1.Reynolds Expert Scope, Paramedic and Injury Evidence, Russian Witness Travel and Monitoring, and Zubeidat Text Objections
90 linesP R O C E E D I N G S
THE COURT: So what's on the agenda?
MR. WEINREB: So we received notice at various times last night and early this morning of new exhibits that the defense intends to introduce with witnesses, including ones that may testify even before the first break, and so the government has some motions.
So we received notice that Professor Reynolds will be -- they intend to ask him about all sorts of computer exhibits that were entered into evidence: YouTube videos, emails, Tamerlan's -- all of these are Tamerlan Tsarnaev's computer -- his Odnoklassniki page, Kavkaz Center pages, some Internet history, YouTubes relating to Syria and other things. None of this was noticed in the disclosure of his expert testimony. The government has had no time to review these exhibits, to prepare to cross-examine him on them. We've been given no summary of what he's going to say about them, no statement of the bases and reasons for his opinions or anything like that.
Mr. Reynolds was noticed back on -- by letter back on October 2nd, 2014. After giving his background, the defense wrote, "Professor Reynolds will testify in response to the government's three terrorism and geopolitics experts. He will provide context to the government experts' brief mention of the conflicts in Chechnya and Dagestan, the defendant's references to Chechnya in high school essays..." none of which ever came into evidence "...and the presence of Russian-language violent extremist materials emanating from or concerning the North Caucasus on various electronic devices seized by the government." But then it said he will do so by briefly describing the history of the Chechen people and that their culture of self-reliance, independence, and so on, and then it goes on to explain in some detail, five paragraphs of it, all this history of the Chechen people and culture of self-reliance, independence, familial and clandestine norms that he intends to testify about. So he was noticed purely as somebody who would provide context to things by describing the history of the Chechen people and their culture.
There was no notice given of these. And frankly, your Honor, I'm not an expert on Near East studies. I cannot just off the top of my head cross-examine him about these matters. There's no -- we simply had no opportunity to consider -- I need a statement of what it is that he's going to say about them so that I can do some research on it, I can consult with our expert on it, I can figure out whether there is a basis to challenge him on it. That's what notice of experts is for. If the rules mean anything, it means that we need to get some sort of notice other than being told at 6:38 p.m. the night before he testifies that all of these things are now going to be the subject of his expert testimony. So that's our first motion in limine.
MR. BRUCK: Well, there's less to this concern than meets the eye. Professor Reynolds will provide cultural and historical background which really primarily goes to the issue, in the end, of big brother-little brother in Chechen culture and why historically the culture has evolved the way it has. He will also explain the history that -- underlying the fact that the Tsarnaev family, the father's generation, originated in Central Asia, 2,000 miles away from Chechnya, which is something I referred to in opening, simply by telling the story of deportation, all of which was noticed.
He will then give, as we also noticed, the very brief account, just a summary outline, of the last 20 years of Chechen history, the two wars, and the critical point being that the Chechen independence movement has been, in effect, hijacked by radical Islam and the -- which was something that was referred to by Dr. Levitt. So he's going to expand on that.
And the exhibits about which the government is so concerned is simply he's going to note -- we've already put in evidence this enormous amount of Internet traffic by Tamerlan Tsarnaev, much of which focuses on radical Islamist websites that originate from the Caucasus, Chechnya and Dagestan. And he's going to give about three or so or four examples of what these things are like. He's not going to give an expert opinion about them. We're just going to -- I mean, at that level he's going to almost be like a reader witness. We're going to unpack a couple of these things, play three minutes or so of a propaganda video about Syria that comes from KavkazCenter.com, which is the leading jihadi website originating from the Caucasus.
And the point of all of this is to illustrate that young Chechens like Tamerlan Tsarnaev -- and the government wants to argue Dzhokhar Tsarnaev -- in the Chechen diaspora, outside of Chechnya who sort of go looking for their history and for their roots online would find jihad, which is a sort of phenomenon of the early 21st century which has a story behind it, and he's going to tell that. Now, that is all encompassed by what we told the government he was going to do.
