10.Jury View, Witness Disclosures, and Silva's Gun-Request Testimony — Ruling Deferred
107 lines(Lobby conference as follows:)
THE COURT: First, the view. I understand from talking with the marshals earlier that they're going to try to plan it for first thing Monday morning, which I think is optimal. It gives the weekend to make the arrangements. We can all just go there for the first hour of the day and then show up here and begin the trial at ten or ten-thirty. And I think there will be no public commotion as a result of that process.
The question arises of the defendant's presence. Does he waive his presence at the view?
MS. CLARKE: We have not talked to him about it because we didn't know the arrangements and how that would work. Would counsel be sitting at tables there as if the parties would in court?
THE COURT: I wouldn't expect so. I would expect we'll be walking around. It actually presents -- if he doesn't waive it -- and it's up to him to decide that -- it might make it difficult to do it on this schedule because of the arrangements that would have to be made.
MS. CLARKE: We haven't talked to him about it because we were trying to figure out --
THE COURT: Let us know tomorrow because if he doesn't waive it, we may have to revisit it. And I say that not to put a thumb on the scale, but just because I don't know that we can make the arrangements by Monday morning.
MS. CLARKE: Could we ask the marshals to hold him here -- because they're going to ship him back -- so we could talk to him?
THE COURT: How soon do they do that, in your experience?
MS. CLARKE: They have to kill us if they tell us, so...
THE COURT: Right. Okay. But it's later. It's after everybody's gone away.
MR. CHAKRAVARTY: We broke early today. I mean, is it something you can talk to him about now?
THE COURT: Can you talk to him today?
MS. CLARKE: Right. I was going to see if --
THE COURT: Oh, hold him here? I'm sorry. I thought you meant hold him --
MS. CONRAD: He's been staying here during the week and then going back.
THE COURT: That's what I took it to mean, going back to --
MS. CLARKE: I'm sorry. If we could hold him back.
THE COURT: I'm sorry. Yes. Okay. So you might get an answer sooner rather than later. That's a logistical issue, basically, okay? So that was the first thing. If we can go forward with it, we'll just -- everybody can make whatever transportation they want when we find the exact location, and we'll just all show up there. The jurors will go from their staging position directly to the warehouse or the hangar or whatever it is, and then come directly here. And it won't -- it will minimize the moving around.
I don't know what the government has provided to the defense by way of upcoming witnesses and exhibits. We didn't get a copy this time. I would like to get the next addition of that publication. And when will it be, tomorrow, you'll be able to sketch out next week?
MR. WEINREB: We'll certainly have the order of witnesses tomorrow, and I would assume we would have the bulk of exhibits. Sometimes we make last-minute adjustments. As we're talking to them, we realize we left something out.
THE COURT: Right. Sure. I understand that. I'm more interested in the identity of the witnesses.
MR. WEINREB: That we can do.
THE COURT: And we may be getting to a point on our two-week time frame where the defense would be on the same -- under the same obligation to disclose who might be their first witnesses as we get to that point. I'm not sure where --
COURT CLERK: He's still here.
MS. CLARKE: Thank you, Paul.
MR. WEINREB: We think at this pace we will very likely finish our presentation not by the end of this coming week but sometime the following week. So we would very much --
THE COURT: Before the end of the following week?
MR. WEINREB: We believe so. I mean, it could be --
MR. CHAKRAVARTY: Right around then.
MR. WEINREB: It could be right around then. Wednesday, perhaps.
So we would very much like witness and exhibit lists.
THE COURT: For that week?
MR. WEINREB: For that week.
THE COURT: For the week of the 23rd?
COURT CLERK: The 23rd, right.
MS. CLARKE: We have updated the exhibit list the best we can so far, and we'll do our best. The government's been about half a day ahead of us -- ahead of the trial schedule right now, so we'll try to do better than that.
MS. CONRAD: We're not getting two weeks' notice; we're getting maybe 12 hours' notice.
THE COURT: All right. Well, I don't know. At any rate --
MR. WEINREB: For the first days of trial there was two weeks' notice, then things started zooming ahead.
THE COURT: Things have gone fast.
MR. WEINREB: So we'll take the first two days of the defense case, you know, as soon as possible, and then if things zoom ahead in the defense case, we would understand.
THE COURT: And a realistic up-to-date exhibit list?
MS. CONRAD: I thought Bill sent something out yesterday.
THE COURT: It doesn't include any of the ones that are in, they've already marked.
COURT CLERK: Tim sent me the digital -- the ones that -- I think it was heavy on the digital exhibits, like hundreds and hundreds. That's what I got yesterday -- or this morning I saw it. I emailed -- I forwarded it up to chambers.
MS. CONRAD: And I brought over the list of what we've either admitted or --
COURT CLERK: Right, those four. That's right. But that's it.
MS. CONRAD: And then Tim said he talked to you about putting together a list.
