Amicus Curiae Brief — United States, Petitioner v. Dzhokhar A. Tsarnaev
Supreme Court briefAug 27, 2021
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No. 20-443
IIN
N THE
THE
fpuprente
Supreme Court
Court of
of tie
the United
Einiteb iptatez
States
_________
UNITED
UNITED S
STATES
TATES OF AMERICA,
AMERICA,
Petitioner,
v.
DZHOKHAR
D
ZHOKHAR A. TSARNAEV,
TSARNAEV,
Respondent.
_________
On Writ of Certiorari to the United States Court of
Appeals for the First Circuit
_________
CIVIL LIBERTIES UNION,
BRIEF OF AMERICAN CIVIL.
AMERICAN CIVIL LIBERTIES UNION OF
MASSACHUSETTS, INC., NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS, AND THE RUTHERFORD INSTITUTE
AS AMICI CURIAE IN SUPPORT OF RESPONDENT
_________
David D. Cole
Catherine E. Stetson
AMERICAN
AMERICAN C
IVIL
CIVIL
Counsel of Record
L
LIBERTIES
IBERTIES UNION
UNION
Matthew J. Higgins
David K
K. Bastian
FOUNDATION
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OUNDATION
H
OGAN L
OVELLS US LLP
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IINSTITUTE
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES...................................... iii
STATEMENT OF INTEREST ................................... 1
SUMMARY OF THE ARGUMENT ........................... 3
ARGUMENT .............................................................. 6
I.
TAMERLAN’S PREVIOUS JIHADIST
TAMERLAN'S
MURDERS AND RECRUITMENT OF
AN ACCOMPLICE ARE POWERFUL
PIECES OF MITIGATION EVIDENCE,
AND SECTION 3593(c) PROVIDES NO
BASIS TO EXCLUDE THEM ......................... 6
A.
II.
The Waltham Evidence Was Relevant To Whether Dzhokhar Deserved The Death Penalty ....................... 6
B. The Waltham Evidence Does Not
Fall Into Any Of Section 3593(c)'s
3593(c)’s
Three Categories For Exclusion............ 11
1. "Waste
“Waste Of Time"
Time” Is Not A Basis
For Exclusion Under Section
3593(c)............................................... 12
2. The Waltham Evidence Cre“Confusing
ated No Danger Of "Confusing
The Issues."
Issues.” ...................................... 14
3595(a)’S
SECTION
3595(a)'S
HARMLESS
ERROR STANDARD IS DEMANDING,
AND THE GOVERNMENT FAILS TO
MEET IT HERE ............................................ 24
(i)
11
ii
TABLE OF CONTENTS—Continued
Page
A.
B.
The Government Fails To Show
Beyond A Reasonable Doubt That
The Jury Was Just As Likely To
Dzhokhar’s Core MitiDisbelieve Dzhokhar's
gation Theory If It Had Seen The
Waltham Evidence ................................ 25
The Government Fails To Show
Beyond A Reasonable Doubt That
The Jury Would Have Sentenced
Dzhokhar To Death Even If It Believed Dzhokhar Acted Under
Tamerlan's
Tamerlan’s Influence ............................. 27
CONCLUSION ......................................................... 32
111
iii
TABLE OF AUTHORITIES
Page(s)
CASES:
CASES:
Abdul-Kabir v. Quarterman,
Abdul-Kabir
550 U.S. 233 (2007).......................................... 13, 16
Chapman v. California,
(1967).................................................. 30
386 U.S. 18 (1967)
Cooper v. Dugger,
526 So. 2d 900 (Fla. 1988) ..................................... 10
Allstate Ins. Co.,
Deus v. Allstate
15 F.3d 506 (5th Cir. 1994) ................................... 13
Dutton v. Brown,
812 F.2d 593 (10th Cir. 1987) ......................... 27, 28
parte Slaton,
Ex parte
680 So. 2d 909 (Ala. 1996) .................................... 15
Glossip v. Gross,
576 U.S. 863 (2015) ............................................... 28
Gregg v. Georgia,
428 U.S. 153 (1976)................................................ 18
In re Baldwin,
700 F.3d 122 (3d Cir. 2012) ................................... 13
Johnson v. Texas,
509 U.S. 350 (1993).................................5,
5, 13, 20, 23
Jurek v. Texas,
428 U.S. 262 (1976)............................................ 8, 13
Kassel v. Gannett Co.,
875 F.2d 935 (1st Cir. 1989) ................................. 19
Laney v. Celotex Corp.,
901 F.2d 1319 (6th Cir. 1990) ............................... 17
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Ledford v. Warden, Ga. Diagnostic Prison,
2020).............................. 16
975 F.3d 1145 (11th Cir. 2020)
Lockett v. Ohio,
438 U.S. 586 (1978)............................................ 8, 15
Mak v. Blodgett,
970 F.2d 614 (9th Cir. 1992) ................................. 10
Morton v. State,
789 So. 2d 324 (Fla. 2001) ..................................... 18
Parish v. City of Elkhart,
702 F.3d 997 (7th Cir. 2012) ................................. 17
Payne v. Tennessee,
501 U.S. 808 (1991).................................................. 8
People v. Sims,
853 P.2d 992 (Cal. 1993)........................................ 16
R.J. Reynolds Tobacco v. Cigarettes
Cheaper!,
462 F.3d 690 (7th Cir. 2006) ................................ 21
Roper v. Simmons,
543 U.S. 551 (2005).......................................... 16, 29
Ryan v. Gonzales,
(2013).................................................... 8
568 U.S. 57 (2013)
Saffle v. Parks,
494 U.S. 484 (1990)................................................ 27
Satterwhite v. Texas,
486 U.S. 249 (1988).......................................... 27, 28
Skipper v. South Carolina,
(1986).............................................passim
passim
476 U.S. 1 (1986)
Anderson,
Sowell v. Anderson,
663 F.3d 783 (6th Cir. 2011) ................................. 30
v
V
TABLE OF AUTHORITIES—Continued
Page(s)
State v. Howard,
369 S.E.2d 132 (S.C. 1988) .................................... 28
Sumner v. Shuman,
(1987)...................................... 10, 13, 28
483 U.S. 66 (1987)
Tennard v. Dretke,
542 U.S. 274 (2004)............................................ 7, 11
Thompson v. City of Chicago,
722 F.3d 963 (7th Cir. 2013) ................................ 19
Torres-Arroyo v. Rullan,
436 F.3d 1 (1st Cir. 2006) ...................................... 19
United States v. Aquart,
Aquart,
912 F.3d 1 (2d Cir. 2018) ....................................... 15
United States v. Bolden,
545 F.3d 609 (8th Cir. 2008) ................................. 14
United States v. Corley,
519 F.3d 716 (7th Cir. 2008) .......................... 18, 23
United States v. Elysee,
993 F.3d 1309, 1344 (11th Cir. 2021).................... 20
United States v. Fell,
360 F.3d 135 (2d Cir. 2004) ..........................7,
7, 13, 18
United States v. Higgs,
353 F.3d 281 (4th Cir. 2003) ................................. 15
United States v. Hite,
769 F.3d 1154 (D.C. Cir. 2014).............................. 21
United States v. Jones,
132 F.3d 232 (5th Cir. 1998) ................................... 7
United States v. Jones,
App’x 460 (6th Cir. 2014)............................ 19
554 F. App'x
vi
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Lee,
274 F.3d 485 (8th Cir. 2001) ........................7,
7, 19, 23
United States v. Lujan,
603 F.3d 850 (10th Cir. 2010) ................8,
8, 19, 22, 23
United States v. McCullah,
76 F.3d 1087 (10th Cir. 1996) ......................... 25, 29
United States v. Moussaoui,
591 F.3d 263 (4th Cir. 2010) ................................ 28
United States v. Myers,
524 F. App'x
App’x 479 (11th Cir. 2013) ......................... 21
United States v. Nichols,
1999).............................. 28
169 F.3d 1255 (10th Cir. 1999)
United States v. Purkey,
428 F.3d 738 (8th Cir. 2005) ................................. 13
United States v. Sampson,
486 F.3d 13 (1st Cir. 2007) .............................. 14, 18
United States v. Smithers,
212 F.3d 306 (6th Cir. 2000) ................................. 12
United States v. Spence,
721 F.3d 1224 (10th Cir. 2013) ............................. 21
United States v. Wardlow,
830 F.3d 817 (8th Cir. 2016) ................................. 21
United States v. Watts,
519 U.S. 148 (1997).................................................. 8
United States v. Whitten,
610 F.3d 168 (2d Cir. 2010) ................................... 30
S
TATUTES:
STATUTES:
18 U.S.C. § 3592(a)(3) .............................................. 10
vii
TABLE OF AUTHORITIES—Continued
Page(s)
18 U.S.C. § 3592(a)(8) .............................................. 10
11, 12, 16
18 U.S.C. § 3593(c) ........................................11,
18 U.S.C. § 3593(e) ................................................... 24
RULES:
RULES:
Fed. R. Evid. 403 ...................................................... 12
Fed. R. Evid. 404(b) .................................................... 8
OTHER AUTHORITIES:
AUTHORITIES:
OTHER
Andrew K. Dolan, Rule 403: The Prejudice
Rule in Evidence,
49 S. Cal. L. Rev. 220 (1976) ......................12,
12, 21, 22
George P. Fletcher, Domination in Wrongdoing, 76 B.U. L. Rev. 347 (1996) ............................. 27
Kenneth W. Graham, Jr., 22A Federal Practice & Procedure Evidence (Wright & Miller) (2d ed. Apr. 2021 update)
§ 5216.1 ............................................................ 20, 23
§ 5217.1 .................................................................. 21
Jeffrey L. Kirchmeier, Beyond Compare? A
A
Codefendant’s Prison Sentence as a MitigatCodefendant's
ing Factor in Death Penalty Cases,
71 Fla. L. Rev. 1017 (2019).............................. 17, 18
Christopher B. Mueller & Laird C. Kirkpatrick, 1 Federal Evidence (4th ed. May 2021
update)
§ 4:2 .................................................................. 10, 11
§ 4:15 ...................................................................... 12
Paul F. Rothstein, Federal Rules of Evidence, Rule 403 (3d ed. May 2021 update) ........... 20
IIN
N THE
THE
Supreme Court
the United
States
fpuprente
Court of
of tie
Einiteb iptatez
_________
No. 20-443
_________
UNITED
STATES
UNITED S
TATES OF AMERICA,
AMERICA,
Petitioner,
v.
