1.Martin Richard Video Clips, Audio Overlay and Narration Limits, and Amputee-Survivor and Richard Photographs
111 linesP R O C E E D I N G S
THE COURT: Good morning.
MR. WEINREB: Good morning.
MS. CLARKE: Good morning.
THE COURT: So I have been trying to look at the video that you want to use. Are we down to just the two clips of Martin Richard?
MR. WEINREB: So the clip of Martin Richard, it's just the portion of him sort of walking along with the circle, showing him enter and then at post-blast without any stills, so no white -- so there's no -- basically, it's the clip of Martin Richard, whatever you have, minus -- I believe there are two still shots.
MR. MELLIN: No, we gave the Court -- Paul and I tied it down. All it is is -- there's two post-blasts of Martin. There's one that ends with Martin moving his arms, and then the other one picks up with Denise over the top of Martin trying to render aid or just support. And that's all we would need.
MR. WEINREB: Right. And there are no stills of him.
THE COURT: Okay. And we'll come back to those in just a minute. Just so I know, everything else is off the table? The cell phone overlay?
MR. WEINREB: No, that's the other thing. The sound overlay is the other clip that we want to play.
MR. MELLIN: That we actually had decided -- well, okay.
(Laughter.)
MR. WEINREB: As of when I filed our opposition.
THE COURT: I like him better.
MR. MELLIN: I'm trying to trim it down, your Honor.
MR. WEINREB: I think the sound overlay should come in, so...
THE COURT: So let's take them separately, then.
With respect to the Martin Richard clips.
MR. BRUCK: Well, this is an enhanced video that we received --
THE COURT: I haven't seen the enhanced. I guess I'd like --
MR. BRUCK: Well, it is enhanced at least in the sense that it is magnified.
THE COURT: I guess I should see that.
MR. WEINREB: That's what you saw.
THE COURT: That's what you saw.
MR. WEINREB: It's not enhanced in any kind of highly technical or forensic way. Basically, using Adobe, Premier or any video-editing software, it's possible to zoom in on part of a video --
THE COURT: All right. So let me...
(Pause.)
THE COURT: Can you just look at this and see if this is what you mean by enhanced?
MR. WEINREB: So just if I can finish what I was saying. So it's not enhanced in any forensically special way; it's simply zoomed in the way that, you know, occasionally from time to time throughout the trial the parties put up a photograph and then drew a little box around it with the mouse and then it expands to fill the screen. That's what we did here. It's the exact same video that's already in evidence essentially with a little box drawn around part of it to make it bigger so it's easier to see.
MR. BRUCK: As I say, we received this almost at the eleventh hour, long after we thought we knew what the government's exhibits were going to be. It is extremely inflammatory and it is cumulative to other evidence, including the extremely graphic autopsy photos of Martin Richard to which we objected but which were admitted. On balance, we think the Court should exclude it as more prejudicial than probative.
THE COURT: I'll allow it. With the limited -- I was going to exclude the disk. When I looked at the whole disk I thought on balance the disk in its entirety was more prejudicial than probative, but I did think there were some probative segments. And this actually was one of them when I looked at it because I think the fact -- if it is a fact that the jury can find from it, that it displayed consciousness on the part of Martin. That is a point the government's entitled to make, I think.
And as to the second part, the mother's reaction, I think, now in this penalty phase, is something the government is entitled to. So the limited scope can be shown.
MR. BRUCK: So the record is complete, we would note that the -- it goes neither to the statutory aggravating factor of vulnerable victim that he had a few seconds of consciousness and -- nor does it go to the heinousness aggravating factor which is based in this case entirely on the predicate of aggravated battery, and that is shown by other evidence, but whether he was conscious for 15 seconds or not does not establish either of those factors.
THE COURT: All right. Let's move to the other issue, the cell phone --
MR. WEINREB: So the --
THE COURT: -- overlay.
MR. WEINREB: Yes.
So should I go first? It's their motion but I'm happy to go first.
THE COURT: Explain what you want.
MR. WEINREB: Okay. So as we explained in the opposition that we filed, the government alleges that this was an act of terrorism, that there was substantial planning and premeditation to commit an act of terrorism, is one of the aggravating factors. And the jury needs to know not just whether it was an act of terrorism or not but what weight to assign that factor when they're engaging in the weighing process, of weighing aggravating and mitigating factors.
