1.Survivor Injury and Victim-Impact Limits, Publicity Admonition, and Witness Accommodations
103 linesP R O C E E D I N G S
THE COURT: Good morning.
I just wanted to get a sense of where we're going and what the week holds and so on. Did you have a lineup?
MR. WEINREB: So we're going to begin this morning with the last of the victim witnesses who will testify about what happened at Scene B, the Forum. Then we're going to --
THE COURT: How many?
MR. WEINREB: There are four all together.
And then we are going to move into the identification of the brothers as suspects. Also, his -- placing him at the scene immediately afterwards and where he was in the day or two following. Then --
THE COURT: Is that by video evidence?
MR. WEINREB: That's by video evidence, swipe card at UMass Dartmouth, video at the Whole Foods, and at the UMass fitness center swipe card data.
Then we are going to go into -- oh, and some Twitter tweets.
Then we're going to go into the collection of evidence at Boylston Street, and after that the press conference at which the identification of the suspects was made public, and from there into --
THE COURT: That's going to be narrowed?
MR. WEINREB: Yes.
THE COURT: Have you shared the narrowing?
MR. BRUCK: Yes. And we've told them we're fine with one of the two stills, and I think the other still has a little bit of the same problems, but it's a big improvement over the -- so we object to one; we don't object to other.
THE COURT: So there will be no video; there will just be a couple of stills. Is that it?
MR. BRUCK: That's what Al indicates.
MR. WEINREB: They know more than we do.
THE COURT: All right. Division of labor.
MR. BRUCK: Let me handle this.
MR. WEINREB: And then we'll begin with the presentation of the evidence of the murder of Sean Collier followed by the carjacking of Dun Meng, and basically a chronological account.
THE COURT: Okay. This proceeded a little unexpectedly quickly. I mean, does that affect our overall assessment of when we might get to a second phase?
MR. WEINREB: I think so. I mean, it's a little hard to know whether it's going to continue at this pace. In some respects that's up to defense counsel. But one thing we were going to propose is that we had made our pitch early on that we not necessarily go full days every day. The Court had said you would readjust as time went on.
We -- it might be helpful, I think to both sides, if we had a little extra time to be prepping witnesses, to be sharing exhibits with the defense that they want to see and so on. So, for example, what we'd very much like to do is, if it's conceivable, we would reach the Sean Collier piece of the presentation by tomorrow afternoon --
THE COURT: Really?
MR. WEINREB: -- which would be lightning fast.
Again, I don't know. It depends a lot on the cross-examination.
THE COURT: Or non-cross-examination.
MR. WEINREB: -- or non-cross-examination.
If there isn't any, then we definitely would like to delay until Wednesday morning. And I'm sure the defense will agree because they'll want to take a look at the exhibits -- I don't want to speak for you.
MS. CLARKE: It is a little bit of a chaotic system right now, due to the pace, of figuring out which exhibits connect to which witnesses and do we have the exhibits and that kind of thing. And prosecution counsel has been pretty good about trying to keep up. I mean, I imagine we'll hit the same problem in the penalty phase for us.
THE COURT: Okay. Well, yeah, I don't want to make any change wholesale, you know, on a -- on a particular day it makes sense to postpone something till the next day, we could take that as it comes. I would like to still keep -- try to be efficient. You know, we have a lot of people we're inconveniencing next door, and I would like to have that limited.
MR. WEINREB: I would say that the pace does, from our perspective, make certain -- the pending motions in limine a little more pressing, particularly the boat, from our perspective.
THE COURT: Yeah. So about the boat, I want to -- I think the best way for me to assess it is to look at it. Now, I don't know whether -- what you want. I'd expect that at least one person from each side would be there but I don't know that everybody has to be there. And so one possibility might be if we had a shorter day, say, Tuesday or Wednesday, whatever.
Where is it? Is it at the Black Falcon.
MR. WEINREB: No; it's in Wilmington.
THE COURT: In Wilmington? Okay. Whether if I could take an hour and go out there or something like that.