D
ZHOKHAR A. TSARNAEV,
TSARNAEV,
DZHOKHAR
Respondent.
_________
On Writ of Certiorari to the United States Court of
Appeals for the First Circuit
_________
BRIEF OF AMERICAN CIVIL.
CIVIL LIBERTIES UNION,
AMERICAN CIVIL LIBERTIES UNION OF
MASSACHUSETTS, INC., NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS, AND THE RUTHERFORD INSTITUTE
AS AMICI CURIAE IN SUPPORT OF RESPONDENT
_________
STATEMENT OF INTEREST1
INTEREST1
The American Civil Liberties Union (ACLU) is
a nationwide, nonprofit, nonpartisan organization
with nearly two million members and supporters dedicated to the principles of liberty and equality embodied in the Constitution. The ACLU of Massachusetts is one of its statewide affiliates. The ACLU has
11 No party or counsel for a party authored this brief in whole or
in part. No party, counsel for a party, or person other than amici
curiae, their members, or counsel made any monetary contribution intended to fund the preparation or submission of this brief.
All parties have consented to the filing of this brief.
(1)
2
long been committed to due process and fundamentally fair procedures for defendants in all criminal
cases, and, as relevant here, has supported the right
of capital defendants to present mitigating evidence
in order to urge the jury to choose life over death, and
to ensure that the jury has the fullest picture possible
in making such a life-or-death decision.
The National Association of Criminal Defense
Lawyers (NACDL) is a nonprofit voluntary professional bar association that works on behalf of criminal
defense attorneys to ensure justice and due process for
those accused of crime or misconduct. It has a nationwide membership of many thousands of direct memNACDL's members, and up to 40,000 with affiliates. NACDL’s
bers include private criminal defense lawyers, public
defenders, military defense counsel, law professors,
and judges. NACDL is the only nationwide professional bar association for public defenders and private
criminal defense lawyers. NACDL files numerous
amicus briefs each year in the U.S. Supreme Court
and other federal and state courts, seeking to provide
amicus assistance in cases that present issues of
broad importance to criminal defendants, criminal defense lawyers, and the criminal justice system as a
whole.
The Rutherford Institute is an international nonprofit organization headquartered in Charlottesville,
Virginia. Founded in 1982 by its President, John W.
Whitehead, the Institute specializes in providing legal
representation without charge to individuals whose
civil liberties are threatened or infringed and in educating the public about constitutional and human
rights issues. The Rutherford Institute works tire-
3
lessly to resist tyranny and threats to freedom, ensuring that the government abides by the rule of law and
is held accountable when it infringes on the rights
guaranteed to persons by the Constitution and laws of
the United States.
Amici have a strong interest in how courts interpret
Amici
and apply the Federal Death Penalty Act (FDPA).
SUMMARY OF ARGUMENT
In the sentencing phase of his capital trial, Respondent Dzhokhar Tsarnaev sought to introduce evidence
in mitigation that Tamerlan Tsarnaev, his older and
only brother, had previously enlisted an accomplice to
commit a brutal triple murder and robbery in Waltham, Massachusetts on the ten-year anniversary of
September 11, 2001. Tamerlan bound, beat, and slit
the throats of three men (one a childhood friend) in
the name of jihad. This evidence supported Dzhokhar's core mitigation theory that his older brother
khar’s
was a violent jihadist who influenced him to participate in the Boston Marathon bombings and was more
culpable for those crimes. But the district court excluded it.
Respondent explains that this ruling violated his
constitutional right to present mitigation evidence.
Respondent’s
Amici agree with that
Respondent's Br. 15-16, 30-32. Amici
Respondent’s arguconclusion and write to support Respondent's
ment that the district court's
court’s ruling also violated Section 3593(c) of the Federal Death Penalty Act (FDPA),
and that violation affords an independent ground for
affirmance. Id. at 16-17, 33 (making a separate argument under the FDPA).
Respondent’s
Respondent's brief also explains that the Walthammurder evidence was not "unreliable,"
“unreliable,” as the Government now argues. Id. at 26-30. Amici
Amici agree with that
4
as well, and write to further emphasize that Section
3593(c) does not authorize the wholesale exclusion of
“disWaltham evidence on the grounds it could be "distracting”
or
“confusing,”
as
the
Government
now
also
tracting" "confusing,"
argues. U.S. Br. 18, 38, 44; see also Respondent’s
Respondent's Br.
30-33 (addressing these arguments).
I. 18 U.S.C. Section 3593(c) allows relevant mitiga“danger
tion evidence to be excluded only if it creates a "danger
of creating unfair prejudice, confusing the issues, or
misleading the jury."
jury.” None of those grounds applies
court’s exclusion of the evidence
here, and the trial court's
was therefore legal error.
Section 3593(c) sets a low bar for relevancy. MitigaDzhokhar’s older brother Tamerlan
tion evidence that Dzhokhar's
had previously planned and recruited an accomplice
to carry out brutally cruel murders in the name of jihad, and that Dzhokhar knew it, easily clears that
bar.
Yet the district court excluded this evidence in part
“waste of time"
time” and
because the court considered it a "waste
“confusing to the jury."
jury.” Section 3593(c),
likely to be "confusing
court’s discretion to
however, narrowly cabins a trial court's
“Waste of time"
time” is not a
exclude mitigation evidence. "Waste
valid ground. And the mitigation evidence here was
not "confusing."
“confusing.” The Government argues that the
Waltham evidence would have helped Dzhokhar only
if the jury accepted the evidence as true and drew
Dzhokhar’s favor. But whether the
some inferences in Dzhokhar's
relevant Waltham evidence had mitigating value, and
how much, was a core jury question—not a basis for
exclusion under the FDPA.
The Government also maintains that the Waltham
“minievidence would have created a distracting "mini-
5
trial.” That is not a standalone basis for exclusion untrial."
