1.Charge Conference on Gateway Factors and Unanimity
104 linesP 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 9:04 a.m.)
COURT CLERK: Be seated.
THE COURT: Good morning, jurors.
JUROR: Good morning, your Honor.
THE COURT: Let me ask you all, including the alternates, whether you have continued to abide by my instructions to avoid any discussion of the case with anyone outside the court or outside -- yes?
JUROR: Yes.
THE COURT: All right. And also have avoided any media coverage of the events of the trial?
JUROR: Yes.
THE COURT: All right. Well, the record will reflect that all deliberating jurors and all alternates have returned, and I will direct the deliberating jury to resume its deliberations.
COURT CLERK: All rise for the Court and the jury. The Court will be in recess.
(The Court and jury exit the courtroom and there is a recess in the proceedings at 9:06 a.m.)
COURT CLERK: All rise for the Court.
(The Court enters the courtroom at 11:41 a.m.)
COURT CLERK: Be seated.
THE COURT: Good morning.
UNIDENTIFIED ATTORNEY: Good morning.
THE COURT: You've seen the note from the jury?
MR. WEINREB: We have, your Honor.
MR. BRUCK: Yes.
THE COURT: I'll read it for the record. "In connection with the 'gateway factors,' do we base each question's answer on our own interpretation or follow exactly how each count is written (that is, should we take aiding and abetting into consideration)?
"Same question to apply to 'conspiracy' as noted in counts."
I solicit your views.
MR. WEINREB: Your Honor, we propose -- though it's not entirely clear, I think, from the face of it exactly what they're getting at, we would propose to simply say that they should follow exactly how it's written and take aiding and abetting and conspiracy into account since the alternative, which is -- they seem to be asking about a question of law. They shouldn't be applying their own interpretations of the law. I believe the Court in its instructions instructed them on aiding and abetting.
THE COURT: Yes.
MR. WEINREB: So that does seem to be the appropriate thing for them to do.
THE COURT: Mr. Bruck?
MR. BRUCK: Your Honor, we think the answer to the question is in the Court's instructions already, and the Court should simply direct them back to the relevant instructions. Particularly, we point to the second paragraph on page 18.
THE COURT: Well, my --
MR. BRUCK: Well, I'll tell you which paragraph. "Any finding that a gateway factor has been proven as to a particular capital count must be based on Mr. Tsarnaev's personal actions and intent and not on the actions of intent" -- "or intent of anyone else.
"Intent or knowledge may be proven like anything else. You may consider any statements made and acts done by Mr. Tsarnaev and all the facts and circumstances in evidence which may aid in a determination of Mr. Tsarnaev's knowledge or intent." And then "you may but are not required to infer" and so forth.
THE COURT: I think that may beg the question whether "intent" as used in that paragraph includes the intent of an aider and abetter. That's what puzzles me.
MR. BRUCK: Well, it is a factual question as to what the aider and abetter intended to do.
THE COURT: Right.
MR. BRUCK: And that is simply something for the jury -- there is no line between aiding and abetting. At this point all of these distinctions follow A, and all the jury is concerned about is the defendant's intent to do the things listed in the gateway factors.
THE COURT: Well, to put it another way, is his intent as an aider and abetter to assist Tamerlan's commission of the crime the intent that is addressed here? I think that's the question.
MR. BRUCK: Well, it's the -- excuse me.
(Counsel confer off the record.)
MR. BRUCK: We think the focus is on the conduct -- on the defendant's own conduct. That is critical. And if his -- whether the conduct was with intent to kill or intent to cause great bodily injury. And an instruction which allows the jury to say, Well, he was aiding and abetting Tamerlan, and Tamerlan had the intent, defeats the purpose of the gateway factors entirely.
THE COURT: But in order to aid and abet -- and he's been convicted of it -- the jury would have to find that he shared the intent of the principal and consciously acted to advance it.
