8.Michelle Gamble — Direct (Recall)
232 lines(Discussion at sidebar and out of the hearing of the jury:)
MS. CONRAD: Your Honor, I want to note that the government is pulling out their screen. As if it weren't bad enough that they're showing the video of Martin Richard writhing in pain, that they're going to show it on an enlarged screen to enhance the impact on the jury. And we object to that both for the same reasons that we objected before, because the use of the larger screen further aggravates the inflammatory effect.
MR. WEINREB: Your Honor, the purpose of the large screen is not to inflame the jury but simply to allow them to see what the evidence is back in the jury room. I believe they have a screen that size that they view all the evidence on through the JERS system. And in any event, the whole point of putting something into evidence is so the jury can actually see it. This enables them to see it. The little screens in front of them really aren't adequate for things that are grainy.
MS. CONRAD: The jurors' screen is much smaller than that.
THE COURT: I don't see any problem with using the screen.
(In open court:)
MR. WEINREB: Your Honor, the government calls Michelle Gamble.
MICHELLE GAMBLE, duly sworn
COURT CLERK: State your name, spell your last name for the record, keep your voice up and speak into the mic.
MICHELLE GAMBLE: Michelle Gamble, G-A-M-B-L-E.
DIRECT EXAMINATION BY MR. WEINREB:
MR. WEINREB: Good afternoon.
MICHELLE GAMBLE: Good afternoon.
MR. WEINREB: Can you remind the jury where you work and what your job responsibilities are?
MICHELLE GAMBLE: Sure. I'm a field photographer in the Boston division of the FBI.
MR. WEINREB: And what were your responsibilities in connection with the Boston Marathon investigation?
MICHELLE GAMBLE: I was in charge of the photographic responsibilities for Boylston Street while the processing of Boylston Street was done, and then back in the office I was in charge of coordinating and organizing all of the photos through all of the scenes, reviewing the videos from the surveillance footage that we received, and then other footage that had come in through the public.
MR. WEINREB: And in the course of your work over the past two years, have you reviewed essentially every photograph and every video that was collected?
MICHELLE GAMBLE: Pretty much most of them, yes.
MR. WEINREB: Can we have Exhibit 1575, please, which is already in evidence.
MR. WEINREB: Do you see Exhibit 1575?
MICHELLE GAMBLE: I'm sorry?
MR. WEINREB: I'm sorry. Do you see the photo in front of you?
MICHELLE GAMBLE: Yes.
MR. WEINREB: What is that a photo of?
MICHELLE GAMBLE: That is a photograph in front of the Forum.
MR. WEINREB: Let me direct your attention to the -- to where the defendant is. And he's standing -- he's partially obscured by a tree. Is that correct?
MICHELLE GAMBLE: Yes.
MR. WEINREB: All right. If you'd look down, you'll see that there's a sidewalk and then there's a darker area that people are standing on.
MICHELLE GAMBLE: Uh-huh.
MR. WEINREB: What is that darker area?
MICHELLE GAMBLE: That is the grate that encompasses the tree.
MR. WEINREB: Is that grate still there today?
MICHELLE GAMBLE: No, it is not.
MR. WEINREB: What happened to it?
MICHELLE GAMBLE: ERT collected the two pieces of the grate that are closest to the Forum, and I don't know what happened to the other two pieces that are closer to the street.
MR. WEINREB: But they were removed as well?
MICHELLE GAMBLE: Yes.
MR. WEINREB: The two pieces that ERT collected, what happened with them?
MICHELLE GAMBLE: Those were logged into evidence.
MR. WEINREB: Did you have access to them?
MICHELLE GAMBLE: Yes.
MR. WEINREB: All right. And at my request did you remove them from evidence and reassemble the pieces so that they were in the position they were in when they were actually there out on Boylston Street?
MICHELLE GAMBLE: Yes. Yes.
MR. WEINREB: Okay. Did you photograph them?
MICHELLE GAMBLE: I did.
MR. WEINREB: And what did you do with the photographs?
MICHELLE GAMBLE: How did I take them or what --
MR. WEINREB: How did you take them and then what did you do with the photographs that you took?
MICHELLE GAMBLE: Okay. I put the pieces back -- the left side of the grate was in a few different pieces, so I put that together, measured that, photographed that with a scale. I did the same thing with the opposite side of the grate, so it would be on the right side, measured it separately and together. I then came back to the office and brought the images into Photoshop and sized them in there and printed them out to scale.
MR. WEINREB: What does that mean, "printed them out to scale"?
MICHELLE GAMBLE: So they would be pretty much the exact size as they were measured to be.
MR. WEINREB: So that would be the half of the grate that was closer to the Forum restaurant?
