Thursday, May 14, 2015

Death By Long Form? #Tsarnaev, With Disputed Instructions

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  • Tsarnaev Penalty Verdict Form

  • Finishing Line Podcast: After Closings, Tsarnaev’s Life In Jurors’ Hands

  • Death, or Life in Prison? Jury Begins Deciding Tsarnaev's Fate


    Tsarnaev judge declines to tell jury that if they don’t go unanimous on death he’s obliged to impose life sentence; no mistrial

    MR. BRUCK: If I may?

    THE COURT: Please.

    MR. BRUCK: If it please the Court, we would first like to object to the Court's refusal to include in its instructions and the verdict slip our Request No. 3, which is an instruction regarding the effect of the jury's inability to reach a unanimous decision.

    The instruction as requested and as refused by the Court is as follows: "If the jury is unable to reach a unanimous decision in favor of either a death sentence or a life sentence, I will impose a sentence of life imprisonment without possibility of release upon the defendant. That will conclude the case. At the sentencing stage of the case, the inability of the jury to agree on the sentence to be imposed does not require that any part of the case be retried. It also does not affect the guilty verdicts that you have previously rendered."

    We argued this issue yesterday. As the Court is aware, I simply want to note at this time that, notwithstanding the authority of the United States versus Jones, we think that under the extraordinary circumstances of this case, any misapprehension, which is very likely, that the jury will labor under that a non-unanimous -- or failure to achieve unanimity would require a mistrial, and a retrial would be extraordinarily prejudicial because of the nature of this particular case and what it would signify to put the victims and the survivors and the entire community through this entire case again.

    Of course, everybody but the jury now knows that that's not what happens, and we think that this is a situation which is fraught with the risk of coercion. So understanding that there is a -- that there is, at this time, authority supporting the Court's decision, we note that it is a practice which is very commonly -- the practice of informing the jury, of telling them the truth about the results of a failure to agree, is extremely widespread in the federal courts, even under cases where the necessity, we believe -- or where the reasons for giving a full and complete and accurate instruction are nowhere near so compelling as here.

    THE COURT: All right. As to that, I've made my reasons clear on the lobby conference record. I don't think it's necessary to repeat them. I adhere to those views.

    MR. BRUCK: Very well.

    In the alternative, and reserving our rights under that request, we would request that the Court give the instruction contained in Sand's Modern Federal Jury Instructions, Instruction No. 9A-20, which, in pertinent part -- I've handed the entire instruction up to the Court yesterday at the lobby conference, but the pertinent part for purposes of the record reads as follows: "If, after engaging in the balancing process I have described to you, all 12 members of the jury do not unanimously find beyond a reasonable doubt that the defendant should be sentenced to death, then you may not impose the death penalty. In that event, Congress has provided that life imprisonment without any possibility of release is the only alternative sentence available. If the jury reaches this result, you should do so by unanimous vote and indicate your decision in Section" blank "of the special verdict form."

    So we, as a follow-up, reserving our rights under Request No. 3, make that request as well and object to the Court's having declined to give it at the lobby conference yesterday and today.

    THE COURT: Okay. Again, my reasons were stated on the record yesterday, and I adhere to them.

    MR. BRUCK: Next, we submitted a proposed instruction following the language from Sand's Modern Jury Instructions that on the issue of the appropriateness of the death penalty, the reasonable doubt standard should apply. That is to say that the jury should only impose the death penalty if it found beyond reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances sufficiently so as to justify the death penalty. That is the language from Judge Sand. That was the language of our request. The Court removed the requirement of beyond a reasonable doubt from that instruction, and we wish to preserve our objection to having done so.

    THE COURT: As you know, the ruling was consistent with circuit law.

    MR. BRUCK: We also except to the Court's refusal to include as a mitigating factor that the defendant would be sentenced to a sentence of life imprisonment without possibility of release, if the death penalty is not imposed, we understand that the jury has been informed of that fact, but we think that that is a mitigating factor or a circumstance weighing against imposition of the death penalty. Mitigating factor within the meaning of the Federal Death Penalty Act and the Eighth Amendment, which should have been included on the list of mitigating factors.

    THE COURT: Okay.

    MR. BRUCK: I went to check with counsel to make sure I haven't missed anything.

    (Counsel confer off the record.)

    MR. BRUCK: That's it. Thank you.

    THE COURT: Okay. Does the government have anything?