So I guess that -- the question is: Does the use of the intent in this section/paragraph that you were reading from include that? It would seem that it does. Let me just add, to make things worse, that I'm not sure the same applies for conspiracy if it's referring to a Pinkerton conspiracy because the intent may not have to be proved in a Pinkerton circumstance as long as the principal or the coconspirator in that case acts pursuant to the general plan of the conspiracy as agent for the other conspirators. Intent could be absent under those circumstances, but I think it's necessarily present with respect to an aider and abetter.
MR. BRUCK: I don't think it is. The crime -- the substantive charge is -- the charge does not require the intent to kill, the substantive charge alleged in the indictment. For example, use of a weapon of mass destruction and death results. What is intended is the use of the weapon of mass destruction, not the resulting death; and, therefore, it would do an end run around the very purpose of the gateway factor. To say that if the defendant shared the intent of Tamerlan to use the weapon of mass destruction, it would not be further required that he shared the intent to cause death to result. And that's the whole problem.
So I think that's why we think that this -- if you look at the actual gateway factors, the issue is whether Mr. Tsarnaev intentionally killed, number two is intentionally inflicted, number three is intentionally participated in an act contemplating death, number four is intentionally and specifically engaged in an act knowing grave risk of death. That's the focus now. It's different than in the indictment. So I really think the government's emphasis on aiding and abetting is mistaken given the limited elements of the indictment.
THE COURT: Well, I agree with you that it's different from the question we asked in the guilt phase because the killing is not an element of the charged offense, but as to the intentionality of an aider and abetter, it is a parallel question, although it involves a different posited element, which is the intent to kill. It could be a factual question whether the defendant, acting as an aider and abetter to Tamerlan's principal crime, intended in connection with that crime the killing of a person.
They were not asked that precise question before because it was not an element of the offense, but I don't think it negatives the reference or the use of aiding and abetting for that purpose. But as I say, I think that is not necessarily true of the conspiracy unless it were shown that the coconspirator did share the mental intent to kill. That gets a little --
(Counsel confer off the record.)
THE COURT: -- perhaps abstruse for the jury. I don't know how to address that.
MR. BRUCK: I think the problem is that the gateway factor does not charge aiding and abetting liability and I don't think that we can import it in now.
THE COURT: I think that begs the question. The question is: Does it?
MR. BRUCK: Bear with me.
(Counsel confer off the record.)
THE COURT: Do you know what? Just so we're not rushed on this, let's take a short break. You talk amongst yourselves and we'll come back in a few minutes and see how these things have refined.
(The Court exits the courtroom and there is a recess in the proceedings at 11:50 a.m.)
COURT CLERK: All rise for the Court.
(The Court enters the courtroom at 12:10 p.m.)
COURT CLERK: Be seated.
THE COURT: Were you about to say something?
MR. WEINREB: Yeah. So, your Honor, I'm trying to make sure I understand what the Court's particular propositions were. The way that we believe the law is in this area is that we assume that these -- we'll assume, at least hypothetically, that the questions concern the death of Krystle Campbell. And if the jury finds that the defendant aided and abetted the use of a weapon of mass destruction that resulted in the death of Krystle Campbell, then they have found that he, through his personal actions, killed her, but they would still also have to find that he intended that she die. Not her personally, of course, but they will have to independently find that he had an intent that death result.
Similarly, with respect to the conspiracy count, Count 1, if they find that he conspired with Tamerlan Tsarnaev to use a weapon of mass destruction and that the death of Krystle Campbell resulted, they will have found that he killed her because the acts there, his personal action, was to agree with Tamerlan Tsarnaev to commit this crime, the death resulted from the crime. And they still, of course, have to find that he intended that death resulted, and they have to find that based on all the facts and circumstances.
So that's our understanding under of the sort of landscape. However, we feel that the Court did essentially instruct that in the instructions that it gave, both the ones that Mr. Bruck just read to the Court and the instructions that the Court gave on aiding and abetting and by setting forth the elements of the various offenses.