How terrifying the event actually was is a legitimate consideration for them, and what makes an event terrifying is not just how it looks but how it sounds, how it smells, how it feels, even how it tastes if it's -- if there is an acrid smoke in the air. Witness testimony, as we all know, is not a substitute for firsthand, or secondhand, in this case, experiencing of it. Just as a picture is worth a thousand words, so is the sounds -- the actual sounds that were occurring at the time.
Had the video actually had sound, then I don't know we'd even have an issue here, it would simply come in the way that the sound from Scene A came in. This particular surveillance video did not have sound but it's possible to marry up to sound from this recording that was taken -- it took -- you know, was made just feet away with the video so that the jury can understand at Scene B as well as Scene A what the nature of the event really was for the people who experienced it.
THE COURT: How would it come in?
MR. WEINREB: Michelle Gamble, who testified earlier and would testify again, would say that she was able to -- she had the Forum video, she had the sound recording, and she was able to synchronize them based on the sound of the first blast and the heads all flipping around to see it, and then marrying up the sound of the second blast with the image of the second blast as it occurs on the video.
So that -- I don't think there's any question, frankly, that it's a fair and accurate depiction of what it sounded like at the scene. The question -- the argument that's been made by the defense to exclude it is just that it's irrelevant and more prejudicial than probative.
MR. BRUCK: Well, this, once again, is an eleventh-hour addition to the evidence. We were not provided with this composite until, I guess, Friday.
MS. CONRAD: Monday.
MR. BRUCK: I'm sorry. Monday.
MS. CONRAD: Tuesday. Excuse me. Tuesday.
MR. BRUCK: I've lost track of what day of the week it is.
THE COURT: Haven't we all.
MR. BRUCK: And we think it's just too late to be adding such powerful, and we think prejudicial evidence, not only to the trial, evidence, but to our ability to prepare, to conceptualize the evidence as a whole to defend our client. So we think it's unfair to provide this so late.
On top of that, we do think it is more prejudicial than probative, and it doesn't establish any fact that it's remotely in controversy.
THE COURT: You have the Scene A sound, right?
MR. WEINREB: We do, your Honor.
THE COURT: Isn't this cumulative of that? Do you need to show it for Scene B as well?
MR. WEINREB: Well, your Honor, Scene B is the scene that the defendant exploded the bomb at, and that's the one that the jury is going to be weighing the most when they're determining whether -- how much weight to give this factor. And this is going to be a case where they're undoubtedly going to be engaged in a genuine weighing process, and the government's entitled to the moral weight of the evidence and we're hoping that the jury will take that into account when they're weighing the importance of this factor and the other factors to which it relates, frankly.
You know, the more that the -- there's -- the more that the five senses of the jury can be engaged in their understanding of the evidence, the deeper an understanding they have the more real it becomes for them and the better position they're in to really evaluate just how weighty a factor that is.
MR. CHAKRAVARTY: One other point? The audio was captured at a location which was in proximity to where the defendant was at the time, so these sounds would be the sounds not just from Scene B generally to describe to the jury what happened at Scene B, but also the sounds that the jury can reasonably infer that the defendant was hearing similar sounds to this as opposed to the Scene A sounds.
MS. CONRAD: Where the defendant was when the bomb exploded?
MR. CHAKRAVARTY: You hear the first bomb explode and then you hear the reaction of the crowd and then you hear the second bomb explode.
MR. BRUCK: Well, I mean, there's no testimony that I'm aware of about any of that or where the defendant was when the second bomb -- I mean, this is all, you know, something that counsel is telling us.
THE COURT: Right.
MR. WEINREB: We're not --
THE COURT: That wouldn't be evidence.
MR. WEINREB: Yeah.
THE COURT: But it does raise the question of the foundation for it, I guess. So Agent Gamble -- she's not an agent; she's a photographer.
MR. WEINREB: Correct.
THE COURT: -- did this herself or supervised the doing of it?
MR. WEINREB: She did it herself.
THE COURT: And she can explain the source of the cell phone?
