2.Nasheed CD Objection, King Witness-Notice Ruling, and Exhibit Access
48 linesMR. BRUCK: One quick thing. The second witness today, Matthew -- Trooper Hess, as I understand it, is going to introduce the CD of the nasheeds, the Arabic vocal music that Mr. Dun Meng described as weird. I understand there are things about this that arguably are relevant, but we think that the music itself is not and will do nothing but create prejudice and bias. It is simply a cultural divide between Middle Eastern music and -- which in this context will sound hateful and disgusting. I mean, that's -- you know, and that burdens the obligation of the jury not to consider religion and national origin and everything else in their sentencing decision in a capital case.
I don't think the Court has to rule on it today. We're just going to object to it coming in today. It can be identified. There won't be a problem about chain of custody but --
THE COURT: Were you going to play it?
MR. BRUCK: -- the actual playing of the MP3 digital --
MS. PELLEGRINI: It will be played later.
MR. CHAKRAVARTY: Later.
THE COURT: So it doesn't have to be -- just to be obscure about it, I think it's likely it will get played.
MS. CONRAD: I think if it's not going to get played, then it should be marked for identification.
MS. PELLEGRINI: No, I think it comes in.
MS. CONRAD: Then we have an objection to it coming in. That's the point.
THE COURT: I expect I will admit it over objection.
MR. BRUCK: Well --
THE COURT: I understand the objection.
MR. BRUCK: Okay. I want to be clear that it is as a constitutional basis and the due process clause as well as the statute.
THE COURT: All right.
MS. CONRAD: So first of all, I just wanted to clarify. Kelley King: Our objection based on the statutorily required list is overruled or is she not going to testify?
THE COURT: I think it's trivial, from what I hear, so I guess it's overruled.
MS. CLARKE: Do we need to object when she takes the stand?
THE COURT: No, I think this is sufficient. This is sufficient.
MS. CONRAD: This is on a -- first of all, I also wanted to -- to the extent the government is going to provide us something over the weekend on a rolling basis, which is great, again, if we could just either get the load file or get something that associates the exhibit numbers with a Bates number or some other identifier that we can match it up in our database and that --
MR. WEINREB: That we cannot do. Bates numbers --
MS. CONRAD: Well, what about the load file?
MR. WEINREB: -- is not something we have an index anything to.
MS. CONRAD: Apparently, the load file is a substitute for --
THE COURT: Well, okay. I don't want to get into this here.
MS. CONRAD: It's like a premarked exhibit.
THE COURT: I want the government to do its best to provide guidance as to which witnesses will have which exhibits within practical limits, okay? And now I want to start the evidence.
MS. CONRAD: Well, I have two things that are related to exhibit numbers, and one is really housekeeping and the other is just something that I think the Court should be aware of. The government has been, I think appropriately, providing, except for -- well, with one, maybe, exception -- providing exhibits -- copies of exhibits that have been admitted to the press. And apparently there is a website or some electronic medium where the press can access that.
Yesterday a photograph -- or a portion of a photograph was introduced from the -- of Mr. Tsarnaev with the Arabic flag. And apparently, as presented on this website, it was presented not with its exhibit number but with a caption that indicated that it came from Mr. Tsarnaev's Instagram account with the caption "My Flag." And this was picked up on by the press and by the media.
And I would ask that that be corrected, and that if the government is going to provide exhibits -- we have the link. Mr. Chakravarty's shaking his head. We have the link.
MR. CHAKRAVARTY: Because that photo was from an Instagram. Instagram is something intended for the public.
MS. CONRAD: That's not a live Instagram account. That's not how it came in. There was no testimony about it. If the government is going to provide exhibits to the press, the only identifier on them should be an exhibit number. A caption that was not a file or a caption that was not introduced should not be on there during trial. It is a violation of the local rules regarding extrajudicial statements.
MR. CHAKRAVARTY: We did not provide that image. We provided the image that was introduced in court with the exhibit number.
MS. CONRAD: With the filing.
MR. CHAKRAVARTY: And because this is something that was like a Twitter account at one point --
THE COURT: Somebody could use that to go find it.
MR. CHAKRAVARTY: They found it on the Internet, they downloaded it and they put it out --
MS. CONRAD: That's just not my information. And the Instagram account is not live. And I think Mr. --
THE COURT: Okay. What's the other?
MS. CONRAD: The other one is at some point I just want to make sure the jury is told that the exhibits originally admitted at Defendant exhibits 1 and 2 have actually been renumbered as Exhibit 3000 and 3001 respectively.
MR. CHAKRAVARTY: Your Honor, one final point on that, and just because I don't want to belabor it, but if the defense wants to introduce exhibits from Norfolk Street, for example, which there's a series of exhibits in our exhibit book which are all from Norfolk Street, I think they're pretty clearly marked as being from Norfolk Street. But if it's not all-inclusive, then, as we're learning with regards to the clothing, it will take some transit time to go into the JFK building where the stuff is stored and transport it here. We'll need at least 24 hours to make those arrangements because there's not somebody permanently manned there.
THE COURT: All right.
(The proceedings adjourned at 9:41 a.m.)
P R O C E E D I N G S
COURT CLERK: All rise for the Court and the jury.
(The Court and jury enter the courtroom at 9:47 a.m.)
COURT CLERK: Be seated.
THE COURT: Good morning, jurors.
JUROR: Good morning.
THE COURT: Again, we appreciate your patience. The lawyers and I were discussing some issues.
Mr. Mellin?
MR. MELLIN: Good morning, your Honor. The United States calls Robert McCarthy.