2.Grate Photograph — Foundation and Late-Disclosure Objections
13 linesMR. WEINREB: We don't intend to use any of these photos of the grate; however, we do intend to use 1633, and I'll explain what that is. Government counsel moved down to Boylston Street when the barriers had been put back up for this year's marathon and stood at the grate where the bomb was exploded last year. And no photo that has been introduced into evidence to date captures adequately how close that the bag that was placed with the bomb in it was to the individuals lined up on the grate. You have to be there to perceive it. You can literally take one step and would have been able to touch those people on the head.
We considered asking the Court for a view because it's quite relevant to whether there was substantial planning and premeditation to commit an act of terrorism, to the cruel and heinous nature of the event and to the grave risk of death to people who were standing by the grate who did not, in fact, die, but we considered the idea of a view on Boylston Street to be impractical and so we looked for a way to bring the view into the courtroom for the jurors.
So Michelle Gamble, the FBI photographer who testified in the guilt phase, took photographs, overhead photographs of the grate, and we have a precise one-on-one -- one-to-one scale model of the grate, basically the grate just in photographic form. The photo's been put onto a piece of Tyvek so that it's quite hard and you can step on it without doing any damage to it. And it accurately depicts the size of the grate, you can see where the bomb went off because the pieces that were shattered have been put back into place, and there will be a photograph that will make it clear where the barrier was. And that way, with the aid of this exhibit, the jury will be able to perceive precisely how close the bomb was to the people who were along the curb who were injured.
MS. CONRAD: Judge, first of all, we received this at 7 p.m. last night. The photographs were taken, according to the metadata, on Friday at approximately 1 p.m. We received no explanation from the government as to why we weren't provided with these until 7 p.m. last night. And despite repeated emails asking for an explanation of what the relevance of these were or how they were going to be used or even at least initially through whom they were going to be offered, it was like pulling teeth to get an answer.
As far -- I have not gone back -- because I just heard this from Mr. Weinreb this morning as to what the purpose in offering this is. I have not gone back to the photographs from the actual scene in 2013 to see where those barriers were, but I don't think there's any showing that the barriers yesterday were in the same place that they were in 2013.
MR. WEINREB: Well, we're not offering the location of where the barriers were yesterday. That was just a background as to what prompted the creation of this exhibit.
We intend to use a single photograph, Government's Exhibit 1575, which is already in evidence. It quite clearly depicts where the barrier was on the date of the actual marathon blast.
THE COURT: When do you expect to get to this?
MR. WEINREB: This afternoon. By "this afternoon," I mean after the break.
THE COURT: Yeah.
MR. WEINREB: So we have the exhibit --
THE COURT: Assuming the foundation, it sounds admissible to me.
MS. CONRAD: And the late disclosure?
THE COURT: Show me some prejudice, I guess.
MR. WEINREB: The grate has been in evidence. The actual grate was in evidence -- or not in evidence, rather, but was available in discovery. It was a 1B item that the defense had access to. So all this is, is a photograph of that grate.
THE COURT: Okay. On the proffer it sounds like it will be admitted.
MR. WEINREB: So that's it for preliminaries.