COURT CLERK: He's going to start putting a list together but I don't know when I'm getting it. He said he's going to put it together --
MS. CONRAD: He'll -- he's very good.
COURT CLERK: He's very good. No question.
THE COURT: Well, I want, you know, what you actually expect -- there's two things: Your gross list which you have to identify, and then some indication of what will actually be offered. The ones that have been marked are not on the list that we got yesterday, which was -- I guess it was dated December 29th, but we got it for the first time in that email yesterday or this morning.
MS. CONRAD: I think, but I'm not sure --
THE COURT: So it's not on file.
MS. CONRAD: Well, I think it was docketed as government's exhibit list. We sent it whatever the date was. I think if you look at the docket, it was actually docketed.
MS. CLARKE: I don't think we filed it. I think we emailed it to government counsel for notice and promised to email it to chambers, and may have glitched on that.
MR. CHAKRAVARTY: Yeah, I'm not sure I've seen it as a list.
MS. CLARKE: Oh, yeah, you got that email back in December.
THE COURT: This is what we got as an attachment to the email that Tim sent, I guess, today (indicating).
MS. CONRAD: I don't think that's a new document. It's a December document.
THE COURT: It is dated December. We're seeing it for the first time today.
MS. CONRAD: Right. I got that, and that's our fault, but we are intending to -- I thought someone was in the process of updating that with what we've put in so far.
COURT CLERK: Tim is putting together an exhibit list binder similar to what the government has been giving me to keep it clear, and he said that was no problem, so...
MS. CONRAD: We will get that out.
THE COURT: A related question is for the upcoming witnesses, whether there are pending motions that need to be resolved with respect to their testimony. We talked briefly about the transmitter/receiver binding issue as one possible witness. I don't know if there are others.
MS. CONRAD: There's Dr. King, there's --
THE COURT: Right.
MS. CONRAD: -- the 404(b).
MR. WEINREB: Dr. King at this point is a penalty phase witness.
MR. BRUCK: Okay.
MR. WEINREB: And the 404(b) that -- the government does not intend to offer any of the information that was in the 404(b) notice intentionally. I'm not sure exactly how to put this. Our main concern is that there are individuals who were friends or associates of the defendant whose entire relationship with him was -- revolved around smoking pot together and sometimes selling pot together. It's not clear to me that any of them can coherently testify about their relationship with the defendant without mentioning that. We can ask them to but it's hard -- it may be hard for them. There will just be huge gaps in what they're discussing. As we've said, it's our view that it's not really 404(b) and it's inextricably intertwined simply because the whole fabric of their relationship was based on it.
But with respect to the other thing that was in the 404(b), which was Mr. Tsarnaev's reason for needing the weapon, which was that he wanted to commit a robbery, we are not going to elicit that unless the defense open that's door.
MR. CHAKRAVARTY: There is a distinction between what he said about what he was going to do and then what he said had -- he had done, meaning actions that he was intending to do, and that's the purpose for why he was acquiring the gun, versus the potentially prejudicial aspect of him having committed other crimes.
MS. CONRAD: Well, I'm confused now because I thought I heard Mr. Weinreb say they're not putting anything in about him saying he wanted the guns to commit a robbery, and then I heard Mr. Chakravarty hear they are.
MR. WEINREB: Well, Mr. Weinreb may not know what he's talking about so I'll defer to Mr. Chakravarty.
MS. CONRAD: So I would like to know which it is before --
THE COURT: Yeah. Yeah. Well, go ahead on that.
MR. CHAKRAVARTY: So as a proffer in broad strokes as to what Mr. Silva would say about that is that Mr. Tsarnaev asked for a gun, he gave a reason why he needed a gun. Whether that was true or not -- and, you know, the point is that he imparted some knowledge to Mr. Silva that would convey why he needed a gun. It happened to be, he said, he wanted to do essentially a robbery of some guys in a marijuana deal. Whether that is true or not is irrelevant. It does -- and whatever that reflects on Mr. Tsarnaev is simply that he gave a reason why he needed a gun.
The risk is that if we don't elicit that, is that it seems like this was -- it was both purposeful and that Mr. Silva somehow knew what he -- what Mr. Tsarnaev was intending to do with the gun as opposed to this other reason. After some time Mr. Tsarnaev allegedly reported back to Mr. Silva that he had actually used a gun to engage in the rip, and that's the information which we think both reflects on his other bad conduct.
THE COURT: When was that?
MR. CHAKRAVARTY: That was in about February of 2013.
THE COURT: Using some lingo, he used it in a robbery of some customer or dealer --
MR. CHAKRAVARTY: Correct.
THE COURT: -- in February of 2013?
And he reported that to Silva when? Shortly thereafter?
MR. CHAKRAVARTY: Shortly thereafter.
MS. CONRAD: May I address this?
THE COURT: Yeah.
MS. CONRAD: So first of all, it's 404(b) and it's certainly 403, but more importantly, there's absolutely no corroboration of this. And Mr. Chakravarty obviously recognizes that when he says "whether it's true or not."
