1.Glove DNA Exclusion, Cell-Site Disclosure Review, and Boat Inspection Arrangements
91 lines(LOBBY CONFERENCE AS FOLLOWS:
THE COURT: Whose turn?
MR. WEINREB: I'll start. We just wanted to talk a bit about today's schedule. As we mentioned yesterday, we're pretty confident that we will get through the next segment by the end of lunch, and that's the segment -- we'll finish up this part that we've been doing.
THE COURT: You mean before lunch, by 1:00?
MR. WEINREB: By 1:00, yes. So the witness is on the stand now. There will be a couple other witnesses. And then we'll begin with the segment on the collection of evidence from Boylston Street and the introduction of the exhibits that display the evidence.
After that, we would begin with the presentation of the Sean Collier evidence, and we'd prefer to start that Wednesday morning, if that's possible, because those witnesses were all told to come in Wednesday and Thursday, and they've all adjusted their schedules accordingly.
THE COURT: Any issue with that?
MS. CLARKE: No.
THE COURT: Other than with me?
MS. CLARKE: No.
MR. WEINREB: And then Tuesday afternoon -- this afternoon, if the Court wishes, we can arrange for a viewing of the boat.
THE COURT: Yeah, that sounds good. We'll get to that -- at this pace, we'll get to that fairly soon, too.
MR. WEINREB: We will.
THE COURT: When do you think?
MR. WEINREB: We'll get to that?
THE COURT: Yeah. The beginning of next week?
MR. CHAKRAVARTY: Sometime next week.
THE COURT: Okay.
MR. WEINREB: Yeah, sometime next week. And then we'll start -- we'll do the carjacking and those events starting on Thursday, and then we'll move into Watertown. And that concludes with the arrest of the defendant. So it will be Monday, Tuesday, Wednesday of next week, something like that.
THE COURT: Just mentioning the cars, any viewing of the cars?
MR. WEINREB: They're all there if the Court wants to see them. We don't --
THE COURT: I mean, do you intend to offer a view?
MR. WEINREB: They were so well-photographed, it seems unnecessary. Also, they're not in the same state now that they were in. There has been too much manipulation of them, I think, to make a view make sense.
With respect to the mechanics of the Court going to see the boat, what's your preference?
THE COURT: I don't know. I just this morning was thinking about that. I guess I would talk to the marshals and see what they can put together. I don't know whether we -- I think they drive me anyway, and maybe others can come in their own cars. That's probably the easiest thing to do.
MR. WEINREB: I think so. So it's in a secure FBI facility. There shouldn't be any security issues there. As long as you have transportation --
THE COURT: I think they do that. I haven't raised it with them, but I'll do that maybe at the midmorning break, see if they can -- actually, we should probably do it beforehand. That would be with Kevin. I'll have to talk to Kevin.
COURT CLERK: Okay. Very good.
MR. CHAKRAVARTY: One point on the boat is we have a witness who is going to describe the fact that there was a writing in the boat before we actually describe the more detailed -- what we want to do is cut out the note and present it. But there will be that testimony today so -- just so it's not -- you're not caught unawares that that's coming.
The other issue we wanted to raise was, the next witness after Mr. Kimball is scheduled to be Chad Fitzgerald, who is the first expert witness. And he is a cell-site location specialist.
THE COURT: Oh, yeah.
MR. CHAKRAVARTY: There was a motion to exclude such Daubert on that. We've opposed it. We think it can be resolved on the papers.
MS. CLARKE: We were given some materials last night that run into the thousands of pages and have not had, obviously, a chance to look at that. So we would ask that the government delay that witness until we have an opportunity to at least look at what they provided us that may or may not be relevant to his --
THE COURT: I thought from the reply that that had ceased to be an issue.
MS. CLARKE: Yes, but they just gave us thousands of pages of documents, and we have no idea what they are. So if we could get the government to delay that witness until we can at least review those documents, that would probably be the best way.
THE COURT: What kinds of documents are they?
MS. CLARKE: I have no idea. We got them last night by email.
MR. CHAKRAVARTY: Three sets of phone records, which we had produced before, that relate to the phones that were located, the thousands of pages of documents which you haven't had before, which are the phone companies' locations for the cell towers. So it's literally a list of every cell tower in Massachusetts that was subscribed to by the phone company, and it's that data which he had prepared his report with. And we realized that we didn't actually have that raw data. He gave me that, and we turned that over.
THE COURT: Well, I think they should have a chance to at least look through it. We don't know how much it will be.
MS. CLARKE: We don't know what added value it will have, but we should look at it.
THE COURT: So with respect to the other -- one of the other Daubert motions, as long as we're talking about that, the binding code fellow, is that an issue that we have to resolve?
MS. CLARKE: We should get Mr. Watkins in to talk about that. That's been one of his areas.
THE COURT: Do you know whether it's still a live issue?
MS. CLARKE: I would have to talk to him. It just has not been on the table.
THE COURT: When would that fellow --
MR. CHAKRAVARTY: Not until the end of the next week, at the earliest, maybe the following --
THE COURT: So we have time on that.
MR. WEINREB: Actually, while we're on Daubert motions -- and this one will come up early next week when we do the Watertown presentation. I want to make sure I understand the Court's ruling about the DNA evidence. And my understanding is that the Court ruled -- excluded the evidence about the DNA on the inside of the gloves on 403 grounds, that it lacked sufficient --
THE COURT: 402, 403. It wasn't shown to be sufficiently relevant.
