2.Dr. King's Testimony Limits and Deferred Disclosure Ruling; Richard Family Views and Photograph Objections
65 linesMR. BRUCK: Two more matters briefly. The Court has partially granted and partially denied our motion respecting Dr. King, but we still don't have any real picture of what Dr. King is going to testify to except in the most general sense.
THE COURT: Yeah, I'd like to hear it too.
MS. PELLEGRINI: So Dr. King is going to testify in the usual course of his background, his education. He's a trauma surgeon at MGH. He's also a lieutenant colonel in the Army. And in that capacity he has been deployed overseas as a combat surgeon. And there, in Iraq and Afghanistan, he has treated many victims who have been injured by IEDs. And he's going to talk about the general nature of those injuries and what problems they cause with respect to the body, the pain that is endured initially, and then what follows during a recovery, if a person's, in fact, able to survive that.
Specifically, he will talk about the fact that on the day of the marathon he was at Mass. General and he treated several of our victims. And specifically, Marc Fucarile and Roseann Sdoia are two people that he will talk about, and about the nature of the injuries, the grave risk of death, how close they came to death, and the continuing problems that one has with various things that have already been spoken to by survivors but not actually explained, such as the deep vein thrombosis, the blood clot filters, the compartment syndrome that occurs, the risk of infection, and so on and so forth, things that continue with respect to -- also to limb salvage and what that means and when one harvested veins.
Secondly -- that relates to the grave -- I'm sorry -- the cruel, heinous and depraved nature. He will talk about the level of pain and what is required to relieve that. How people process that pain and the fact that -- with respect to the three victims, to Martin Richard and to Lingzi Lu and to Krystle Campbell, that they would not have died instantaneously and they would have had time to feel pain. And he'll speak specifically to nature of the injuries. He reviewed all the autopsy reports. There will not be any autopsy photos shown. But he will talk to the nature of the injuries and how the body would process the pain that would be felt by those injuries.
And the third general category is the fact that Martin Richard was a vulnerable victim due to his youth and the attendant small stature and the blood volume and that, therefore, that caused the very nature of the injuries where, in fact, his injuries were across the abdomen and the arm, whereas others would be the leg, and how that made him more vulnerable with respect to the more rapid blood loss that caused death.
THE COURT: There was a reference earlier to viewing his clothing.
MS. PELLEGRINI: I don't intend to do that.
THE COURT: Good.
MS. PELLEGRINI: I intend to use two photographs that are already in evidence.
MR. BRUCK: With respect to the military, there is just no showing of a necessity to start describing wounds or observations in Iraq and Afghanistan in order to explain his testimony, so we just don't think that a discussion of the details of IED wounds that he's learned overseas by observing injuries to American troops is -- comes anywhere close to satisfying the more relevant probative and prejudicial test of the Federal Death Penalty Act.
THE COURT: I gather you would not object to a general assertion by him that he is familiar with the wounds caused by IEDs, if that was it?
MR. BRUCK: We object across the board, but if that was it, that obviously would be far less prejudicial than what Ms. Pellegrini has just described.
MS. PELLEGRINI: Your Honor, I don't know how he could explain how he's familiar with IEDs. They don't often happen here in the United States.
THE COURT: Well, no, this should be very, very limited testimony, it seems to me. There's no flag waving. So, yes, I mean, he could say he has experience as a surgeon in those theaters and is, therefore, familiar with IEDs, but two sentences will do it, it seems to me. No description of particular incidents, for example, or particular injuries he's observed. If it's unchallenged, his other professional qualifications, it seems to me, are enough to vouch for his subsequent opinions.
MR. BRUCK: Now, this is the first time that we've heard that he intends to testify about pain suffered by all three of the deceased in the bombing. In the expert witness disclosure, it was -- only reference was made to Martin Richard. So this is not a matter that we were able to -- that we've had any opportunity to explore with the defense forensic pathologist that we have been consulting with about this very issue.
In addition, as Ms. Pellegrini acknowledges, he did not perform the autopsies, he did not see the bodies, he did not treat any of these victims. This is extrapolating, theorizing in an area where I think any layperson realizes there is wide variability. Jeff Bauman said he felt no pain. You know, maybe, maybe not, but simply to allow this trauma surgeon to say, when we're dealing with victims who all bled to death within seconds or a minute, it appears, that he thinks that they must have suffered pain and this is why they suffered pain and this is how the mechanism -- it is so speculative. We have no medical records from the two people he did treat, and none of that was provided in discovery. And, in fact, we found out in the last two minutes who the actual victims that he testified -- that he treated were.
Just to dump this all on us in the last minute given the truly marginal relevance and the highly inflammatory and prejudicial nature of this, this is just not fair.
THE COURT: Well, as to the extrapolation, I think that's a matter for weight rather than admissibility. The jury can assess whether -- I think that a person with his stated qualifications would be able to extrapolate from autopsy reports and so on, I think. And how much the jury could credit that would be up to them. But what -- I'm interested in the point about the disclosure of the other two victims as opposed to Martin Richard being mentioned in the expert disclosures.
MS. PELLEGRINI: I have to go look at our disclosure.
MR. WEINREB: We don't have the medical records. They're not in our possession, custody or control.
MS. PELLEGRINI: This is more a general if you get your leg blown off you don't die instantly and you feel pain.
THE COURT: Is this generally rather than about Krystle Marie Campbell particularly?
MS. PELLEGRINI: I mean, he knows what happened to her because he's also reviewed her autopsy report.
