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UNITED STATES OF AMERICA, ) DZHOKHAR TSARNAEV )  · PDF file UNITED STATES DISTRICT COURT . DISTRICT OF MASSACHUSETTS . UNITED STATES OF AMERICA, ) ) v. ) Crim. No. 13-10200-GAO )

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  • UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

    UNITED STATES OF AMERICA, ) ) v. ) Crim. No. 13-10200-GAO ) DZHOKHAR TSARNAEV )

    FURTHER MOTION TO COMPEL DISCOVERY OF FAVORABLE EVIDENCE A. Introduction1

    The defendant, Dzhokhar Tsarnaev, is charged with having conspired with his

    older brother Tamerlan to bomb the Boston Marathon on April 15, 2013, and with a

    series of violent crimes ending with his arrest on April 19, 2013. At the time of the

    bombing, Tamerlan was 26 and Dzhokhar was 19. The government has now served

    notice of its intention to seek the death penalty. In so doing, it has activated the Eighth

    Amendment’s requirement that Dzhokhar be permitted to offer, and that the jury be

    allowed to consider, “any relevant circumstance that could cause it to decline to impose

    the penalty.” McCleskey v. Kemp, 481 U.S. 279, 306 (1987). Among the most apparent

    of these are Dzhokhar’s young age, Tamerlan’s and Dzhokhar’s relative roles and prior

    histories, and the relationship between them.

    1 This motion is one of three discovery motions filed this date. The present motion seeks disclosure of specified favorable evidence pursuant to Fed. R. Crim. P. 16(a)(1)(E) and Brady v. Maryland, 373 U.S. 83 (1963). By separate motion, the defendant seeks an order requiring the government to fully comply with its automatic discovery obligations under Rule 16 and Rule 116.1(c) of the Local Rules of the United States District Court for the District Of Massachusetts. A final motion filed herewith seeks notice of whether the government possesses evidence gathered under the Foreign Intelligence Surveillance Act (FISA) or other electronic surveillance.

    Case 1:13-cr-10200-GAO Document 233 Filed 03/28/14 Page 1 of 23

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    Because the Federal Death Penalty Act, 18 U.S.C. § 3593, affords sentencing

    juries almost unlimited discretion to choose between the death penalty and life

    imprisonment upon conviction of each of the capital offenses charged in the indictment,

    the jury’s sentencing verdict in this case could well turn on how it apportions the

    brothers’ relative responsibility for conceiving and carrying out the attacks, and on the

    extent to which it views Tamerlan Tsarnaev as having induced or coerced his younger

    brother to help commit them. For this reason, any evidence tending to show that

    Tamerlan supplied the motivation, planning, and ideology behind the Boston Marathon

    attack, and that his younger brother acted under his domination and control, is “material”

    under Fed. R. Crim. P. 16(a)(1)(E) and is also subject to disclosure under Brady v,

    Maryland, 373 U.S. 83 (1963), and its progeny. See e.g., Smith v. Cain, 132 S.Ct. 627,

    630 (2012) (“Under Brady, the State violates a defendant’s right to due process if it

    withholds evidence that is favorable to the defense and material to the defendant’s guilt

    or punishment.”)

    The government possesses evidence shedding light on these questions but has

    refused to disclose it to the defense, despite having received from the defense repeated

    requests and a detailed written summary of the mitigation theories that the defense is

    pursuing.2 Mindful of the Court’s recent admonition that a defendant seeking disclosure

    2 In a cover letter accompanying their initial discovery disclosures on September 3, 2013, counsel for the government stated that “we have repeatedly invited you to share with us your theory of the defense in order to sharpen our inquiry into potential Brady material. That invitation remains open.” Thereafter, on December 18, 2013, defense counsel submitted a letter to the Capital Case Review Committee of the Department of Justice pursuant to the government’s death penalty authorization protocol. USAM 9-10.080(F).