MR. WEINREB: She can.
MR. BRUCK: Through hearsay? I mean, where was the phone?
MR. WEINREB: Well, she is the person who was responsible, as she testified during the liability phase, for collecting all the video and audio. She oversaw -- she was -- she's the photographer and was the person who oversaw everything, so she is aware through her role in the case where everything was collected from and how. That was part of her job. And to the extent that she relied on records that were compiled during it, that may be hearsay knowledge but that's admissible during this phase of the trial.
MS. CONRAD: Are there reports on where this was collected from? I mean, how do we know it's from Scene B and not from Scene A?
MR. WEINREB: Your Honor, I think the -- that's all fodder for cross-examination if the defendant really --
THE COURT: Well, in the first instance it's foundation. I mean --
MR. WEINREB: That's true, your Honor. But I think the item itself on its face is what it purports to be. In other words, there's been ample testimony from which the Court can conclude that there were two explosions. One occurred at Scene A and then it was followed by one at Scene B. And if one watches the video and listens to the audio, you can hear the first explosion in the distance, and then you can hear the second one immediately at hand. And the audio and the video sync perfectly in the exhibit itself.
THE COURT: All right.
MR. WEINREB: At that point it's for the jury to decide whether it's accurate or --
THE COURT: Okay. Assuming that you can lay the foundation, you can have it.
MS. CLARKE: One more thing on the videos now that the Court's ruled. I mean, yesterday the Court stopped Ms. Conrad from narrating -- or asking the witness to narrate what the video was showing. We make the same request of the government in these videos.
MR. WEINREB: Well, there's not going to be any narration of them once they're actually playing. There will be testimony about how they were -- what they are.
MS. CLARKE: The government throughout has said, "And what you're seeing now," "And what you're seeing now," and the Court stopped Ms. Conrad --
THE COURT: So in other words, as I understand it, will the witness -- do you intend to have the witness say, "You will see that Martin moves his arms momentarily"?
MR. WEINREB: No. No. But I will add --
(There is an interruption in the proceedings.)
MR. WEINREB: So we will be pausing the video and asking, "Who is that?" "Who is that?" That's about the extent of it.
THE COURT: But the jurors will form their own impression as to whether Martin is moving his arms or not?
MR. WEINREB: Yes. Yes. No, obviously, I will not ask her simply --
MS. CLARKE: We object to that. That's exactly what Ms. Conrad was trying to do yesterday and wasn't permitted to do.
MS. PELLEGRINI: No, what Ms. Conrad was trying to do yesterday was trying to have inferences drawn about the defendant's --
THE COURT: Well, no, the question was what the witness thought was going on. And what I'm hearing is you're not going to have a witness say what the witness thinks is going on.
MR. WEINREB: No, no. We're simply -- but she does know who the individuals are. She can recognize them.
THE COURT: Oh, you mean to identify it as Martin?
MR. WEINREB: Yeah. Simply, "That's Martin Richard, that's Denise Richard," that's whoever it is. Yeah, she's met all these people.
THE COURT: I mean -- okay.
Any other admissibility issues?
MS. CLARKE: Yes.
Do you want to do the list?
MR. BRUCK: Well, we've made the objection to the -- the most recent iteration of these survivors' photographs. We objected to a depiction of a couple hundred -- or a very large number of injured people in relatively innocuous settings and fully clothed, and the government has now substituted photos of all 17 amputees displaying their prostheses or amputated limbs. We think that for all of the reasons that we've consistently argued throughout, these are irrelevant to any statutory aggravating factor, they are inflammatory, they are cumulative. Enough is enough.
The jury is going to sentence -- impose a capital sentence to punish for these crimes. As the evidence just gets higher and higher and higher concerning victims that did not die and are not the subject of capital counts. And we just think that we've long since passed the point and certainly would pass it by any reckoning if these -- all of these photographs of 17 amputees are introduced.
In addition, they -- we just learned that the government proposes to offer them through the testimony of one of the amputees talking about these people. She knows them all. They're her friends. And she has suffered with them and endured great trauma with them. It's victim impact testimony. And so it's a way of enhancing the empathy and the emotion from injuries which are not, in the final analysis, the subject of this sentencing hearing. So we think it's far more prejudicial than probative. It's really just time to focus on the subject of this hearing.