THE COURT: Well, it's not a question of whether he has a professional basis, it's a question of whether it's a surprise that he would be offering an opinion about those two as well as Richard, which was identified in the report. That's the --
MR. BRUCK: I can assure the Court, I've read this many, many times, it's not in the expert disclosure.
THE COURT: If that's the case, then I don't think he should include those. Now, if there's general testimony about injuries, that's a different matter. That's within his scope. But he can't tie it to them particularly.
MS. PELLEGRINI: It would be because it still goes under the grave risk of death as relating to what -- people who have their limbs blown off.
THE COURT: All right.
MR. WEINREB: Your Honor, I have a brief motion in limine in particular given counsel's question about the ability of Michelle Gamble to authenticate these pictures from the Richard family. As the Court probably knows from reading the news, that the Richard family has publicly stated their opposition to a penalty phase in the case where the death penalty would not be carried out swiftly and surely, the government's motion is that the defense not seek through Ms. Gamble to try to offer any testimony about the Richard family's views or willingness to participate in this phase of the case which is not a relevant matter for the jury to consider.
THE COURT: Is there any intention to do that?
MS. CONRAD: No.
MR. BRUCK: No.
MS. CLARKE: We do have a concern about victim impact being put in through an FBI official. She may not be an agent but she works for the FBI, and that seems inappropriate. If the Richard family, in fact, did not want to participate in the penalty phase, an FBI official shouldn't be permitted to put in victim impact that they themselves did not want introduced.
THE COURT: I don't think that's a principle I would endorse, that they couldn't do it in this phase where the rules of evidence are relaxed. If the photos can warrantably be found to be what they say they are, then I think they're admissible.
MR. BRUCK: One last point of record-keeping very briefly. We wanted to put on the record that during Ms. Pellegrini's opening statement, she displayed the cell block photograph in what appeared to be a 4-by-3 foot blowup between equally large blowup photograph displays of all four of the homicide victims of this case on easels directly in front of the jury, so it's our view that the prejudicial effect of what we think was an out of context and, therefore, quite distorted still from the cell block was greatly enhanced and its inflammatory effect was greatly enhanced by its juxtaposition between these very attractive and touching photographs of the victims in life. And I wanted the record simply to reflect that that was, in fact, the way that all three -- the cell block video and the victim photographs were displayed at the end of the closing -- of the opening statement.
MS. CLARKE: Your Honor, one last thing on Dr. King: There was some mention of having treated two victims, and I think we got that kind of blurred up with testimony about the three deceased victims, but we have received no reports by Dr. King or medical records of those two people; in fact, as Mr. Bruck said, we just learned that he was going to testify about them minutes ago.
MR. WEINREB: So that's the two to whom I was referring when I said those records are not in our possession, custody or control. So he treated them in the course of his ordinary work at the hospital on that day, not as an expert for us who was providing records.
THE COURT: Is he going to describe the treatment of them in particular?
MS. PELLEGRINI: Not specifically the treatment but as it relates to -- of course Marc hasn't testified yet, but as it relates to, for example, with Roseann's injuries that she has already testified about and which there is photographic evidence of, how that relates to grave risk of death, what really occurs with the body when something like this happens and all of the attendant physical problems that can arise from that relating to the continuing risk that occurs from such an injury.
So that's -- there are various things he's going to testify to that victims have already mentioned. So we're going to cover, for example, the deep vein thrombosis I mentioned and things like that so there's a complete understanding for the jury what that actually means.
MS. CONRAD: Was there notice on that?
MR. BRUCK: No.
MS. CLARKE: No.
MS. PELLEGRINI: Well, there is notice on the grave risk of death.
MS. CONRAD: No, of Dr. King.
MR. BRUCK: Dr. King being an expert testifying on the basis of his treatment of these particular defendants. Again, this is a victim -- again, this is the first we've heard of it.
MS. PELLEGRINI: It's his basis of treatment.
THE COURT: I'll have to look at the disclosure. Do you have it handy?
MS. PELLEGRINI: I do have it out in the courtroom.
THE COURT: All right. I'll have to look at it.
Okay. So yesterday's list is still accurate? Fucarile, Abbott, King, Wolfenden, Gamble?
MR. MELLIN: Yes, with a change in the order, though, your Honor. It's going to be Fucarile, Abbott, Gamble, King and then Wolfenden.
MS. CONRAD: Can you say that again? Fucarile, Abbott, King, Gamble?
MR. MELLIN: No, Gamble before King. Gamble, King, Wolfenden.
MS. PELLEGRINI: No, I'm sorry. That can't be right. We have to put Michelle on after the break.
MR. WEINREB: So it will be Fucarile, Abbott, King, Gamble, Wolfenden.
MR. CHAKRAVARTY: And a brief break before Gamble, which may be the natural break.
THE COURT: Time estimate, just general, just so I --
MR. WEINREB: At this point, I think we'll probably make it to the lunch break.
THE COURT: But not beyond that?
MR. WEINREB: I doubt it.
THE COURT: Okay. All right. Thank you.
(The proceedings adjourned at 9:43 a.m.)
P R O C E E D I N G S
COURT CLERK: All rise for the Court and the jury.
(The Court and jury enter the courtroom at 9:55 a.m.)
COURT CLERK: Be seated.
THE COURT: Good morning, jurors.
JUROR: Good morning, your Honor.
THE COURT: We appreciate your patience. The lawyers and I had a few things we had to deal with. We're ready to proceed now to the next witness.
Mr. Weinreb.
MR. WEINREB: Good morning, your Honor. The United States calls Marc Fucarile.