1.Sentencing Charge Conference — Verdict Form, Aggravating Factors, Closing Limits, and Juror Readiness
95 linesP R O C E E D I N G S
THE COURT: Good morning. So just I wanted to have a last-minute check on things before we proceed, if there is anything really we need to address. This is not the occasion where counsel for the defense has to preserve your objections to the instructions. You'll have that opportunity --
MR. BRUCK: That comes afterwards, yeah.
THE COURT: Yes. So if there's anything that you think is important to be pointed out. We're in the process of finalizing it, and I wanted to give you a last chance both as to the instructions and as to the slip.
I guess I could highlight we made one minor change to the slip, the verdict slip. It's at the -- it's the last part of Section 6, after the some-but-not-all question.
MS. CONRAD: Sorry. What page?
THE COURT: Well, I have the marked up so --
MS. CLARKE: After the "some but not all."
THE COURT: So if you go to the next page where it says, "With regard to the above listed capital counts, we vote unanimously that the defendant shall be sentenced to death for each count," I would then delete the next sentence. I don't think it's necessary. In other words, for the others, he'll be sentenced to life. That follows, I think, as a matter of law and it's not necessary for the jury to say that. The way it says it, "We sentence him to life," that's not actually accurate in the technical sense.
I think it's sufficient for them to say -- if they've written Counts 2, 4, 6, 8 above, that they then say, "With respect to those counts, we sentence him to death," and say no more. So it's just fuzziness, I guess. That's the only change, I guess, I would say.
And I think we made a couple of minor language changes to the instructions.
MR. WEINREB: Your Honor, we have some quibbles with a few of the things but we won't bother with most of them since the government doesn't need to preserve objections. But there is one that we think actually may just be substantively incorrect, and that is on page 30.
THE COURT: My page is going to be different --
MR. WEINREB: Oh, it's the instruction concerning cruel, heinous and depraved. I'll just give counsel a chance to get to it if they want to have it.
We believe under Ortiz -- the Ortiz case, that this is not correct in that --
THE COURT: Let me just get to it.
MR. WEINREB: Oh, I'm sorry.
THE COURT: Okay. All right.
MR. WEINREB: That in determining whether the defendant committed the offenses in an especially heinous, cruel or depraved manner, they may consider accomplice and coconspirator behavior. Although this restriction might apply to substantial planning and premeditation, it does not apply to this aggravating factor.
MR. BRUCK: I have to check. I assume this is from Sand. And it goes -- it opens up a rat's nest of issues if one starts having vicarious or accessorial liability for heinousness and cruelty. One could picture circumstances under which -- but you would have to explain in minute detail what those circumstances are. And this is substantively -- this conveys correctly the overriding principle.
MR. WEINREB: Your Honor, the case that I was referring to, the Ortiz case, it's not a Supreme Court case; it's an Eighth Circuit case.
THE COURT: Do you have the cite at hand?
MR. WEINREB: No. We can get it for you quickly.
THE COURT: But it applies, you say --
MR. WEINREB: Well, not according to the Ortiz case. The substantial planning and premeditation, there's a case in the Fifth Circuit, Ebron, that seems to suggest that it could apply to the substantial planning and premeditation. I don't know if the defense is asserting that. We're just trying to make sure that we get it correct, get it right.
MR. BRUCK: We have been hit with a head cold by all of this.
MR. WEINREB: We all got in at 9:30 last night, so we're all catching up.
THE COURT: Yeah, I think that might be my attitude.
MR. WEINREB: Okay.
THE COURT: If they're not binding precedent for me, I think we may just leave it alone.
Okay. With respect to the closing statements, Mr. Mellin is warming up someplace?
MR. WEINREB: He is.
MS. PELLEGRINI: He is.
MR. WEINREB: Winding up, is more like it.
THE COURT: I hope he doesn't get too hot.
MR. WEINREB: We understand.
THE COURT: Well, I just wanted to raise how we will deal with the Collier autopsy photograph.
MR. WEINREB: It's not going in.
THE COURT: It's not going to be used?
MR. WEINREB: It's not going to be used.
THE COURT: Because I have to shut down the monitors and things like that.
MR. WEINREB: Right.
THE COURT: Okay. So that's out.
And so my estimate of the timing is: My instructions are going to take a while. I would say probably 45 minutes anyway. Then we'll go into the first closing, probably take a break after that, second closing, rebuttal. I have very -- unlike -- I have imported the evidence stuff into the first segment, so my second phase will be very short.
MS. CLARKE: You're essentially giving the packet of --
THE COURT: Yes.
MS. CLARKE: Are they going to get this?
THE COURT: Yes.
MS. CLARKE: And will they have a copy of the verdict slip?
THE COURT: When I go through the details of the steps, we're going to have it on the monitor. Jane will scroll through it so they can see it as I'm talking about Section 2, Section 3 and so on and so forth. I think the visual will help them a little. But in the jury room they will have -- they won't have the draft during the instructions --
MS. CLARKE: Right.
THE COURT: -- but they will have the draft in the jury room with them when they deliberate.
MS. CLARKE: Okay.
MR. WEINREB: Your Honor, yesterday or the day before the defense filed a motion to preclude the government from making improper closing argument, and we have a similar kind of motion to make. I have no more reason to suspect the defense would do anything improper than I'm sure they have to believe we would, but there is one issue that I want to raise, and that is a request that the parties not instruct the jury on what their deliberations should be like in the jury room. That goes beyond what the Court will instruct them in the instructions. In other words -- and the reason I raise this is I remember that during voir dire we did have some differences about whether the jurors should be told just how much they -- whether the jurors should be cautioned against trying to persuade each other of a different point of view in an effort to come to a unanimous verdict.
