8.Overseas Live Video Testimony Safeguards
20 linesMR. BRUCK: Oh, yes. The government suggested, but I'm not sure entirely made, an objection to videotaped remote testimony from witnesses.
MS. CLARKE: Not taped.
MR. BRUCK: I'm sorry. Not taped. Video testimony -- a live video link to witnesses in Kazakhstan and Kyrgyzstan and possibly Turkey who cannot travel for one reason or the other to the United States. I don't know, again, whether this is a live issue or whether the government has now come around to the view that that is proper. But if it is a live issue, we're going to need to resolve it before we go through the, you know, very elaborate preparations that have to be made to actually secure this remote live testimony from our witnesses overseas.
And I think that is everything we see on the horizon at this time.
MR. CHAKRAVARTY: On that last point, Mr. Bruck raised it because I was going to before. We can't make decisions on whether we can agree to that until we know who they are and what they're going to say, and I assume that Thursday we'll get better visibility of that. But attendant to that is the logistics, what is the proposed logistics kind of solution that the defense is offering to make their witnesses available.
We don't want to make categorical statements unless we know what the context is, what the type of testimony is that the witness is going to offer, whether it will be controversial and whether it will be cumulative, and whether the very grave concerns that the government has about remote testimony from somebody who's not going to be subject to perjury accountability, somebody who's not going to have the other indicia of a liability that you have in court, to be able to weigh that process.
So we ask on Thursday if they could also provide that type of information, and that would be useful.
THE COURT: I would agree and add to it for this special category of witness, perhaps much greater detail would have to be supplied so that trade-offs could be evaluated. Not only who they are but what the substance would be.
THE COURT: Frankly, I have an institutional concern about the absence of an oath -- an enforceable oath. I'll just tell you that. It could be -- it could perhaps be overridden by safeguard conditions, but I'd like to -- so I'd like to know rather specifically what you propose, and that also will relate to the probative value and the --
MR. FICK: There's a bit of a moving-part element to it as well because there's a question of -- a couple of these people, we hope they might get parole, but the government has indicated they're still in review, so that's sort of a question.
THE COURT: Right.
MR. CHAKRAVARTY: Your Honor, one other point. First, a simple explanation for Mr. Bruck's exhibit that he's going to show to the Court. There is some medical review kind of journal articles which depict images of various scans, MRI, CAT scans, PET scans. Some of those involve some of our victims who are going to be testifying, and it goes to the grave risk of death to those particular victims. It's not the article that would be offered; it would simply be the images. So that's the explanation for that.
One other point which I hesitate to raise simply because it seems so trivial, but it's been raised a few times by Mr. Bruck, with regard to the sense of a nondiscrimination -- the closing, and in particular, a nasheed that was played. Before the government's closing, we provided a list of exhibits that the government would be using. The defense, of course, made no objection. I want to make that clear for the record.
The second point is there were files in evidence before the closing that came in without particularized objection by the defense that depict both that nasheed, which was a nasheed which was converted into an MP3 audio file from a video. That video file, which is the nasheed playing over jihadi images, subtitled further as "Ghuraba," suggesting -- explicitly saying that the people who this video was produced by and for were different than others.
These were not necessarily religious connotations; these were terrorist connotations. And the evidence in this case is replete with motivation for terrorism and terrorism connotations. There is no intention -- and certainly if the evidence points towards a particular ethnic group or religious group that has -- that's because that's where the evidence points, not because that's an argument the government is making nor is it trying to inflame the passions of the jury on that point. We haven't thus far; we won't going forward.
It seems to be the defense has -- as I say, its past prologue has teed that up as a theme they want to convey in the penalty phase. And it's equally inappropriate in the penalty phase for the defense to be arguing that our theory of prosecution is somehow implicating the defendant because he is an immigrant or because of his national origin or his religion, just as it would be if we were to do it.
MR. MELLIN: Your Honor, if I could respond to Mr. Bruck's concern about Martin Richard's clothing. We do intend in the closing in the death penalty phase to show the jury this clothing. It goes to two of the aggravating factors in this case: one, the vulnerability of Martin Richard, how little he was, how short he was, where the tearing would occur; secondly, it goes to the cruel, heinous nature of it, how his clothing is ripped apart, how his shorts are essentially burned. That is direct evidence of two of the important aggravating factors.
THE COURT: All right.
MR. BRUCK: Very briefly with respect to the last point by Mr. Chakravarty, we have been attempting to secure from the government a -- so that we can make it part of the record, the actual video clip that was played. We think that rather than argue about what it meant, the record should clearly include the material itself. So if the government would help us with that, we would be --
THE COURT: Yes, we talked about that at the time.
MR. CHAKRAVARTY: Right. And we provided that to the Court, and at the Court's direction I can make a copy for the --
THE COURT: Oh, I see. Fine. Yes.
MR. CHAKRAVARTY: And for the record, the video file which the government just alluded to, again, is, I think, 1143-88.
THE COURT: Okay. All right. Very good. We'll see you tomorrow morning.
COURT CLERK: All rise for the Court. Court will be in recess.
(The Court exits the courtroom and the proceedings adjourned at 12:05 p.m.)