2.Pretrial Evidence Rulings, Witness Accommodations, and Jury Objections
37 lines(Discussion at sidebar and out of the hearing of the public:)
THE COURT: Let me just say one of the motions that we heard the other day, it was in the afternoon session, the DNA motion, the government should avoid using the DNA for the time being. My conclusion is that on the proffer that I've heard, it is not sufficiently probative under 402, 403 to be admitted. I do not reach the DNA or the late-filed issues.
Anything else?
MS. CLARKE: At sidebar?
THE COURT: That's what I was led to believe.
MS. CLARKE: The picture in the defense opening, there's one picture that the defense does not object to. That's Boylston Street.
THE COURT: I'll allow you to use both. I will announce it from the bench because I think the mitigation argument was in open court and I'll resolve that. The motion is generally granted and I'll say that briefly, so.
With respect to the witness box, we're going to use this witness box. We may make exceptions as they are shown to be advisable to accommodate mental health or physical reasons, but we'll have to have those documented. It is available to use that but I prefer that because the monitor is interactive whereas these are not. So we will make sparing exceptions.
MR. WEINREB: That's fine, your Honor. The witness who's testifying today, we're not going to have enough time I don't think to get written documentation. We could make a proffer.
THE COURT: I'll accept a proffer to be supplemented by something else.
MR. WEINREB: Very well. Also, we won't need an interactive monitor for the witnesses who we're proposing to use this location, so if that makes a difference.
MR. BRUCK: If we may state our objection for the record, your Honor.
THE COURT: Go ahead.
MR. BRUCK: It's the defense position that the jury is extremely likely to speculate as to the reasons why only certain injured, severely injured, witnesses are testifying from the special location. They are likely to believe, and in fact to guess correctly, that it has to do with fear of the defendant, and we think that that is an extremely prejudicial conclusion to be drawn. We don't think it's improbable to speculate, since it happens to be true, and we think the jury my very well have figured it out. So we think that it is prejudicial.
MS. CONRAD: Your Honor, if I can just add, just on the record, we took a position that we did not object to accommodating those witnesses so long as all witnesses were treated equally. I just want to make sure that's on the record.
THE COURT: I understood that, yes. No, but for the reasons stated I think we'll proceed. I've taken those considerations into effect. They're not the only considerations, and I think accommodating witnesses who have disabilities is important.
MR. WEINREB: Your Honor -- I'm sorry. I didn't mean to interrupt.
THE COURT: No, that's all right.
MR. WEINREB: The government had filed two motions in limine to preclude any argument or evidence during the liability phase of the Waltham triple homicide and one to preclude during the liability phase any arguments or evidence of any plea negotiations that have taken place. Ms. Clarke said that that was not an issue but we had never actually put it on the record.
THE COURT: Neither is an issue?
MS. CLARKE: Neither is an issue.
MR. CHAKRAVARTY: Just one thing. To clarify, just to make sure that the motion about the jury, the numbers that you had just read out, I didn't really have the docket number to match up to the --
THE COURT: The three motions were the jury plan motion, which was the earliest of them; the next one was the striking of the qualified panel, which is the one that -- 1103 is the motion to seal that motion. That will be allowed and then it will be docketed and given a number so it doesn't yet have a number. And the third was the fourth motion to change venue.
MS. CLARKE: Did the Court finalize its instructions?
THE COURT: They will be very similar to what you have heard. They'll be more expansive. I don't think there will be a problem. It's pretty much my standard.
MS. CLARKE: We had provided, I think in there, a summary of the indictment which the Court had.
THE COURT: I'm going to pretty much use that. It's more summary than I would have given myself but --
MS. CONRAD: As modified by the parties in the two filings?
THE COURT: Yeah. I can't promise I'm going to stick to the script but I understand the point. The one thing I did add to it, you'll hear that I will explain the three different ways that the defendant could be found responsible substantively for having committed the offense directly as an aider and abetter and as a conspirator, because there are conspiracy counts and I thought they should understand --
MS. CLARKE: And aiding and abetting counts.
THE COURT: Yeah, the aiding and abetting is throughout.
MR. BRUCK: Is this the proper time to lodge our final objection to the jury as --
THE COURT: Is this the final one?
(Laughter.)
MR. BRUCK: Yes.
THE COURT: Noted. The jurors are all here, they seem to be in good spirits and we're ready to proceed.
MR. BRUCK: Well, if we may, I think we're probably required, now that the jury is selected, to object to the panel. And that's what we would like to do. And we would like to incorporate all of the motions both regarding the jury pool and venue, all of the objections about the voir dire, all of the government's objections that were sustained and all of the individual motions respecting particular jurors who are now seated during the course of the jury selection.
THE COURT: Okay. Your rights are preserved. The objections are overruled.
MS. CLARKE: Thank you.