Any presentader the statute. And for good reason. Any
tion of mitigation evidence could be described as
prompting a "mini-trial"—consider,
“mini-trial”—consider, for example, competing evidence surrounding the common mitigation
theory that a capital defendant suffered an abusive
upbringing. Resolving factual disputes core to a mitigation defense at sentencing is not an impermissible
“mini-trial”; it is the trial. Moreover, even if the Gov"mini-trial";
ernment’s concern were valid, the court erred by
ernment's
wholly excluding the Waltham evidence and denying
Dzhokhar the opportunity to present this information
“in some manner.”
"in
manner." Johnson v. Texas, 509 U.S. 350,
372 (1993).
court’s "confusion"
“confusion” logic suffers from anThe trial court's
other, independent error. Under Section 3593(c), ex“confusing the
cludable evidence must pose a risk of "confusing
issues,” a danger which—if it existed—could have
issues,"
been eliminated with a limiting instruction to the
jury. Issues are confused if the jury uses evidence to
draw an impermissible inference. The risk of that
here was zero. If the jury credited the Waltham evidence, it would have been for the exact—and permissible—purpose for which it was introduced: To show
Tamerlan’s influence
that Dzhokhar acted under Tamerlan's
when committing the Boston Marathon bombings.
Even if somehow there were a risk the jury could use
the Waltham evidence for an impermissible reason, a
limiting instruction would have addressed it.
court’s error was not harmless beyond a
II. The trial court's
reasonable doubt. The Waltham-murder evidence
showed that Tamerlan was a murderous jihadist with
a history of influencing others to participate in brutal
6
crimes. Without that evidence before the jury, Dzhokhar’s
khar's core mitigation theory was significantly undermined.
Influence by a co-conspirator is a powerful mitigating factor in any context. It speaks directly to the defendant’s role and responsibility in committing his
fendant's
crimes and therefore lies at the center of the jury's
jury’s
sentencing decision. It is all the more significant
defendant’s
where, as here, the co-conspirator was the defendant's
older sibling. The Waltham evidence was not cumulative, stood at the heart of the mitigation theory, and
was central to both the defense and prosecution’s
prosecution's closing arguments. The Government cannot show beyond
a reasonable doubt that the Waltham evidence would
have failed to convince at least one juror to spare
Dzhokhar’s life.
Dzhokhar's
The First Circuit’s
Circuit's decision should be affirmed.
ARGUMENT
I. TAMERLAN'S
JIHADIST
TAMERLAN’S
PREVIOUS
MURDERS AND RECRUITMENT OF AN
ACCOMPLICE ARE POWERFUL PIECES
OF
MITIGATION
EVIDENCE,
AND
SECTION 3593(c) PROVIDES NO BASIS TO
EXCLUDE THEM.
A. The Waltham Evidence Was Relevant To
Whether Dzhokhar Deserved The Death
Penalty.
Dzhokhar’s counsel at the penalty phase sought to
Dzhokhar's
present to the jury evidence that, with an accomplice,
Tamerlan bound, beat, and slit the throats of three
men, including a close friend of Tamerlan's,
Tamerlan’s, in the
name of jihad and that Dzhokhar later learned Tam-
7
erlan had committed this triple homicide. That evidence tended to show Tamerlan instigated the later
Marathon bombings and Dzhokhar, who had no history of violence, acted under his influence. That is
powerful mitigation evidence and is relevant under
Section 3593(c).
Section 3593(c) states that the "defendant
“defendant may prefactor,”
sent any information relevant to a mitigating factor,"
“[t]he government may present any inforand that "Mlle
mation relevant to an aggravating factor for which noprovided." Unlike the FDPA’s
FDPA's guilt
tice has been provided.”
phase, the penalty proceeding invites the prosecution
“all possible relevant inand defense to offer the jury "all
formation about the individual defendant whose fate
determine.” United States v. Fell, 360 F.3d
it must determine."
135, 144 (2d Cir. 2004) (internal quotation marks
omitted); United States v. Lee, 274 F.3d 485, 494 (8th
Cir. 2001) ("Since
(“Since the need to regulate the scope of testimony is less at the penalty phase than at the guilt
phase of trial, parties may present evidence as to any
matter relevant to the sentence."
sentence.” (internal quotation
marks omitted)); United States v. Jones, 132 F.3d 232,
242 (5th Cir. 1998) (similar).
“tends logically
Mitigating evidence is relevant if it "tends
disprove” a fact that the jury "could
“could reato prove or disprove"
value.” Tennard v.
sonably deem to have mitigating value."
Dretke, 542 U.S. 274, 284 (2004) (internal quotation
marks omitted). As long as the mitigation evidence
“might serve `as
‘as a basis for a sentence less than
"might
death,’” it is relevant, and thus presumptively admisdeath,'"
sible. Id. at 287 (quoting Skipper v. South Carolina,
476 U.S. 1, 5 (1986)).
8
Capital defendants have an Eighth Amendment
“any aspect of [their] character or recright to present "any
ord and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less
death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978).
than death."
For that reason, "virtually
“virtually no limits are placed on the
relevant mitigating evidence a capital defendant may
circumstances.” Payne
introduce concerning his own circumstances."
v. Tennessee, 501 U.S. 808, 822 (1991). When Congress enacted the FDPA, and Section 3593(c) in particular, it is presumed to have legislated under this
Court’s
Court's broad definition of mitigation under the
Eighth Amendment. See, e.g., Ryan v. Gonzales, 568
(“We normally assume that, when
U.S. 57, 66 (2013) ("We
Congress enacts statutes, it is aware of relevant judicial precedent.”
precedent." (internal quotation marks omitted)).
The FDPA thus reflects this constitutional baseline.
Providing the jury with "all
“all possible relevant information about the individual defendant"
defendant” often benefits
the prosecution’s
prosecution's case as well. Jurek v. Texas, 428
U.S. 262, 276 (1976). Prosecutors routinely present
defendant’s unadjudicated crimes to esevidence of a defendant's
tablish aggravating factors in a capital case’s
case's sentencing phase, e.g., United States v. Watts, 519 U.S. 148,
151 (1997); United States v. Lujan, 603 F.3d 850, 856857 (10th Cir. 2010)—even though such other-crimes
evidence is generally inadmissible at the guilt phase.
Fed. R. Evid. 404(b).
Here, the defense sought to introduce evidence of uncharged conduct at sentencing—the Waltham murders—and the prosecutors persuaded the trial court to
exclude it. The court excluded the Waltham evidence
despite an FBI affidavit relying on the confession of
Ibragim Todashev, where Todashev admitted that he
9
was involved with the Waltham murders, that Tamerlan orchestrated the robbery, that Tamerlan initiated and carried out the executions, and that
Todashev felt like he did "not
“not have a way out."
out.” Pet.
Todashev’s
App. 67a-69a. The Government had used Todashev's
confession to obtain a search warrant, swearing that
“there is probable cause to believe that Todashev and
"there
Tamerlan planned and carried out the [Waltham]
murder[s].”
Todashev’s confession
murder[s]." Pet. App. 81a n.47. Todashev's
“302”
was documented in audio recordings, an FBI "302"
summary report, and a statement written by him. Id.
at 66a. That confession was corroborated by a proffer
from Dzhokhar’s
Dzhokhar's close friend, Dias Kadyrbaev, that
Dzhokhar told him in 2012 that he had learned Tamerlan committed the triple murder on the ten-year anniversary of the September 11 World Trade Center at“jihad.” Id. at 67a; J.A. 584.
tacks, and that it was "jihad."
This information easily clears relevancy's
relevancy’s low bar at
the penalty phase. Dzhokhar Tsarnaev was 19 years
old at the time of the Boston Marathon bombings. He
had no history of violence. Evidence that his 26-yearold brother, his accomplice in the bombings, previously recruited an accomplice to commit a vicious triple murder he regarded as "jihad"
“jihad” tends to show that
Tamerlan planned the Boston Marathon bombings
and influenced his younger brother to participate.
Moreover, Tamerlan had become radicalized first, see
J.A. 616 (eight jurors finding this mitigation factor existed), and sent Dzhokhar jihadist propaganda for
over a year leading up to the bombings, see Respondent’s Br. 5, 18 (collecting sources). Evidence that
ent's
Tamerlan had previously killed for those radical be“jihad” also
liefs further suggests that his notions of "jihad"
motivated the Boston Marathon bombings. Pet. App.
76a-78a.