MR. WEINREB: So, your Honor, I'm somewhat mystified as to why we keep being told that the subject of this hearing is the sentencing of the four decedents. Obviously it is, but the government has alleged that the defendant's sentence should be a death sentence because of various aggravating factors, and the aggravating factors don't all necessarily relate just to the four decedents. On the contrary. Many of them specifically relate to people other than the decedents.
In the opposition that we filed last night, we noted five separate aggravating factors to which these photographs are relevant and probative: three statutory aggravating factors and two non-statutory aggravating factors. To the extent that Mr. Bruck's argument is that there's already been evidence of them, that's not a dispositive objection. The question is not simply whether the aggravating factors exist or not, but what weight they should be given in a weighing process that the jury is about to begin.
One of the important aggravating factors in this case was that the defendant terrorized an entire population by committing the crimes in a particular manner, a manner calculated to gratuitously disfigure the decedents' bodies. And the evidence of what happened to people who did not die is evidence of what he intended to do to the people who did die.
One of the things that made it terrifying was the number of people who were affected by it who were seriously damaged by it. One of the things that made it a particularly heinous crime was the grave risk of death to which he exposed many people who did not actually die.
He picked the marathon as -- one of the aggravating factors we've alleged was that he picked the marathon to commit the crime because it was particularly susceptible to the active effects of terrorism. And all of these photos -- these photos all go to that -- those aggravating factors.
It's true that of these 17 people, 12 of them have testified, but five of them haven't. And the 12 who testified, I don't believe it is the case, as Mr. Bruck argued in his motion, that the jury had ample opportunity to actually see with their own eyes that these individuals now are fated to live their lives with prosthetic limbs. The jury's view of them was blocked first by the people in the audience, then by counsel and the tables that obscured -- or clips their view of them, and then by the walls of the jury box itself. The purpose here -- and furthermore, they saw them interspersed with other witnesses over the course of a seven-week presentation of evidence. The goal here is to emphasize a particular point which is that this was an offense that occurred that involved all of these people.
These pictures are -- were selected precisely to minimize any prejudicial impact that they might have. They are pictures mostly of people smiling, showing their resilience, in spots that are conducive to a belief among the jurors that they still are capable of finding happiness in their lives. It basically just emphasizes to them the magnitude of the crime without inflaming them, without being particularly emotional, without seeking to arouse their passions. And therefore, we think that the probative value really does outweigh any danger of unfair prejudice.
THE COURT: Yeah. No, I think they, among other things, summarize points the government is entitled to make. They are not themselves inflammatory except for the fact that they show people with prosthetic limbs. But I've looked at all of them before this.
There is one minor issue. I believe it's Kensky appears twice.
MR. MELLIN: Correct. She's only going to appear once, your Honor. We've removed the other one.
THE COURT: So she's only going to be in the one with her husband?
MR. MELLIN: She's going to be in the one with her husband, correct.
MR. BRUCK: There are a couple more things. Does the government still intend to put photographs of Martin Richard in? And the latest we were noticed of doing that through a victim witness person who is -- does not appear on the government's statutory witness list.
MR. WEINREB: Right. No, so we do intend to put in several pictures of Martin Richard. Just three of them. They were actually gotten by Michelle Gamble from the family. So she'll put them in.
THE COURT: And what are they?
MR. WEINREB: They are -- I actually have them outside. I don't know if I brought them with me. But they're just three.
MS. CLARKE: I have the stack. I don't know which ones...
MR. WEINREB: Okay. This photo, this photo and this photo.
THE COURT: So 1605, '06 and '09?
MR. WEINREB: That is correct.
MR. BRUCK: This raises an issue of foundation, how the FBI is in a position to put in family photos.
THE COURT: Well, is Mrs. Richard not going to testify?
MR. WEINREB: She is not. And the FBI asked the Richard family for family photos and --
THE COURT: I think the foundation will be adequate. And three is not overdoing it.
MS. CONRAD: May I see them?
THE COURT: Is that the quality of them?
MR. WEINREB: No, they're better.