11.Tazhayakov PSR Disclosure, Autopsy-Photograph Masking and Press Access, and Denied Dowd Recall and Bullet-Hole Requests
101 linesP R O C E E D I N G S
THE COURT: I just have a couple of quick things. One is Tazhayakov. There was a motion on the PSR, but I assume the government has some disclosures for a witness to whom I suppose there have been some -- maybe there isn't. Have there been any promises, inducements, et cetera?
MR. CHAKRAVARTY: No, there haven't been. So there was an agreement after his conviction --
THE COURT: Right.
MR. CHAKRAVARTY: -- that -- there was an agreement drafted with the government, which they have. There's nothing else. The PSR doesn't have anything more than the statement of relevant conduct. It does have a guidelines calculation. Said he smoked pot and he committed the crimes. We have the PSR, obviously. We don't think it's actually going to be that useful to them.
THE COURT: I don't think so either. Is there any problem with allowing them to see it?
MR. CHAKRAVARTY: No. We don't want to violate another judge's --
THE COURT: Well, Judge Woodlock has released it for this purpose.
MR. CHAKRAVARTY: That's fine.
THE COURT: As long as it's held confidential.
MS. CONRAD: Sure, of course.
THE COURT: So I don't have any problem with that.
MS. CONRAD: Okay. So the government will provide it or the Court will provide it?
MR. CHAKRAVARTY: We will.
THE COURT: The government will. I have it, but I think it should come from the government.
MS. CONRAD: I've also made some inquiries regarding his immigration status. Mr. Tazhayakov was originally arrested on his immigration detainer and held for a couple of weeks before he was charged criminally. So, obviously, you know, pending immigration matters, which create potential bias, which I think are fair game on cross -- and I've asked the government to provide me with documentation and information which came in at some of the other trials, I think, including maybe his suppression hearing, but certainly at the trial of Robel Phillipos.
THE COURT: That's between you.
MS. CONRAD: I've asked. I haven't gotten an answer.
THE COURT: I got dragged in because of the PSR. We've done that.
This is a real small matter. The media motions about access to the witness and exhibit list, is that solved or only part of it solved?
MR. WEINREB: No. It's all solved.
THE COURT: So any pending motion by the media for access can be treated as moot?
MR. WEINREB: Well, they actually withdrew the motion for access --
THE COURT: Well, that was -- it wasn't complete enough. That's what raised the question. It seems to have withdrawn something but not something else. That's why I'm asking.
MR. WEINREB: My recollection is that their intention was to withdraw the motions for the witness list and exhibit list as well. But I do know that right now there's essentially an agreement, that they're content with the way things are working. Maybe they haven't withdrawn it because they just haven't gotten around to it, and maybe they haven't withdrawn it because they may want to press it at a later date. But right now I know they're not pressing it.
THE COURT: When will we get to the autopsy evidence?
MR. WEINREB: We think Thursday.
THE COURT: Okay. So with respect to the pictures, they're -- one, I will allow some autopsy pictures as a general matter. There's a motion to exclude them all, but I don't think they all should be excluded. From what I've seen, it's a rather limited offer, but I do have a couple of issues with it. One, I would like the faces of the victims to be masked. You can show the wounds without showing the faces. I think that will reduce emotional impact to some degree.
There is one of Krystle Campbell that is a close-up of a wound that is particularly gory. I didn't know why the close-up showed more than the, more or less, full body.
MS. PELLEGRINI: If I remember that one, your Honor -- and there are a couple -- I think it was because that one actually shows what is being removed is a piece of shrapnel, which there is also a picture of.
THE COURT: I'll look at it with that in mind.
There's one of Martin Richard clothed, I guess, post-event, pre-autopsy.
MS. PELLEGRINI: Pre-autopsy.
THE COURT: Just different. There wasn't anything for the others. I just didn't --
MS. PELLEGRINI: At the time that we were considering those photos, it wasn't quite clear to me that we had to put in everything that we were going to use for simply liability but possibly penalty as well. But I don't think, after review of that, that that one needs to go in at this time.
THE COURT: Okay. So you'll mask the faces of the victims?
MS. PELLEGRINI: We're going to have to find a way to do it.
MS. CONRAD: May I just inquire --
THE COURT: I think you can just put something over and recopy it.
MS. PELLEGRINI: That's what we'll do.
MS. CONRAD: I can't recall -- there was some back and forth about, you know, not displaying these publicly or releasing them publicly.
THE COURT: We'll do the same thing. We did it with Collier.
MS. CONRAD: I'm concerned because apparently the Collier autopsy photos were displayed to the press after the fact. I thought the Court's ruling had been that they would not -- that the autopsy photos would not be disclosed except to the jury and not to spectators or the public.
