11.Anticipated Lauren Woods Testimony — Rule 403 Objection
46 linesMS. CONRAD: Your Honor, there was one matter the Court did not address. It was, I think, contained in our status report. It was an evidentiary issue. One of the first 20 witnesses was an officer -- or is expected to be, unless there's been a change, Officer Lauren Woods, who attempted -- who was, I think, in the ambulance with Lingzi Lu, one of the deceased victims in this case.
And based on the discovery that we've received, Officer Woods valiantly tried to resuscitate and save Lingzi Lu as what appears to be after the point at which she was dead. And she describes her throwing up, which seems like it was probably an involuntary response after she was already dead.
I don't know how much the government intends to go into this. Obviously, the fact that she was present with her and the fact that she's going to testify is one thing, but the question of how much detail she's going to go into starts to sound like really just 403 in terms of its potential impact on the jury and not being really probative with respect to any issues in this case. I mean, there's no question that she's deceased.
THE COURT: Let me just -- this is slightly different from my looking at autopsy pictures or video and so on and so forth because I can't -- I don't know what her testimony will be in its fullness. So I guess that will be the question.
MS. PELLEGRINI: First, she wasn't in the ambulance. The officer responded to the scene at the Forum on Boylston Street, and being a police officer, she has some emergency response training -- received medical training, and she did assist with trying to do chest compressions and intubate Lingzi Lu.
Ms. Conrad -- as I understand it, the information is that the vomiting which Officer Woods cleared from her is not an involuntary action. And in any event, her testimony would be that she was making eye contact with Lingzi Lu, who followed her facial movements and who followed her eyes. So she was not dead at that time.
It's the government's responsibility again to prove that these victims were killed by a bomb set by the defendant, and we believe strongly that this evidence goes exactly to that, that the evidence prior to Officer Woods getting upon the scene was that Lingzi Lu was walking down the street herself, the bomb went off, and Officer Woods responded to the scene. There she was, on there, still alive. There was also another witness whose testimony, at least the 302 has been provided to the defense, that she had a pulse, it was thready but it was still there, and that the chest compressions were continuing while she was alive. Whether or not they continued after she had expired is, frankly, of no consequence with respect to the immediacy of Officer Woods' response to Lingzi Lu at that scene.
THE COURT: Well, in terms of judging whether the testimony is too much or not, is there some summary that I could look at, whether it's a 302 or other report like that, that would give me some idea of what her testimony would be?
MS. PELLEGRINI: Yes, your Honor. I have Officer Woods BPD called an F26. And I can hand it up to the Court.
THE COURT: And that gives us an idea of what her oral testimony would be?
MS. PELLEGRINI: Yes. And I just want to be sure I have pulled the various -- yes.
THE COURT: Okay.
MR. WATKINS: Could we put a Bates number of that document in just so we're clear?
MS. PELLEGRINI: I don't remember it off the top of my head.
MR. WATKINS: Perhaps the date of it, maybe?
THE COURT: Well, it's a two-page memo from Officer Woods to Captain Ivens, I-V-E-N-S, dated 4/23/2013.
MR. WATKINS: Thank you, your Honor.
THE COURT: It doesn't have Bates numbers on it.
MS. CONRAD: Your Honor, just on that issue, perhaps -- I mean, I realize it's difficult for the Court to determine the exact parameters of the testimony. What we're concerned about, obviously, is the extent to which this becomes inflammatory.
I mean, the testimony, the evidence is going to be very graphic and very disturbing, and we get that. And we get that some of it comes with the territory. The question is: Where do you draw the line? And this might be an instance in which a very brief voir dire out of the presence of the jury would help the Court to tailor it without us having to object during the course of what I'm sure will be emotional testimony.
THE COURT: All right. Okay.
MR. WEINREB: Your Honor, I have one very minor request, and that is assuming I can get my hands on one, just for purposes of the opening statements, I can substitute a different podium from this one? I'm having trouble with my back that makes it painful to stand for long periods of time unless I can elevate one of my legs, and the other kind of podium, the one that's sort of more solid, has a shelf on the bottom and it makes it perfect to sort of -- so we would bring it in, we would take it out afterwards.