    MR. WEINREB: No, your Honor.

    THE COURT: All right. Let's get the jury back in.

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  • Monday, May 11, 2015

    ‘No One Deserves To Suffer Like They Did’ – Convicted #BostonMarathon Bomber Dzhokhar #Tsarnaev As Quoted By Sister @HelenPrejean

  • Sister Helen Prejean Testifies at Bombing Trial: Tsarnaev 'Genuinely Sorry'

  • Finishing Line Podcast: Tsarnaev Feels Remorse For Victims, Says Nun

  • Catholic website Crux Life page/ Sister Helen Prejean: Tsarnaev ‘genuinely sorry for what he did’

  • Court Artist Art Lien: Dead Man Walking?

  • SISTER HELEN PREJEAN, duly sworn

    THE CLERK: Have a seat. State your name and spell your first and last name for the record, keep your voice up and speak into the mic so everyone can hear you.

    THE WITNESS: Sister Helen Prejean, H-E-L-E-N, P-R-E-J-E-A-N.


    Q. Good morning, Sister. I'm over here.

    A. Thank you.

    Q. Are you a Catholic nun?

    A. Yes, I am.

    Q. When did you become a nun?

    A. 1957.

    Q. And to what order do you belong?

    A. Sisters of St. Joseph.

    Q. Where is that located?

    A. Well, we're in different places in the United States. I'm based in New Orleans, but we have other places too.

    Q. And are you a native of Louisiana?

    A. I am.

    Q. What kind of work does the order do generally?

    A. Well, nuns do things from -- anything having to do with poor people. Teaching: We have academies, teach young women; hospitals: nursing, healthcare; Working with the elderly.

    Q. What kind of work have you done since joining the order in 1957?

    A. Well, I began as a teacher of English.

    Q. What grades?

    A. Seventh and eighth, and then also high school.

    Q. Please continue. I'm sorry.

    A. And then also taught adults in the Catholic church at the Vatican II. We had adult education that began to educate the people. So I've worked as the director of religious ed in a parish, doing religious education as well.

    Q. Have you also done prison -- excuse me. Have you also established a prison ministry?

    A. Yes.

    Q. And can you just tell us very generally what that means?

    A. Well, in general, sisters -- some of them, anyway, visit prisoners. Ours is focused on death row prisoners and – but also in connection with that, with victims' families. We started a group called "Survive" for murder victims' families as well.

    Q. At some point earlier this year -- strike that. Have you met Jahar Tsarnaev?

    A. I have.

    Q. And how did that come about?

    A. Well, some of the members of the defense team that I know -- that I've known for a long time, asked me if I would come and visit with Jahar.

    Q. And by the way, do you see Jahar in the courtroom?

    A. I do. He's right there.

    Q. When was the first time that you met with Jahar?

    A. I think like early March.

    Q. So do you know when that was in terms of when the first phase of the trial started?

    A. So it was before the trial started.

    Q. And why did you agree to meet with him?

    A. For the same reason that I visit with other people who have, you know, done really terrible crimes, and just to be able to accompany them and be with him. Same reason.

    Q. When you say "accompany," what do you mean?

    A. Well, the expression kind of came out of Latin America. It means not just to go to somebody to direct them or to elicit from them or to convert them, but simply to be by their side and let them know that they have a dignity, and accompany – in the case of some of the prisoners that I've worked with who have done terrible crimes, a part of that means to help them to come to grips –

    MR. WEINREB: Objection, your Honor.

    THE WITNESS: -- and take responsibility for --

    MR. WEINREB: This goes beyond what we discussed.

    THE COURT: All right. That's far enough, I think.


    Q. I think we'd better stop there.

    A. All right.

    Q. By the way, you have worked with prisoners -- not just prisoners on death row but other prisoners?

    A. Right. Lifers.

    Q. And before you met with Jahar, did you know that he was Muslim?

    A. Yes.

    Q. So how did you prepare to meet with him?

    A. Well, I began -- I had begun doing this anyway, to look into the Qur'an and Islam so I could try to understand, you know, what we have in common, what the deep spiritual core is of both. And so I had begun to read and to study a little bit about that.

    Q. And you said you first met with him I think in early March?

    A. Yes.

    Q. And how many times altogether did you meet with him?

    A. I think it's been five.

    Q. And over what period of time?

    A. March until very recently, just a couple of days ago.

    Q. So throughout the -- both the first and second phases of the trial?

    A. Yes.

    Q. When you first met with him, how did he react to meeting a nun?

    A. Well, I'm not sure he had ever met a nun before, but he was very open and receptive. He was -- it was pleasant. Hewas good.