And these are not -- these particular websites, I mean, all the links are in evidence. We got them from the government. They're on the -- on Tamerlan Tsarnaev's computer. And they don't require, you know, expert response. It's -- to the extent that there's a story to tell, it is consistent with a very brief part of Dr. Levitt's testimony. And so this is just illustrating evidence that's already here.
THE COURT: As I understand it, sometime there was an identification of slides that Professor Reynolds would use in connection with this. And that may be a separate -- somewhat separate topic because I understand that's been revised and so on, and I've seen a version. It looks to me like it needs further revision.
MR. BRUCK: Yes, we've been on this.
THE COURT: But it seems to me that that was a vehicle or an occasion when the defense was notifying the government what visuals were going to be used with his testimony. And if this material was excluded from that, I think the fair conclusion from somebody receiving that would be "I don't have to look at anything beyond this." So, I mean, it seems to me it would be a little misdirection.
MR. BRUCK: Well, I mean, we've been -- the government was pushing back about telling us they were going to object to things, we were deciding what -- we wanted to use exhibits which weren't actually in the discovery. We decided we would use exhibits that were in the discovery. And so it's been a dynamic situation. We've been changing in response to indications from the government about what it would and would not object to.
But misdirection? I mean, these are links that were on the computer. He's not analyzing them; he's simply using them as illustrative. There are hundreds and thousands of links. And to pick out two or three and say, This is the sort of thing that Tsarnaev was watching and where it comes from and why these sites exist is all we're going to do with it.
THE COURT: I think it's too late, frankly, given the history. I mean, I'm not sure in the abstract, in another timeline it would be, but I think it's beyond what was indicated would be the scope of his testimony. The night before his morning testimony I think is just too late to do it.
MR. BRUCK: In the alternative, can we withdraw him until next week and let the government look at these?
THE COURT: Yes, if you think it's that important. I'm sure it is. But I haven't seen them so I don't know what the connection is.
MR. BRUCK: We could also re-call him, I guess.
THE COURT: I would rather not have him re-called. If you want to postpone him, that's one thing.
MR. BRUCK: We'll need a moment to think about that.
MS. CLARKE: It will certainly affect our overbooking, underbooking and scheduling. We're doing the best we can.
THE COURT: Call some of the relatives so they can get out of here tomorrow.
MS. CLARKE: We've got them on for tomorrow.
THE COURT: Okay.
MR. MELLIN: Your Honor, another concern is --
THE COURT: What else.
MR. MELLIN: As I understand it, the defense is going to call two EMTs: One that transported Tamerlan to the hospital and one that transported the defendant to the hospital. The one who transported Tamerlan to the hospital, I'm sure the point of that is to say he was still aggressive at the time he was even in the ambulance on the way to the hospital. The defendant --
THE COURT: Who are these people?
MR. MELLIN: Laurel Lee and Michael Sullivan, I believe.
THE COURT: Okay.
MR. MELLIN: Laurel Lee transported the defendant.
We don't see how any of that is relevant to this case. The defense has already brought out through another photo that has been introduced in the case that the defendant was shot and that he had some injuries. What they're trying to do now is bring out the extent of those injuries through two very graphic photos that we object to. I think those were produced this morning. And there really is no point to -- for those photos to be in this case. It's irrelevant to what's going on in the case and, in fact, one of the injuries that they want to focus on is an injury to the face which the EMT will testify was a fresh wound. It was probably a wound that happened while he was in the boat. To the extent that the defense is trying to say, Well, this might help explain what he was writing and what he was saying as he was preparing his manifesto, this wound occurs well after that.
Given that, it's irrelevant --
(Interruption in the proceedings.)
MR. MELLIN: Given that, your Honor, they're only being produced for sympathy and they are more prejudicial than probative. In fact, I don't know what the probative value of them is.
THE COURT: Is this the three of them?
MR. WEINREB: Yes. Two.
MR. MELLIN: The first one I believe is already in evidence.
MR. WATKINS: It is not. The government objected on authentication grounds kind of. This person will clearly authenticate that. So --
THE COURT: These were at the hospital?
MR. WATKINS: That's correct.
But Mr. Mellin's quite right that the EMT will say that those are consistent with the wounds that she observed in the ambulance.
MR. WEINREB: We were given these at 8:15 this morning.
