1.Charge Conference — Offense Elements, Verdict Form, and Expert-Witness Notice
71 linesP R O C E E D I N G S
THE COURT: First, I just want to get a sense of timelines, where we are. We're moving along quickly.
MR. WEINREB: So today is going to be a lot of forensic evidence. And I'm a little unclear how long that will take. I think we're planning on getting through -- we think we'll probably get through most of it today and then there will be some more of it tomorrow, and then we move into some of the post-bombing searches, like the defendant's apartment.
THE COURT: The warrants?
MR. WEINREB: Yeah.
MR. CHAKRAVARTY: So the unknown is we have Mr. Silva testifying today. Tomorrow we may have Mr. Tazhayakov testify, who is another cooperator, and then on Thursday our plan is to call the computer forensic expert.
THE COURT: When? I'm sorry?
MR. CHAKRAVARTY: Thursday.
THE COURT: Thursday?
MR. WEINREB: So we'll clearly be going into the following week. And I think -- it's quite possible we will finish up the following week, and then we'll be done.
THE COURT: With computer stuff?
MR. WEINREB: Computer stuff and the ME is --
MR. CHAKRAVARTY: Yeah, the ME is going to testify. And then to talk about some of the stuff on the computers will probably be early next week.
MR. WEINREB: There will be some expert testimony. And we might not make it all the way to the end. Again, this is an area where there may be more cross-examination than we've seen before, so it could be longer.
MS. CLARKE: I don't think we've gotten notice of the three forensic people for today.
MR. WEINREB: Well, the fingerprint expert, Patrick Moynihan; the DNA expert, Jennifer Montgomery; and --
MS. CLARKE: And then Tanguay. It looks like --
MR. CHAKRAVARTY: Yeah, Kelly King and Tanguay, they're not experts.
The third expert is Chris Donahue who's not going to testify until tomorrow. We don't think we'll reach him until tomorrow.
MS. CLARKE: He's not on our list, right?
MR. WEINREB: He's on a list because someone asked me if he was going to testify today, and I said tomorrow.
MS. CLARKE: I don't think we have a list with him on it.
THE COURT: What's his field?
MR. WEINREB: He's also a fingerprint examiner.
THE COURT: Okay. And what do you expect when the government is finished?
MS. CLARKE: Well, we're trying to figure that out. We have a few witnesses we're trying to list now to provide to the government. We have provided them a list of exhibits for the guilt phase. I don't expect we would go more than two or three days.
THE COURT: Okay. So I'm just trying to do the calendar in my head. That would be the first week of April?
MS. CLARKE: If you're done the middle of next week.
MR. WEINREB: Yeah. Or towards --
THE COURT: I think March the 30th and 31st are the Monday and Tuesday of the next week.
MS. CLARKE: Some of it depends, Judge, on how much we can do through cross, whether we have to call government witnesses back. We haven't been able to calculate that yet because we haven't finished -- and I didn't know until this minute that there was another cooperator testifying tomorrow. You know, so some information can come out that way. So that really can affect us.
We have some experts to put on in guilt.
THE COURT: What subjects?
MR. BRUCK: And then responsive experts to the terrorism expert.
THE COURT: Is there a terrorism expert in the guilt phase?
MR. CHAKRAVARTY: There is.
MS. CLARKE: We just don't know who.
THE COURT: Who?
MR. CHAKRAVARTY: It will likely be Matt Levitt on Monday.
THE COURT: Is he included in the motion as a -- sort of a multi-witness motion about terrorism experts from the defense?
MR. BRUCK: Yes.
THE COURT: He's one of the people --
MR. BRUCK: Well, we haven't known until this moment which expert would be --
THE COURT: There are several people attacked, if I can use that word, in the motion.
MR. BRUCK: Yes. Well, all of the reports had a similar problem, which was the following out the biographies of every author all the way through the history of the 21st century.
THE COURT: Okay. Well, I want to begin to prepare for the instruction phase, so I think in the government's trial brief there is an outline of what the government thinks the elements of the offense are. I would be interested in any view that the defense has about that substantively. If you disagree with the substance of the offense, we can deal with other kinds of instruction issues, but I would like to get nailed down what the substantive law is for the offenses, and if there's any disagreement, resolve it.
MR. WEINREB: Your Honor, I don't know that we briefed it in detail in the trial brief, but I think that the -- ironically, the more unusual offenses being charged in this case, like bombing a place of public use and so on, the elements will be rather straightforward. It's the 924(c) and 924(j) counts that get complicated.
THE COURT: Right.
