3.Lockup Photograph Allowed in Opening; Discovery Objections
66 linesMR. BRUCK: We have a series of other objections that have not been withdrawn. The most pressing one is the photograph of the defendant in his lockup. And the reason which the government has advised us they intended to use in opening statement and have an enormous mockup, the prejudice -- this is what it looks like.
THE COURT: I've seen it.
MR. BRUCK: The prejudice is really quite extraordinary because what this is is a still from a video that goes on for hours and the -- in context, it shows that the defendant is sort of using this picture as a mirror and he's kind of bouncing off the walls the way a 19-year-old kid with nothing to do for a long period of time might do, and then he's doing a little sort of dance and then he jumps up and he does a V sign. It's not clear whether he's addressing this as a camera or as a mirror.
And then for a split second, you have to really squint to see it, the V sign seems to turn into a -- or does turn into a finger. But if you cut a split second of this you create a completely false image of what is happening. I think the -- I think the Court needs to see it in context. And the immediate problem is that this absolutely should not be shown in opening statement out of context and let us not be able to answer it for a week.
The prejudicial effect of that would be -- even assuming that the Court admits it at all.
MS. CONRAD: A couple of things further on that, Judge. First of all, we have the video clip to show you if you would like to see it. But second of all --
THE COURT: How long is it?
MS. CONRAD: I'm sorry?
THE COURT: How long is it?
MR. WATKINS: Very short. Two minutes maybe, even.
MS. CONRAD: Do you want to see it before --
THE COURT: Go ahead.
MS. CONRAD: The other issue is that the context of this -- first of all, I think there's a discovery and a Jencks issue here. We wrote to the marshals after there was a report about this video in the Boston Globe, and the U.S. Marshals Service in Washington started an internal investigation that's now in the office of the Inspector General. And I have correspondence I could share with the Court regarding that investigation about how this video came to be disclosed to the press.
And I inquired yesterday of the general counsel, Gerald Auerbach, what the status of that is, and he told me it's still under investigation. Again, I have the correspondence to show your Honor, and I'd like it to be made part of the record.
But in addition, we have no Jencks for Deputy Oliveira. I assume Deputy Oliveira was questioned in connection with this investigation. I've asked General Counsel Auerbach for any statements or reports written by or taken regarding -- statements by Deputy Oliveira, and he said he would inquire. We've received nothing from the government. And we would at least like an opportunity to determine whether there are such reports.
In addition, we filed an ex parte motion regarding further -- getting further information from the marshals, including an opportunity to inspect the camera before this evidence is presented.
MR. WEINREB: Your Honor, the claim that is made in the papers and that's made again here is that the image needs to be understood in context. That is an argument about the weight of the evidence, not its admissibility. And the way the defense counsel puts something in context is through cross-examination or in their own case.
They're always free on cross-examination of the witness to play the entire video, five minutes, ten minutes, however much they think is needed to put it in context and however much the Court will allow.
There's nothing prejudicial about showing an actual photographic image of something that the defendant undeniably did. It's not likely to confuse the jury, to mislead them. On the contrary. It's probative evidence of what his state of mind was at the time that he did it. And if the defense thinks that it's not, that they should have another interpretation of it, they're always free to suggest that through cross-examination and argument.
Every other argument that was made today should have been made 15 months ago when we first produced this video in discovery. The defense has had it for 15 months. There's been no claim that it should be suppressed on some ground, no claim that there's anything wrong with it or that more information should have been produced.
I think the Jencks claim is a red herring. To the extent that the witnesses were interviewed about how -- information about the video -- and by the way, I don't think the video itself ever appeared in the press, or a photograph of it. I think there were just reports of it that appeared in the press -- that's something for the marshals to deal with internally and it has nothing to do with its admissibility in this case and that would have nothing to do with the weight of the evidence. It would just be an effort to get into collateral matters that normally are decided outside of the jury's hearing, which is when there's an argument to suppress evidence based on a claim of misrepresentation in a search warrant. It would have nothing to do with the admissibility -- once the admissibility of it is decided, that no longer has anything to do with the weight of the evidence.
So the government -- it's obvious why the defense doesn't like this photograph. I don't need to articulate it. But the fact is that their client did it. It's nonverbal. There's no constitutional problems here. It's probative evidence. And certainly coming in, there's no reason why the government should not be able to both admit it and use it as an exhibit -- as a chalk in opening statements.
THE COURT: What about statements by Oliveira?
MR. WEINREB: If there is actual Jencks by Oliveira, then we'll produce it. But as far as we know, we're not aware of any and we don't believe that any statements that he might have made regarding how information about this may have appeared in the press would be Jencks material for him because it wouldn't relate to --
THE COURT: No, I agree with that.