MICHELLE GAMBLE: Exactly.
MR. WEINREB: Both sides, right and left?
MICHELLE GAMBLE: Yes.
MR. WEINREB: And then what about the two quarters of the grate that were closer to the sidewalk?
MICHELLE GAMBLE: I duplicated the right side in order to create the back part of it. So it would be the full four pieces of the grate.
MR. WEINREB: Did you put those four pieces together?
MICHELLE GAMBLE: Yes. I stitched them all together to make the actual size of the grate.
MR. WEINREB: And then when you stitched them together, what did you do with them?
MICHELLE GAMBLE: I measured the full grate together with all four pieces. And when I photographed them, I had rulers within the photo. So I put those as an overlay on the photos -- on the ruler that would be in the photo to make sure that that was matching up as well.
MR. WEINREB: Are the photos put on a particular surface that makes it easy to carry them around?
MICHELLE GAMBLE: Yes.
MR. WEINREB: What surface?
MICHELLE GAMBLE: It's on like a Tyvek-type material, and then there's a backing to it. So a thin backing to it.
MR. WEINREB: Is Tyvek like a rubbery kind of material?
MICHELLE GAMBLE: It's kind of a heftier -- it would be better to use that than something like paper. It's just a heavier, durable, more resilient type of material.
MR. WEINREB: Your Honor, Exhibit 1633 is that exhibit that the witness just described with the four photos together on the Tyvek backing. Based on her testimony, I would offer Exhibit 1633.
MS. CONRAD: As noted, your Honor.
THE COURT: Okay. Admitted over objection.
(Government Exhibit No. 1633 received into evidence.)
BY MR. WEINREB:
MR. WEINREB: Now, I'm going to ask you --
MR. WEINREB: Actually, could we leave that up, your Honor, 1575? Okay.
With the Court's permission, I'm going to ask the witness to step off the witness stand and unfold the exhibit.
THE COURT: All right.
BY MR. WEINREB:
MR. WEINREB: Now, that photograph that you were just looking at before, that's on the big screen behind you. Do you see the railing in that photograph?
MICHELLE GAMBLE: Yes.
MR. WEINREB: And where is it in relation to the grate?
MICHELLE GAMBLE: It's on the grate, and it appears to be just a little bit -- a few inches in.
MR. WEINREB: Do you see Martin Richard?
MICHELLE GAMBLE: Yes.
MR. WEINREB: Can you stand on the exhibit in the spot where he's standing?
MICHELLE GAMBLE: Sure.
MS. CONRAD: I object, your Honor.
THE COURT: Overruled.
MS. CONRAD: Your Honor, I think the exhibit speaks for itself.
BY MR. WEINREB:
MR. WEINREB: And I'll just ask Mr. Mellin to take Ms. Gamble's place for a moment. And then do you see the part of the grate where the bomb actually exploded?
MICHELLE GAMBLE: Yes.
MR. WEINREB: How can you identify it?
MICHELLE GAMBLE: It's broken in several pieces.
MR. WEINREB: And can you stand there, please?
MICHELLE GAMBLE: Sure.
MS. CONRAD: Your Honor, objection. I would like to be heard at sidebar. This is misleading.
THE COURT: All right. I'll see you.
(Discussion at sidebar and out of the hearing of the jury:)
MS. CONRAD: They're trying to make it look like Mr. Tsarnaev was standing in the spot where the bomb was, and that's not true; he was standing further back, which is clear in the photograph. This entire demonstration is highly prejudicial and unnecessary.
They've got the grate, which by the way was only made by essentially extrapolating from two pieces, and they've got the photograph. And to have somebody stand there and say this is where Richard was, and then have a human being stand where the bomb was, is highly misleading, inflammatory, unnecessary, and is not probative of any fact that is relevant in these proceedings.
MR. WEINREB: Your Honor, far from suggesting that that's where Mr. Tsarnaev was standing, I don't think I even mentioned Mr. Tsarnaev's name during my entire examination. I'm simply asking the witness to measure the distance between where the bomb exploded and where Martin Richard was standing. We just heard expert testimony that his proximity to the bomb was relevant toward a determination of whether he was especially vulnerable to the effects of the blast based on his small stature, and this will be another brick in the wall of establishing that he was a vulnerable victim and what weight to give to that aggravator.
MR. BRUCK: Your Honor, there are other practical things that are relevant factors. First of all, the phone video shows that after the first bomb blast, there was movement. The government is attempting to suggest that this is the placement of Martin Richard four minutes before the bomb went off. That is actually not what -- when the bomb was set down. That is actually not what the photograph shows. Martin Richard is further away.