So we are content to simply point the jury to the instructions that have already been given. We would ask, though, that it not just be limited to the particular one that Mr. Bruck read, but also that the Court point them to the aiding and abetting instruction and the elements of the offenses and that -- basically tell them the answer can be found within that. That's our proposal.
MR. BRUCK: Well, we continue to believe that the excerpt I read contains all of the answer to the jury's question. And I think it's helpful to step back and recall what the purpose -- why Congress enacted these gateway factors to begin with.
Criminal law is full of all sorts of rules that substitute or modify or create legal fictions about criminal responsibility. And in the context of the Eighth Amendment and the death penalty, the Supreme Court encountered the fact that this can dilute the moral and personal culpability of the defendant sometimes so low, as in a case like Enmund v. Florida, that it would actually violate the Eighth Amendment to inflict the death penalty. That, of course, was a wheelman case where the defendant was in the car and didn't know that the killing was taking place.
Congress dealt with that by creating a set of gradations, gradations both of personal physical involvement in the homicide and of mental states, A, B, C and D which are rendered as 1, 2, 3 and 4 in these instructions. They replace, they cut through, they eliminate the whole body of accessorial liability, of conspiratorial liability, of Pinkerton liability. They replace it with four levels of culpability which are self-contained and are intended to focus the jury on the personal actions and culpability of the accused.
And it would be a grave error, we think, to begin bringing back rules like aiding and abetting. And if the Court were to do that, you would be telescoping these four factors arguably into one or two, which is not what Congress did.
We don't think there are any questions remaining when the jury is simply directed to the question, Did Mr. Tsarnaev intentionally kill, for example, Krystle Campbell? Yes or no? Did he intentionally inflict serious bodily injury upon that particular victim? And if they say no to those, then they have to look at Number 3, did he participate in an act and so forth, or did he engage in an act of violence knowing that the act created a grave risk? These are descending levels of both physical engagement in the crime leading to her death and of intent.
And we really think that the jury should simply be directed back to these instructions, which are complete and adequate. We very much disagree that the aiding and abetting instructions, which were given simply to remind the jury of what the other crimes are for the first statutory aggravating factor, should now be imported into the gateway factor. That would really undo what Congress has created here.
So we think that the Court's instructions as they exist now answer the question and the jury should be directed back to.
MR. WEINREB: So just to clarify, we don't dispute that the defendant's -- that the gateway factors depend on the defendant's personal actions and intent. They do. But as the Court noted earlier, that kind of begs the question of what does that mean, personal actions and intent? If he took actions that effectively make him a principal because he aided and abetted the offense, then that is basing it on his personal actions.
I don't believe that the cases, certainly not the Supreme Court cases, make any clear statement about what level of personal action needs to be involved for death penalty consideration. The case that Mr. Bruck is referring to simply said that being the wheelman in the car wasn't enough but it didn't say what -- you know, what is enough, and it certainly didn't rule out that being an aider and abetter was insufficient.
So, again -- the instructions always have to be read as a whole. That's a standard principle of the law in these areas. And we're just -- we're just checking here.
(Pause.)
MR. WEINREB: It was not our recollection that the aiding and abetting and all the instructions about the offenses were given solely in connection with an aggravating factor.
The Court had instructed them that even though they had determined in the liability phase that the defendant was guilty of the crimes and they needed to consider the elements again...
(Pause.)
MR. WEINREB: We're looking at page 29 of the transcript. It says, (as read): Though you have already in the prior phase convicted the defendant of those crimes, I will summarize for you again that the elements of those offenses so that you can determine whether the death as alleged occurred during the course of that conduct.
That was the reason for which all the instructions about the offenses, the aiding and abetting and so on, were given to the jury, to determine whether these deaths were caused by these crimes. So I don't think that part of Mr. Bruck's argument is well taken.
(Pause.)
MR. BRUCK: Your Honor, I do have one last comment about the note itself. When the jury writes, "Do we follow exactly how each count is written?" it seems as though what they mean by "count" is gateway factor. Are we -- and on that understanding, the answer would be yes.