MR. WEINREB: And I think all potential problems with those can be resolved simply by having the jury make individual findings with respect to the different components of those offenses that are arguably elements that are -- rather than, you know, the sentencing factors and things that raise the maximum penalty, they need to make some findings specifically about those. And in addition, there is this case law that says that user -- "using in furtherance of" and "carrying" are two separate offenses. And so if a jury only makes a single decision where those are phrased in the alternative, that that's actually either duplicitous or multiplicitous. But either way, if they make the finding separately, then it won't be.
We'll prepare a proposed verdict form that will break it out the way we think it needs to be broken out.
THE COURT: Okay.
MR. WEINREB: I don't know if the defense wants to --
MS. CLARKE: It would be nice if we could.
THE COURT: Yeah, that would be helpful. I mean, obviously it would be better if there was agreement on it.
MR. WEINREB: Yes, of course. I don't think there should be disagreement.
THE COURT: One question I had, which I have only framed as a question, I haven't done any looking at it, is some of them charge carrying during and in relation to use of a weapon of mass destruction when both the weapon of mass destruction and the firearm are the same thing. And I was wondering whether that's duplicitous.
MR. WEINREB: All --
THE COURT: I just raise the question.
MR. WEINREB: Okay. I'll -- we'll --
THE COURT: I mean, normally -- you know, the one we see most commonly is the drug dealer carrying a gun. The drugs and the gun are different.
MR. WEINREB: Right.
THE COURT: Here the carrying of the bomb to use the bomb.
MR. WEINREB: Right. So I know we researched that question and I'm confident they're not but if the Court --
THE COURT: It won't surprise me if they're not because the law sometimes thinks that way, but I raise it.
MR. WEINREB: Right. I mean, we can -- again, we're certainly willing to discuss -- this is something we briefed way back when we indicted the case, so --
THE COURT: No, that raises a related question, whether it's necessary to send all 30 counts to the jury.
MS. CLARKE: We had that thought.
THE COURT: I'm sure you did. You're somewhere around zero, probably?
(Laughter.)
MS. CLARKE: No, but we had that thought quite some time ago on a motion to dismiss.
MR. WEINREB: And I think our answer is that the state of the law is, in fact, unsettled on many of these questions and that given that, although it's more work for the jury, the safest approach is to have them make findings on everything so that if afterwards certain ones have to be struck or eliminated, we don't have to go back and retry the whole case; we can just take care of everything afterwards.
So I think a carefully crafted verdict form and instructions will solve all problems.
THE COURT: Okay. Well, I just want to encourage that process to get going so that we can be ready when the time comes, if it comes faster than we think, so...
MR. WATKINS: May I just go back to scheduling a little bit because we're trying to -- the Court originally set kind of a two weeks in advance, two weeks witnesses' notice. We've not adhered to that really at all. I know that this has raced by faster than even the government -- but it's creating quite a bit of problems, as we talked about yesterday.
For example, today I just heard that we're kind of racing towards the end, we talked about forensics being done today. But, of course, there are many expert witnesses from the FBI that the government has noticed about the bomb-building, for example. We have not touched on that at all in this recitation. I didn't hear anything about that. If the government is going to drop that, fine, I'm going to move on to something else, but if it's going to come up as a surprise that we're now sticking that in, then personally, I don't see how they could be done by the end of next week and put in what is some pretty complicated testimony, explaining to the jury about what some of these factors are about. So I'm just trying to get some clarity about where these kinds of things are going. So that's one thing.
Ms. Clarke talked about the two or three or three or four days. The government is being quite stingy, for want of a better word, about what they're going to let us put in on their case. An example was yesterday, there's this issue about Officer Donahue being injured by friendly fire as opposed to a stray bullet. I'm not clear at all whether the government is conceding that. If, indeed, they're conceding that it's friendly fire, we should say that outright to the jury. I have not heard that.
If they're not going to do that, we need to put on witnesses, government witnesses that were on their list at one time but were taken off. These were people who were supposed to testify yesterday, including Officer McCormack, who was part of the firefight down at the Mercedes; Watertown officer Menton who actually did attend to Officer Donahue in that driveway. I'm very worried that it was unclear. I was prepared to point those kinds of things out.
There's also an issue with the chalk, Exhibit 775 that was put in, for that same reason. It puts the cruiser -- the MBTA cruiser in a way that the jury, if they looked at it, would say he was in Tamerlan's line of fire. And that's inaccurate. It simply cannot be allowed to stand.
If the government were willing to, you know, enter into a stipulation about the friendly fire, then we don't need to do that, but that, I would think, is almost a day just to -- or at least a morning of us putting on government witnesses. So that may add to the time a little bit.
Those are some of my concerns. And those are concerns that are exemplary more than specific; in other words, it seems to keep coming up that we're preparing for witnesses that the government shakes off at the very last minute.