The defense wants to call the notorious Sister Helen Prejean to testify in the trial of the Boston Marathon Bomber. I can't fathom that she can offer any relevant evidence.
"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining the action." Federal Rule of Evidence 401. "Irrelevant evidence is not admissible." FRE 402.
What are the facts of consequence in the penalty phase of a federal capital cases? They are the mitigating and aggravating factors listed in subdivisions (a) and (c), respectively, of 18 U.S.C. §3592. Obviously the defense does not want to introduce evidence in aggravation, so that leaves the mitigating factors in subdivision (a).
The relevant mitigating factors are impaired capacity, duress, minor participation, equally culpable defendants getting off with less, no prior criminal record, mental disturbance, victim's consent, and the catchall factor: "Other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence."
Any evidence that is not about this crime or this defendant is irrelevant and therefore inadmissible.
What does Helen Prejean know that is relevant? Nothing, I strongly suspect. If not, she should not testify.
"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining the action." Federal Rule of Evidence 401. "Irrelevant evidence is not admissible." FRE 402.
What are the facts of consequence in the penalty phase of a federal capital cases? They are the mitigating and aggravating factors listed in subdivisions (a) and (c), respectively, of 18 U.S.C. §3592. Obviously the defense does not want to introduce evidence in aggravation, so that leaves the mitigating factors in subdivision (a).
The relevant mitigating factors are impaired capacity, duress, minor participation, equally culpable defendants getting off with less, no prior criminal record, mental disturbance, victim's consent, and the catchall factor: "Other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence."
Any evidence that is not about this crime or this defendant is irrelevant and therefore inadmissible.
What does Helen Prejean know that is relevant? Nothing, I strongly suspect. If not, she should not testify.
I never get to the question whether it's "relevant" because it doesn't even count as "evidence." It's just a sermon.
The defense certainly knows this. I think they have two purposes in mind.
The first and more important is to filibuster. The more time they put between the government's evidence of the savagery of this crime and the jury's sentencing deliberations, the better (from the killer's point of view).
The second is to engage in some less-than-covert religious bullying, implying with "Sister" Perjean that God would prefer LWOP.
This is an odd argument from those who on alternate days maintain that LWOP is worse than a death sentence, but nothing is too bizarre, or too low, for Tsarnaev's defense.
One purpose, Bill: Get one Catholic juror to reject the DP.
Honest sincere question: what if defense says she can speak about her experiences speaking with victims years after LWOP/death sentencing decisions?
Her testimony will obviously be biased and one sided, but would a perspective on victim feelings long after sentencing be irrelevant?
paul -- That's largely what I meant when I said "religious bullying." But I think there is a second purpose as well -- to put more distance between the prosecution's graphic images and the start of penalty deliberations.
I also think that, if a specifically Catholic pitch is what the defense has in mind, the prosecution should move in limine to forbid any direct or indirect reference to the (disputed) Catholic "teaching" on the death penalty. The jurors are properly required to base their decision solely on secular and not religious law.
But I think it's moot anyway, since I doubt she'll be allowed on the stand. It would be like the prosecution's calling you or Kent or me to the stand. We're all smart enough people, but we have nothing that could be called "evidence" to offer here.
Doug -- Yes, it's irrelevant, and to whatever minimal extent it's relevant it's outweighed by the prospect that this will turn into a victim-swearing contest.
1. It's irrelevant because how other victims' families, in other cases, years ago, in different circumstances, feel now has nothing to do with what is a just sentence for Tsarnaev for the Boston Marathon bombing.
2. Even if it were relevant, however, it would be outweighed by the likelihood that it would turn the penalty phase into a contest of victim-versus-victim. The natural thing for the prosecutor to do in response would be line up 100 or so family members from the Oklahoma City bombing to testify:
"I get down on my knees every day to thank God that that the jury had the guts to do the right thing and provide me and my kids with the small but essential comfort that the guy who killed their father got the justice he earned. It would haunt me to the end of my days if he had been allowed to live and write op-eds from his prison cell."