THE COURT: If that's what they meant.
MR. BRUCK: I'm sorry?
THE COURT: You know, one alternative is to ask them to perhaps take a second crack at writing the question because it is a little confusing. I'm concerned about reference to their own interpretation. I'm not sure what that means. It could mean something as benign as they're factfinding but it could mean something more concerning.
So I don't know. Maybe we could just ask them to perhaps clarify the question by restating it. I think we might benefit from that. I think it's worth a step, I guess.
So what I would propose to do, then, is to write on the bottom of this and just send it back out without bringing them in, and say we're not entirely clear on what you're asking. Would you try to rephrase the question, making clear what your concern is, or something like that. Is that all right?
MR. BRUCK: Uh-huh.
THE COURT: On that subject let me just tell you that we did have a prior note that didn't concern substance at all that I did respond to. They asked if they could have extra copies of the verdict slip and the instructions so they didn't have to share one copy, and I sent back 12 copies of each, just for the record.
So I think we'll do that, and we'll await their response and see what that clarifies, okay?
COURT CLERK: All rise for the Court.
(The Court exits the courtroom and there is a recess in the proceedings at 12:21 p.m.)
COURT CLERK: All rise for the Court.
(The Court enters the courtroom at 12:48 p.m.)
MR. WEINREB: So having had a chance now to review the instructions and reflect more on it, we're actually now in agreement with the defense. We do think that the appropriate -- basically, we will acquiesce in their request that the jury simply be read or pointed to this paragraph and told that that is the answer.
THE COURT: The only thing that I would suggest adding to that is that what the defendant intended is a question of fact to be determined from all the evidence that they have. Is that all right?
MR. WEINREB: Yes, that's fine by us.
THE COURT: Okay.
(Pause.)
THE COURT: I'm told they're writing another note, so we might as well wait.
So why don't you go out and bring it in when you have it.
MR. BRUCK: To be clear, the add-on, we think, should focus on what the defendant did. We're not --
THE COURT: All right. We've been focusing on intent which is why I said it says actions --
MR. WEINREB: I think the --
THE COURT: -- personal actions and intent. I guess I could say his -- what were his personal actions and intent is a question of fact -- are questions of fact.
MR. WEINREB: Yes.
MR. BRUCK: Yes.
(Pause.)
THE COURT: You know, as I reread the paragraph, I don't think the add-on is necessary. I think it's included in the paragraph.
(Pause.)
(The Court reviews an additional question from the jury.)
THE COURT: Share it with counsel.
(Pause.)
MR. WEINREB: So, your Honor, counsel have conferred, and with respect to Question 1, we believe the short answer is yes.
THE COURT: Yes; I agree.
MR. WEINREB: With respect to Question 2 -- although we both agree that it may bear emphasizing to the jury that they do need to be unanimous with respect to A or -- unanimous with respect to B, or unanimous that it's both.
THE COURT: It does appear from their phrasing that they understand that.
MR. WEINREB: It does.
THE COURT: But it is worth emphasizing.
MR. WEINREB: But we have no objection to reemphasizing.
With respect to the second question, our theory is that they may be concerned that if they don't simply check off the box that it applies to all counts, then they're in the position of having to list specific counts, what they are further wondering is whether they need to specify for each of those counts whether it was A or B or both. And the answer -- if that is, in fact, the question, the answer to that would be no, that they have to be unanimous.
THE COURT: They don't have to specify A or B or A and B?
MR. WEINREB: They do not need to.
THE COURT: But they do have to specify the counts.
MR. WEINREB: They do have to specify the counts and they have to be unanimous with respect to A or B or both, but they need not specify which theory.
THE COURT: Okay. Are you going to line them up?
You know, coming back to the other question, I've reread it again and I think I've reversed my position again.
(Laughter.)
THE COURT: Because the statement in the middle, it focuses only on intent and not actions, and I think a statement about what the actions were as a matter of fact as well should be added at the end.
MR. WEINREB: Very well.
(Pause.)