MR. WEINREB: Right. And that -- because of the concern the Court stated, which is that there's no way of knowing when the DNA got there --
THE COURT: Right.
MR. WEINREB: So I would assume that would apply equally to the DNA of Tamerlan Tsarnaev on the inside of the gloves.
THE COURT: Yeah, I guess.
MR. WEINREB: All right. So, in other words, the testimony --
THE COURT: In other words -- yeah. I don't know all the details about this, but gloves -- unless there's some way -- some external way to -- external to the DNA, to determine when the DNA may have been deposited on the inside, circumstantial evidence, for example -- I don't know whose gloves they are. If they're Collier's gloves, therefore, the two brothers could only have had access to that night, then you could time it. But if they're their gloves or somebody else's unknown gloves, then the DNA could have been deposited a week before. It would have no relevance to the Collier episode. So that -- I mean, if you can't tell when it may have been deposited either by the DNA analysis or by circumstances that could explain it, it seems to me there's not enough of a connection. That somebody had worn a glove that was found in the person's car at some time just makes it too remote to connect it to the Collier event.
MR. WEINREB: So with that rationale in mind, unless we hear some other evidence that we haven't heard yet, I assume that that rationale would apply with equal force to the DNA -- all the DNA --
THE COURT: I would think so. And I would think also, offering it, if that's what would happen, would invite the response.
MR. FICK: The issue though, your Honor, was really not -- I mean, the time came into play, but the issue with the glove that was in dispute -- or the DNA that was in dispute really had more to do with the conclusion that you couldn't exclude Tamerlan or Jahar and that, therefore, it really had no probative value in terms of who might have worn the glove on that night or at any other time. It wasn't so much a temporal issue as an issue that it just -- it didn't help you make a distinction that was important in the case.
THE COURT: That's sort of the Daubert argument, but I avoided the Daubert argument by concluding that it wasn't relevant anyway even if you could do that under Daubert. So you don't reach that matter. The motion was not denied as a Daubert matter, or allowed, whatever. The exclusion wasn't based on Daubert. It was based on simple relevance. In other words, my view was we don't need to resolve the Daubert question because the evidence isn't probative enough in the first place. So it doesn't show -- unless there's evidence that either of them wore it that night or close to the events to connect the DNA to the presence and participation of that particular depositor, that's my --
MS. CLARKE: Then Daubert becomes an issue if we open the door with the Tamerlan DNA, which is clearly in one glove.
THE COURT: I don't know. I guess it would depend on where your evidence was, but there's certainly that possibility. I reserve judgment until I hear the actual problem.
MR. FICK: I just -- the temporal thing really hadn't been our focus. And, I mean, to take it to its logical extreme, of course, the fact that Officer Collier's blood is on the glove, we don't know when that happened. I mean, the obvious inference is it was that evening.
THE COURT: I think that's an easier question.
THE COURT: Well --
MR. WEINREB: So the government's position is clear, if the defense is going to offer evidence of Tamerlan's DNA on the inside of the glove as probative of the fact that Tamerlan was the one who wore the gloves that night and used them in the murder of Officer Collier, then we believe we should be allowed to put in evidence that Jahar Tsarnaev's DNA is also on the inside --
MS. CLARKE: It is not on the inside of the glove. That's the point. He cannot be excluded as a contributor.
MR. WEINREB: No, no. We're talking about the other glove, the one in which the cytogenetics analysis shows that the chances of -- that Jahar's profile is on the glove and that the chances of randomly selecting someone from the population with that same profile is one in 40,000.
MR. MELLIN: I think it is fair rebuttal to say that he cannot be excluded in the other one.
MS. CLARKE: I don't think we should get into this debate right now since Mr. Watkins has been our lead on this.
THE COURT: I think you understand my position. We're not resolving the Daubert question because of other relevance concerns. If that changes and we have to resolve it, then we should have enough advance notice of that that we can do that.
MS. CLARKE: Sure.
MR. MELLIN: Your Honor, can I raise one other issue, which is the 12.2 issue?
THE COURT: Yes.
MR. MELLIN: I don't mean to poke the elephant in the room, but we do need some time to be allowed to have these experts do their analysis.
THE COURT: Right. Understood.
MS. CLARKE: Judge, Mr. Fick will be the one from our team going with you to see the boat just for coordination purposes.
THE COURT: Okay. All right.
MR. WEINREB: We're going to draw straws.
THE COURT: The loser goes?
(Laughter.)
MS. CLARKE: This was a winner.
MR. WEINREB: We've seen the boat enough.
THE COURT: All right.
MS. CLARKE: Thank you.
THE COURT: Do you need the monitor, the big, clunky monitor?
MR. CHAKRAVARTY: We got the message that we should be moving it out.
THE COURT: It's partly in my way. I can't see all of the team here.
MS. CLARKE: I want you to keep your eyes on them, too.
(Laughter.)
. . . END OF LOBBY CONFERENCE.)
P R O C E E D I N G S
THE COURT: Good morning, jurors. Thanks for your patience. We were conferring about some matters and are now ready to proceed. The witness is on the stand. Miss Conrad.
MS. CONRAD: Thank you very much, your Honor. Good morning.