MR. WATKINS: These are all -- well, certainly 36D has been an ongoing issue. We are not trying to introduce the whole set.
THE COURT: The first one is from that group?
MR. WATKINS: The first one is from that, and this is the last one. So that is all that will be in evidence. But to the extent the government was arguing authentication, they now have a witness that they can cross-examine about. That was the complaint before. So clearly there's not an issue with that.
As far as the general matter of whether this witness can testify, I think it is fair -- there is going to be quite a marked difference between Tamerlan Tsarnaev when he's transported to the emergency room and Jahar Tsarnaev when he's transported to the emergency room. The government has talked about equal partners and Mr. Tsarnaev being dedicated to the cause in an equal way that his brother was. This, I think -- not "I think." I know that this will cut against that theory that the government has proposed all along.
As far as the pictures, there are many, many far more graphic pictures. I went out of my way to choose two pictures which I think are the least controversial. There are lots of pictures during the surgery and the like that could have been introduced. This is the least graphic of all of them.
The government, as I understand it, has talked about this smirk that Mr. Tsarnaev had on his face during the video that was played out there. Clearly those -- those injuries are part of the evidence, and that's something that the jury should be able to know.
In addition, to Mr. Mellin's argument that the wound was fresh and therefore irrelevant to the boat writings, absolutely. Bring that out on cross-examination if he likes. Try to prove that to the jury. I would say that that's not necessarily supported. It's not a done deal at all. So to the extent -- I do think the jury can take that into account, Mr. Tsarnaev's condition as he's writing those messages in the boat.
So I think for all of those reasons, both the testimony itself -- which is going to be extremely brief. Perhaps ten minutes' log all together, perhaps 15 to get the background of the ambulance drivers, but it's going to be extremely brief.
And I know Ms. Conrad was trying to get my eye here.
MS. CONRAD: Yeah. So as far as the video, I saw a little -- you know, the problem as far as the cell block photo, the still the government showed, it looks like -- and I don't know if they argued that or if they will argue that, but certainly the jury could draw the conclusion that it's a sneer, that it's a contemptuous expression. And I asked Mr. Oliveira, Deputy Marshal Oliveira, on cross whether he was aware that Mr. Tsarnaev was shot in the face, and he sort of demurred and said, "Well, you know, I'm not sure. I know he was injured." This shows that he was shot in the face. And that is one of the main purposes for showing it. To explain also his expression in the courtroom. The left side of his face is immobile, essentially. And the jury has a right to know why that is.
I also want to mention that his physical condition when he was arrested undercuts the suggestion that he didn't surrender immediately out of some kind of resistance or defiance as opposed to the fact that he was simply physically unable to get out of the boat and likely unconscious.
THE COURT: Well, all right. I'll think about it.
MR. WEINREB: Okay.
THE COURT: I understand the objection.
MR. WEINREB: And I would just like to add one thing in response to what Ms. Conrad just said which is that the government has not and will not draw attention to the defendant's demeanor in the courtroom in order not to burden his Sixth Amendment right to be present, but if the defense does, then we would deem that to be a waiver by opening the door to fair response on that.
MS. CONRAD: I'm not saying --
THE COURT: All right.
MR. WEINREB: There is one other thing.
MS. CONRAD: The jury obviously is looking at him.
MR. WEINREB: There's one other thing I would like to put on the record. The defense has notified us that certain witnesses who were scheduled for today may be moved to tomorrow, which is no problem. However, I just want to again make clear on the record that five witnesses have a scheduling issue. They're going back to Russia on Friday. And it's often the case that witnesses have scheduling issues and the parties that seeks to call them either has to accommodate their schedules or forgo their testimony.
If the defense leaves them to Thursday, and especially leaves them to later on Thursday rather than first thing in the morning, they're doing so at their own risk because these witnesses are scheduled to leave on Friday and they're going to leave. So we will deem this to be a waiver of any rights that they have.
THE COURT: So there's five and they all have the same exhibits for them. It occurred to me that you're not going to use all of them. There's some backup here? Is that --
MS. CLARKE: No, our plan is to use them all. We just listed those exhibits because we didn't know who would put in which one, and there may be some other family photos that the government has.
THE COURT: So you think all five are noncumulative?