It's my understanding they weren't provided copies, but I think actually displaying the photos to the press seemed inconsistent with what I understood the Court's ruling to be. And I wanted to make sure that we were all on the same page with respect to the civilian, as it were, victims.
MR. WEINREB: I didn't actually think there was a ruling from the Court other than a ruling permitting us not to display them, in the courtroom, to the audience, as it were, because we had family members and friends of the victims in the audience, and we didn't want them to have to leave. But the autopsy photos themselves are being entered -- offered into evidence and shown to the jury.
And our arrangement with the press -- part of the reason why they have -- they're content now and willing to withdraw their motion is we've taken the position with them that they are entitled to report on all of the evidence but not necessarily have copies of it or the ability to photograph it or reproduce it and post it on the internet or on the front pages of newspapers.
For them to be able to report it, they have to be able to see it and describe what's in it in words without actually having -- getting the image.
THE COURT: They don't get the image?
MR. WEINREB: They don't get the image. We show them the image, but they're not allowed to take pictures of it. They're not allowed to videotape it.
MS. CONRAD: This idea -- I'm sorry.
THE COURT: I hadn't addressed this specific issue, focused on it.
MS. CONRAD: It seems to me this idea of an extrajudicial display --
THE COURT: It's not --
MS. CONRAD: -- of evidence -- it is.
THE COURT: You mean a private display to the press?
MS. CONRAD: To the press, yes.
MS. PELLEGRINI: But it's an item that is in evidence.
MS. CONRAD: The exhibits belong to the court once they're admitted. I think for the government then, having represented that it will not be showing them to the general public or to the media in the courtroom, to arrange a private viewing for the press --
THE COURT: Well, I haven't thought about it. Let me think about it. I'm inclined to say it's okay as long as they don't get copies and can't reproduce it. If they can see it and write about it so they can describe the image, I think that's probably okay, but I'll reflect on --
MS. CONRAD: I think the potential for prejudice there is pretty high.
THE COURT: No. Okay. I'll consider it.
MR. WEINREB: I'd just like to add, I see no potential for prejudice. The jury is being shown the images, so we have no worries about the jury.
THE COURT: Right.
MR. WEINREB: And as for the victims, I'm not sure who exactly is being prejudiced here, whose rights the defense is seeking to protect here, but the victims are aware of this arrangement and are okay with it.
MS. CONRAD: We are concerned about the victims. We're also concerned about the general public, which includes members of the jurors' families who might read about it and comment to them, you know, Gee, I read that these pictures are pretty horrible. What was that like? We don't know, and it seems to be taking a risk that we don't need to take.
THE COURT: The jurors have seen so much more evidence about this case now at this point than any member of the public. I doubt very much that their views are going to be influenced by something somebody will say outside compared to what they've seen here. Anyway, I will think about it overnight and let you know briefly in the morning because I haven't previously considered it. I think that's my list.
MR. MELLIN: Your Honor, I think it's unlikely we wrap up Thursday then. I'm not sure. It's going to be a defense case.
MS. CLARKE: We've been in conversation about that, and we've talked about names of people we intend to call. Hopefully, we'll have a good list. Does the Court want the list, too?
THE COURT: I do. And I'd like to know, just for planning purposes, if there's a defense case, how many days because we're getting to the point where we have to look forward for a possible second case, second phase, and I just want to figure out the timing of that as we go forward. My thought is we'll have to take some kind of a break. I don't want it to be very long. It could be a natural break. If the case is scheduled to finish on Thursday, we could pick up perhaps as soon as Monday, maybe Tuesday. I don't want to leave a jury half through its work out dangling someplace. So I want to -- I want it to be realistic but as short as possible.
MS. CLARKE: Sure. We had estimated, I think, to the Court in a lobby conference before a couple of days depending on cross-examination. And the primary -- most of our substantive evidence will come from experts. I've talked to Mr. Weinreb about them. We do have some records and foundational issues. I don't think there are authentication issues. We just have to figure out whether there's a witness to put them into evidence.
THE COURT: Right. So rough estimate, nobody being held to it?
MS. CLARKE: Two, maximum three, days.
THE COURT: Okay. That's what I was getting at. If the government were to wrap up on Thursday, Tuesday or Wednesday?
MS. CLARKE: Sure.
MR. MELLIN: Would the Court want to close the following day or give --
THE COURT: I don't know. That's what I want to think about. Tuesday, maybe yes; Wednesday, maybe not. It's likely to be a busy weekend for people. It is both -- as I understand it, both Christian holidays and the Jewish holidays. So, you know, jurors and others will have things to do. That's one of the factors I'm trying to play with in my head.