Now, I understand if I open the door to this by saying, "Well, did he tell you that he was going to use it for the Boston Marathon bombing?" then maybe then it comes in, but it's certainly not my intention to do that. And if Mr. Chakravarty wants to lead on that by saying he didn't say he was going to -- anything about the Boston Marathon bombing, I'm fine with that. But to put in this totally uncorroborated -- you know, "I want the gun for -- to do a drug robbery," it seems to me is 403.
THE COURT: Wouldn't you rather have the jury think that than that he wanted it for the marathon events?
MS. CONRAD: Well, your Honor, quite frankly, not to --
THE COURT: If there's no information about it, that's what they're going to think.
MS. CONRAD: Well, our theory is that that's what happened, he did it at the direction of his brother. So, yeah, I guess -- you know, we don't think that he told Silva, you know, I'm going to go do this -- and I'm certainly not going to suggest, "Oh, he asked for a gun? Why didn't you go running to the police and say he was going to do the marathon bombing?" And if the government is trying to counteract that -- so the short answer to your question, your Honor, is no.
THE COURT: Yeah. Well, I guess it's your risk. I mean, if there's nothing about another purpose and he goes to somebody to get a gun two months before the marathon, the jury is going to think that's why he got the gun.
MS. CONRAD: It's not about why he got the gun, it's about what he told him about why he got the gun, and I think that's irrelevant.
MR. WEINREB: Your Honor, I think it's also fair to say that the reason that he gave for needing the gun, the reason he gave to Mr. Silva, says something about their relationship with one another that is important for the jury to know. So it's independently relevant. It has nothing to do -- we're not saying he's a robber of drug dealers, and, therefore, he's guilty of the marathon bombings; we're saying he asked Mr. Silva for a gun and he gave a reason that was sufficient for Mr. Silva to get him a gun.
This is a story that is going to depend on the jury believing Mr. Silva. And for them to believe it, they have to believe that this is something that plausibly could have happened. And the reason he gave was something very plausible to Mr. Silva, that's why he gave him the reason. If we just don't mention any reason, it may seem preposterous to them, so...
THE COURT: Go ahead.
MS. CONRAD: There certainly would be evidence, and we would need to confer, but, you know, I think in terms of evidence that Mr. Tsarnaev smoked pot, you know, we don't have any issue with that coming in and we think it is going to come in. I think there's even going to be evidence -- or, you know, I think the issue with respect to whether he sold pot, in fact, sold pot with Stephen Silva and his brother, don't have a problem with that. And my colleagues and co-counsel can tell me later that -- or even right now that they disagree with me on that.
But I don't think it's credible, frankly, that he told Silva that he wanted it to commit robberies. Silva much after the fact admitted to the government that he himself had committed robberies. There's no independent evidence that Jahar ever committed robberies. So in terms of the aspect of 403 about confusion, waste of time and so forth -- I mean, you want to talk about credibility, I think it raises more questions about Mr. Silva's credibility if he testifies -- and we'll leave, frankly, for further cross-examination on that point -- if he testifies that "he told me he wanted it for a drug robbery."
The fact that they were both selling drugs at various times here makes it plausible that he might ask for a gun without the explanation about robberies, which he's never told him about committing in the past.
THE COURT: Okay. My initial question is what has to be resolved before next week, and now I think I know. But let me just say: This doesn't sound like 404(b) at all; it sounds like 403, pure and simple. Either it's prejudicial because it's irrelevant -- it's not plan preparation, knowledge, all those -- the string of things in 404(b), it's not offered for --
MS. CONRAD: It doesn't have any special relevance.
THE COURT: But it's relevant as part of the story, if it is relevant. That's all I'm saying. 402, 403, I don't think -- I'm just isolating it --
MR. WEINREB: It's not a prior bad act.
THE COURT: Right. You're not offering it under a special relevance aspect of 404(b).
MS. CONRAD: Unless the government seeks to put in, as I believe they had previously, his after -- allegedly after-the-fact statement that he had actually committed robberies, in which case it would be 404(b), pure and simple.
THE COURT: No, I don't -- no, it's not. It doesn't mean they have to put it in, I'm just saying it's not a 404(b) situation.
MS. CONRAD: Can we at least be clear that they are not going to attempt to put that in no matter what your Honor rules about the first part of it? They're not going to put in evidence that Mr. Tsarnaev told Silva that he, in fact, had --
THE COURT: No, I haven't decided that yet.
MS. CONRAD: I thought Mr. Chakravarty said he wasn't going to put that in.
MR. CHAKRAVARTY: It's our present intention not to put that in but, you know, things change over time. We don't know how you're going to ultimately deal with your cross-examination --
MS. CONRAD: If I don't open the door, is the question.
MR. WEINREB: We don't want to pre-commit given what we're hearing here.
THE COURT: Okay.