5.Defense-Witness Statement Production, Proposed Exhibits and Opening Evidence, and Mitigating-Factor and Verdict-Form Preparation
64 linesTHE COURT: Okay. I'll reserve on it.
Then there's a motion to compel production of grand jury testimony or recorded statements of defense witnesses that may be in the government's possession or control, again, filed Wednesday, I guess, to which no written response has been made yet, I think, right?
MR. WEINREB: No, your Honor. We did file a witness response. We emailed a copy --
THE COURT: Oh, you did? Oh, I haven't seen it.
MR. WEINREB: -- and filed it formally yesterday.
(Pause.)
THE COURT: Okay. I've read the government's response now.
MR. FICK: So, I mean, the legal authority for this is something that's not yet settled in the First Circuit. It's debatable in the reach in allowing McMahon -- I think Judge Wolf subsequently recognized in Salemme that there's an open question whether there is an obligation to produce these statements of defense witnesses in the government's possession.
I think our position is simply as a matter of trial management and as a matter of simple fairness to be able to deal with possible cross-examination or refreshing the recollection of a witness, that the production of those statements is warranted and within the Court's authority to order them. And beyond that, I think we'd rest on the papers.
MR. WEINREB: Your Honor, we'll rest on our papers.
THE COURT: Okay. I think at the very least for grand jury materials, in particular, there has to be a particularized need, which is absent. If there is one that develops, then we can reconsider that. And I think otherwise, the motion is denied.
I think that's it on my agenda. Anything else?
MR. WATKINS: Your Honor, there are a couple of lingering issues. We've all been on trial, of course. I sent a letter to the government concerning a particular BOP witness, Tony O'Garro. The government has not yet responded to that. It's concerning specific discovery requests as to him.
I don't know whether they intend to respond or they're going to object to that. We're trying to sort out the trial management issues.
MR. MELLIN: Your Honor, I believe we just received that yesterday.
MR. WATKINS: Wednesday -- Tuesday or Wednesday, I believe.
MR. MELLIN: We'll have a response.
MR. WATKINS: I know it was recently, but it's a fairly simple question.
THE COURT: All right. You've reminded them.
MR. WATKINS: Very good.
THE COURT: Anything else?
MS. CLARKE: And there's another request pending, I think Miss Conrad sent a letter asking for the names of the FBI agents who interviewed the family on April 2011.
MR. WEINREB: So, your Honor, we're going to have a motion in limine to exclude all evidence respecting that which we would like a ruling on before we respond. And in addition, any request for the testimony of FBI agents about anything done within their duties needs to be accompanied by a Touhy request, and none has been filed in this case.
Speaking of motions in limine, we were hoping to get a pared-down witness and exhibit list earlier so that we would be in a position to file a motion in limine -- we wouldn't waste our time moving in limine to exclude things the defense has decided to cut anyway. But since we're so close to the beginning of trial, we're planning on filing one by the end of today.
THE COURT: All right.
MR. WEINREB: We'll be moving to exclude a number of defense exhibits. If I could just preview that for the most part to the extent that the exhibits and witnesses relate to firsthand knowledge of the defendant, his family members, his life growing up and that sort of thing, we are not going to object for the most part. To the extent, however, that the defense is seeking to introduce things like congressional reports with multilevel hearsay in them and basically using a congressman's name on a report to try to give greater weight to the jury and that sort of thing, we are going to object.
We're also going to object to the defense seeking to offer 302s or written witness statements, of witnesses who they could call to the witness stand, especially if, as in the case of Mr. Matanov, he is a convicted liar, convicted of giving false statements about the very subject matter of that 302. And it would be essential for the government to have an opportunity to cross-examine him and bring out all the many, many inconsistencies and contradictions in his numerous statements about these matters over time as well as his prior conviction, his admission that he lied about it and so on, for the jury to decide how much weight to assign that kind of testimony.
And then in some ways, the most vexing problem for the government at this point in terms of motions in limine is the digital evidence. So there is to some -- we have gotten a list from the defense of digital evidence that they intend to offer, but that list includes a number of exhibits that are really one exhibit number attached to hundreds and hundreds and hundreds of files, primarily from Tamerlan's computer, you know, numerous ones of which are obviously, it seems, irrelevant, like, you know, movies about -- I can't remember -- the Mark Wahlberg movie where his best friend is a talking Teddy bear and that sort of thing.
And it's very hard -- I mean, it seems to me the burden is on the proponent of the evidence to demonstrate its relevance. It shouldn't be on the government to have to go through every single one of these hundreds of exhibits, guess what its relevance might be, and then explain why it's not relevant. So I don't think it's appropriate for the defense to simply offer wholesale hundreds and hundreds of files, and that appears to be what they're intending to do here.