MR. WEINREB: I will say, your Honor, although Miss Clarke has previewed for me a couple of the witnesses who the defense might call in their case in chief, the time has come where we could really use a list of witnesses and exhibits coming in through those witnesses as we gave them and have been continuing to give them.
MS. CLARKE: Sure. I mean --
THE COURT: Even if it's tentative. It's been tentative on this side. Even if it's tentative.
MS. CLARKE: Sure.
MR. WEINREB: At least with respect to our first couple witnesses, or first 20 witnesses, frankly, they had it weeks and weeks in advance. And we're just asking for a few days.
MR. CHAKRAVARTY: Especially since, if there are going to be expert witnesses, we may want an expert present, and those people are not local.
MS. CLARKE: Yes. I've talked to Bill about their names.
THE COURT: Finally, the other end-of-case thing is, of course, instructions, jury slip, and so on.
MR. WEINREB: That's at the top of my list.
THE COURT: Like everything else.
MS. CLARKE: Does the Court have a standard set of instructions that it gives, I mean, outside of the elements on these offenses?
THE COURT: More or less, I say the same thing. I don't know if you'd call it a standard set. I don't -- I try, and almost always, avoid reading to the jury. I talk to them. So it follows an outline, but it doesn't always come out the same way. Even when I write it out, it doesn't come out the same way because I deviate liberally from it when I talk to them. I cover the usual topics.
MS. CLARKE: Rule 30 would give the parties an opportunity to see the Court's instructions and to object to them. So, typically, my experience is not that courts ad-lib their instructions but that they provide them with --
THE COURT: This case may be an exception. Certainly, because of the elements, I think they will be quite literal. Just on that, I was thinking -- I don't know whether anybody would object. And I don't know whether I'm going to do it or not or whether it's feasible or worth it -- to have sort of a PowerPoint presentation as I'm going through the elements. I'm just thinking of visualizing, you know, Element No. 1 comes up on the screen and Element No. 2 comes up on the screen. I just think people learn visually as well as orally, and it may help on what are relatively complex charges.
MR. WEINREB: The government has no objection.
MR. CHAKRAVARTY: We would have no problem. We would like to see that before.
THE COURT: Of course. Okay.
MR. WATKINS: One quick matter. Can I follow up the sidebar in regard to Dowd to make one last pitch, for what it's worth? After that sidebar, the government put on that further evidence about a bullet hole in 40 Laurel Street, which is now the other side of Dexter Avenue. So I think that changes things a little bit about what the jury might and might not be able to -- given the problem of a stray bullet there, given there's no testimony about who fired that bullet into 40 Dexter. But it certainly could be the case now, the jury could start to think, Wow, if the bullet made it that far, it could have made it down to Officer Donohue. So for those reasons, once again, I'd make the pitch to re-call Trooper Dowd to talk about that issue.
THE COURT: I don't think so, but I will say I had -- the same thought went through my head when I was listening to that. I think the more the government skirts it, the more dangerous it becomes. As I said, I think at the sidebar, I think it's irrelevant to both sides but --
MR. WATKINS: They think it's relevant.
MR. WEINREB: We've moved on from Watertown so that's it.
MS. CLARKE: But they moved on from Watertown after repeatedly suggesting this bullet from one of the Tsarnaevs hit Donohue. The testimony about the bullet in the house, nobody could even identify what the bullet was. So the government puts it in to suggest that it's a Tsarnaev-related bullet. It just seems unfair.
MR. WEINREB: It is a Ruger bullet. That's why the government put it in.
MS. CLARKE: Well, there's no testimony to that, no evidence to that.
MR. WEINREB: But that, in fact, is the fact so there's no prejudice. I'm proffering that that's the case.
THE COURT: It is the same place.
MS. CONRAD: What about striking the 40 Dexter testimony then?
THE COURT: No.
MR. MELLIN: Your Honor, I'm assuming we're not sitting on Patriots' Day?
THE COURT: Right. That is one of the -- at the beginning of the case, we said "except when there's a Monday holiday." This is a state holiday, not a federal holiday. But I thought about it partly as a distraction for the jurors from what else is going on, but then I thought that the logistics may be difficult, their getting into Boston in the usual way and so on and so forth. I just didn't want to get tangled up in traffic problems and things like that. Massachusetts residents are used to having that day off and having the rest of the week. So that week would be a Tuesday-through-Friday week. Okay. Thanks.
(Whereupon, at 4:18 p.m. the lobby conference concluded.)