MS. CLARKE: No objection.
THE COURT: That sounds fine as long as both sides get to use it.
(Laughter.)
MR. WEINREB: By all means.
MS. CLARKE: As long as both sides don't have to share the backache.
May I just have one moment?
(Counsel confer off the record.)
MS. CLARKE: Your Honor, there is an evidentiary issue but apparently not before opening statement, and that is a timeline that the government intends to introduce. There have been discussions between Mr. Watkins and Ms. Pellegrini that have apparently not proven as fruitful as we'd hoped.
THE COURT: Is this a chalk?
MS. CONRAD: That's one of the issues.
MS. CLARKE: I think that's one of the questions.
MR. WEINREB: Well, the government intends to offer it as evidence. Basically we call it a timeline, but unless I'm mistaken, what it is is a -- it's a series of excerpts from surveillance videos on Boylston Street that have been arranged so that they track the progress of the defendant and his brother as they walk down Boylston Street to the points where they put the bombs. So it's essentially a -- I mean, we could put in each of the surveillance videos and then just cue them up from the points we wanted to publish them to the jury and play them one after another, and this just essentially makes it easier by putting them together.
Now, there are, in addition, the little segments of video that we're going to play are separated by, you know, like a graphic that says what the place is, like the Forum restaurant, but there's nothing more than that.
So it would be an exhibit just like any other surveillance video would come into evidence as an exhibit. And frankly, I don't even know what the objection could be. I mean, they could all be played individually one after another, so having a single exhibit that combines them all just streamlines the process of presenting it to the jury and makes it more probative, frankly, because it's easier to follow what's going on.
THE COURT: So is the only fight over whether it goes into the jury room at the end of the case?
MR. WATKINS: If I may, Mr. Weinreb is talking about a different issue and a different problem. There is a compilation video that has a different kind of problem to it in addition to whether it's a chalk or an exhibit. There are also these interactive -- what are called interactive Adobe flash exhibits. There are actually two of them. One of them has all kinds of different evidence encapsulated within it. And that's where the real question is going to be.
We're all going to get confused if we try to argue it here without actually seeing them in front of us. If the Court wanted to address this tomorrow, again, given that -- the present work, it didn't seem like it was going to come in during the first couple of days of trial or in opening. We could try to do it tomorrow, if there's a rush to do that, as long as perhaps if we had Friday available, for example, to hash this out. That might be better-served time.
I understand them to have said that it's not coming in at the opening.
THE COURT: If that's the case, then we could try to find a --
MR. WEINREB: So, your Honor, neither one of them -- I mean, they're exhibits. They're not going to be implicated by the opening statements, which is just talk. But --
THE COURT: Well, that's a good question, by the way whether either of you are going to use anything other than talk in your opening statements.
MR. WEINREB: Yes. So I've already previewed for the defense, the only things we intend to show the jury during opening statement, with the Court's permission, would be pictures of the four decedents in the case taken before they were injured, just the faces of them, so that the jury sees who the individuals are. And we also plan to -- I plan to read to the jury a portion of the note that he left in the boat. And there will be a typed version of what I read just so the jury can follow along. It won't be the actual note itself.
So -- by the way, though, although those exhibits won't be implicated by the opening, they will come in pretty quickly after we get going.
THE COURT: This week?
MR. WEINREB: Possibly.
MS. PELLEGRINI: I'm sorry. Excuse me.
(Counsel confer off the record.)
MR. WEINREB: Perhaps not till Monday, but soon. Within the first --
THE COURT: If it's not till Monday, we could probably find some time on Friday to do it. I think there may be more pressing things tomorrow.
MR. WEINREB: Not until Monday, your Honor.
THE COURT: Okay. All right. Thank you very much. Thank you.
COURT CLERK: All rise for the Court.
(The Court exits the courtroom at 4:17 p.m.)
COURT CLERK: The Court will be in recess.
(The proceedings adjourned at 4:17 p.m.)