10
co-conspirator’s viMitigation evidence regarding a co-conspirator's
olent past and ability to influence others is relevant
because it bears on the circumstances of the crime and
the defendant's
defendant’s relative culpability in committing that
crime. 18 U.S.C. §§ 3592(a)(3), (8) (mitigating factors); see also Sumner v. Shuman, 483 U.S. 66, 78-79
(1987). In Mak v. Blodgett, for example, the trial court
excluded as irrelevant penalty-phase evidence that a
“previously asked others to shoot rivals
co-defendant "previously
occurred.” 970 F.2d 614, 622and the shootings had occurred."
624 & n.13 (9th Cir. 1992) (per curiam). The court of
appeals reversed, holding that evidence of the co-defendant’s violent behavior spoke to the defendant's
defendant’s
fendant's
“autonomy and control in the
comparably lesser "autonomy
crime"
crime” and therefore had potential mitigating value.
Id. In Cooper v. Dugger, the Florida Supreme Court
“repusimilarly held that evidence of a co-defendant’s
co-defendant's "repuviolence” was relevant mitigation evidence
tation for violence"
because it could have persuaded the jury that the de“was easily led by"
by” the co-defendant and
fendant "was
“likely played a follower's
follower’s role in the commission of the
"likely
crime.” 526 So. 2d 900, 902-903 (Fla. 1988).
crime."
The Waltham-murder evidence also makes Dzhokhar's other mitigation evidence "more
khar’s
“more vivid or real."
real.”
Christopher B. Mueller & Laird C. Kirkpatrick, 1 Federal Evidence § 4:2 (4th ed. May 2021 update) (defining relevance). The seven-year age gap between the
Tamerlan’s "domineering"
“domineering” perbrothers, along with Tamerlan's
sonality, support the theory that Dzhokhar was susceptible to being influenced by Tamerlan. Pet. App.
70a. Those who knew the brothers testified that
Dzhokhar followed Tamerlan around "like
“like a puppy”
puppy"
“went along any time Tamerlan"
Tamerlan” gave direction.
and "went
Respondent’s
Respondent's Br. 4 (collecting sources). Evidence that
11
Tamerlan had earlier recruited an accomplice to commit jihad by slitting three men’s
men's throats on the anniversary of 9/11—and that his younger brother knew
it—greatly heightens the significance of that other
mitigation evidence, and ties together his main mitigation theory. See Mueller & Kirkpatrick, supra,
§ 4:2.
The Waltham evidence was relevant and was therefore presumptively admissible under Section 3593(c).
B. The Waltham Evidence Does Not Fall Into
3593(c)’s Three Categories
Any Of Section 3593(c)'s
For Exclusion.
“most expansive"
expansive” standard for alSection 3593(c)’s
3593(c)'s "most
lowing mitigating evidence, Tennard, 542 U.S. at 284,
is bookended by a highly restrictive standard for excluding such evidence. The statute allows trial judges
to exclude relevant mitigation evidence only if the ev“danger of creating unfair prejudice,
idence presents a "danger
jury,” and that
confusing the issues, or misleading the jury,"
“outweigh[s]”
evidence’s "probative
“probative value."
value.”
danger "outweigh
[s]' the evidence's
18 U.S.C. § 3593(c).
The Waltham evidence does not fall into any of Sec3593(c)’s bases for exclusion, and the trial court
tion 3593(c)'s
statute’s three exclusion
did not even assert any of the statute's
Amici agree with Respondent that the
categories. Amici
Waltham evidence was not excludable as unreliable.
See Respondent’s
Respondent's Br. 26-30. We write to further emphasize that the trial court's
court’s stated concerns of "waste
“waste
time” and "confusing
“confusing to the jury,"
jury,” see J.A. 650, are
of time"
not valid reasons for excluding the Waltham evidence
under Section 3593(c). See Respondent's
Respondent’s Br. 30-33.
12
“Waste Of Time"
Time” Is Not A Basis For
1. "Waste
Exclusion Under Section 3593(c).
The trial court ruled that relevant mitigation evidence could be excluded under Section 3593(c) be“waste of time."
time.” J.A.
cause admitting it would be a "waste
650; U.S. Br. 13. That was an error. Rule 403 authorizes trial courts to exclude relevant evidence on that
basis. Section 3593(c) does not.
Rule 403, which generally governs admissibility
during the guilt-innocence phase of a trial, offers six
“unfair prejudice,
bases to exclude relevant evidence: "unfair
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumula“undue delay,
tive evidence.”
evidence." Rule 403’s
403's provision for "undue
wasting time, or needlessly presenting cumulative evidence” allows trial courts to exclude relevant eviidence"
“would be time-consuming and
dence if presenting it "would
[its] probative worth is limited or slight."
slight.” Mueller &
Kirkpatrick, supra, § 4:15. The rationale for this ex“economies of trial and crowded calendars."
calendars.”
clusion is "economies
Andrew K. Dolan, Rule 403: The Prejudice Rule in Evidence, 49 S. Cal. L. Rev. 220, 243 (1976); Mueller &
(court’s time is a "public
“public
Kirkpatrick, supra, § 4:15 (court's
commodity”); United States v. Smithers, 212 F.3d 306,
commodity");
316 (6th Cir. 2000) (similar).
But Section 3593(c), not Rule 403, governs admissibility during a federal capital sentencing proceeding,
and Section 3593(c) is narrower by design. Relevant
mitigation evidence may be excluded only if there is a
“danger of creating unfair prejudice, confusing the is"danger
jury.” 18 U.S.C. § 3593(c).
sues, or misleading the jury."
Congress left delay, wasted time, and presentation of
cumulative evidence off the list.
13
“admission of eviSection 3593(c) thus calls for the "admission
excludable” under Rule 403. Fell,
dence that might be excludable"
360 F.3d at 144. By eliminating undue delay and
waste of time as bases for exclusion, the statute allows
“‘the jury [to] have before it all possible relevant infor"the
mation about the individual defendant whose fate it
must determine.'"
determine.’” Id. (quoting Jurek, 428 U.S. at
“to con276). Section 3593(c) thus permits the jury "to
defendant’s relevant
sider in some manner all of a defendant's
mitigating evidence,"
evidence,” even if it takes time do to so.
Johnson, 509 U.S. at 372. That makes sense, given
Abdul-Kabir v. Quarterthe life-or-death stakes. See Abdul-Kabir
“be able
man, 550 U.S. 233, 246 (2007) (the jury must "be
to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual”); see also Sumner, 483 U.S. at 85 ("[T]he
(“[T]he funvidual");
damental respect for humanity underlying the Eighth
Amendment requires that the defendant be able to
present any relevant mitigating evidence that could
justify a lesser sentence.").
sentence.”).
District courts have ample inherent authority to
prevent a never-ending sentencing phase in capital
“dispenses” with the standard rules
cases. The FDPA "dispenses"
“divest[ ] the trial judge of
of evidence, but it does not "divest[
his or her traditional authority to control the mode
and order of the interrogation of witnesses and the
presentation of evidence."
evidence.” United States v. Purkey,
428 F.3d 738, 759-760 (8th Cir. 2005). Trial courts
“inherent” authorities, including
thus retain their "inherent"
“right to place reasonable limitations on the time
their "right
trial.” In re Baldwin, 700 F.3d
allotted to any given trial."
122, 129 (3d Cir. 2012) (quoting Deus v. Allstate
Allstate Ins.
Co., 15 F.3d 506, 520 (5th Cir. 1994)). Moreover, Sec-
14
“consider cumulation 3593(c) allows trial courts to "consider
tiveness” at the sentencing phase, on the theory that
tiveness"
massive amounts of cumulative evidence could unfairly prejudice the opposing party. United States v.
Sampson, 486 F.3d 13, 43 (1st Cir. 2007); see also
United States v. Bolden, 545 F.3d 609, 626 (8th Cir.
2008).
In sum, trial courts may enforce reasonable limits
on the presentation of the mitigation evidence it admits, regulate how such evidence is presented, or exclude mitigation evidence that is so cumulative it unfairly prejudices the opposing party. But that is not
what the district court did here. Section 3593(c) does
not authorize trial courts to altogether exclude rele“waste of time."
time.”
vant mitigation evidence to avoid a "waste
court’s contrary interpretation of Section
The district court's
3593(c) was error.