It's a pointless, needless argument about whether the witnesses are standing in the right place. They have the photographs. The whole thing is a moving sort of kaleidoscope of change. And it is just so prejudicial to create this spectacle.
On top of all of that, to use an adult, which is a human figure that is enormously larger than Martin Richard was, creates again this idea of targeted -- that it's unmistakable, you couldn't possibly miss, and misses the fact there were people in between where the backpack was put down.
There is nothing about this scene which resembles what actually happened. It is just sort of like a ballet of prejudice, and that's all it is.
MS. CONRAD: And I also would note that if Mr. Weinreb is correct that he's just using a human being to show where the backpack was, then he could use an object to show where the backpack was instead of a human being, which makes it look like that's where Mr. Tsarnaev was. But, you know, this photograph -- I just want to make sure that the record is clear. This photograph, the testimony is, was taken at 2:48 p.m.; not at the time when the bomb went off.
MR. BRUCK: And not at the time when the backpack was put down.
MR. WEINREB: Your Honor, I'd say all of that goes to the weight of the evidence; not the admissibility. It's the kind of thing cross-examination is for.
THE COURT: Yes, I agree it is generally a matter for cross-examination. But I do thing the point -- it's a little misleading to have big people like this in the scale of things.
MS. CONRAD: Without the tree.
THE COURT: I think it's okay for her to demonstrate from her knowledge of the scene having seen it and photographed it where things were, but to have people stand on it like chess pieces in Alice in Wonderland I think is --
MR. WEINREB: The only thing that I intend to ask her to do at this point is simply to take this tape measure and measure between one point and another. Mr. Mellin need not be standing there. The jury I'm sure will remember.
MS. CONRAD: Well, I still object to that, your Honor, again, for the reason Mr. Bruck noted, as far as it suggests that that's where Martin Richard was standing when the bomb went off.
THE COURT: No, that can be shown on cross-examination.
(In open court:)
MR. WEINREB: Your Honor, I think from the angle where they're seated, some of the jurors can't actually see the exhibit. May they stand up to give them a better view?
THE COURT: Yes, they may stand. I did.
(The jurors rise.)
MR. WEINREB: So I'll just ask Ms. Gamble to do it, then.
BY MR. WEINREB:
MR. WEINREB: Can you stand before where you were, where Martin Richard is pictured in that photo, on the grate?
MICHELLE GAMBLE: Sure.
MS. CONRAD: Your Honor, as previously noted.
THE COURT: Yeah. No, I think it's all right.
BY MR. WEINREB:
MR. WEINREB: Okay. And then can you stand in the spot where the bomb exploded?
MS. CONRAD: Your Honor, again, particularly as to this.
THE COURT: No, overruled.
BY MR. WEINREB:
MR. WEINREB: Now, can you measure the distance between where the bomb exploded and where Martin Richard was standing in that picture?
MICHELLE GAMBLE: I would say about three and a half feet.
MR. WEINREB: Thank you. You can resume your seat.
THE COURT: Why don't you leave that in case the defense wants to use it on cross.
BY MR. WEINREB:
MR. WEINREB: Ms. Gamble, the last time you were here you testified about a Forum restaurant surveillance video?
MICHELLE GAMBLE: Yes.
MR. WEINREB: That video has no sound. Is that correct?
MICHELLE GAMBLE: Exactly.
MR. WEINREB: In your review of all the photographs and video in this case, did you discover a video that does have sound?
MICHELLE GAMBLE: Yes, it's -- it was taken next to the Forum restaurant, at the Atlantic Fish Company.
MR. WEINREB: May we have Exhibit 774, please.
This, your Honor, was not in evidence but it was permitted to be used as a chalk, and that's how we'd use it again.
THE COURT: All right.
MICHELLE GAMBLE: Down to the right.
BY MR. WEINREB:
MR. WEINREB: All right. Here where we have the Forum and the Atlantic Fish Company, can you just -- there you go. Okay. Do you see the Forum restaurant?
MICHELLE GAMBLE: Yes.
MR. WEINREB: Can you indicate it by tapping over it?
MICHELLE GAMBLE: (Witness complies.)
MR. WEINREB: How about doing it -- just tap -- here. Is that it right there?
MICHELLE GAMBLE: Yes.
MR. WEINREB: Okay. And what's the establishment just to the left of it?
MICHELLE GAMBLE: It's the Atlantic Fish Company.
MR. WEINREB: How do you know that the video with the audio that you discovered was taken in front of Atlantic Fish Company?
MICHELLE GAMBLE: The woman that had taken the video --
MS. CONRAD: Objection.
THE COURT: Overruled.