Prejean to testify? Oh good grief. Who's next, Deborah Denno?
Oprah Winfree. Maybe Kim Kardashian. Indeed, each of them would be better; at least they're not one-issue ideologues.
Doug,
Which of the mitigating factors listed in the statute would be enhanced by such testimony? None that I can see. If none, it's not relevant.
Allowing this kind of testimony for the defense would simply oblige the prosecution to provide countering testimony. With the government paying both sides, this would increase the expense of the trial itself and also create additional issues for which the defendant would seek review over and over and over and over.
This is a great example of an effort to increase delay and expense with no increase in the accuracy of the verdict. We really need to get as close as we can back to the original concept of considering only the kinds of factors listed in statutes and cutting out the extraneous stuff.
Doug,
To my knowledge, almost every court in the country to address the issue has rejected so-called "execution-impact" evidence, i.e., evidence offered by the realtives and friends of the defendant regarding the impact that his execution will have on them.
If "execution-impact" evidence is irrelevant and, thus, inadmissible, as mitigation evidence, then the hearsay evidence that you propose -- evidence that is far removed from the offender or the offense -- is certainly inadmissible.
But defense counsel is always going to propose novel theories in case some court, some day, accepts them, and in order to avoid an IAC claim against them 20, 30 or 40 years down the road.
Kent, I assume the defense could/would claim that getting testimony from someone who could provide "expert insights" on the feelings/needs of the families of murder victims would be part of a presentation of "any other circumstance of the offense that mitigate against imposition of the death sentence."
Here is what I think the argument looks like from the defense (stated without any insider knowledge or endorsement):
1. This offense had lots and lots of victims, some of whom have already publicly stated that they think they will get more closure from an LWOP than death sentence.
2. The views/sentiments of the offense victims who are against a death sentence in this case constitute a "circumstance of the offense that mitigate[s] against imposition of the death sentence."
3. Though the defense team could (and perhaps should feel duty bound to) call any and every victim who seems to be against a death sentence to testify, the defense team would like to get their (relevant) perspective before the jury without requiring these victims to live through the experience of being called to testify by the defendant who maimed them or killed their loved one. (AND, continues the defense team, these victims if interested in speaking to the jury could invoke their statutory rights pursuant to the Crime Victims Rights Act.)
4. In an effort to present this victim-centered "other circumstance" of mitigation in an efficient and respectful way, we would like to call a well-regarded expert (who is also a well-known anti-death penalty advocate) to discuss with the jury her experiences in helping victims of horrible crimes achieve closure and move on with their lives. We expect she will testify that, based on her experiences interacting with hundreds of different victims in many different settings, that many victims find it easier to achieve a kind of closure and move on when a defendant gets LWOP rather than a death sentence.
I readily see the force of claims by Bill and Kent that Sister Helen Prejean's testimony could and perhaps should be excluded under FRE 403 because (1) it is likely to be more prejudicial than probative, and/or (2) it will result in undue delay and other problems because of the government's need to respond with other victim perspectives. But the very fact that you both states (and I agree) that the government would feel a strong need to counter
Prejean's testimony strikes me as an indication that you think her input might impact the jury because it is, in a true sense, relevant to what the jury is trying to decide.
I raise all this because it has long been my view that almost everything that a prosecutor or defense lawyer might want to present at sentencing is likely to satisfy the (low) standard for relevance. And this view seems reflected in what Congress has provided in 18 USC 3661: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."
Again, I am not trying to make the claim that Prejean must be allowed to testify. Rather, I am just questioning whether it is really relevance or a different evidentiary concern that could best justify her exclusion if the defense seeks to call her.
The only way it could be relevant is if Sister Prejean has had contact with Tsarnaev.
Douglas stated: "Kent, I assume the defense could/would claim that getting testimony from someone who could provide "expert insights" on the feelings/needs of the families of murder victims would be part of a presentation of "any other circumstance of the offense that mitigate against imposition of the death sentence.""
