2.Boat Writings — Preservation, Panel Removal, and Jury View
10 linesTHE COURT: Okay. Well, okay. I'll reserve it and let you know later today.
The defense raised some issues that I think we need to address partly in their so-called status report filed earlier and then also in some motions. I thought we might start with the defense -- this is Number 923, defense motion to bar spoliation of the so-called boat writings.
Mr. Fick?
MR. FICK: Yes, your Honor. So as the Court's aware, the government had proposed -- or informed the defense that it intended to cut out the panels and physical sections of the boat on which writings were found and sort of bring those panels into court to present them to the jury sort of as separate pieces of evidence apart from the boat itself, and we objected to that and requested that the boat be preserved and that the boat be made available for the jury to view during the trial.
And it's kind of -- there's a funny inversion of the usual sort of logic in the arguments in these kind of issues. The government seems to care more about the content of the boat writings. They say the words are going to prove the defendant's motive and state of mind and such. Usually, of course, words can be proven by things like photographs, transcripts, testimony, but the government says, No, no that's not good enough. We need the actual boat itself so people will see it really was there and so they can hold it up close.
Oddly enough, that serves the effect of taking the words out of their context. The context in which the writings were made is really the key piece that's going to allow the jury -- or potentially allow the jury to evaluate what was the defendant's state of mind, what was he thinking, what was his motive, under what conditions and circumstances were those writings made?
The boat -- we see no reason why the boat could not be brought to the courthouse, or alternatively, why the jury could not be brought to the warehouse or some other warehouse where the boat is stored. The defense has viewed the boat by taking a few steps up a step ladder or going up on a hydraulic lift. It's visible. To the extent anyone has trouble seeing the writing from a few feet away, well, then certainly we have the photographs and the transcripts and such.
But the bottom line is that the evidence here is the boat. It's movable. And it's very powerful. It really provides the context. And to the extent anything more than the words is necessary, the boat should be left in integral whole and the jury should be able to see it. I mean, it's really quite striking. There's no substitute for being able to see it. You can imagine Mr. Tsarnaev lying in that boat, much as one might lie in a crypt, while making those writings. And the jury should be able to see that in its entirety.
THE COURT: Can you do both? In other words, as I understand it, the proposal is to cut out a section to make it portable and be able to be brought to the courtroom, but could be repositioned or the rest of the boat could also be seen without the piece? I mean, why is it all or nothing, I guess is the question?
MR. FICK: I think the other piece of this is I think it's actually prejudicial for the jury to see the writings just on cutout panels, because then you have something that's more tactile, more immediate, more, I guess you might want to say real, than simply a photograph or a transcript or testimony about the writings, but it's divorced from the context. And so that then has the effect of isolating the jury on these panels and losing the effect of what the context is, so --
THE COURT: Right. But what I'm asking is why couldn't you then also do the context? In other words, the government wanted to show it as a piece, then the defense could ask to have the jury brought -- I mean, I don't know why it's --
THE COURT: -- either/or I guess.
MR. FICK: At the end of the case we would be left with -- under that scenario, we would be left with the panels cut out of the boat, and that could go back to the jury room and sort of have this lingering, constant presence in the case that would be sort of a tunnel vision in which we would lose the context.
And the other issue is it's not -- given the way the writings are positioned in the boat, I worry about the logistical cleanliness, so to speak, and the ability to reconstruct or replace the writings back in the boat after they've been cut out. You know, it seems to me to the extent -- being able to remember, refer to, look back at the writings, to the extent that's important, photographs, transcripts, testimony, that does that job, but to see the actual evidence, there's a real risk of distortions if any piece of the actual evidence is ripped from its context and left as something that continues to have a life in the case.
And so the boat should be viewed as the boat, is our position, and that to do otherwise would be prejudicial.
THE COURT: Okay. Mr. Weinreb?
MR. WEINREB: Your Honor, this is essentially a motion for review, and the Court should deny it for two reasons. Courts have a lot of discretion when it comes to granting or denying a motion for review, and the two main factors that the Court should consider is whether the defendant can establish whatever it wants to establish and other means from the view; for example, from photographs, through diagrams, through other things; and secondly, just how practical it would be to actually conduct the view -- or how impractical it would be.
In this case, this boat was much photographed, videotaped, diagramed at the very moment that it was discovered, that the evidence was discovered. It was photographed at night, during the daytime. It was photographed from every angle. It was photographed with the tarp on, with the tarp off, from the inside, from the outside. And all of that has been provided to the defense. Everything they want to establish about the context, as they put it, in which this writing was made is available to them, and they can do without the necessity for a view.
The government isn't in the same position as the defense, though, when it comes to presenting it. I mean, it's true. We have photographs of writing that we could produce in court. But we have a heavy burden in this case. We have to prove the defendant's guilt beyond a reasonable doubt, and this writing is an important part of that.
And as we mention in our motion, there have been -- there have been suggestions made in the media and elsewhere that the writing wasn't actually there, that it's implausible, that it actually got written, how did he write it, was it written in blood? There's all these misconceptions, and we want to, and I believe we're entitled to, show the jury the actual evidence so they believe the actual evidence exists. That's a basic task of the government and a basic right the government has because of the burden it bears.
As for the impracticality of the view, this is a very large boat. I'm not sure it could be brought to the courthouse. And I don't think it makes any sense to make the jurors go out and view it in any event. It's not easy to see this writing in the boat. It's a little difficult to read unless you're quite up close to it, and we don't want the jurors to be getting into the boat and being right up close to it.
The boat it filled with dried blood, with broken glass, with all sorts of debris. It's not easy to get into, it's not easy to get out of. It's not really sanitary. It could take them awhile to read it, and they'll have to each take turns doing it. We're worried that they're not going to take the time to do it because they're not going to want to inconvenience their fellow jurors. Many of them may not even want to do it. And as I say, the images -- the circumstances under which it was written will be every bit as evident from all the photographic and video evidence and so on as it would be from actually seeing it.
In addition, this idea that there's some context to the way in which the note was written that must be shown to the jury, it still to this day really has never been articulated by the defense. What exactly is the context? I mean, there will be testimony that the defendant had been hiding in this boat all the time that the search for him was going on in Watertown, and that he wrote the note at that point. You'll see pictures of the boat with the tarp on it. It will be clear to the jury that he was hiding out in a boat in a backyard in Watertown with a tarp over it all the time when this happened. I think that it is fair to say that what the defense really wants the jury to see is a boat riddled with bullet holes because that perhaps will create some sympathy for the defendant. But to the extent that that's what they want, they'll have every opportunity to do it if they want to show some pictures of the boat. In fact, the note itself has bullet holes right through it and it has blood dripping on it. So to the extent they want to have an image of the note that will convey to the jury -- in fact, to the extent that they want to convey the context to the jury at all, it's all right there in the piece that we're proposing to bring into court. I think we attached some pictures to it, to our opposition to their motion. I think it makes quite clear that everything that they might want to say about that note -- or everything they might want to develop can be done without the need for a very impractical view of the boat.