MS. CLARKE: Yes.
THE COURT: Okay. Well, I think that just underscores the point.
MS. CLARKE: And our point is -- and our plan is to put them on -- all on tomorrow. We really don't appreciate the government's continuing threat that they're going to take them away.
MR. WEINREB: It's not a threat. I'm just --
MS. CLARKE: We absolutely plan to put them on tomorrow. We needed as much time as we could get. They were put under the glare of the media --
THE COURT: Why can't they come in this afternoon and get a head start on tomorrow?
MS. CLARKE: Judge, we're doing the best we can with them. And I think the record should reflect the flurry of the leak that caused them to be chased by the media to a hotel, removed from that hotel to another hotel. They've had to be -- you know, they've got two FBI agents per witness, they have them in ankle bracelet. These are people who are coming from villages in a -- from the moon. They've landed on the moon here. And we've done our best to sort of let them acclimate to being in the United States, in Boston, calm their fears. I think the FBI has even switched its view of what's going on to protect them rather than protect America from them.
It's not a good situation and we're dealing with it the best we can. They're scheduled for tomorrow. I'm confident we can get them all on and off tomorrow unless the government, you know, spends the morning objecting to what we're about to do.
THE COURT: Okay.
MR. WEINREB: Folding in time for objections, for cross-examination, that's all part of scheduling one's witnesses. There's absolutely no threat here. These witnesses are here at enormous expense and difficulty for the government. They were -- every effort was made to get them their parole expeditiously and to get them here as quickly as possible. By tomorrow they will have been here for a week. And the defense has had four full days in which to put them on the witness stand.
It's not reasonable or fair to ask that they be kept here over Friday, Saturday, Sunday, all again until Monday simply because the defense chooses not to call them until the last minute. So they're going back.
THE COURT: Well, I don't think the government's position is unreasonable in the travel arrangements, and since this has been vetted, I don't think you can expect to look to me for any relief if you don't have them finished.
MS. CLARKE: If for some odd reason they're not done, then we'll be asking the Court to let us go on Friday morning to finish them up. They don't leave until Friday night. But our intention is not to keep them over the weekend. These folks don't want to be here any more than the government wants them to be here.
It does raise a related issue, Judge. They have ankle bracelets on that we've now been advised could possibly be audiotaping what's being said. Now, Mr. Chakravarty was going to check on that. That comes as a complete stunning surprise to us. And if that is happening, we would ask that it be cut off, and if it is happening, that those audiotapes be sealed and destroyed and not listened to by any prosecuting authority or anybody closely related to the prosecution.
THE COURT: You'll find out about that.
MR. CHAKRAVARTY: I've inquired. Regardless, for the record, the prosecution team has no awareness of any communications that the attorneys are having with those witnesses. If there is some other reason why that is happening -- and we have no reason to believe it is, but if there were some other reason, they would be filtered and shielded from the prosecution.
For purposes of their testimony, it's also our intention to have those bracelets removed for purposes of testimony. We don't know if that's going to be possible, but we think it probably will be.
THE COURT: All right. So the order of witnesses, Mr. Lipson is going to finish up?
MS. CONRAD: Yes. I only have a couple of questions.
THE COURT: And Ms. Petri is going to go back on the stand and read things?
MS. CONRAD: Correct.
THE COURT: Do we have issues with what she's reading?
MR. WEINREB: Yes, your Honor. We filed motions to exclude virtually all of them. There was a motion in limine filed a week ago. And I can review what the objections are.
THE COURT: I think we should resolve them now because she's going to be on very soon, I would assume.
So I don't know that I have all the copies. I have copies of some of them. 3200 and 3200A.
MS. CONRAD: Yes, those are the text message, SMS messages.
(Attorneys Clarke, Mellin and Watkins exited the proceedings.)
MR. WEINREB: We filed a supplemental memorandum last night.
THE COURT: Okay.
MR. WEINREB: So on top of our other objections which we made at length yesterday, and I won't repeat about the dubious nature of this material and the jurors' inability to weigh it, is the fact that it is a written statement by a witness who's available to the defense and has been all along. She's an American citizen. She needs no visa, no parole to enter the country. And the defense has a statutory -- has the power to subpoena her. There's a statute that specifically provides that an American citizen in a foreign country can be subpoenaed and that subpoena can be enforced.