    Case 1:13-cr-10200-GAO Document 233 Filed 03/28/14 Page 2 of 23

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    of prosecution evidence under Brady “should be able to articulate with some specificity

    what evidence he hopes to find in the requested materials, why he thinks the materials

    contain this evidence, and finally, why this evidence would be both favorable to him and

    material,” Order, DE 151 (November 27, 2013) (quoting United States v. Prochilo, 629

    F.3d 264, 269 (1st Cir. 2011)), defense counsel has set out the mitigating factors which

    most of the undisclosed evidence likely tends to support.

    B. Brady materiality at the pretrial stage of a death penalty case

    Before proceeding further, a word should be said about the meaning of

    “materiality” in the context of a pretrial capital case. Ever since United States v. Bagley,

    473 U.S. 667 (1985), the Supreme Court has held that “evidence is material only if there

    is a reasonable probability that, had the evidence been disclosed to the defense, the result

    of the proceeding would have been different,” and has further defined “‛reasonable

    probability’ [as] a probability sufficient to undermine confidence in the outcome.” 473

    U.S. at 682. Although this standard imposes a substantial burden on a convicted

    defendant who alleges that the prosecution suppressed favorable evidence in violation of

    Brady, this formulation of the burden applies to post-trial appellate review, and does not

    justify suppression of favorable evidence prior to trial. As one district court has

    explained,

    [w]hether disclosure would have influenced the outcome of a trial can only be determined after the trial is completed and the total effect of all the inculpatory

    In this letter counsel set out the mitigating factors that defense counsel are attempting to establish, and summarized the mitigating evidence already uncovered. The government’s continued denials of numerous disclosure requests since mid-December have thus been made in full awareness of the “theory of the defense.”

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    evidence can be weighed against the presumed effect of the undisclosed Brady material. See, e.g., Giglio [v. United States], 405 U.S. [150,] 154 (finding violation because “the Government's case depended almost entirely” on the cooperating witness's testimony, making impeachment crucial). This analysis obviously cannot be applied by a trial court facing a pretrial discovery request.

    United States v. Sudikoff, 36 F.Supp.2d 1196, 1199 (C.D.C. 1999). The Judges of this

    Court who served on the committee that drafted Local Rule 116.1 made a similar point in

    their 1998 report explicating the then-new Local Rules:

    A determination of the materiality of information helpful to the defendant may be more difficult to make reliably in the pretrial context than post-conviction. See Daughtry v. Dennehy, 946 F. Supp. 1053, 1059 n.2 (D. Mass. 1996) (Young, J.). This challenge is not unique, however, to the pretrial determination of whether information favorable to the accused is material. Federal Rule of Criminal Procedure 16(a) (1) (C) requires pretrial production by the government of documents “which are material to the preparation of the defendant's defense.” Although neither the Supreme Court nor the Court of Appeals for the First Circuit has addressed the definition of materiality in this context, and this issue may have to be resolved in the litigation of future cases in this District, the D.C. Circuit has held that Federal Rule of Criminal Procedure 16(a) (1) (C) requires production when there is:

    [S]ome indication that the pretrial disclosure of the disputed evidence would enable the defendant significantly to alter the quantum of proof in his favor. This materiality standard normally is not a heavy burden, rather, evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.

    United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (citations, internal quotations and ellipses omitted). See also United States v. Scott, 7 F.3d 1046 (table), 1993 WL 411596 at *3 (l0th Cir. 1993) , cert. denied, 510 U.S. 1135 (1994) ; United States v. Ross, 511 F.2d 757, 763 (5th Cir.), cert. denied, 423 U.S. 836 (1975); 2 Charles Alan Wright, Federal Practice and Procedure § 254 (2d ed. 1982 & Supp. 1998).

    REPORT OF THE JUDICIAL MEMBERS OF THE COMMITTEE ESTABLISHED TO REVIEW AND

    RECOMMEND REVISIONS OF THE LOCAL RULES OF THE UNITED STATES DISTRICT COURT

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    FOR THE DISTRICT OF MASSACHUSETTS CONCERNING CRIMINAL CASES, 18-19 (October

    28, 1998).

    This point is especially apt with respect to mitigating evidence in a capital case,

    since (as pointed out a moment ago), the range of relevant mitigating evidence is so

    broad, each juror has almost limitless discretion to vote for life on the bas