MR. BRUCK: Couldn't the boat rather easily be brought to the courthouse and -- I mean, that's what --
THE COURT: Well, part of it is to see where it is because that's part of the assessment of a view possibility as well, is that people would go there to see it. If the jury were to take a full view of it, I think it would be more convenient to do it there than here. We have transport for the jury anyway as a regular matter, so that's not a difficult problem. But particularly given the construction, the snow and everything else around here, to bring it someplace outside -- I have rarely, but I have done a view on Courthouse Way of a piece of industrial equipment once. They just brought it in on a flatbed and everyone went outside but the weather conditions were better at that time.
Anyway, so that's possible. I assume it's accessible whenever you want?
MR. WEINREB: I assume so too. I'll check with the FBI. It's at their facility.
MS. CLARKE: It's in a large warehouse with a lot of other pieces of evidence stored there, so I don't know if that would be too convenient.
THE COURT: Okay. Anyway, that's one of the things I want to assess. If it's impractical to have a jury go there, then that's one of the things I would like to look at.
So I had been thinking about doing that, perhaps on Friday, but if, you know, there's a reason for doing it before then because there's a pause in afternoon evidence or something like that, maybe we could just put it together quickly.
MR. WEINREB: I'll talk to the FBI as soon as we get out of here.
The other motion, from the government's standpoint, that is essential for us is the 12.2 issue.
THE COURT: Right.
MR. BRUCK: We have a couple of quick matters to raise this morning. One is to reiterate our concern about what could be described as victim impact evidence regarding survivors; not homicide victims but survivors. And the first witness, Ms. Kensky, today has the most gripping, dramatic and terrible story of the whole almost two years since the bombing. She just recently had, I think, her second leg amputated.
MS. PELLEGRINI: That's correct.
MR. BRUCK: And, I mean, her 302 is replete with evidence that the Court should consider but not in this trial. Not now. We're not at penalty. And so we just want to renew that motion that the government limit her testimony to her injury and immediate sequelae and not the entire story that followed.
MS. CLARKE: There's also Dr. Bath who's coming on, and his 302 has a lot of that. Now, if the government is just simply going to put in his observations -- he happened to be a doctor nearby watching the marathon and then went to assist with Martin Richard and then Lingzi Lu, and then he assisted with I think --
MS. PELLEGRINI: Adrianne Haslet-Davis.
MS. CLARKE: -- Adrianne Haslet.
So his fact observations are one thing, but there's a lot of impact on him that's in his 302, and that's what we seek to limit. And there also is Matthew Patterson, I think, who may also have some -- he was a firefighter on the scene, raced over and picked up Jane Richard and took her off the scene and then came back and I think helped with another couple of people. And he may as well, other than just his factual observations, have some impact on testimony and --
MR. BRUCK: And some military background.
MS. CLARKE: And also some military background.
MS. PELLEGRINI: Let me address those one at a time. So with Jessica Kensky, Steve Mellin is doing the direct, so he's not here to speak for himself at the moment, but I know that he would say with respect to the amputation of her second leg, that is just simply a continuation of the grievous injuries that she suffered as a result of the blast and that the jury should hear about that. Because Jessica could only say that, in fact, immediately in the aftermath she lost one leg, and then two years later, due to the injuries and the nature of the injuries, she was forced to have the second leg amputated.
THE COURT: So that raises a broader question that I've been thinking about in terms of what your plan is with respect to a second phase. Are you going to have the same witnesses come back and amplify what they've said or are you simply going to refer back to what they've said here?
MS. PELLEGRINI: In a couple of cases people will repeat. So, for example, Bill Richard I would expect will be testifying in the penalty phase as well, but we're also going to ask that his wife Denise be permitted to testify in regard to victim impact. So some of the folks are the same but there are others who have not yet been called.
