1.Witness and Exhibit Disclosures, Cahill Ballistics Reliability, and Clothing Exhibit Arrangements

MR. WEINREB: So, your Honor, in the normal case the government provides -- both parties provide each other a witness list and an exhibit list. Normally the exhibits are not matched to particular witnesses. That's just something that the defense learns as they go along.

We have no problem, you know, abiding by the Court's order to give them a list that actually matches up particular exhibits to witnesses, but it's something that we ourselves don't make a call on until a day or two before we call somebody. That's, you know, a realistic feature of trial preparation, especially in a case going this fast. We bring witnesses in for prep, you know, a day or two before they testify and we start showing them things and going over things with them and sometimes we toss this out, sometimes we realize we need to add this. It's just not possible to do what they're asking this far in advance. And we're doing our best. I mean, we are giving it to them as soon as we, ourselves, have it compiled and can give it to them.

With respect to the witness list to the end of the trial, I think the Court said -- you know, that we agreed to do that. And as the Court said, you know, there are always going to be sort of last-minute calls that you make, adding a witness, subtracting a witness, but it should be 90 percent complete, and it is. As far as I know, the witness list we gave is essentially a 90-percent accurate list of the witnesses to the end of the guilt phase.

We don't yet have all the exhibits matched up to particular witnesses, but 95 percent of the exhibits that will be offered through those witnesses were on our exhibit list and the defense has had it for weeks and weeks, if not months, because we produced it at the end of December.

This business of the optical load file that has the images or the copies of the exhibits with the numbers attached, I never heard that phrase before yesterday. I'm sure somebody else has in the government. But as soon as we were asked for one, I inquired, and one was made and given to the defense. So -- one was made. Maybe it hasn't been handed over.

MR. WEINREB: I think there's another way of viewing this whole thing, which is that we're being asked to do a lot more in this case than the government normally does in a normal case. Normally we don't give the defense our own optical -- you know, our own data presentation software for them to use. That's their job to come up with their presentation for their exhibits.

And, you know, the defense is allowed to look at the exhibits. Oftentimes they come to our office and look at them, and that's the exposure they get. And very commonly it happens a few days before trial.

We don't have a quarrel with what we're being asked to do substantively, it's just the speed which we could possibly get it done accurately. You know, if we give them something that's inaccurate, then they complain that it was inaccurate.

Yesterday we took the time, we did it for the number of witnesses who we knew would be called today. These happen to be very exhibit-intensive witnesses, so it's a little different from how it might be with respect to, let's say, civilians who just have a few witnesses [sic]. But to a large -- to a large degree the exhibits on the list today are photographs of things that were collected in various places. There's just not much controversial about them, and the photographs certainly were produced, you know, a year ago.

MR. CHAKRAVARTY: He is here today but we probably won't get to him.

Just let me say on the record on Tazhayakov, not only has the defense known that he is a cooperator who has already testified in another case and is likely to testify in this case -- this is for purposes of the record, to mute some of the surprise expressed by the defense. The exhibits that he would be testifying to are things like his plea agreement, text messages from his telephone which are clearly marked in the exhibit list. The exhibit which Miss Conrad asked about yesterday, it's clearly marked in the exhibit list, described what it is. The exhibits that he will be talking about are bunched together on the exhibit list so it's clear that -- photos from his residence and from the backpack that was disposed of are all in sequence. So there is absolutely no risk of surprise when at least four months ago this information was made available, and frankly, it was probably more intuitive --

MR. WEINREB: Yeah. We will provide -- as soon as we actually have the list we will provide it to the defense. And we'll provide it to them progressively so they're not sitting around all weekend waiting for it. That's typically how we do it. Witnesses come in, we prep them, we actually go through the exhibits and then we put our list together. We're willing to email it off as soon as we have it. So they'll have it literally as soon as we have it.

I mean, we all had access to the exhibits. The only thing we're talking about here is information about which ones the government has selected to offer through which witness.

MR. CHAKRAVARTY: I think so, just to mechanically go through them. He's not going to do a deep dive into each of them, but there were probably a dozen computers -- devices that were talked about.

One of the issues with that is he kind of has a hard date tomorrow because on Monday we have a terrorism expert coming in.

MR. CHAKRAVARTY: He's going to be a relatively narrow witness but we have to get him on and off Monday. He's flying back to Europe Monday evening. So in light of the fact that some of the material he's going to be talking about, like Inspire magazine and other things that were found on the defendant's computer, Swindon has to testify on Thursday.

So if some of the locations -- we haven't presented the search witnesses for some of those locations -- for example, the landfill had a thumb drive in it -- we would ask that Swindon be able to testify de bene to the fact that he processed the -- that he extracted data from that thumb drive and put it on a CD. And you will have a series of CDs that we will be moving into evidence, and we'll later call the CD person.

MR. WEINREB: Your Honor, I'd object to that. We are -- because of the rapidity with which the trial has moved, we're doing a lot of people's schedules. People absolutely have to get on at certain points or the trial is going to be over before they have an opportunity to testify.

Ballistics matching is something that has been going on in courtrooms for decades. The issue was briefed months and months and months ago. It's something that I don't think -- it's not a -- it doesn't involve complicated science. You match ballistics by taking pictures of a test fire and looking at pictures of actual things and see if you can match them up. I don't believe that this expert in particular is one who warrants being put off someplace completely out of order for this kind of voir dire, this kind of routine.

MR. WEINREB: An hour? I know it's tough to say but -- yeah, he collected all of the ballistics evidence, so without him none of it is going to come into evidence. We have people here who, you know, diagrammed where it was and so on. And he's sort of an essential piece of the puzzle.

So he collected every single piece of ballistics evidence, both at MIT and in Watertown, and can say where it all was when he collected it, and he then did the test fires, compared it. He can say that the Tsarnaev brothers -- he can say that none of the other officers were firing a Ruger. I mean, there are a lot of very important things that he needs to say that have nothing to do with his expertise, but we need his expertise as well.

MR. WEINREB: So pictures of the items of the defendant's clothing that were seized in the hospital room were produced in discovery. I have them upstairs. I'm perfectly willing to get Mr. Watkins what he needs. And in addition, we won't object to the actual clothing coming in later, essentially by stipulation. We don't have to actually read a stipulation to the jury; we just won't object. The only thing is that I would need a minute to go up there and find it and print it out for him, but I'm certainly willing to do that.

As for Tamerlan Tsarnaev's jacket, I assume we have a picture of that that I could lay my hands on and I'm willing to do that. Alternatively, we could just agree that it will just come in later on somehow and make it clear to the jury that it's coming, but it's Tamerlan Tsarnaev's jacket. It's biohazard evidence, which is why we don't keep it here, just like we don't keep the ballistics here and other stuff here. It's kept in a special place. But we can have it brought in.