2. The Waltham Evidence Created No
“Confusing The Issues."
Issues.”
Danger Of "Confusing
The trial court offered a second reason for excluding
the evidence: It predicted that it would have been
“confusing to the jury."
jury.” J.A. 650. That, too, was error.
"confusing
a. To begin with, as Respondent explains, mitigating
“‘confusing’ just because it is conevidence is not "'confusing'
tested.” Respondent’s
tested."
Respondent's Br. 32. The Government contends the Waltham evidence will confuse the jurors by
forcing them to "decide
“decide exactly who did what in the
apartment.” Id.; see also U.S. Br. 42. But
Waltham apartment."
jurors regularly weigh competing evidence at the sentencing phase.
The Government offers several arguments challenging the Waltham evidence, for example: that the evi“credibility” probdence was undermined by witness "credibility"
lems, U.S. Br. 45; that even if true, the evidence is too
15
“attenuated” for the jury to infer that Tamerlan exer"attenuated"
cised influence over Dzhokhar, id. at 40; and, alternatively, that from the Waltham evidence, the jury could
actually infer that Tamerlan did not have control over
Dzhokhar, id. at 42.
These various attempts to discount the value of
Dzhokhar’s mitigating evidence all raise questions for
Dzhokhar's
“may not
the jury—not bases for exclusion. The jury "may
* * * be precluded from considering any relevant mitevidence.” Skipper, 476 U.S. at 4 (internal
igating evidence."
quotation marks omitted) (discussing Lockett, 438
“whether the
U.S. at 604)). And the jury must decide "whether
parte
evidence is actually found to be mitigating.”
mitigating." Ex parte
Slaton, 680 So. 2d 909, 924 (Ala. 1996) (internal quotation marks omitted); see also United States v. Higgs,
“be al353 F.3d 281, 327 (4th Cir. 2003) (jury must "be
lowed to consider evidence that is proffered as mitigating,” and it is up to the jury to find if that mitigator
gating,"
exists).2
exists).2
That principle applies in force to the Government’s
Government's
Todashev’s testimony lacks "veracity"
“veracity”
contention that Todashev's
and was offered out of self-interest. U.S. Br. 42. Witness credibility is paradigmatically a jury issue.
United States v. Aquart,
Aquart, 912 F.3d 1, 34 (2d Cir. 2018)
“witness
(at Section 3593 penalty phase, holding that "witness
credibility” must be left "exclusively
“exclusively for determination
credibility"
2
2
jury’s task. The
The Government also over-complicates the jury's
jury’s job would have been to determine if the Waltham evidence,
jury's
as presented, is mitigating, not to determine every detail about
“what really happened during the Waltham crimes."
crimes.” U.S. Br. 42.
"what
Regardless of Tamerlan's
Tamerlan’s specific actions, the jury could find that
he was the driving force in the triple murder and committed the
crime for jihad and then use those facts to infer that Dzhokhar
Tamerlan’s influence—his core mitigation theory.
acted under Tamerlan's
16
jury” (internal quotation marks and ellipsis
by the jury"
omitted)). The same is true of the Government’s
Government's ar“attenugument that the Waltham evidence is too "attenuated”
to
have
mitigating
value.
Compare
U.S.
Br. 40
ated"
with, e.g., People v. Sims, 853 P.2d 992, 1028 (Cal.
defendant’s
1993) (allowing prosecutor to argue that defendant's
“bad childhood"
childhood” did not have any "mitigating
“mitigating effect"
effect” in
"bad
view of other facts in the case).
In fact, the defense and prosecution regularly ask
the jury to draw opposing inferences from the same
facts—just
facts
just as the Government could here. See U.S.
defendant’s antisocial personality disorder,
Br. 42. A defendant's
for instance, could show that the defendant may not
be as culpable for his crimes (mitigating) or that the
defendant may continue to be dangerous in the future
(aggravating). See Ledford v. Warden, Ga. Diagnostic
Prison, 975 F.3d 1145, 1159 & n.8 (11th Cir. 2020).
Evidence of mental disability or childhood abuse is
“two-edged sword"
sword” because it "may
“may diminsimilarly a "two-edged
defendant’s] blameworthiness for his crime
ish [the defendant's]
even as it indicates that there is a probability that he
will be dangerous in the future."
future.” Abdul-Kabir,
Abdul-Kabir, 550
U.S. at 255 (internal quotation marks omitted). Dedefendant’s youth as a
fense counsel might point to a defendant's
mitigating factor; the prosecutor might equally argue
defendant’s "youth
“youth was aggravating rather
that the defendant's
than mitigating.”
mitigating." Roper v. Simmons, 543 U.S. 551,
573 (2005).
Section 3593 resolves this by setting a low bar for
relevancy and rebuttal evidence, leaving it to the jurors—not the judge—to decide whether on balance defendant’s evidence is truly mitigating and how much
fendant's
weight to afford it. See 18 U.S.C. § 3593(c). The Government’s brief sets forth what would have been its
ernment's
17
jury arguments that the Waltham evidence had little
mitigating value. Those arguments do not demonstrate a risk of confusing the issues, and the trial court
erred by wholly excluding the Waltham-murder evidence on that ground.
b. The Government further defends the trial court's
court’s
“confusion”
logic
by
arguing
that
allowing
any
evi"confusion"
dence of the Waltham murders would have created a
“detour,” or "mini-trial,"
“mini-trial,” on an "ancillary
“ancillary
distracting "detour,"
matter.”
matter." U.S. Br. 45; see also id. at 18, 40, 43, 44. But
at the sentencing phase, the Waltham murders were
anything but ancillary. And regardless of the label,
court’s excluding all information on the topic
the trial court's
was error.
First, evidence that Tamerlan previously recruited
an accomplice to commit a triple homicide in the name
of jihad, and that Dzhokhar knew about it, was not a
minor matter. These facts directly support Dzhokhar's central mitigation theory and are critical to the
khar’s
sentencing phase. Parish v. City of Elkhart, 702 F.3d
997, 1001 (7th Cir. 2012) ("The
(“The mini-trials of which
the defendants complain * * * are merely the necestrial.”);
sary engagements on the critical issues of the trial.");
Laney v. Celotex Corp., 901 F.2d 1319, 1320-21 (6th
Cir. 1990) (evidence does not "confus[e]
“confus[e] * * * the issues” when it speaks to a "fundamental
“fundamental question"
question” in
sues"
the case).
Indeed, Section 3593(c) anticipates factual disputes
relating to mitigating and aggravating factors. Jeffrey L. Kirchmeier, Beyond Compare? A
A Codefendant's
Codefendant’s
Prison Sentence as a Mitigating Factor in Death Penalty Cases, 71 Fla. L. Rev. 1017, 1064 (2019). The jury
must weigh competing evidence when, for example,
the defendant seeks to establish a history of child
18
abuse as a mitigating factor. E.g., Morton v. State,
789 So. 2d 324, 332 (Fla. 2001) (per curiam) (underdefendant’s child-abuse evidence with prosecutting defendant's
cution’s
defendant’s mother later recution's evidence that defendant's
married a "stable"
“stable” father figure). The jury weighs
competing evidence when the prosecution seeks to
prove that the defendant committed other unadjudicated crimes to support an aggravating factor. See
United States v. Corley, 519 F.3d 716, 724-725 (7th
Cir. 2008) (to determine if capital defendant commit“weigh”
ted previous unadjudicated crimes, jury must "weigh"
witness’s "testimony"
“testimony” against defendthe prosecution witness's
ant’s "testimony").
“testimony”). And the jury must do so when eiant's
ther the prosecution or defense introduces mentalhealth evidence to establish an aggravating or mitigating factor. See Sampson, 486 F.3d at 50 (admitting
opposing mitigating and aggravating mental-health
“freighted with contradictions,"
contradictions,” recevidence that was "freighted
ognizing it provided "grist
mill").
“grist for the jury's
jury’s mill”).
Competing evidence pertaining to mitigating and
aggravating factors is part of Section 3593(c)'s
3593(c)’s design:
Additional relevant information makes the statute's
statute’s
“less arbisentencing phase more individualized and "less
trary."
trary.” Kirchmeier, supra, at 1064; see also Fell, 360
F.3d at 143 ("[I]n
(“[I]n order to achieve such `heightened
‘heightened
reliability,’ more evidence, not less, should be admitreliability,'
ted on the presence or absence of aggravating and mitfactors.” (citing Gregg v. Georgia, 428 U.S.
igating factors."