MICHELLE GAMBLE: The woman that had taken the video stated that that's where she was standing. And then when you --
MS. CONRAD: Objection.
THE COURT: No, overruled.
MICHELLE GAMBLE: When you review the video, you can see the stores or the restaurants that are directly across from Atlantic Fish Company within the video.
BY MR. WEINREB:
MR. WEINREB: Have you been to the Atlantic Fish Company?
MICHELLE GAMBLE: Yes.
MR. WEINREB: And have you looked across the street?
MICHELLE GAMBLE: Yes.
MR. WEINREB: And in your view, did that match up with what's depicted in the video?
MICHELLE GAMBLE: Similar, yes.
MR. WEINREB: Did you create a copy -- did you create an exhibit in which the sound from that video is synchronized with the events that take place in the Forum surveillance video?
MICHELLE GAMBLE: Yes.
MR. WEINREB: How did you synchronize it?
MICHELLE GAMBLE: I stripped the audio out of the Atlantic Fish Company video and I brought that into the timeline for the Forum video and matched the explosion up right when the bomb goes off.
MR. WEINREB: Your Honor, that exhibit is 1634C. The government offers it into evidence.
MS. CONRAD: As noted, your Honor.
THE COURT: Okay. It will be admitted.
(Government Exhibit No. 1634C received into evidence.)
MR. WEINREB: If we could just play that, Mr. Bruemmer.
(Video and audio recording played.)
BY MR. WEINREB:
MR. WEINREB: Ms. Gamble, did the FBI ask the families of the decedents who wished to contribute family photos to provide them to the FBI?
MICHELLE GAMBLE: Yes.
MR. WEINREB: Did the Richard family provide some family photos?
MICHELLE GAMBLE: Yes.
MR. WEINREB: And did you get those?
MICHELLE GAMBLE: Yes.
MR. WEINREB: Your Honor --
MR. WEINREB: And you reviewed three of them earlier, 1604-05, -06 and -09?
MICHELLE GAMBLE: Yes.
MR. WEINREB: Are those three of the photos you got?
MICHELLE GAMBLE: Yes.
MR. WEINREB: The government offers those.
THE COURT: All right.
MS. CONRAD: As noted.
THE COURT: Pursuant to our previous discussion, they're admitted.
(Government Exhibit Nos. 1604-5, 1604-6 and 1604-9 received into evidence.)
MR. WEINREB: May I have 1605, please -- I'm sorry -- 1604-5.
BY MR. WEINREB:
MR. WEINREB: Do you recognize this photo?
MICHELLE GAMBLE: Yes.
MR. WEINREB: All right. Is this one of the Richard family photos?
MICHELLE GAMBLE: Yes.
MR. WEINREB: 1604-06.
MR. WEINREB: Is this one of the photos?
MICHELLE GAMBLE: Yes.
MR. WEINREB: Do you know who that is?
MICHELLE GAMBLE: I'm sorry?
MR. WEINREB: Do you know who that is?
MICHELLE GAMBLE: That's Martin Richard.
MR. WEINREB: And 1604-09, please.
MR. WEINREB: Again, do you know who that is?
MICHELLE GAMBLE: Martin Richard.
MR. WEINREB: And finally, at my request did you prepare a -- did you take the Forum video and just draw a yellow circle around the figure of Martin Richard so that it's easier to track him?
MICHELLE GAMBLE: Yes.
MR. WEINREB: At one point in that video did you zoom in on a portion of it?
MICHELLE GAMBLE: I did, yes.
MR. WEINREB: Is that a fair and accurate video?
MICHELLE GAMBLE: Yes, it is.
MR. WEINREB: The government offers 1634D.
MS. CONRAD: As noted, your Honor, we object.
THE COURT: Okay.
(Government Exhibit No. 1634D received into evidence.)
MR. WEINREB: If you would just play the beginning of that for now, Mr. Bruemmer.
(Video recording played.)
MR. WEINREB: Would you pause it, please?
BY MR. WEINREB:
MR. WEINREB: Now, that yellow circle, what is that?
MICHELLE GAMBLE: That is -- Martin is in the center of that.
MR. WEINREB: Continue, please.
Okay. Let's pause it right there, please.
MR. WEINREB: And that yellow circle right there, what's in that yellow circle?
MICHELLE GAMBLE: That is Martin.
MR. WEINREB: And this is the part where it's slightly enlarged?
MICHELLE GAMBLE: Yes.
MR. WEINREB: No further questions, your Honor.
MS. CONRAD: No questions.
THE COURT: No questions?
Thank you. You may step down.
(The witness is excused.)
MR. MELLIN: Your Honor, the United States calls Steve Woolfenden.