The Court's crafted an instruction in that regard that, frankly, I think is quite strong and --
THE COURT: I've actually strengthened it.
MR. WEINREB: And so it's already quite strong.
And my request is simply that -- and I agree that it is appropriate for counsel to refer to the closing arguments, and to underline or underscore ones they want the jury to pay attention to, but there's a difference between that and going beyond it, and instructing them on things that the Court has not instructed them on, embellishing or elaborating. We would ask that that not be done in this case because I think that both because the jury's task is hard enough and it will confuse them, and also, because it's a matter of great importance to both parties. And I'm sure the Court has given an enormous amount of thought to exactly what the wording should be. And it would be unfair for it to be essentially amended at the last moment unilaterally by one party or the other.
MR. BRUCK: Well, the defense doesn't plan to instruct the jury on anything, but clearly the implications of instructions and how things play out are largely about the subject of closing argument, and Ms. Clarke isn't going to transgress any lines there.
THE COURT: Well, I will have said it by the time the arguments occur, so you'll know what I have said and --
MS. CLARKE: Has the Court changed what's in the instruction?
THE COURT: A little bit, yeah. Basically personalizing it a little. I point out to them that they've spent a lot of time together and they may have found some personal regard for each other and that should not cause them to think that they need to act as their fellows are acting; they should individually make their own choice.
MS. CLARKE: I think that's pretty much where I'm coming down in my argument.
THE COURT: I will have said it.
MS. CLARKE: Then I'll look really smart.
MR. WEINREB: And, frankly, the only reason I say this is really that no attorney wants to object in the middle of another attorney's closing argument. I think both parties have been quite good about refraining from doing that. And we don't want to have to do it, but this is the one area where I think the government will feel compelled to rise and object if the instructions go beyond what the Court's instructions state.
THE COURT: All right. There's one sort of dangling issue about the SAMs and orders of the Court and so on and so forth. I'm not going to add anything to the instructions, but I don't think that there should be argument that this Court ordered any changes, okay? Obviously, it is an issue whether and how the SAMs might be amended, relieved in general, but not to put it to what's historical in this case, okay?
I think we're -- I'm a little nervous because our sound system is apparently on the fritz. So what I was going to say is I think the exhibits are okay. I haven't actually checked with the tech people this morning, but I haven't had an indication that they're not. But I'll just --
MR. WEINREB: Yeah. You know, I imagine both parties probably share this sentiment: That it would be best, I think, to wait to get that sound system, make sure it's --
THE COURT: Oh, absolutely. Oh, yeah, yeah, yeah. I mean, I've already started thinking is there another courtroom we can go to. No, absolutely. We can't do it under those type of adverse conditions, so.
MS. CLARKE: Well, you have a wonderful deep voice today. Maybe you could just --
THE COURT: I don't know whether this is an allergy or a spring cold or whatever, but its timing was impeccable.
(Laughter.)
THE COURT: Finally, I know from voir dire that people have kind of checked on jurors' tweets and Facebooks and things like that. I want to know if anybody has any issue or concern about anything they may have seen or heard about the jurors before we commit this case to them. Any reservations about the deliberating jurors in any way?
MR. WEINREB: None from the government.
MS. CLARKE: We have none. We still do ask, though, that the Court make a matter of record the juror that was ill that day.
THE COURT: Do you have the roster? I will tell you. It's -- I think he's the fourth seat in. The young man in the front row. And he was Juror 138, 5. Juror 5. He was -- I'm told. I haven't talked to him about it, but the nurse saw him, and he was vomiting in the restroom, and apparently she had connected it to migraines, and he hadn't taken -- or he didn't have with him his migraine medication that would have ameliorated it. That's what she told me.
So I take it these jurors are fine?
THE COURT: Oh, yeah, yeah, yeah. No, no. But I mean --
THE COURT: No, but I mean nothing I haven't heard, is what I'm getting at, about these people.
MR. BRUCK: If anything new has happened, we don't know about it, I guess is the answer we could make.
THE COURT: I can only ask you for what you know. As I say, because I know people peek at social media from time to time about what may be going on, and I don't. So I don't know what's out there. So everybody is content that these jurors cab deliberate?
MS. CLARKE: As far as we know. Are you trying to lock us into something we don't know?
THE COURT: No, I'm not trying to lock you into anything. I just don't want to find something in the middle of the deliberations that somebody knows or saw something on Facebook or a comment or anything. I just want to be sure we can sail out of port free here. Okay.
MR. BRUCK: Do you intend to dismiss the alternates after sending the jury out?
THE COURT: I was not going to; I was going to preserve them.
MR. WEINREB: Why would we dismiss them?
THE COURT: There's still a possibility -- if anything should happen -- one could substitute. They would have to start all over again, obviously. And in that case, I suppose what we would do is to the extent there was a partially filled-out verdict slip, we would impound it and give them a clean one.
MS. CLARKE: There are issues regarding substitution of alternates that just haven't arisen yet. I guess we could take that up if the time comes.
THE COURT: Right. Hopefully we won't have to.
MS. CLARKE: Yes.
THE COURT: Okay. So as soon as our technical staff is completed successfully their work, we'll get going.
(The proceedings adjourned at 9:00 a.m.)
P R O C E E D I N G S
COURT CLERK: All rise for the Court and the jury.
(The Court and jury enter the courtroom at 9:36 a.m.)
COURT CLERK: Be seated.
THE COURT: Good morning, jurors.
JUROR: Good morning, your Honor.
THE COURT: Once again, I will ask you whether you have all faithfully abided by my instructions to avoid any discussion of the case with anyone, including yourselves. Is that true?
JUROR: Yes.
THE COURT: And, again, have you also insulated yourself, as far as practicable, from any media accounts of the case?
JUROR: Yes.