153, 203-204 (1976)). Section 3593(c) provides no baDzhokhar’s most powerful mitigation
sis to exclude Dzhokhar's
evidence, even if the evidence takes time to present
and opens the door to rebuttal evidence.
Second, concerns over a mini-trial are unfounded.
Competing evidence over the Waltham murders
19
would not have significantly drawn out the sentencing
phase. See Thompson v. City of Chicago, 722 F.3d 963,
974 (7th Cir. 2013) (trial court abused discretion in
excluding other-acts evidence because it would entail
“mini-trial”; the excluded testimony would "take
“take a
a "mini-trial";
‘half
day’ at most”).
Dzhokhar’s proposed evidentiary
`half day'
most"). Dzhokhar's
submission would have taken little time. Todashev
and Tamerlan, the individuals at the center of the
Waltham murders, were not alive to testify. And the
Government has identified no alternative suspects or
witnesses. Pet. App. 87a. There is simply no basis to
“mini-trial” confusing the issues would
believe that a "mini-trial"
have ensued.
Even if heaps of competing Waltham evidence did
exist, the trial court could—and should—have allowed
the jury to consider some of it. United States v. Jones,
554 F. App'x
App’x 460, 468-469 (6th Cir. 2014) (although
“prior
seven witnesses testifying at sentencing about "prior
acts” may have been too much, the trial court erred by
acts"
"excluding
“excluding all testimony"
testimony” on the matter); Kassel v.
Gannett Co., 875 F.2d 935, 952 (1st Cir. 1989) (reversing Rule 403 ruling because "the
“the exclusion ordered by
the district court was total”);
total"); see also Torres-Arroyo v.
Rullan, 436 F.3d 1, 8 (1st Cir. 2006) (encouraging a
“less drastic"
drastic” than "excluding
“excluding the evidence enremedy "less
tirely”). Moreover, the trial court could have admitted
tirely").
any or all of the Waltham evidence and then guarded
against any risk of confusion by instructing the jury
“consider” the Waltham evidence solely for the mitto "consider"
igating factors it was introduced to establish. See
Lujan, 603 F.3d at 860; see also Lee, 274 F.3d at 494;
infra 20-24.
20
What the trial court could not do under Section
3593(c) is exclude all evidence whatsoever of the Waltham murders—by far the most compelling evidence
showing Tamerlan was a psychotically violent man
who had previously committed jihad and that Dzhokhar acted under his older brother's
brother’s influence. Dzhokhar was entitled to present that mitigating evidence
“in some manner,”
"in
manner," and the trial court erred in depriving him of that opportunity. Johnson, 509 U.S. at 372.
court’s "confusion"
“confusion”
c. The Government and district court's
logic suffers from another independent error. To be
“conexcluded under Section 3593(c), evidence must "conissues.” And the Waltham evidence presents
fuse the issues."
no issue that the jury would be confused about—especially if given a proper limiting instruction.
“confusing the issues"
issues” language is
Section 3593(c)’s
3593(c)'s "confusing
“conborrowed from Rule 403. In matters of evidence, "conissues” means the "confounding
“confounding of separate
fusing the issues"
issues, mistaking improper for proper ones, or focusissue.” Paul F. Rothstein, Federal
ing on a wrong issue."
Rules of Evidence, Rule 403 (3d ed. May 2021 update).
To confuse the issues, there must be a risk the jury
will use that evidence for an impermissible reason—
“some illegitimate inference."
inference.” Kenneth
i.e., to make "some
W. Graham, Jr., 22A Federal Practice & Procedure
Evidence § 5216.1 (Wright & Miller) (2d ed. Apr. 2021
update) (jury confuses the issues when it uses evi“impermissible” inferences about a dedence to make "impermissible"
fendant’s character); see also, e.g., United States v.
fendant's
Elysee, 993 F.3d 1309, 1344, 1345 (11th Cir. 2021)
(third-party hearsay confession introduced to show
“conduct of"
of” investigating officers would "confus
“confus[e]
"conduct
[e] the
21
issues” if the jury "impermissibly"
“impermissibly” used it to infer deissues"
fendant’s "guilt
“guilt or innocence").3
innocence”).3
fendant's
“confusing the issues"
issues” is greatest
The danger of "confusing
where the evidence is tangentially relevant to one of
the questions, crimes, elements, or defenses before the
jury but more naturally and directly relates to questions, crimes, elements, or defenses not before the
jury. For example, in a strict-liability statutory rape
“lied about her age”
case, testimony that a victim "lied
age" is
relevant as impeachment evidence (properly before
the jury), but likely more probative of a mistake-offact defense (not properly before the jury); the evi“confus[e]” the jury "of
“of the isdence would therefore "confus[e]"
defenses” it must decide. United
sues and available defenses"
2016).4
States v. Wardlow, 830 F.3d 817, 822 (8th Cir. 2016).4
3
3593(c)’s "misleading
“misleading the jury"
jury” exclusion also is irrele3 Section 3593(c)'s
“confusing” or "distract“distractvant to the arguments that evidence is "confusing"
ing."
ing.” U.S. Br. 38, 44. That exclusion applies where a piece of
evidence is "seductively,"
“seductively,” and unduly, "persuasive,"
“persuasive,” Dolan, supra, at 242, as with certain "scientific
“scientific and technical evidence."
evidence.”
pra,
Wright & Miller, supra, § 5217.1. It has no role to play where
“to sort through conflicting evidence.”
jurors are simply required "to
evidence."
U.S. Br. 44.
4
4
See also United States v. Hite, 769 F.3d 1154, 1171 (D.C. Cir.
2014) ("prior
(“prior testimony"
testimony” confused the issues because it "pre“presented a risk of suggesting to the jury that travel is one of the
issue”); United States v. Spence, 721
elements of the crime at issue");
F.3d 1224, 1229 (10th Cir. 2013) (evidence "confuse
“confuse[s]
issues”
[s] the issues"
“back-door approach"
approach” to support a defense the diswhere it is a "back-door
App’x 479,
trict court disallowed); United States v. Myers, 524 F. App'x
482 (11th Cir. 2013) (per curiam) (evidence of defendant's
defendant’s taxprotestor beliefs confuses the issues where he was charged with
obstruction of justice, not tax crimes); R.J. Reynolds Tobacco v.
Cigarettes Cheaper!, 462 F.3d 690, 698 (7th Cir. 2006) (evidence
“jurors’ attentions"
attentions” away from
confuses the issues if it takes the "jurors'
“the statutory requirements and defenses").
defenses”).
"the
22
“speaks most apIn that way, this basis for exclusion "speaks
propriately to the doctrine of limited admissibility”
admissibility" be“asked to consider evidence for purcause the jury is "asked
poses other than the natural ones."
ones.” Dolan, supra, at
240-241.
In Lujan, for example, the defense argued that evidence proffered by the government that the defendant
had previously committed separate, unadjudicated violent murders would confuse the issues. 603 F.3d at
859-860. Rather than entirely excluding the government’s
ment's evidence of these prior crimes, the court issued
a limiting instruction to the jury that this evidence
could be considered only as to the aggravating factor
“future dangerousness,"
dangerousness,” for which it was introof "future
“an independent aggravating factor."
factor.”
duced—not as "an
Id. at 860.
Similarly here, the trial court could have instructed
the jury to consider the Waltham-murder evidence
“susceptibility to
only with respect to Dzhokhar’s
Dzhokhar's "susceptibility
Tamerlan's
Tamerlan’s influence, and his having acted under
Tamerlan's
Tamerlan’s influence,"
influence,” mitigating factors the jury was
specifically asked to find. Pet. App. 77a. The verdict
sheet asked the jurors to determine if Dzhokhar had
“Tamerlan
established, as mitigating factors, that "Tamerlan
planned, led, and directed the Marathon bombing,"
bombing,”
“acted under the influence of his older
that Dzhokhar "acted
brother,” or that Dzhokhar "would
“would not have commitbrother,"
Tamerlan.”
ted the crimes but for [h]is older brother Tamerlan."
