8.Lobby Conference on Guilt-Phase Defense Evidence and Closing Schedule

MR. FICK: So let me be a little more specific. I think this is a gateway into talking about the narrow scope of our intended use of Mr. Spencer in the guilt phase of the trial. We want to rebut some specific inferences the government has suggested in the case about who did what and about how certain materials appeared and when they appeared. To be specific, we would like to put in Tamerlan Tsarnaev's computer's search history to really establish three facts at this point in the trial: the fact that shortly before the events of the case, Tamerlan's computer searched for "Ruger P95." There's no search on the Sony. Tamerlan's computer searched for a gun store in New Hampshire. No such search on the Sony. And Tamerlan's computer searched for "Boston Marathon" before the events. No such search on the Sony. Again, simply to rebut the inference that the government has been trying to encourage the jury to make about who had the gun, who was most interested in the gun, who the gun was for, et cetera. Those three discrete pieces of information from Tamerlan's search history we'd like to establish.

The second thing we'd like to establish through Mr. Spencer is to introduce a single bar graph breaking down the web history on the Sony in the form of where was most of the traffic, single graph, simply again to establish a point we tried to make through cross-examination in a way that is objective and visual about what the predominate activity on the computer was.

The third thing we want to establish through Mr. Spencer in the guilt phase is to establish the ownership and creation of the content of the hard drive recovered on Laurel Street. The government tried to suggest a connection to Jahar Tsarnaev because there was a deleted copy of a classmate's English paper on the drive. We want to put in forensic evidence showing that essentially Tamerlan Tsarnaev's computer formatted the drive. Tamerlan Tsarnaev's computer created every single file on the drive including a plethora of radical information that we see elsewhere on other devices in the case.

In addition, we seek to put in two additional documents that were found on that hard drive, the two Russian language bomb-building documents the government did not put in that were found on that hard drive.

And then the third thing -- the final thing we want to do with Mr. Spencer is to talk a little bit about the origin and travel of some of the files the government has focused on in the case. In particular, we expect to be able to show that the documents existed -- this particular document existed first on Tamerlan Tsarnaev's Samsung computer and then by means of the missing Patriot thumb drive that there was some discussion about.

On January 21, 2012, the day Tamerlan Tsarnaev leaves, that thumb drive goes into Tamerlan's computer. The file is created on the thumb drive. It then goes into the Sony computer associated with Jahar. The file is created on the Sony, and then it goes into the Hewlett-Packard home computer and then is never seen from again, all on the day Tamerlan departs the country, just hours before he does so.

So, narrowly focused, those are essentially what we would proffer would be the things that we would want to do with Mr. Spencer in the guilt phase of the case. All of the other materials, the extensive contexts of Tamerlan's computer, et cetera, we understand, based on the Court's ruling, it's not the time for that now. We'll do that in the penalty.

MR. FICK: On the notice point, the notice of the content of the -- the expert's summary, so to speak, was almost an identical mirror image of the expert summary that the government provided. We litigated months ago whether that was sufficient. The Court ruled it was sufficient. We provided then a mirror image notice.

Every single one -- or almost every single one of the files that we talk about introducing, whether now or in the penalty phase, was listed in the defendant's exhibit list dated December 29th of this year, updated on March 13th, and again on March 27th. That listed the name, by file name, of every file from the Sony and Samsung, et cetera, that we wanted to introduce. It also listed by description the type of derivative evidence or spreadsheet that -- it was produced by a tool that we intended to use. A few then were added after Mr. Swindon's testimony last week, particularly the voluminous ones, because we couldn't use the ones that he provided because of the sort of scrambling of some of the data in them. So the notice issue, I would suggest, is simply not an accurate statement of the situation and essentially a red herring.

As to the underlying content, the government has put in notice evidence. The government has put in -- I'm sorry. The government has put in evidence of motive. The government said in its opening that Mr. Tsarnaev self-radicalized. While not necessarily part of the guilt determination, it's a rebuttal to the presentation the government has made. In the -- one of the documents Miss Conrad filed earlier on the range of the transmitter issue, she cited case law to suggest that where the -- it's error to prohibit the defense from correcting the record about what one defendant did versus what another defendant did and to sort of not be able to set the record straight on those kinds of issues.

So for those reasons I would suggest -- oh, the final thing is that the Indictment talks about these various computer files being downloaded implying, in layperson's terms at least, that they came from the internet and that Mr. Tsarnaev did it himself. Again, the evidence to show the flow, the origin, and the sort of means by which they moved from place to place in this phase, just by way of a couple of examples, is really just designed to set the record straight on that.

MS. CLARKE: It depends on -- you know, we had -- Graff is like Gamble. She's going to answer the questions and put it in. We could still reach that stipulation, you know. You know the entirety of the fingerprint evidence that we propose to admit by virtue of the stipulation having been given to the government.

There are also two items by Miss Conrad, your Honor, and then I think that's it.

MS. CLARKE: Mr. Dolakov, frankly, we haven't been able to locate and are not calling in light of the Court's ruling anyway. We would like the government to provide us with his phone number so we can attempt to reach him.

Mosque witnesses, whom we did identify to the government, just not on this list, in light of the government's rulings regarding what is and isn't admissible here, we don't plan to call in this phase.

I don't know, Bill, if there are any translation issues still remaining.

MR. WATKINS: Your Honor, may I interrupt there because I will have to do Miss Graff tomorrow. And now I'm confused because I wouldn't have thought that she would take an hour to verify that she got positive results. Based on Miss Gamble's testimony today, I'm a little bit worried that she's going to show up here saying, I don't remember this case, anything. You're going to have to guide me through this by presenting the actual data, the fingerprint matches, as if I were doing a direct exam, as the government were.

It seemed -- if that is what I'm going to have to do, I'm going to need another day in order to get that going to be able to do that kind of analysis, to gather up the data for each of these positive matches, and essentially develop an exam. If she's going to simply confirm that she made a positive examination, it's quicker than an hour. So I'm a little bit concerned on that front.