MR. WEINREB: I think it's fair to say largely they're different. There will be a few overlap, but the penalty-phase victim-impact testimony is much broader. It's, you know, emotional sequelae, economic impact, social impact, the effect on your marriage, the effect on your ability to earn a living, upon your ability to enjoy life day by day given the loss you suffered from the death of someone in the family and that sort of thing.
MS. CLARKE: I think we're in agreement that the victim-impact testimony in the penalty phase is limited to the homicide victims, not the non-homicide victims. I think the law is pretty clear on that.
THE COURT: I didn't think so, actually, when I looked at it. Maybe you could --
MS. PELLEGRINI: There's also the grave --
THE COURT: I think it depends on the crime. That may well be true in the crime of murder when there is a particular victim, but the use of a weapon of mass destruction resulting in death, I'm not sure it's clear that the person who escapes death but is victimized by the use of the weapon of mass destruction is not a victim within the statute.
MR. BRUCK: Well, I think that's right. The issue is that the jury does not sentence for the non-capital counts, so it's the whole question about who hears the evidence. The judge hears that evidence, not the jury.
THE COURT: Well, anyway --
MS. CLARKE: We'd perhaps better focus on that.
THE COURT: Well, if the government's not going to press it, it's more an academic point than anything else. But let me come back to the --
MR. WEINREB: I don't think we were saying that.
THE COURT: Right. I understood Mr. Mellin to say something similar the other day. So I think it is an academic point but.
MR. WEINREB: I'm sorry. I meant to say the opposite. We're not conceding the point.
THE COURT: Oh, you're not?
MR. WEINREB: No.
THE COURT: Oh, I thought he did.
MR. WEINREB: No. I think what he conceded only was that during this portion of the trial that he agreed that that other kind of victim-impact testimony would not be permitted but that testimony about the physical injuries suffered by the victims is admissible, even if it's injuries that they did not become manifest until after the bombing itself, because the bombing caused it. And we don't have to prove that this was not just any old murder, which is not what they're charged with, a weapon of mass destruction.
MS. PELLEGRINI: With respect to --
THE COURT: It still has to be focused on the question of guilt of the offense, though.
MR. WEINREB: Yes.
THE COURT: And that's why I was asking about whether some people would be back to amplify, because their testimony could be more focused on the elements of the crimes charged.
MR. WEINREB: As a practical matter, we only have two more victims testifying, so.
MS. PELLEGRINI: To speak to Dr. Bath, I was planning to -- he made his observations, and to the extent that his observations are detailed and graphic, I think the jury is entitled to hear that. He's not, I don't believe -- and I'm not going to lead him to the point where we're talking about the effect, necessarily, it had on him, just what he saw as an observer to the scene.
With Matt Patterson --
MS. CLARKE: If I could just interrupt very quickly, some of the government witnesses have had a narrative that they tell and they tell and tell and tell, and we would appreciate it if government counsel would interrupt occasionally with a question. That might help avoid the problem that Nadine is talking about.
THE COURT: Yeah, that occurred to me a couple of times last week, that perhaps the witness was going on a little too long. I mean, it is direct examination and you want the witness to give his or her own testimony, basically, but just to be sure they don't stray off into some area that they shouldn't be getting into.
MR. WEINREB: That's fine, your Honor. But I don't think we should move forward on the premise that the defense need not object during the testimony if they have an objection to the question. I mean, it's not our job to anticipate their objections. And some things can't be decided in advance. And they may not want to object, but they decided to go to trial and that's part of it.
MS. CLARKE: And I think Nadine has done a pretty good job of interrupting and asking the witness a question and guiding the witness's testimony. I just bring that up.
MS. PELLEGRINI: With respect to Matt Patterson, again, I don't think Matt's testimony is necessarily victim impact as a firefighter and an EMT. So he's had a lot of experience. So I can't imagine that we're going to even touch upon the impact it had on him. He's actually quite clinical in that way; however, part of his background is that in the military, where he received his basic military training, including how to correctly apply a tourniquet, so I think that that is important because he's the one who applied the tourniquet to Jane Richard's leg.