Similarly, there are several items from Katherine Russell's computer, including her entire Internet search history, thousands of pages long, and various other things without any seeming foundation for saying that it's not really her, for example, it's Tamerlan who made all those searches. We're in a difficult position here.
So we intend to simply move in limine to exclude it all and put the burden on the defense to explain why it shouldn't be, but we don't want to appear to be playing games. I mean, we don't want to move to exclude items of evidence that are relevant and that are admissible and that are non-cumulative. We just have no way of knowing because the defense won't tell us which ones -- or what their theory of relevance is or which ones they actually intend to offer.
There's also categories of evidence which are pictures of family members, not the defendant, not Tamerlan Tsarnaev, but numerous cute pictures of Dzhokhar Tsarnaev's niece. It's unclear why 10, 20 pictures of the niece would be relevant and admissible. There are videos -- many videos, primarily from the defendant's phone, of him playing with his niece. And there's audio, so the defendant is essentially talking to the jury through these videos. And again, you know, we don't know what the relevance or significance of them is or why there need to be so many.
And so, you know, again, we don't want to appear to be playing games. We know that the defense is opening on Monday and that they are entitled to have some idea as to what exhibits they're actually going to be permitted to put into evidence and talk about in their opening statement; on the other hand, we haven't been given any notice of what the relevance of this is and what the particular ones are that they actually intend to offer, and now it's Friday.
So we'll file it by the end of the day, and we'll do our best.
THE COURT: Well, you touched on a point I was going to raise, and that is the opening. I think it's critical that everybody know what exhibits, or other evidence, I guess even testimony, would be referred to in the opening so that if there is an issue like this, we can address it before that happens.
MR. FICK: I think -- my understanding is it makes sense to do that. Just with regard to the digital evidence, I think what the government's sort of depiction here is rather overstated. For example, with regard to Tamerlan Tsarnaev's computer -- well, first of all, let me just preface this by saying what the government essentially did in its presentation was, for example, from Dzhokhar Tsarnaev's computer, introduced a CD with hundreds of files taken off the computer, some of which we were trying to sort out the night before exactly which ones they were. There was no individualized showing as to which individual file was relevant, the idea was they put together a collection of things from the computer that were consistent with their story, they put it in, and over various objections that was admitted.
With Tamerlan Tsarnaev's computer, we have also collected a segment of files mostly from the encrypted folders he had on his computer, and it's largely a collection of jihadi videos, various kinds of pictures of death and destruction that really show what the man's obsessions were. And again, to the extent part of our attack on the government's case of guilt was to say they were really cherry-picking from the defendant's computer, you know, only the things they thought were bad and not giving the whole picture, we're trying to be a little bit more inclusive without going overboard and saying, Look, you know, these folders don't show the whole picture. Yes, there may be a few innocuous items in them, but looking at the whole is really what helps you to understand what this man's obsessions were. And so for that reason, the files that are being offered as -- the files in their format were collected and are being offered in that way.
As to things like Katherine Tsarnaev's search history, the search history that the expert generated is available to the government. And, you know, I don't, frankly, see any problem with putting the whole thing in. Of course, we are only going to focus on a couple, a couple of searches that Katherine made right around the time that Tamerlan left for Russia. I believe those were culled out and sub-identified as exhibits in the earlier production. If they weren't, they will be cleaned up and put in the production we're doing today.
Again, we're trying to avoid a cherry-picking accusation against ourselves and say, This is the whole. We're going to focus on a couple of parts here. But to the extent you want to have a broader picture and think there's something else that's available for the jury, we do. And so that's sort of been our approach with the digital files.
Similarly, in terms of the pictures of the defendant and his niece, if you look at the collection of photographs on the defendant's computer and the collection of photographs on Tamerlan's computer, yeah, the defendant largely has collections of selfies and photographs of his niece. The equivalent space on Tamerlan's computer is a couple of family-type photographs and then image after image after image of death and destruction in Syria and other places in the world. It's that contrast to the extent that here the computer is really a window into the soul. It's the contrast that we're looking to depict, and I think that's the purpose for which it's being offered.
And I guess I would leave it at that. To the extent there are specific issues, I guess we can litigate it.
MR. WEINREB: I guess I would respond that to the extent that the defense wishes to draw a contrast that the Court rules on relevant and otherwise admissible, the way that -- normally, I think, the appropriate way of doing that, the typical way of doing that is one has testimony accompanied by perhaps a few examples, so that it illustrates it for the jury. And in the way that a picture is worth a thousand words, they can see a few pictures and they get the sense of it through their own senses. But there's no need for the actual hundreds and hundreds of pictures to come in. It's cumulative, it's prejudicial. It's more work for the jury, frankly, if they want to do a thorough job than is really appropriate to give them. And it's a normal way of, I think -- a normal kind of 403 balancing to...
