2.Cell-Site Evidence Objections Overruled; Collier Photo Review Deferred
46 lines(Discussion at sidebar and out of the hearing of the jury:)
MR. CHAKRAVARTY: The next witness is Chad Fitzgerald, the cell site location tech.
THE COURT: Okay.
MR. WATKINS: My turn?
MR. CHAKRAVARTY: Yeah.
MR. WATKINS: So what agent Fitzgerald is going to talk about is geolocation of phones. We heard a little bit about that already. The question -- the way this geolocation is derived is from phone records, right? AT&T and T-Mobile were both subpoenaed to get all of their records. Those records include cell towers that each phone bounced off of when they made calls or sent texts. From that information, that's what Agent Fitzgerald is going to testify to as far as where particular phones were at particular times.
THE COURT: Approximately, right?
MR. WATKINS: Approximate locations. General locations.
MR. CHAKRAVARTY: Approximate locations.
MR. WATKINS: So there are two issues. The first is the period of April 15th to April 18th. I don't think that's really in any kind of dispute here. What is in dispute on a couple of levels is the geolocation before that period. The government wants to put in particular evidence about two days, December 25th and December 26th. He's going to testify from those AT&T records about the geolocation position of those two days.
Geolocation, where these phones were, is going to be an ongoing issue, I believe, and it's certainly going to be an issue right now. The government is going to, at least as of this morning, decline to put in all of the underlying records; in other words, they're just going to have him testify to what he found on those particular days without putting in the underlying records.
The underlying records go back another month -- not even another month, another two weeks before that. Right around December 11th is when the records begin for the AT&T records. In our view, in order for him to start pulling out particular calls, all of the records should come in and be available. I believe he will testify that he looked at all of these records.
I should say this is coming up somewhat at the last minute. I thought we had an agreement last night that they were all going to come in. I have records on a disk that was supplied to us by the government dating back to December 9th, and I'm prepared to put those in today. So that's really, I think, what the issue is, whether those records come in at this point.
MR. CHAKRAVARTY: So the -- the underlying telephone records, as the defense raised yesterday, announced thousands of pages, particularly the phone that -- the defendant had two phones. One of them a very brief number of calls, and the majority of those records are already in evidence, by what we call the "burner phone."
He had another phone that he used primarily back to -- as Mr. Watkins says, from the time of the bombing back to about the second week of December. We have those records. Those are hundreds of pages, I think 500 some-odd pages. I think with the data, I think maybe 600 some-odd pages. They are archaic. In fact, as an example of what they might look like, a few line entries, there are thousands and thousands of line entries as arcane as this and they're just not useful to the jury.
In lieu of introducing that volume of records, not only for relevance but also because they'd be confusing, the witness who has the relevant information for the week of the marathon bombing and two days, or a 24-hour period in December of 2012, is simply going to talk about the general geolocation of those phones on those days, which is a five-day period.
The rest of those records, number one, I'd argue are irrelevant. Certainly he's not going to offer what the relevance is. But more importantly, this witness was an expert witness. This should come in as a 1,006 certainly, if not, simply as direct testimony of what his analysis has been.
It seems as though the defense is trying to introduce yet again something that they should be introducing in their case under the guise of cross-examination or impeachment. There's simply nothing impeaching about introducing other records. This is unlike the --
THE COURT: Do you have an expert in this field to -- who may testify?
MR. WATKINS: If necessary he would testify, but the issue really here -- I guess if I can respond a little bit is -- first of all, the length of pages of records I would say is a red herring. I mean, if you print them out in Adobe, indeed, they're 500 pages long. What it is is a spreadsheet, a text spreadsheet, that I'm sure this agent has been working from.
It is always the case -- a mortgage fraud case is a good example, might be thousands, tens, hundreds of thousands of records that go back to the jury, and there is a 1,006 expert -- not expert, but a 1,006 witness go up there to make them understandable to the jury. That's not a reason to keep the records out.
The records are going to come in at some point. The witness is going to say, "I looked at all these records." And if it's a matter of just what the order of presentation is, that is to me not a legitimate reason not to introduce them.
THE COURT: So let me just understand the setup here. The government is not proposing to offer them. It would conduct the examination without them, right?
MR. WATKINS: Right.
THE COURT: So this arises because you want to put them in?
MS. CONRAD: Can I just talk to Mr. Watkins for just a second?
(Counsel confer off the record.)
MR. WATKINS: Just to make clear, the government's not even introducing the underlying records for the December 25th and 26th times that they --
THE COURT: Right. I'm just trying to get to who's objecting to what. I just want to get it formalized here. I mean, I understand the controversy.
MR. WATKINS: We would object to not putting in the records, the entire records, from December --
THE COURT: I don't know how you object to not putting something in, I guess is what I'm getting at. You could then try to put it in and then there will be an objection but --
MS. CONRAD: But they're trying to introduce his testimony about what the records show without putting in the underlying records. 1,006 requires that the exhibits themselves be in evidence.
THE COURT: Wrong.
MS. CONRAD: That is what the case law says.
THE COURT: No, not 1,006. The pedagogical summary teaches the jury about exhibits that are in evidence. 1,006 summaries are a substitute.
MS. CONRAD: The other issue is one of expert disclosure. The government's expert disclosure said that this witness would focus on a period of April 15th to April 19th, didn't mention December 25th to 26th. In fact, the chalk that I have that looks like what Mr. Chakravarty is holding doesn't even have those dates in it.
Now, it's kind of -- if they want to stick to April 15th to April 19th, those records are fine. If they want to go past that, it seems to me that it's, number one, the rule of completeness because they're trying to isolate records to show that Mr. Tsarnaev was in a particular place at a particular time.
THE COURT: So tell me about the disclosure.
MR. CHAKRAVARTY: Originally our disclosure said we had said that they would introduce various dates of cell site location dated from before the marathon. Pursuant to defense requests to further narrow that, we indicated we'd primarily focus on a week after the marathon subsequent to that. Now, probably two, three months ago, we supplemented by providing a graphic similar to this saying that we would also introduce the cell site location data for December 25th and 26th. So they've had it for about three months. It was not in our original disclosure.
MS. CONRAD: This is the expert disclosure. I don't think we have any amendment. It says it will focus on April 15 through 19th.
I would like a copy of that. I don't have it.
MR. CHAKRAVARTY: Okay. This is the older version. I don't have the newer version.
THE COURT: All right. We're going to move on. Go ahead. The objection is overruled.
Something else?
MR. BRUCK: It turns out there's one small thing. We're going to get to the Collier testimony. There are three photos in the life of Officer Collier. We object to one of the three, which is him backed by his graduation photo --
THE COURT: Will it be after the break?
MS. PELLEGRINI: I think we have --
MR. WEINREB: No.
MS. PELLEGRINI: Is it going to be before?
MR. WEINREB: I think it may well be before the break.
THE COURT: Let me see the pictures at some point.
MS. PELLEGRINI: Okay. I'll ask Mr. Bruemmer to bring them up so that you could look at them.
THE COURT: Well, you mean bring them up on that, on the machine?
MS. PELLEGRINI: To get them ready.
THE COURT: Are they in the binder?
MS. PELLEGRINI: Yes, they should be.
THE COURT: Do you know what the numbers are?
MS. PELLEGRINI: That's something I don't know. I have to check and I'll let Mr. Lyness know.