2.Kartashov Interview Report and Homeland Security and Intelligence Report Redactions
82 linesMR. WEINREB: Okay. The Kartashov redacted 302 -- or not 302.
THE COURT: Yeah, it is 302.
MR. WEINREB: 302?
MS. CLARKE: We're not using the Skype conversation.
MR. WEINREB: Didn't this already --
MS. CONRAD: No, Kartashov did not come in. Vakhabov and Dolakov. So this is 3202A.
MR. WEINREB: Right. So unlike with respect to Vakhabov and Dolakov, we don't waive our objection to this 302 because this is one where we do have -- first of all, we regard it as cumulative in light of the others that have come in; and secondly, there were grave doubts about Kartashov's reliability as a witness. He's in prison, he's got other impeachable -- maybe I should defer to Mr. Chakravarty who's more familiar with this.
MR. CHAKRAVARTY: Well --
MS. CONRAD: The government -- I'm sorry -- but the government, well, only objected to portions, not to the admission of the entire thing. I'm looking at the motion in limine that was filed. It says portions should be excluded because they are irrelevant or more prejudicial than probative. So this is the first time I'm hearing that the government is objecting to the entire thing.
MR. CHAKRAVARTY: So, your Honor, the touchstone has been with the reliability of the witness and the circumstances in which these statements were made. These statements were made for -- Mr. Kartashov was associated with the Union of the Just which is this organization that the Russian government is not particularly fond of, and when placed in custody in circumstances post bombing where they're looking for the help, he had all the incentive in the world to explain, to exculpate his own involvement and to implicate Tamerlan as being unstoppable or in some other way pursuing jihad despite his admonitions.
That self-serving nature of those statements leads to the additional lack of credibility when you -- on top of that, you put him in jail. He's arrested at a wedding in which essentially he was accused of being essentially anti-Russian and fomenting hatred. So he had every incentive in the world to suggest just the opposite, and that's what those statements reflected, that he was counseling Tamerlan to avoid going into the forest, statements which I should add the audio files which Mr. Fick introduced yesterday substantially, if not even -- better evidence of that was introduced yesterday by having Tamerlan's own conversation with others related to that very same issue. So this will be entirely cumulative and, in fact, it will be the opinions of Mr. Kartashov as opposed to facts as to what his interaction was with Tamerlan.
MR. WEINREB: And the agreement not to -- the statement in the motion that we would only object to portions of it was made at a time that we had outstanding objections to the Vakhabov 302 and others that have now been admitted and we believe now render this cumulative and more prejudicial than probative. Its probative value is diminished with -- over time because of the other testimony that's come in. This is arguably more reliable.
MR. FICK: First of all, on the issue of cumulativeness, it's really a uniquely different piece of evidence that does corroborate some of the other evidence in the case. But this is the man in Russia who interacted the most with Tamerlan and had direct observations of Tamerlan's state of mind, the things he said, the things he did, the things he was interested in.
The Court will recall that we sought to obtain a deposition of this witness. The Court denied that in part at the time, as I understood it, because the Court indicated, well, there was this 302. Hearsay can come in during the penalty phase and that would likely happen.
The issue about reliability I think is also not well taken. In a sense, what Mr. Kartashov has said to the FBI is a statement against interest. The FBI interviewed other members of the Union of the Just in Russia, and those folks all sort of demurred or minimized Tamerlan's own radicalization because that is -- if someone wanted to hide and suggest there was no culpability the way they would do it would be to say, "No, no, we didn't notice anything about him."
In contrast, Kartashov was very forthright. He talked explicitly and expressly and in detail about Tamerlan's state of mind and about his efforts to talk to Tamerlan, and sort of concluded that, you know, "when Tamerlan left, I thought he had sort of calmed down." But the overall account is actually much more consistent with the other evidence we've seen both here and on some of those audiotapes. But it's really unique because it's the one human being in the world who interacted the most with him and told the FBI about that experience. So it's really a uniquely --
THE COURT: All right. I want to move along. We have a jury sitting here. I'm not going to bar it entirely. So the question comes down to redaction. And I have a redacted version here. I don't know whether it's been gone over or whether there's --
MS. CONRAD: I have not compared my redactions to what the government wanted.
THE COURT: I will admit it with the same caution to the jury about judgment of its reliability and weight and so on and so forth. And also, because I had signaled that I would admit it as a solution to the deposition problem. So I think it's fair to admit it. And I do think it adds things that the other affidavits or 302s did not add.
So the battleground becomes particular redactions and I don't know where you are on that. As I say, I have a redacted version here.
MR. WEINREB: Do you have my redacted version?
MS. CONRAD: I just have the one that you attached to your opposition. I have not compared it to what I did. So we can take a few minutes maybe we can try to work things out.
MR. WEINREB: So the government's offered proposed redactions and the defense needs a chance to review it.
THE COURT: That may be what this is. I don't know where I printed from at this stage.
MS. CONRAD: The government's proposed redactions were highlighted in yellow, so the ones that actually show portions blacked out, those are my redactions.
THE COURT: Okay. Well, see what the differences are, if any.