MR. FICK: Yes, but we have the collections of hundreds the government put in from the defendant's computer. We're trying in some way to establish the contrast by making a similar submission of our own.
THE COURT: All right. We'll see. But again, it sounds like you'll work on being specific as to the opening. And if there's an issue about materials or witnesses for the opening, we'll be able to address it before that happens.
Ms. Clarke, are you doing the opening?
MS. CLARKE: Mr. Bruck.
THE COURT: Mr. Bruck? Okay.
MR. WEINREB: Your Honor, I'd just make an oral motion at this point, if that's acceptable, to strike certain of the mitigating factors.
THE COURT: I don't know that I have an up-to-date list. Was there a new one or is it the one that we had about a week ago?
MR. WEINREB: As far as I know, it's the same one we had --
THE COURT: It went to 15 or something? I don't have it in front of me.
MR. WEINREB: There were exactly 15.
(Pause.)
THE COURT: It's part of Document 1300. And I guess this is uncontroversial that the -- if looks like Attachment 2 to 1300 supersedes the prior December list. Is that fair to say?
MS. CLARKE: That's correct. I don't have the document with me. And the government, I think a week or so ago, said they were going to file something on this, and we've been waiting for that. It would be more appropriate for them to file it so we could respond.
MR. WEINREB: It's up to the Court. I mean --
MS. CLARKE: I'm only saying because Mr. Weinreb represented that he was going to file it by the close of business one day, and we would -- when we were here for an earlier lobby conference. I think it would just be appropriate to do that.
THE COURT: Yeah, I think that's a better way to do it. Promptly, obviously, because we would have to decide that before, I presume, the opening. Maybe not. I mean, maybe there's a way of doing the opening without doing that, but it might be a problem.
MR. WEINREB: In addition, the Court ordered that by April 27th -- that before April 27th the parties confer on, among other things, a verdict slip and file it by April 27th. The verdict slip normally has all the aggravating and mitigating factors listed. We've prepared one with the aggravating factors, we assume the defense has prepared one with the mitigating factors, and we'll exchange them and see if we could file something joint. But again, that will require some ruling on what the permissible mitigating factors are.
MS. CLARKE: Maybe the Court should extend that deadline just a couple of days so we could deal with these mitigating factors and --
THE COURT: Well, I agree that we'd have to decide what can be included before you can finalize it.
MS. CLARKE: True.
THE COURT: But since that's a -- what you're submitting is a proposed verdict slip; it's not a final form anyway. I don't think it really matters whether that comes with or without the contested ones. If they're stricken, it just gets revised to strike them, that's all.
MS. CLARKE: I think that's correct. I just realized that it's Friday. A lot of things have happened over the past 24 hours that I didn't expect to have happen. And if we could just have a couple more days to try to work with the government.
THE COURT: Well, the verdict slip, I think, is more important than the instructions. So I'll give you a break on the instructions.
MS. CLARKE: Okay.
THE COURT: But the verdict slip really does set the template for the jury's thinking about this, and so I think we should be clear at least as to what the aggravating and mitigating factors are that will be in play. That will be a guide to evidence admission decisions.
MS. CLARKE: Sure. On that note, Judge, I suppose we could do it at sidebar on Monday morning, but we should make our Rule 29 motion as to each and all of the statutory and non-statutory aggravating factors, failure to prove. I want to get that on the record before too much time passes.
THE COURT: Okay.
MS. CLARKE: And renew, as well, if the Court would look at our motion to strike the duplicative factors. It was Docket 289. We can discuss that with the Court on the record further on Monday, or if this is sufficient.
THE COURT: Let me think about it.
MR. WEINREB: Your Honor, with respect to this motion about the Waltham triple homicides, I assume given the timing of it that the defense will not be mentioning them in opening statement on Monday. We're probably not going to have a ruling on it by then.
THE COURT: I guess it depends on when you get your response in. But if it isn't ruled on and there's a pending issue, then it can't be referred to. I think that's standard practice.
MS. CLARKE: That's correct.
MR. FICK: One other housekeeping matter. We had received from the government their closing argument presentation with the montage of audio and video. We wanted to get that marked for the record just so it's...
THE COURT: This is the one that Ms. Conrad has been worried about?
MR. FICK: Right. We did get it but now we want to get it marked, so. And I don't know if there's a number we could assign to it or what the Court's --
MS. CLARKE: Should we do that on Monday?
THE COURT: Yeah, why don't we do that on Monday. The clerk has his method.
MS. CLARKE: We did that out of deference to your law clerk.
THE COURT: Thank you. I defer to the clerk on those matters.
COURT STAFF: All rise. The Court is now in recess.
(The proceedings adjourned at 12:04 p.m.)