    Q. What do you remember about that meeting? Without telling us anything that he said, but what do you remember about that first meeting with him?

    A. It's just, I walked in the room and I looked at his face and I remember, "Oh, my God, he's so young," which he is. And it just had that kind of spontaneity to it that you have with young people, because young people are open and more, you know, responsive. I sensed he was very respectful and that we easily -- I felt it was pretty easy to establish a rapport.

    Q. What kinds of things -- without telling us again what was said, but what kinds of topics did you discuss, not just in that first meeting, but through the course of all five meetings?

    A. Well, we talked about far-ranging. I told him a little bit about being a nun, that I was dedicating my life to God. And one of the things I did know about Islam is to try to do the will of God is the goal of your life. I talked about being a Catholic, serving the people, the kind of stuff I've done, growing up in Louisiana. A little bit about what it means to be a Cajun. And then we did get into the whole thing of the death penalty in the United States, told him what my work was and what I –

    Q. I'm going to stop you right there. Did you talk about some of the differences and similarities between Catholicism and Islam?

    A. Yeah. They kind of naturally emerged. Like I talked about how in the Catholic church we have become more and more opposed to the death penalty --

    MR. WEINREB: Your Honor, I would object.


    Q. All right. I'm going to stop you right there.

    Did you also talk about scripture?

    A. Yes.

    Q. And did you talk with him -- and again, not telling us what was said, but did you talk with him about his crimes?

    A. Yes.

    Q. And did he -- by the way, when you were talking about Islam and Catholicism, did he just automatically agree with everything that you said?

    A. No. No, we had definite disagreements.

    Q. And -- but how would you characterize those disagreements?

    A. Well, I think some of it revolved around the God of love.

    MR. WEINREB: Objection, your Honor.


    Q. Okay. Just as far as whether they were respectful or whether they were –

    A. Yeah. No, it was always very respectful. And I actually had asked him, because I didn't know a lot about –

    MR. WEINREB: Objection.

    THE COURT: Wait for the next question, Sister.

    THE WITNESS: Okay. Thank you.


    Q. At some point did he express to you his feelings about what happened to the victims in this case?

    A. After we had established trust with each other, at one point I said to him --

    Q. Okay. I'm not going to -- not what you said to him, but just what did he say to you about the victims?

    A. He said it emphatically. He said, "No one deserves to suffer like they did."

    Q. And when he said that, how did you perceive his sincerity?

    A. As absolutely sincere.

    Q. And what do you base that opinion on?

    A. Well, I have long experience --

    MR. WEINREB: Objection, your Honor.

    THE COURT: Sustained.


    Q. Just what you observed about him and also what you had observed about him during the previous times that you had met with him.

    A. That his response was so spontaneous, and it's not like he was hedging or it's not like he was trying to -- he just simply said, "Nobody deserves to suffer like that." And I had every reason to believe that it was sincere.

    Q. How would you describe his expression when he said that?

    A. Well, he -- his face registered it, and he kind of lowered his eyes. And it was the -- it was his voice when he -- because I had said to him, "Look at the" --

    MR. WEINREB: Objection.

    THE COURT: Sustained.


    Q. Okay. Not what you said.

    A. Okay. Okay.

    Q. If you can, you said he lowered his eyes?

    A. And he just said --

    MR. WEINREB: Objection, your Honor. This has now been asked and answered several times.

    MS. CONRAD: I'm asking now how he said it, and I think we were interrupted.

    THE COURT: Yes, which doesn't call for what was said, again. So why don't you redirect it so it's not content.


    Q. What, if any, observations did you make about his voice when he said that?

    A. It was -- it had pain in it, actually, when he said what he did about nobody deserves that, and –

    Q. I'm sorry.

    A. And I just had every reason to think that he was taking it in and that he was genuinely sorry for what he did.

    Q. Now, what about the time that you had spent with him leading up to that conversation affected or influenced your evaluation of his sincerity?

    A. It's -- to establish a relationship, that's the accompaniment thing, that it's sincere. He knows he can trust me. I feel like I can trust him. And that gave the groundwork, so that when I blatantly just said to him, "But look at this" –

    MR. WEINREB: Objection, your Honor.