J.A. 614. A jury instruction cabining the Walthammurder evidence would have ensured the evidence
was used to answer those questions and no others.
See Lujan, 603 F.3d at 859-860. And it would have
prevented the court from "cut[ting]
“cut[ting] off in an absolute
23
manner the presentation of mitigating evidence."
evidence.”
Johnson, 509 U.S. at 361.
In the proceedings below, the Government also argued that the jury would use the Waltham evidence to
impermissibly find Tamerlan was a "more
“more reprehensible person”
person" than Dzhokhar based on other criminal
acts. J.A. 978; see also J.A. 668. "[O]ther
“[O]ther act evidence,” however "always
“always poses the problem of distindence,"
guishing impermissible uses of the evidence (character/propensity) from legitimate uses.”
uses." Wright & Milphase, courts
ler, supra, § 5216.1. At the sentencing phase,
address that danger with limiting instructions. See
Lujan, 603 F.3d at 860; see also Lee, 274 F.3d at 494;
supra 8 (explaining that the prosecution routinely introduces other-acts evidence at sentencing); cf. Corley,
519 F.3d at 725 (rejecting argument to exclude prior“would apply to all instances
acts evidence because it "would
in which unadjudicated offenses are raised in the pencase”).
alty phase of a capital case").
Such an instruction would eliminate any prospect
Tamerlan’s
that the jury would impermissibly look to Tamerlan's
general character to find that Dzhokhar did not deserve death, rather than (permissibly) examining
whether Tamerlan exercised significant influence
over his younger brother. That risk was essentially
non-existent to begin with. Tamerlan was not Dzhokhar’s
khar's co-defendant. He was not even alive during the
trial. Dzhokhar was being sentenced, and if the jury
credited the Waltham evidence, it would have been to
Dzhokhar’s culpability for
draw conclusions about Dzhokhar's
committing his crimes, his role in the offense, and the
influence Tamerlan exercised over him.
The Government acknowledges, after all, that Tamerlan's
erlan’s influence over Dzhokhar was "the
“the heart of the
24
mitigation case."
case.” J.A. 857. Dzhokhar sought and offered the Waltham-murder evidence to support that
mitigation theory, J.A. 567, 581, 642, and the Government’s
ment's opening brief underscores just how closely the
Waltham-murder evidence is tied to it. Indeed, before
this Court, the Government never contends that the
Tamerlan’s general charWaltham evidence speaks to Tamerlan's
acter or other, different issues—only that the Wal“attenuated” to bear on whether
tham murders are too "attenuated"
Tamerlan influenced Dzhokhar to commit the Boston
Marathon bombings, or, alternatively, that the eviDzhokhar's chief mitiga“undercut[s]”
dence actually "undercut
[s]' Dzhokhar’s
tion theory. U.S. Br. 40, 42.
Even if there somehow were a danger the jury would
use the Waltham evidence impermissibly, the trial
court could have eliminated that danger with the
proper jury instruction.
II. SECTION 3595(a)'S
3595(a)’S HARMLESS ERROR
STANDARD IS DEMANDING, AND THE
GOVERNMENT FAILS TO MEET IT HERE.
“would have had no effect
An error is harmless if it "would
upon the jury's
jury’s deliberations."
deliberations.” Skipper, 476 U.S. at 8.
That standard is exceedingly difficult to meet when
the trial court erroneously excludes relevant, non-cumulative mitigation evidence. The Government has
not come close to satisfying it.
To prove harmless error, the Government is required to demonstrate beyond a reasonable doubt that
every single member of the jury would have sentenced
Dzhokhar to death even had they heard that his older
brother previously recruited an accomplice and slit
the throats of three men to further jihad, and that
Dzhokhar knew about it. 18 U.S.C. § 3593(e). That
25
would have to be shown in one of two ways: (1) the
Waltham-murder evidence did not make it more likely
that jurors would accept that Dzhokhar acted under
Tamerlan’s direction; or (2) that even if the jurors
Tamerlan's
would have determined that the Waltham evidence
Tamerlan’s influence,
shows Dzhokhar did act under Tamerlan's
that finding still would not have increased the likelihood that even a single juror would weigh the mitigatDzhokhar's life.
ing factors heavily enough to spare Dzhokhar’s
See, e.g., United States v. McCullah, 76 F.3d 1087,
1102 (10th Cir. 1996) (“[W]e
("[W]e cannot say beyond a reacourt’s error] may not
sonable doubt that [the trial court's
have influenced the jury in their findings of aggravating and mitigating factors, as well as affecting the
itself.”).
weighing process itself.").
The Government fails to make either showing.
A. The Government Fails To Show Beyond A
Reasonable Doubt That The Jury Was Just
As Likely To Disbelieve Dzhokhar's
Dzhokhar’s Core
Mitigation Theory If It Had Seen The Waltham Evidence.
Had it seen the Waltham evidence, the jury would
Dzhokhar’s arguhave been far more likely to believe Dzhokhar's
ment that he acted under his older brother's
brother’s influence.
“TamerDzhokhar sought to convince the jury that "Tamerbombing”
lan planned, led, and directed the Marathon bombing"
“would not have committed the
and that Dzhokhar "would
Tamerlan.” J.A. 614.
crimes but for [h]is older brother Tamerlan."
He attempted to introduce evidence showing Tamer“recruited” Todashev to participate in a robbery on
lan "recruited"
September 11, 2011. Pet. App. 65a. While Todashev
waited outside of the apartment, Tamerlan slashed
his victims'
victims’ throats. Id. Tamerlan then directed
Todashev back inside to help remove evidence of his
26
murders. Id. at 66a. Todashev felt like "he
“he did not
out” from doing what Tamerlan wanted.
have a way out"
Id. at 86a. Thereafter, Dzhokhar learned that Tamerlan had committed those three murders to further
his vision of jihad. Id. at 67a. This evidence power“how and why Tamerlan inspired fear
fully showed "how
and influenced another to commit unspeakable
crimes.” Id. at 86a.
crimes."
But the jury saw none of it. Instead, to show that
Tamerlan masterminded the Marathon bombings and
enlisted Dzhokhar into participating, the defense was
left to cite evidence that Tamerlan was argumentative
“hypocrite” twice,
at his mosque, called the Imam a "hypocrite"
was angered by a store selling halal turkey on
Thanksgiving, and may have abused his girlfriend.
Id. at 71a. Without the Waltham murders, the jury
Tamerlan’s abrasive,
had precious little to connect Tamerlan's
and at times abusive, personality with the recruitment of others to commit religiously-inspired murder.
It heard no evidence that Tamerlan had murdered before, did so in the name of jihad, and successfully recruited an accomplice.
Even without the powerful mitigation evidence ex“acted
cluded below, three jurors found that Dzhokhar "acted
under the influence of his older brother"
brother” and "would
“would
not have committed the crimes but for [h]is older
Tamerlan.” J.A. 614. Nine did not. If those
brother Tamerlan."
nine jurors had heard the Waltham evidence, one or
more may have found otherwise; and the three that
did find Tamerlan to have influenced Dzhokhar might
have assigned it more significance in the overall
weighing of factors.
27
B. The Government Fails To Show Beyond A
Reasonable Doubt That The Jury Would
Have Sentenced Dzhokhar To Death Even
If It Believed Dzhokhar Acted Under Tamerlan's
erlan’s Influence.
If more jurors found that Dzhokhar acted under
Tamerlan's
Tamerlan’s influence, it is possible—if not probable—
that at least one of them would have relied on that
information to spare his life. As this Court has explained, "the
“the discretion"
discretion” that a jury has to choose life
“more diffior death can make proving harmlessness "more
cult.” Satterwhite v. Texas, 486 U.S. 249, 258 (1988).
cult."
“exceedingly
Accordingly, this Court has always been "exceedingly
cautious to ensure that a person found guilty of a capital offense is given every opportunity to present potentially mitigating evidence"
evidence” to the jury. Dutton v.
Brown, 812 F.2d 593, 602 (10th Cir. 1987) (en banc).
Here, Tamerlan's
Tamerlan’s influence over Dzhokhar was the
cornerstone of his mitigation case and the exact type
of evidence a juror might use to vote against the death
penalty—even for a heinous crime.