MS. CLARKE: He also had EMT training outside the military --
MS. PELLEGRINI: Yeah, both.
MS. CLARKE: -- so that could also suffice as his training.
THE COURT: Well, if it's limited to training, but I don't want to get into, you know, he was in combat in Iraq --
MS. PELLEGRINI: Well, actually, he was in Uzbekistan.
THE COURT: -- or wherever.
That may be worse.
MS. PELLEGRINI: But I don't actually believe he saw combat. I think he was the military police. But can I at least question -- and I can ask him ahead of time -- I'll remind him ahead of time that we're not getting into the nature of his service, just that he was in the service and received some medical training there.
MS. CLARKE: We would ask that it just simply be that he did receive medical training.
THE COURT: No, I think you can show just that.
MS. PELLEGRINI: Medical training in the --
THE COURT: No testimony about observing IEDs and things like that.
MS. PELLEGRINI: Okay.
MR. BRUCK: One last request, and I'm sorry to prolong this, but we would ask that when you caution the jury to avoid publicity starting today and for the rest of the trial you include any other criminal trial or case as well as this one, and the reason has to do with the end of the Jody Arias case in Arizona last week. That is the second-most high-profile death penalty case going on in the country, and it ended in a really very disturbing fiasco in which the jury split 11 to 1 for death. That meant she gets life.
The holdout juror has been identified. The sheriff in Phoenix is having to afford her protection because she is felt to be in danger. The victim's family has held a press conference to bemoan the fact that she did not go along with the rest of the jury.
Whether any of our jurors have read about that we don't know, but it is the most prejudicial type of publicity one could imagine for a case of this type. The horse is out of the barn as far as that goes, but who knows what is going to happen in the future. And it just seems there's no reason why jurors should be reading about other high-profile cases and speculating about nonexistent connections between that one and this one. So we would just ask the Court extend the instruction.
MR. WEINREB: Well, I mean, I'm of two minds on this: I have no objection in theory to the jurors not reading news about it, but I don't want the record to reflect that if one of them does come across some publicity about it, that they were unable to shield themselves from, that then becomes a ground for excusing jurors. I don't think that's fair. I mean, we ask a lot of jurors, especially in a case like this. They have to be very alert to avoid publicity about this case. The more we keep expanding their responsibilities, the more likelihood it is that there is going to be an accidental slip-up which can create an issue.
So I think it's fine for the Court to say something mild, you know, if possible, make your best efforts but we understand -- something that makes it clear that we're not going to be kicking people off the panel if they get exposed to other case information.
THE COURT: Okay. I thought you were going to say something else, actually. I thought you were going to talk about the other possible pending cases in this court that are related, which I do think they should be -- without naming them, they should be discouraged from looking at.
MR. WEINREB: That's fine. I think cases related to the marathon bombing would be easy for them because it all falls within the same ambit --
THE COURT: They'll probably get reported that way.
MR. WEINREB: Yeah. Just glancing at it, they'll probably assume it's part of the overall proceedings. But now once we start getting into: Don't even allow yourself to be exposed to any news about an unrelated case in Arizona, I think that's asking too much of them.
MS. PELLEGRINI: One more thing, your Honor. So our first witness today has a service dog. So I was told that that would be permitted. Are you okay with that?
THE COURT: And one is in a wheelchair?
MS. PELLEGRINI: It's the same person.
THE COURT: Same person? We have a ramp, I'm told. The ramp is in place?
COURT CLERK: Yes, the ramp is hooked up.
Just to let you know, they did have to move the one screen that was next to the witness box that's been used for the --
THE COURT: Is it still operating?
COURT CLERK: No, I think it's cut, at least for this, so --
THE COURT: All right.
COURT CLERK: It's just because of the way the electronics --
THE COURT: Can they reset it up at the break?
COURT CLERK: What the thought was -- because they need about a half-hour, maybe a little more, to put up the ramp. They were thinking maybe at lunch. Maybe this morning keep everything as it is, then after the lunch break they'll be gone and we'll go back to the normal setup.