    Q. Again, you can't --

    A. I'm sorry. I'm a Catholic nun that teaches and I keep thinking of what I said. I'm sorry.

    Q. Okay. But just -- so you said that you established, you felt –

    A. Yeah. So the trust and the groundwork was there, so when he said what he did, I knew -- I felt it. It's the way you know when somebody's sincere. And I don't know, can I talk about the experiences I've had with other prisoners?

    MR. WEINREB: Objection.


    Q. No.

    A. I didn't think so. Just checking it out. Okay.



    Q. Is there anything else about your meetings with him or what you observed about Jahar that influenced your opinion about his sincerity? MR. WEINREB: Objection.

    THE COURT: I think you have to direct the inquiry a little more specifically.

    MS. CONRAD: Okay.


    Q. Do you believe that Jahar is unrepentant?

    MR. WEINREB: Objection. This has now been asked and answered quite a number of times. Belaboring.

    THE COURT: Yeah, sustained to the -- well...

    MS. CONRAD: May I have one moment, please?

    (Counsel confer off the record.)


    Q. Do you believe based on your interactions with Jahar that he is untouched?

    MR. WEINREB: Objection, your Honor. We had a discussion before. I think we've covered the ground that was to be discussed.

    THE COURT: Yeah, I think Mr. Weinreb is correct.

    MS. CONRAD: I don't have anything further at this time.


    Q. Good morning, Sister Helen.

    A. Good morning.

    Q. My name is Bill Weinreb.

    A. I'm glad to meet you.

    Q. You too. Sister, you're not based in Massachusetts, are you?

    A. Correct.

    Q. You don't live here?

    A. No.

    Q. And your order is not located here?

    A. Some -- sisters are related in different branches, so some of our cousin sisters of St. Joseph are here.

    Q. But not you?

    A. But not me.

    Q. In fact, you live and work in Louisiana?

    A. I'm based in Louisiana, but I travel a lot.

    Q. Okay. But the defense asked you to accompany the defendant. Is that correct?

    A. To visit with him, yes.

    Q. Even though you come from different faiths?

    A. Yeah.

    Q. Now, you're known as one of the leading death penalty opponents in the United States. Would that be fair to say?

    A. Yes.

    Q. You believe capital punishment is never an appropriate punishment no matter what the crime?

    A. Correct.

    Q. You're the public face of an organization that's called the "Ministry Against the Death Penalty"?

    A. Correct.

    Q. The organization is mainly funded by your speaking fees and your book sales?

    MS. CONRAD: Objection.

    THE COURT: No, overruled. You may have that.

    THE WITNESS: Yeah, that's correct.


    Q. You've served on the board of the National Coalition to Abolish the Death Penalty? A. Correct.

    Q. You lecture against the death penalty?

    A. Yes.

    Q. You organize against it?

    A. Yes.

    Q. You write articles against it?

    A. I do.

    Q. You make speeches against it?

    A. I do.

    Q. Your own website calls you one of the best-known voices for the abolition of the death penalty in the United States, correct?

    A. Correct.

    MR. WEINREB: Thank you. I have no further questions.

    MS. CONRAD: If I may have one moment, please.

    (Counsel confer off the record.)



    Q. Sister Helen, why are you opposed to the death penalty?

    MR. WEINREB: Objection.

    THE COURT: Sustained.


    Q. When you told us that you believed that Jahar was sincerely remorseful for what he had done and the suffering he had caused –

    MR. WEINREB: Your Honor, she can't vouch for her own credibility. I would object.

    MS. CONRAD: I'm getting to my question. I would like to finish the question.

    THE COURT: Let her finish the question. I have to hear the question.


    Q. -- was that opinion influenced by your opposition to the death penalty?

    MR. WEINREB: Objection. That's not a proper question for –

    THE COURT: No, you may answer it, Sister. Go ahead. Overruled. You may answer it.

    THE WITNESS: I can answer it?


    Q. Yes.

    A. Of course. That's like the groundwork, because it's based on the dignity of each person.

    MR. WEINREB: Objection, your Honor.

    THE COURT: All right. The answer may stand.


    Q. Would you tell this jury that he was sincerely remorseful if you didn't truly believe it?

    MR. WEINREB: Objection. She can't vouch for her own credibility.

    THE COURT: Overruled. She may answer it.

    THE WITNESS: Can I answer?