MR. WEINREB: Moving on.
THE COURT: I think that brings us to the two reports.
MR. WEINREB: Yes.
THE COURT: Again, just to expedite things, I have looked at those as well and I have some proposed redactions.
MS. CONRAD: Okay.
THE COURT: I think there is some narrative of what I think are probably not disputed facts and then there are parts that are, I think, speculative and not well supported.
MS. CONRAD: So that would be 30, just for the record 3023A.
THE COURT: 3023A.
MS. CONRAD: That's the Intelligence Community report.
MS. PELLEGRINI: We don't have --
THE COURT: No, 3A is the --
MS. CLARKE: Homeland Security.
THE COURT: House Committee.
MS. CONRAD: I'm looking at the wrong one. I apologize.
THE COURT: I'm looking at page 11 of 37, which is the first one after the title.
MS. CONRAD: So, I'm sorry. After the title, you said?
THE COURT: The first page after the cover page is 11 of 37.
MS. CONRAD: Yes.
THE COURT: And it has a heading "2011 Assessment of Tamerlan Tsarnaev."
MS. CONRAD: Yes.
THE COURT: I think those two paragraphs that go over to the top of the next page are admissible as narrative of facts that are not really in dispute.
MR. WEINREB: It may be that they're not in dispute but they're utterly irrelevant.
THE COURT: Well, they may be. But -- then just to go through, I think beginning with the next paragraph over to the end of the first paragraph on page 13 is -- should be redacted.
MS. CONRAD: So where it says "The FBI case agent," that paragraph starting there?
THE COURT: Correct.
MS. CONRAD: On page 12?
THE COURT: Through over to the end of the first paragraph on the run-over paragraph on page 13.
MS. CONRAD: Well, I think I redacted that out so --
THE COURT: Okay.
MS. CONRAD: -- it's that paragraph after --
THE COURT: Let me just give you mine.
MS. CONRAD: Sure. I want to make sure I'm following.
THE COURT: I'm not looking at your -- I'm looking at a prior version.
MS. CONRAD: I got it.
THE COURT: So there may be some overlap and there may not be. Then the paragraph after "The FBI's assessment" can stay in.
MR. WEINREB: So the paragraph after it or that paragraph itself?
THE COURT: The paragraph that --
MS. CLARKE: I think you guys are looking at different pages. Yes.
THE COURT: Yes, that paragraph can stay in.
MR. WEINREB: That can stay in? Okay.
THE COURT: And the rest of the document should be redacted.
MS. CONRAD: Including "travel to Russia"?
THE COURT: You can have that one sentence but I think that's cumulative. So, no, I think it's neater just to end at the end of the paragraph. The rest is much more speculative, it seems to me.
MS. CONRAD: Okay.
MR. WEINREB: So, your Honor, although we object on relevance grounds, if this were to come into evidence, then we would at least ask that it simply be read to the jury as a stipulation, not that the majority staff of the committee on Homeland Security be a witness in the case.
MS. CONRAD: Well, Judge, I think it's admissible under whatever the new version of 803(8)(c) is, which is a report pursuant to legal obligation admissible against the government --
THE COURT: I'm not sure it fits that but I think it can be identified for what it is.
MS. CONRAD: And admitted?
THE COURT: Read.
MS. CONRAD: Not -- but we're seeking admission under that rule, your Honor. It's an official government document. It is a compilation of information conducted as part of an investigation pursuant to --
THE COURT: Yes. Yes. I think the easiest way to do it is to put it in with the cover page.
On the Intelligence Committee, again, it's duplicative, I think. But I have four pages which are numbered 1, 2, 7 and 8. There are some redactions already on the page that I have. The only additional redaction I would make is to the second full paragraph on page 2.
MS. CONRAD: Okay.
THE COURT: Otherwise, that's okay. Oh, no. There are two minor ones. On page 8 there's a squabble about whether the FBI is responsible for transliterating improperly, and I think that's not necessary. So that's the last sentence on the first run-over paragraph with the footnote. It goes out. And it happens again at the bottom of the -- actually, it's the last sentence of the page, "Based on information, database..."
MS. CONRAD: Last -- got it.
THE COURT: Okay? So that's just a squabble about spelling.
MS. CONRAD: And the first one, just to make sure I'm on the same page, literally, "importantly"? Begins with the sentence, "Importantly, the memorandum including" --
THE COURT: Correct. Correct.
MS. CONRAD: Sure. I might need a moment or two to make those redactions.
THE COURT: Okay.
Next?
MR. FICK: Just as a matter of concern about some ongoing, I guess, leaks, quote/unquote, you might say, somehow a transcript including sort of sidebar and chambers matters of I think it was either Monday's proceeding wound up on the Internet which became, among other things, a Boston Globe story today, again sort of beating the drum about the amount of resources being spent on the Russian witnesses who are here and just feeding that frenzy. So I'm not sure what, if anything, can be done to establish how that happened, but I guess we would just ask that especially the sidebar and chambers conference portions of any proceedings be sealed and not, you know --
THE COURT: It was a misunderstanding by one of the reporters, that's all. One of the court reporters.