2.Defense Exhibits on Cross-Examination — Foundation Requirements
57 linesMR. WEINREB: I wanted to add one thing on the general topic of the defense putting in defense evidence in the government case, which is that we received an email from Mr. Watkins at 6 a.m. today asking us to have various items of evidence in court for witnesses who will testify today that the defense wants to introduce through cross-examination of those witnesses. And we object to that. I think it would be easier to frame the issue if I give the specifics.
So one of the witnesses who will testify today is Brian Corcoran, an FBI agent who collected electronics and explosives evidence on Laurel Street. One of the things that was collected was a computer from a computer bag which the defense will say was Tamerlan Tsarnaev's computer.
As it happens, we have no -- that issue is moot because that computer, will, in fact, come through -- in the government's case through Agent Corcoran. But we have no objection to it anyway because he had personal knowledge of his collection. But they've also said that -- as the Court will recall, yesterday Sergeant Pugliese testified -- he was shown a picture of the two brothers crouching behind a car. He was asked which one was Tamerlan and which one was Dzhokhar, and based on the color of their clothing he gave an answer which obviously was not the answer the defense was expecting.
So they told us today that through another witness, Stephanie Waite, who is a criminalist at the MSP lab, they want to show her the clothing of the various suspects so -- and introduce it through her. That's one where we do object.
Stephanie Waite's job is primarily to test items of evidence for blood and then prepare that evidence so that the blood can be DNA-tested. She does sometimes go to crime scenes and checks surfaces and things for blood, but often she just receives items in the lab, she opens up the evidence bags, she takes little snippets of things, tests them for blood. And if there's blood on them, puts them in the test tube, puts it in the refrigerator so a DNA analyst can retrieve it.
This is a situation where the clothing of the brothers was simply submitted to the lab, and she has no idea who was wearing what. She has no personal knowledge of it. And yet -- you know, she photographed them, which she does in the lab, but prior to cutting the little things out of them. And the photographs may well say, you know, who it was seized from, but that's just hearsay through her.
And we believe that if the defense wants to put in the clothing of Tamerlan Tsarnaev or Dzhokhar Tsarnaev, they're certainly entitled to do that, but that's evidence that they should put in in their own case. If they need a government witness to do it, they just need to give us adequate notice and we'll make that witness available. We'll certainly make the evidence available.
But it should come in through their witness, through direct examination of their witness, so that the government has an opportunity -- and we should have notice of it and we should have notice of the exhibits just like we give them, even if it's short notice, so that we can prepare cross-examination that's appropriate of a witness who has actual knowledge of what they're talking about. So, for example, if they bring in a black jacket of Tamerlan Tsarnaev, we can say, "Wasn't he also wearing a white shirt?" Stephanie Waite can't possibly say whether he was also wearing a white shirt because she has no idea what he was wearing.
And the idea of them putting in evidence through a witness with no personal knowledge of it through cross-examination, where they essentially tell the witness the answer and the witness has a choice, on a national stage, essentially, of either saying, "I don't know what on earth you're talking about and, therefore, I seem like I don't know what I'm doing," or, "yes," to simply make the question go away, that's just not fair. They shouldn't be put in that position and the government shouldn't be put in that position.
So, you know, we're happy to talk about these things with the defense ahead of time, propose a solution. Getting notice at 6 a.m. makes it harder. I understand we're all operating on short time here so I'm not -- I just think the way that it is proposed to be done is not appropriate and we would object to it.
MR. WATKINS: Just to clear up a couple of things, it's not that Stephanie Waite has no connection to this at all. I'm reading through her case notes where she talks about Tamerlan Tsarnaev's jacket. I mean, this is really not a serious issue by the government. If what they're trying to do is to make us do a chain of custody for the evidence that the government has done, we're going to be here for a long time and I'm going to need to take some time off to reconstruct that. There were just a lot of people involved in this.
The jacket went to -- from both -- from the hospital, I believe, or the EMTs, on through to the FBI where it stands today. Maybe a dozen people touched it, more than that might have touched it. Similar with the sweatshirt.
If what the government means to do is to put us through that test and see if we can make every instance in the chain, it seems a little bit unfair because we do not have access -- the kind of access that they do, and it seems very, very time-consuming to put us through that kind of exercise for what is very -- really going to be an uncontested point, which the sweatshirt of Dzhokhar -- the jury has seen that. The jacket was collected.