    Q. Yes.

    A. Absolutely.

    Q. I'm sorry. Would you tell the jury that he was sincerely remorseful if you did not believe that?

    A. No, I would not.

    Q. And so are you here testifying today in order to advance your anti-death penalty cause or in order to tell this jury what you have seen in Jahar Tsarnaev?

    MR. WEINREB: Objection.

    THE COURT: Sustained to that. It's argumentative.


    Q. By the way, is the defense paying you for your appearance

    MR. WEINREB: Objection. That's beyond the scope.

    THE COURT: No, you may answer that.

    THE WITNESS: Not a dime.


    Q. Is the defense paying anything or donating any money to your order or to your ministry?

    A. No.

    MS. CONRAD: I have nothing further.

    THE COURT: Anything else?

    MR. WEINREB: No, your Honor.

    THE COURT: All right, Sister. Thank you. You may step down.

    THE WITNESS: Thank you.

    (The witness is excused.)

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  • Sunday, May 10, 2015

    HAIL MARY PASS for #Tsarnaev Defense / Judge’s Advice to Prosecution, Re; ‘Defiant Notes’

    Battle Over
    Sister Helen Prejean Testimony
    Heats Up

  • ‘Dead Man Walking’ Nun Could Close Defense Case

  • Tsarnaev’s lawyers expected to rest their case Monday

  • Judge O’Toole advises prosecution, Re; Tsarnaev’s allegedly defiant notes from hospital bed:

    ‘I think you may have to be careful because I think it may open the door to something you don't want. I'm sorry’

    Will prosecution produce the defiant notes?
    Or, is that all there is?

  • Tsarnaev defiant notes? 'can I sleep? Can you not handcuff my right arm?'

  • (Discussion at sidebar and out of the hearing of the jury:)

    THE COURT: You seem to be taking a while to get to the point.

    MS. CONRAD: Well, no. The point is that, in his interactions with him, he was never defiant, hostile or uncooperative. And that's exactly the point. The July 10th event is what the government wants to focus on --

    MR. WEINREB: Your Honor, two days when he lay in thebed in Beth Israel, he wrote one defiant note after another.

    He couldn't be defiant physically. He was physically --

    MS. CONRAD: I was getting to after he went to Devens. I just had to establish when he first went there. Now we're talking –

    MR. MELLIN: They're trying to draw these fine lines and --

    MS. CONRAD: I'm done with Beth Israel.

    THE COURT: No, no. But it's fair game for them to point out that he was defiant on other occasions.

    MS. CONRAD: I'm talking about this –

    MS. CLARKE: He's not been defiant.

    MS. CONRAD: He has not been defiant.

    THE COURT: He just said -- I don't know what the evidence is.

    MS. CONRAD: He's talking about the interrogation by the FBI the government said they're not offering. I'm talkingabout his interaction.

    MR. WEINREB: We're not offering it in our case-in-chief but to cross-examine him to rebut a claim. The defense isn't entitled to put on a one-sided presentation and then keep out evidence that contradicts it. The jury's being misled.

    MS. CONRAD: First of all --

    THE COURT: I think it opens the door to evidence of defiance if they have it. I don't know what it is.

    MS. CONRAD: I don't know what it is either.

    THE COURT: But be warned, it opens --

    MS. CONRAD: Even if it's during the course of an un-Mirandized interrogation, which I think is what they're talking about --

    THE COURT: I don't know. I'll have to hear what it is.

    MS. CONRAD: Well, if it's statements by the defendant, we have not been given discovery under Rule16(a)(1)(A)—

    MR. WEINREB: They have all the statements.

    THE COURT: I'm just -- okay. I think you may have to be careful because I think it may open the door to something you don't want. I'm sorry.

    MS. CONRAD: It would help if the government would tell me what they're talking about because I'm not aware of what they're talking about.

    MR. WEINREB: We don't need to preview our cross-examination. All the statements the defendant made at Beth Israel were produced to the defense. It's up to the jury to decide if they were defiant statements or not. We happen to believe that many of them were.

    MS. CONRAD: I do not want to ask whether he was defiant at Beth Israel; I just want to establish when he first met him and under what circumstances.

    MR. WEINREB: The question is, was he defiant?

    MS. CONRAD: That wasn't the question. I'm focusing –

    THE COURT: If you focus on a particular quality, like defiance, they can meet with a particular quality. A more general focused quality of what his demeanor was might not --

    MS. CONRAD: Okay.

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