MS. CONRAD: But it might be Giglio. If he's the subject of an investigation relating to this, it might be Giglio.
THE COURT: Remotely, perhaps. But what I was getting at is if he had something to say about -- did he learn of this gesture because he was observing at the time?
MR. WEINREB: I believe so, yes. I believe that he was --
THE COURT: So if he had statements about his observations, I think those would be Jencks.
MR. WEINREB: Yes. If there were written statements about his observations.
THE COURT: And the circumstances of his discovering the tape or whatever it is.
MR. WEINREB: Yeah. I mean, if he wrote a report saying, "On such and such a date I was observing this and this is what I saw," then we would provide that as Jencks. I'm not aware of any such --
THE COURT: We're not going to get to him for a while, anyway, right?
MR. WEINREB: No, but --
THE COURT: But you want to use it in the opening.
MR. WEINREB: -- we want to use it as a chalk in the opening.
MS. CONRAD: This is the correspondence that we provided to the Court --
MR. WEINREB: I think this is truly a red herring; in fact, I would object to this going on the record. Whether somebody in the Marshal's Service did something, you know, that --
THE COURT: Right. I agree with that. I think that's beside the point. It does seem to me that if it's truly out of context and indicates something other than what the government suggests, then that can be shown to the government's embarrassment.
MR. BRUCK: The problem is the week interval. It seems so unfair that the government --
THE COURT: Why can't you do it on cross-examination -- I mean, Oliveira is going to testify in the next day or so. You can --
MS. CONRAD: Can we show you the video?
THE COURT: Sure, if it's just two minutes.
MR. WEINREB: I'd also mention that to the extent Mr. Bruck's argument is that he's not going to have a chance to open for a week and say something about it, that's his choice, so...
THE COURT: All right.
(Video recording viewed.)
THE COURT: Is it just video and not audio?
MR. WATKINS: Exactly.
THE COURT: This is the day of the arraignment?
MR. WEINREB: Yes.
THE COURT: Before the arraignment?
MR. WEINREB: Approximately 11:30, and the arraignment was approximately 3:30.
THE COURT: And what determines the scope of this clip? Who decided when to start and when to stop?
MS. CLARKE: It's just the minute or two around that --
THE COURT: It's actually a lot less than that.
MS. CLARKE: Around the camera incident.
THE COURT: Is there a timer? There is at the top.
(Video recording viewed.)
MR. BRUCK: Do you see the problem?
THE COURT: So it's about 36 seconds, it looks like, by the counter. Okay.
MS. CONRAD: May I just note, your Honor, that this still was not provided in discovery. The still was not provided until last week. What was provided in discovery were the entire tapes from that day, not the isolated still. And in addition, if there is going to -- this is going to be presented, in addition to making a request for Mr. Oliveira's reports or statements, I would ask for any logs the marshals kept that day of Mr. Tsarnaev's conduct, any other observations that were made of him that day to put this in context. They had him under observation for an entire day, for about six hours.
MR. WEINREB: Your Honor, this was provided 15 months ago, at the time the discovery request --
THE COURT: I agree that that's discovery. But in terms of Jencks, if Oliveira has anything to say about it or I guess maybe anybody else who viewed it that might impeach his testimony about what he saw.
MR. WEINREB: I believe he's being offered just to authenticate this. And the photo speaks for itself. It's really just, This was a fair and accurate photo.
THE COURT: So I think it can be used.
MS. CLARKE: To be clear, I thought Mr. Weinreb suggested that our only objection was it was out of context. We have a more prejudicial and probative objection under the Death Penalty Act as well and --
THE COURT: Okay.
MS. CLARKE: And nobody knows what that bird or peace or whatever shot was to, to himself, to a camera, nobody knows, and it really takes a leap that the government, I think is trying to take unfair advantage of and it will confuse and prejudice the jury. We're already in a place in this case where there's a lot of loss, grief, pain, blood, damage. And to further inflame I think would be inappropriate.
THE COURT: Okay. I think it's admissible. And the video can be shown to contextualize it --
MR. BRUCK: If it's admissible, we want to emphasize this enormous blowup still should not be used in opening.
MR. MELLIN: Your Honor, it's no different than photographs.
THE COURT: I don't see why not. I understand why you don't like it, but I think it's admissible.
MS. CONRAD: I'll take that back if it's not being made part of the record.
MS. CLARKE: Your Honor, it has to be offered for an aggravating purpose in the death penalty, so I gather it's being offered for lack of remorse?
THE COURT: That's what I infer.
MS. CLARKE: Thank you.