I can try to go back through that chain and find the person who actually did it, but it seems silly where this is a relatively minor point. It's quite right -- Mr. Weinreb is quite right. I got a wrong answer yesterday. I seek to correct it because that, indeed, was a black jacket that he had on.
MR. WEINREB: So if I can just add, whether it's unfair or not, that's not what we're proposing to do. We have no -- we are not trying to put the defense through their paces or make them establish chain of custody. As soon as they call a witness who has -- can say this clothing was on Tamerlan Tsarnaev and it was removed and taken into government custody, we'll admit -- we have no objection to it being admitted. But somebody actually has to have knowledge of what he was wearing as opposed to simply offering selected pieces to somebody who just photographed them in a lab.
THE COURT: Well, I guess it depends on what the witness would say. I mean, I don't see any reason in principle why a defense exhibit couldn't come in on cross-examination from an appropriate witness. So the question really is, is this an appropriate witness based on what she knows about the matter and I'm not familiar in detail with that. If -- I don't know, for example, whether reading off the label of the package that presents the matter to her is enough.
MR. WATKINS: Perhaps I could suggest that the government could find that out from Miss Waite today because I think the answer to that is going to be yes, she saw the label. She identifies it in her case notes as the jacket of Tamerlan Tsarnaev; the sweatshirt is Dzhokhar Tsarnaev. I don't think there's going to be an issue through this witness about that. If the government can look into that today, then all of a sudden we have a whole morning free that we don't have to mess around with.
THE COURT: Okay. So anyway, I guess as a generalized objection, I don't think I would sustain it, but we'll have to see what the witnesses say.
Let's go back to the identification of upcoming experts -- notice of them, that is -- so the defense can be ready for them. It sounds like there's going to be a lot of expert evidence in the next week and a half.
MR. WEINREB: May I have one moment, your Honor?
(Counsel confer off the record.)
MR. WEINREB: So we were in the process yesterday afternoon of preparing a list of witnesses from now all the way to the end of the case which we're prepared to give to the defense. I think that we -- I know we went upstairs last night and we got most of the way, and then I think we got diverted onto witness prep for today. But we'll finish that today and we'll get it to the defense so they'll know everybody who is going to testify all the way through the end of the guilt phase.
MR. WATKINS: May I make a suggestion then? As I understand it, Stephen Silva is going to be Witness No. 2 after Henneberry today?
MR. CHAKRAVARTY: That's right, yeah.
MR. WATKINS: Perhaps -- I expect that that's going to take the morning. Perhaps we could break today at one o'clock and get back onboard with this -- the government's witness list. Because it really is -- becomes very difficult for us to plan. I know the Court wants an exhibit list and a witness list from us, but it becomes a moving target where we have to deal with these kinds of issues at a very last minute.
MS. CONRAD: May I just add one thing to that? I mean, this is the first time that we're hearing that Azamat is testifying tomorrow. He is a major witness. He's going to require a lot of preparation. The Court had asked the government to give us witnesses two weeks in advance. It hasn't turned out that way. They gave us a list, I think it was on Friday, of 20 witnesses. Azamat's name was not on there. We had no reason to think he was even coming up this week, much less tomorrow.
To put us in a position where they tell us 24 hours ahead of time that a major witness, who they had not previously notified us was even close is going to be on tomorrow, I mean, I would ask that they at least postpone Azamat for a day to give us time to prepare for that cross in light of the fact that, you know, this list of 20 witnesses didn't even include --
MR. WATKINS: I will add one thing to that. I had a conversation with a member of the prosecution team -- not here -- about what the next two days was going to be, and that witness did not come up at all -- at all -- in that combination. It's a name we've been waiting for so that we can prepare appropriately for it. So that's all I'll say. It's very difficult to prepare under these kinds of circumstances.
MS. CLARKE: There's another little logistical issue -- and I completely understand, you know, how things get all crazy when you're putting on a case. But we were notified last night, I think, that Christopher Derks would testify today. Christopher Derks --
MR. CHAKRAVARTY: Not today.
MS. CLARKE: No?
MR. CHAKRAVARTY: Not today.
MR. WATKINS: By the end of this week?
MR. CHAKRAVARTY: By the end of this week.
MS. CLARKE: Well, it looks like he's the Norfolk apartment-seizing agent who will put in the items seized at Norfolk although, you know, a whole host of agents were in there, and we have no idea what exhibits he intends to introduce. So it would be useful -- because then we could decide again along the lines of this question of are they putting in what we believe should be put in from Norfolk.
I mean, it's a painstaking detail-oriented analysis for both sides, but we can't do it unless we know what they're putting in. So that would be helpful to have.