But in what field is she an "expert?" She is an ideologue who has no psychological training. She is no more qualified to provide "expert" testimony in the "feelings/needs" of these people than I am to be a MLB manager because I watched the Yankees game yesterday.
If Catholic theology was relevant in the sentencing phase of this trial, you would have a point. That is her field of supposed expertise.
Doug --
There is a difference between being "impactful" and being "relevant" as that word is used in the Federal Rules of Evidence.
But, as I was saying, it makes no difference in any event, because the basic rule of evidence is that even relevant evidence is excluded if it is outweighed by its potential for prejudicing the proceeding. The proposed testimony of "Sister" Perjean fails that test.
In addition to what Kent, paul and I have said, one of your commenters made the point this way:
"I'd agree that her testimony could be relevant on that point -- but if and only if the prosecution were allowed to introduce rebuttal evidence showing (1) attempts to abolish LWOP sentences (so the jury would understand that some would be effectively seeking Tsarnawv's eventual release; (2) the fact that there could still be habeas and Cotán no is petitions with an LWOP sentence (so the jury would know that giving LWOP would not truly be the end of legal challenges); and (3) the fact that terrorists have listed release of past LWOP terrorism prisoners (including the "Blind Sheik") among their demands, such that an LWOP prisoner might be a lifelong bargaining chip. It seems to me that if the defense wants to present a partial slice of info on the consequences of a life sentence, then the prosecution is entitled to present this information to avoid misleading the jury."
"Sister" Perjean is going to be kept off the stand for the same reason Kent is and I am: This is a CASE, not a death penalty debate of the kind one might have in academia, the legislature or a town hall.
In addition, the proffered testimony is both hearsay and not the best evidence. If you want to show the impact of executions, you call those on whom the impact has fallen. That might include relatives of the killer or relatives of the victims who wanted LWOP instead. It does not include "Sister" Perjean.
UPDATE:
Prejean testified to the defendant's statements of remorse made to her during defense initiated meetings between them.
Looks like state-of-mind exception to hearsay rule.
"Prejean testified to the defendant's statements of remorse made to her during defense initiated meetings between them.
Looks like state-of-mind exception to hearsay rule."
Call me cynical, but I suspect they "initiated" the meeting for the sole purpose of having a justification to call her during this segment of the trial.
I will conclude my comments here by noting that (1) rules of evidence do not formally apply at sentencing proceedings, though they still can play a role in judicial case-management determinations, and (2) the meetings with the defendant helped make the case for relevance, and (3) if I were a juror I would be put off by the fact that the defendant himself lacked the courage to take the stand and express any remorse and instead needed Prejean to speak for him this way.
"[I]f I were a juror I would be put off by the fact that the defendant himself lacked the courage to take the stand and express any remorse and instead needed Prejean to speak for him this."
I agree with this, with one qualification.
Prejean is a professional advocate and would know how to handle cross-examination. And -- forgive me -- she would also know how to portray Tsarnaev as remorseful even if this were not, ummmm, the truest thing you ever heard in your life.
I think the real reason Tsarnaev did not take the stand to profess remorse is (1) he feels none, and would not be shy about telling the jury empanelled by The Great Satan where it could go; and (2) his lawyers knew this, and knew further that, even if Tsarnaev could paper over his anti-American hate for a short time on direct, the AUSA would bring it out on cross, thus greasing Mr. Nicey's way into the death chamber.
Tsarnaev, contrary to some of the commentary we hear, has zero desire to be a martyr, so when his lawyers told him that he would increase his chances of execution if he testified, he took their advice and kept his mouth shut, sending the lovely Sister Prejean to tell the tale for him.
"Congress has provided in 18 USC 3661: 'No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.'"
Nailed it.
This is also the reason a court may consider acquitted and uncharged conduct. "No limitation" means "no limitation."