First, whether a capital defendant acted under another’s influence is a powerfully mitigating factor in
other's
“Dominated parties bear less responsiany context. "Dominated
bility for what they do, even when the external pressure on their actions falls below the threshold of dudefense.” George P. Fletcher, Dominaress as a legal defense."
tion in Wrongdoing, 76 B.U. L. Rev. 347, 348 (1996).
That diminished responsibility ties directly into the
defendant’s "culpability,"
“culpability,” and therefore can be critical
defendant's
defendant’s life should
in persuading a jury that the defendant's
be spared. Saffle v. Parks, 494 U.S. 484, 492-493
(“the appropriateness of the death penalty”
(1990) ("the
penalty" is
"a
“a moral inquiry into the culpability of the defendant"
defendant”
28
(internal quotation marks omitted)). Juries must be
permitted to assess "whether
“whether any circumstance existed at the time of the murder that may have lessened
[the defendant's]
defendant’s] responsibility for his acts."
acts.” Sumner,
483 U.S. at 78.
Juries have often spared the lives of defendants
whose personal culpability does not match that of
their domineering co-conspirators—even in notorious
crimes. See, e.g., United States v. Moussaoui, 591 F.3d
263, 266, 301-302 (4th Cir. 2010) (declining to sentence co-conspirator in 9/11 terrorist attacks to death);
United States v. Nichols, 169 F.3d 1255, 1277 (10th
Cir. 1999) (affirming trial court's
court’s life sentence for coconspirator in Oklahoma City bombing, despite death
“impossentence for Timothy McVeigh). Because it is "impossible” to know how the jury would have weighed evisible"
dence of the Waltham murders, the Government fails
to carry its burden. Satterwhite, 486 U.S. at 260;
State v. Howard, 369 S.E.2d 132, 138 (S.C. 1988) (exdefendant’s confession which showed he was
cluding defendant's
“dominat[ed]”
"dominat[ed]" by co-defendant was reversible error);
Dutton, 812 F.2d at 601 & n.8 (exclusion of testimony
defendant’s mother that defendant was "imma“immafrom defendant's
ture” and a "follower"
“follower” not harmless).
ture"
The Government contends that because the brothers’ crimes were so "horrific,"
“horrific,” there is "no
“no reasonable
ers'
prospect”
prospect" that evidence Dzhokhar acted under Tamerlan’s influence "would
“would have changed the jury's
jury’s deerlan's
termination."
termination.” U.S. Br. 47. But "egregiousness
“egregiousness of the
crime is only one of several factors that render a punishment condign—culpability, rehabilitative potenrelevant.”
tial, and the need for deterrence also are relevant."
Glossip v. Gross, 576 U.S. 863, 896 (2015) (Scalia, J.,
“[c]apital
concurring). As this Court has explained, "[c]
apital
29
punishment must be limited to those offenders who
commit a narrow category of the most serious crimes
and whose extreme culpability makes them the most
deserving of execution."
execution.” Roper, 543 U.S. at 568 (internal quotation marks omitted and emphasis added).
The Government ignores the second half of that sentence.
Second, the Waltham evidence and the inferences
that could be drawn from it were particularly significant in this case. Compare it, for example, with the
evidence found to have been wrongly excluded in Skipper v. South Carolina, 476 U.S. 1 (1986). In Skipper,
per
the capital defendant was barred from presenting testimony from jailers and regular visitors attesting to
his good behavior while awaiting trial. Id. at 3. That
testimony was mitigating; it tended to show that the
petitioner "could
“could lead a useful life behind bars if senimprisonment.” Id. at 7. This Court held
tenced to life imprisonment."
court’s exclusion of the jailers'
jailers’ testimony
that the trial court's
was not harmless: The evidence from jailers and other
visitors of the defendant's
defendant’s good conduct was not cumu“quite naturally”
lative, because a jury would "quite
naturally" give tes“much greater
timony from disinterested witnesses "much
weight"
weight” than similar testimony from the defendant
himself. Id. at 8. And the prosecutor "himself,
“himself, in closing argument, made much of the dangers petitioner
would pose if sentenced to prison.”
prison." Id.; see also
McCullah, 76 F.3d at 1102 (finding error not harmless
“[t]here was no [similar] evidence"
evidence” and inadwhere "[t]here
missible statements were "prominently
“prominently featured"
featured” by
the prosecution).
Both circumstances relevant in Skipper are present
here. The Waltham-murder evidence was not cumulative. No other evidence presented to the jury
30
showed that Tamerlan was a domineering murderer,
capable of inducing accomplices into participating in
terrible crimes. See Skipper, 476 U.S. at 8; Sowell v.
Anderson, 663 F.3d 783, 795 (6th Cir. 2011) (where
Anderson,
“additional mitigating evidence differs in strength
"additional
and in subject matter from the evidence the [sentencing] panel heard,"
heard,” it is not cumulative). And the WalDzhokhar’s chief
tham-murder evidence supported Dzhokhar's
mitigation theory, which the prosecution repeatedly
attacked in closing arguments. See Skipper, 476 U.S.
at 8; see also United States v. Whitten, 610 F.3d 168,
201 (2d Cir. 2010) (error not harmless beyond a rea“government’s emphasis on
sonable doubt given the "government's
summation”).
these arguments during summation").
The Government itself acknowledged that Tamerlan’s coercive power over Dzhokhar was "the
“the heart of
lan's
case.” J.A. 857. The prosecution acthe mitigation case."
cordingly devoted a significant portion of closing arguments to refuting that mitigation theory and trying to
Dzhokhar’s independence from
convince the jury of Dzhokhar's
Tamerlan. See, e.g., J.A. 816 ("Tamerlan
(“Tamerlan Tsarnaev
was not [Dzhokhar’s]
[Dzhokhar's] master”);
master"); J.A. 860-861 (Dzhokhar "was
“was able to make up his own mind”);
mind"); J.A. 861
(Dzhokhar, like Tamerlan, was "emotionally
“emotionally strong");
strong”);
“strong and strong-willed");
strong-willed”);
J.A. 862 (Dzhokhar was "strong
cf. Chapman v. California, 386 U.S. 18, 25-26 (1967)
(error not harmless beyond a reasonable doubt where
prosecutor referred to lack of testimony with "ma“machine-gun repetition").
repetition”). The prosecutor dismissed
“testimony that Tamerlan
what he characterized as "testimony
bossy,” arguing that it was simply "the
“the way a lot
was bossy,"
siblings.” J.A.
of older siblings are with their younger siblings."
864. And toward the end of his closing, the prosecutor
“centerpiece of [Dzhoagain acknowledged that the "centerpiece
31
khar’s]
“Tamerlan cokhar's] mitigation case”
case" is whether "Tamerlan
controlled” Dzhokhar. J.A. 871.
erced, dominated and controlled"
“the burden of
He then asserted that Respondent has "the
proving”
that
mitigating
factor,
and
asked,
“Did they
proving"
"Did
meet that burden?"
burden?” Id.
The jury might have come to a very different conclusion had it learned that Tamerlan had previously enlisted an accomplice to commit a religiously-inspired,
grisly triple-murder on the tenth anniversary of 9/11.
After all, with nothing more to go on than the general
Tamerlan’s abrasive and occasionally abuevidence of Tamerlan's
sive character, three jurors found that Dzhokhar
“acted under the influence of his older brother,"
brother,” and
"acted
“would not have committed the crimes but for [h]is
"would
brother.” J.A. 614. Moreover, the jury returned
older brother."
Dzhokhar’s
a life sentence for the great majority of Dzhokhar's
death-eligible crimes. Respondent’s
Respondent's Br. 9-10.
For those jurors already receptive to Dzhokhar's
Dzhokhar’s
mitigation theory, it is impossible to conclude, beyond
a reasonable doubt, that evidence of Tamerlan coercing another person to participate in homicide would
not have persuaded at least one juror to vote against
a death sentence. Similarly, it is not possible to conclude, beyond any reasonable doubt, that not one of
the other jurors would have viewed the Waltham evidence as a reason Dzhokhar did not deserve to die.
The Government has not carried its burden to prove
beyond a reasonable doubt that the exclusion of the
Waltham-murder evidence was harmless error.
32
CONCLUSION
Respondent’s brief,
For these reasons, and those in Respondent's
this Court should affirm.
Respectfully submitted,
David D. Cole
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