7.Rebuttal Upheld; Curative Instruction and Surreply Denied
48 lines(Discussion at sidebar and out of the hearing of the jury:)
MS. CONRAD: Your Honor, first of all, as we had previously objected, that this -- that the government should be limited to rebuttal, that was 45 minutes of pre-prepared, typewritten rebuttal. I watched Mr. Weinreb during Ms. Clarke's closing. He made three -- he wrote down three words or three sentences on a piece of paper. He didn't refer to those at all. He had a canned presentation that was not proper rebuttal.
We did -- the reference to Professor Reynolds' statements, those statements were impeachment as prior inconsistent statements that are not to be considered for the truth of the matter. Mr. Weinreb argued them as if they were being offered -- essentially as they were the truth of the matter.
MR. BRUCK: I should also clarify when Mr. Weinreb said that he cleared this with me, what he said was that if we went into Chechnya, he was going to use Professor Reynolds' -- he was going to post Professor Reynolds. I didn't give it a moment's thought because we didn't go into that.
But this wasn't rebuttal. I had no conception of what it was they had in mind. This sort of sandbagging was so far from my mind when he caught me about that -- or mentioned it to me that there was no opportunity to respond to this.
MS. CONRAD: Should I keep going or do you want the government to respond?
THE COURT: Are you moving to a different point?
MS. CONRAD: Yes. One more point about Professor Reynolds. That was not displayed to the jury during the cross-examination by Mr. Weinreb. That was not put into evidence. We were not allowed to display the 302s when we offered them. It would be the same thing if Ms. Clarke had put the 302s up on the screen, except one difference is those were offered for the truth of the matter and these statements weren't.
It was also misleading because the line about -- that one could ask whether they were truly Chechen was explained by Professor Reynolds during the cross-examination. But the government, by essentially making this argument during its rebuttal when we have no opportunity to respond, is misleading the jury. This was basically a second closing.
I have other points I'd like to make.
THE COURT: All right.
MR. WEINREB: All right. So with respect to Professor Reynolds, my recollection of what I said to Mr. Bruck is that if Ms. Clarke goes into Chechnya in any way at all, then I intend to use a couple of quotes from his article. And my recollection is that when I confronted him with these prior statements, he adopted them. So they then become evidence.
In addition, just so the record's clear, not that I think it really matters at all, I dispute the characterization that the government only wrote down three sentences and I didn't refer to them. Absolutely not true. But I think it hardly matters.
MS. CONRAD: Which part?
MR. WEINREB: If one party is skilled at guessing what the closing is going to be and manages to make substantial notes ahead of time, that's not -- you still have to wait and make sure that it's actually said before you can actually get up there and rebut it.
THE COURT: Yeah. My judgment is that it was proper rebuttal, even if it was more extensive than commonly, but it touched on the same topics that were addressed in the closing by the defense. It seems to me that's what -- the measure of rebuttal, whether it responds to arguments made by the defense, and it did.
Now, again, it's possible to anticipate that, particularly where there is an aspect of the case as to which the defense has the affirmative burden. It's obviously possible to anticipate that those would be in the closing statement.
MS. CONRAD: Chechnya was barely mentioned.
THE COURT: Well --
MS. CONRAD: But the other thing is, this discussion of Sister Helen's testimony was entirely out of bounds. For the government to say she didn't explain what else -- what he said, she didn't give any insight, she didn't say that he had, you know, a promise of change in the future -- all of those things were things that we were prohibited from asking her and that the government objected to repeatedly. So for the government to stand up and say, "Well, she didn't tell you this, and she didn't tell you that," when they were the ones who blocked us from doing it, is entirely improper and extremely prejudicial. And I think that part of the argument should be struck.
THE COURT: All right.
MR. WEINREB: Your Honor, the Court asked the defense for a very detailed proffer of what Sister Helen said. We went into the back, and the government objected to certain parts of it. Primarily what the government objected to were things about her experience, which I didn't touch on. Other than that, with respect to the sentence that was in the proffer that he spoke to her, that the government moved vigorously to keep out and the defense moved vigorously keep in, it stayed in. And so I think it was appropriate to refer to that.
