- rather, his improper examination in which he said, despite the Court's clear ruling, that the defendant could watch prison programming. I think Mr. Bruck --

MR. BRUCK: We also object to the representation that the rebuttal of mitigating factors will be held back, the government -- for the government's reply. The government has notice of the case of mitigation. They've had, generally speaking, notice for months, and they've had the mitigating factors for several days. And it just isn't fair to say, "Well, Mr. Weinreb is going to handle most of the response to that after -- as the last word."

If Ms. Clarke says something that wasn't anticipated and he wants to respond to that, that's what reply argument is for. It is not an opportunity to have an unrebutted crack at the defendant's case. And so we think that that is improper.

MR. FICK: A few additional objections to the argument.

One, that there was a characterization of the verdict form as being sort of a mere record-keeping process which sort of denigrates the process -- or the importance of the process involved in filling out the form.

And there were several comments that sort of -- I would suggest cross the line in terms of denigrating of the consideration of mitigating factors. For example, near the beginning, with regard to the Richard family suffering, there was a comment that there is no just punishment for that other than death, which invites the jury to ignore mitigating factors.

There were other comments that sort of crossed the line of counsel commenting on evidence, like "it's not even close," with regard to the weight of mitigating factors, and the comment that none of the mitigating factors meaningfully mitigate. That is injecting the opinions of counsel rather than an actual argument about the evidence.

MR. BRUCK: The last thing -- thank you.

The last thing is that to the extent that Mr. Weinreb's response on mitigation exceeds what the proper role would apply, that is, if it turns out as we fear, as Mr. Mellin forecasts, that the government has reserved its response to our cases in mitigation to its reply, we'll request surreply argument in order to respond in a way that Ms. Clarke should have had the opportunity to do.