The defense doesn't want to call her to the witness stand and ask her about whether she was radicalized or she did anything to radicalize Tamerlan because she'll deny it. Instead, they want to put in a written statement that can't be cross-examined or put into context or can't even be authenticated. That's just entirely unfair. It will be read to the jury and the government will have nothing to say about it and no way to say anything about it. That's the whole reason we require witnesses to be on the witness stand, so that they could be questioned about it. If they deny it, they can be impeached with it. They have a chance to explain what was in it. Maybe they'll say, "I didn't mean what I said." Maybe they'll say, "You're misinterpreting it." Maybe they'll say, "I never wrote that. The government made it up." And that's all something that the jury ought to be able to hear and they're not going to hear it if she doesn't take the witness stand.
MS. CONRAD: Well, so, this is -- first of all, this is not a statement that's being offered for the truth; this is a statement that she made. It's made -- but I mean --
THE COURT: It's a statement the Russians say she made, right?
MS. CONRAD: Yes.
THE COURT: Is there any way of testing its authenticity?
MS. CONRAD: I mean, you know, the frustrating thing here, Judge, is that the information regarding how this information, when this information was transmitted to the United States government is entirely within the possession, custody and control of the executive branch. And the government has not provided us with any information about this. What we do know is that the American government acted on this information, first of all, by sending FBI agents to interview Zubeidat Tsarneva and Tamerlan Tsarnaev, and secondly, by placing Tamerlan Tsarnaev on the terrorist watch list. It is basically her state of mind.
As far as verifying that she wrote it? I don't think there's any reason to think that she didn't write it. She's writing to her former son-in-law, it's someone that she knows.
(Attorneys Clarke and Mellin rejoin the proceedings.)
MS. CONRAD: It is typical of her style of communication, which we all kind of know from personal experience. And I think the government, if it has some issue as far as its reliability, should come forward with something more than just, you know, well, gee, we don't know.
I mean, the government acted on this information. It is -- it is basically her expression of her state of mind. It's not being offered for historical fact. You know, to bring her to this country, the media circus that we just saw last week would be magnified tenfold exponentially if she were to come to this country, not to mention the fact that she has an outstanding warrant in Rhode Island, and I have no doubt that as soon as she --
MS. PELLEGRINI: Framingham.
MS. CONRAD: Sorry. Framingham.
And I have no doubt that the minute she set foot in this country she would be arrested.
So for us to make the defendant's mother come under those circumstances is just not possible.
THE COURT: Now, just to vet everything, assume that objection is not sustained and the document is perhaps usable. Are there things about the document, the use of the document itself, that are problematic or is that the main --
MR. WEINREB: Well, there are several problems with the document. First of all, it's just not true to say it's not being offered for the truth of the matter asserted. She asserts in it that "Tamerlan said this to me. I said this to Tamerlan." Her state of mind is irrelevant to this case. What does it matter what her state of mind is after she leaves the country and goes to Dagestan or -- I'm sorry -- not when she goes but during the time that this is purportedly sent.
Her state of mind is so remote to the issues in this case that that would not be a basis for admitting it in the first place, especially given the prejudicial nature of it, the risk that the jury will treat it as being offered for the truth of the matter asserted and the dubious provenance of it.
The other thing I want to correct for the record is that we have disclosed everything we know about this document. It was given to -- from the Russian government to the United States government after April 15th, 2013. That is all we know about it. That is all we have ever been able to find out about it from the Russian government. We have been given no information about where they got it, how they got it or anything like that. So --
THE COURT: Okay.
MR. WEINREB: -- that objection is not well taken.
And to the extent that the Court is inclined to admit it, then we would propose to, at least at a minimum, redact every assertion of fact in it so that the jury does not take it for the truth of the matter asserted.
MR. CHAKRAVARTY: There's one other point. This is not a circumstance where we're also explaining the circumstances, the nature of the bilateral relationship, whether they -- the Russians give reliable or unreliable information in the past. It's not something that we can offer up a witness to be able to explain.
THE COURT: Yeah, okay. Fine. I understand that. I'll --