I don't think it's a fair characterization of the argument that I said that Sister Helen failed to provide greater insight into -- I said that the testimony didn't provide --
MS. CONRAD: Well, the testimony should be barred. And one of the things the government objected to and the Court prohibited us from asking her about was her ability to work with him in the future, which went to the point that the government said that it's only Ms. Clarke's statement that he could change in the future, that we didn't introduce any evidence of it. We didn't introduce evidence of it because we weren't permitted to introduce any evidence of it.
And, in addition, as far as the experience, her experience is what informs her insight, so the government is saying, "Well, she didn't really explain why it is that she thinks he's remorseful." Because the government wouldn't let us, and the Court sustained those objections.
THE COURT: Well, yes. And we explained that on the record at the time.
What would you ask as a curative instruction?
MS. CONRAD: Disregard the government's argument regarding what testimony Sister Prejean -- Sister Helen Prejean did not provide, that she did not explain certain things or that we didn't offer certain evidence of certain things, and tell them that that is because the government objected to it.
MR. WEINREB: Your Honor, I think if you were to review the transcript of the argument I just gave, you will see that I made absolutely no reference to what Sister Prejean did not say.
MS. CONRAD: We did not present any evidence is what you said. The only person we could have --
THE COURT: Go ahead.
MR. WEINREB: What I argued is that what value is the testimony that she actually gave you -- what is its value? What insight does it give you really into the defendant's beliefs? That was all that the government asked. And I said that there's no evidence that he will, in fact, be remorseful in the future because, frankly, there can be no evidence. That is an unknown. It's speculative either way.
And so the point the government was making is that, despite what Sister Prejean said, they really haven't learned much, if anything, of value to them in weighing the remorsefulness.
THE COURT: Okay. Let's -- are there other points?
MR. FICK: One thing. The government made repeated arguments that the defense did not elicit evidence about certain witnesses, for example, the defendant's friends. Well, as the government well knows, the defendant's principal friends are being prosecuted by the government, have the Fifth Amendment privilege, and there was no realistic possibility we could have called them.
And so it's improper to suggest that there's something wrong with the defense approach for failing to do something we could not have done because of the government's prosecution of those people.
MR. WEINREB: And I will proffer on the record that there were several people who were, in fact, the defendant's very best friends growing up. I can give their names. It's Vakhabov, others, who the defense could have called, in fact, had on their witness list, for whom we are aware of no Fifth Amendment privilege and no reason to believe that they would have asserted a Fifth Amendment privilege.
THE COURT: Okay.
MS. CONRAD: I want to also note that the government misstated the evidence or argued facts not in evidence. For example, Mr. Weinreb said that he earned plenty of pocket money selling drugs at UMass Dartmouth. I believe there was no direct evidence of him selling drugs, much less how much money he made. I think there was some cross on Alexa Guevara and Tiarrah Dottin about, you know, whether he had money. You know, the fact that he had money to buy Domino's pizza I don't think shows that he earned plenty of pocket money -- change selling drugs.
The argument that there were others there to step in, like Uncle Ruslan, talking about in the 2012 time period, I don't think there's any evidence --
THE COURT: Well, you know, I think this has gone from objection into reply, actually.
MS. CONRAD: Well, I would like an opportunity to reply. We would like an opportunity to reply.
THE COURT: No, I don't think there was enough of it.
So I want to move to a different topic, which is, I think we -- I do have to give you the opportunity to preserve any objections to the substantive instructions --
MS. CONRAD: Does that mean your Honor is rejecting a request for a curative instruction as to Sister Helen?
THE COURT: Yes.
MS. CONRAD: Can I just note that I wrote down, "Did she give you any insight?" That was the quote.
MS. CLARKE: Can we do that after you discharge the jury?
MS. CONRAD: No, you can't discharge the jury.
MS. CLARKE: I mean after you send them back for the night.
MS. CONRAD: You can't do that.
MS. CLARKE: Can we get our notes?
THE COURT: This is the time it's usually done while it's still possible to correct any misstatement.
(Discussion off the record.)
MS. CONRAD: Are you going to have them begin deliberating?
THE COURT: Yeah. They'll have a half an hour, 45 minutes, just so they -- really to make the point of beginning.
MR. BRUCK: Part of this is to object to the instructions you're about to give. So is this the time for that too?
MS. CONRAD: No, we'll have to come back.
THE COURT: I think I have to give it first. So if you want me to do that and then we'll do everything.
MR. BRUCK: Then we'll do everything. Let's do that.
THE COURT: All right.