MR. FICK: And one final note, we really appreciate the government's notice that the forensic expert is likely to come in on Thursday, and we simply -- you know, to the extent that's going to change, from our logistical point of view it can't change in a sooner direction because we have to get our forensic guy in place, he's difficult to schedule, he's expensive, et cetera. So Thursday's fine, we can be ready for that, and we can be ready for something after it if it changes, but, you know, that needs to stick, otherwise, we'll be in mayhem tomorrow.
THE COURT: Well, who do you have this afternoon? Do you agree that Silva might take the morning? Is he going to be that long?
MR. CHAKRAVARTY: I don't think he'll -- I don't know what the defense strategy is going to be on cross with him. As with any cooperator, we budget a couple -- two times the amount of direct. So I estimate an hour on direct but, you know, he's a cooperator so...
MS. CONRAD: We still have a --
THE COURT: We're coming to that.
MR. CHAKRAVARTY: So that could go to most of the morning and then we would have --
THE COURT: So then after that?
MR. CHAKRAVARTY: Evidence collection from --
THE COURT: From Watertown?
MR. CHAKRAVARTY: From Watertown.
MR. WEINREB: Watertown, yes. All the evidence collection from Watertown which I think will be pretty uncontroversial.
MS. CLARKE: And I don't think we have the exhibits for that either.
THE COURT: Is that going to have an exhibit like we had for Boylston Street?
MR. WEINREB: No.
MR. WATKINS: We're low tech at this stage.
MR. CHAKRAVARTY: In terms of the exhibits we intend to introduce for many of the searches, our exhibit list is pretty good about -- you know, specifying by both the FBI numbers --
MS. CLARKE: It doesn't attach to a witness, is the problem.
MR. CHAKRAVARTY: That is true but --
MS. CLARKE: Not to complain but --
MS. CONRAD: And it doesn't attach to a Bates number.
MS. CLARKE: And it doesn't attach to a Bates number.
MR. CHAKRAVARTY: But there should be an evidence number and then there's a description.
MS. CLARKE: Well, for example, this morning I was looking for a certain number, we don't have it, in your numbered list and, you know, an hour later we find it in discovery. But, you know, we don't have a Bates number, we don't have it in the numbered list.
I understand how we get here as lawyers, but that's just a little bit of the logistical problem we face.
MS. CONRAD: I mean the government's exhibit list in many respects just has an exhibit number and a description. There are hundreds of thousands of Bates numbers and --
MR. WATKINS: And one final complaint, because that sounds like what we're doing here, is there are now exhibits coming in in the higher numbers that we have not been provided as exhibit numbers; in other words, they might appear on the list. Hunting and pecking through the discovery to match that up -- we were given, you know, an electronic version of the exhibits at the beginning. I hear that there's an update around but we have not been provided that. So it is the case sometimes I'm going into court, I'm pretty sure I know what the exhibit is when it gets called up but I can't tell you until they actually put it up on the screen what it is.
So these are some of the issues that I think are a result of moving very quickly -- too quickly through this trial.
THE COURT: Yeah. So the original thought when we were talking about a two-week span was to identify exhibits to witnesses. Have you been doing that?
MR. CHAKRAVARTY: We have for when -- essentially giving a list of 20 witnesses because that's what we were mapping out and giving ourselves some flexibility to move people around. For those we were giving --
MS. CLARKE: Oh, no, oh, no.
MR. WATKINS: No, no, no.
MS. CONRAD: It certainly wasn't on the list from Friday.
MS. CLARKE: The first 20, yes.
MR. WATKINS: Kind of.
MS. CLARKE: The second 30, no.
MR. CHAKRAVARTY: Well, whether that be the case or not, as the week goes on, we don't every day go back and update simply because we're just so -- trying to assemble all of that and preparing our case.
THE COURT: Well, fine. So there's some, you know, 10 percent variance or something like that. That's -- that may be tolerable. But if there's no exhibits, then I think it's a different story. I mean, I think it is fair to tell that Witness X is going to talk about these seven exhibits principally, and if it turns out there be six or eight, that's, as I say, a tolerable variance, but --
MS. CLARKE: And we've been actually pretty good, Judge, about not raising this as a complaint each time an exhibit is shown to counsel only -- to the witness and counsel only, and we haven't seen it, it hasn't been connected to that person, we very quickly go, "Okay, we've seen that. We know what that is" and have not objected. As you noticed, we haven't objected to a lot of them.