8.Kevin Michael Roche — Direct/Cross
224 linesKEVIN ROCHE, duly sworn
COURT CLERK: State your name. Spell your first and last name for the record, keep your voice up, and speak into the mic, if you would.
KEVIN MICHAEL ROCHE: My name is Kevin Michael Roche. Last name is R-O-C-H-E.
DIRECT EXAMINATION BY MS. CONRAD:
MS. CONRAD: Good afternoon, Mr. Roche.
KEVIN MICHAEL ROCHE: Good afternoon, Counselor.
MS. CONRAD: Mr. Roche, where do you work?
KEVIN MICHAEL ROCHE: For the United States Marshal Service.
MS. CONRAD: What's your position?
KEVIN MICHAEL ROCHE: I'm a deputy U.S. marshal.
MS. CONRAD: And how long have you worked for the Marshal's Service?
KEVIN MICHAEL ROCHE: For 17 years.
MS. CONRAD: And has that always been in Boston?
KEVIN MICHAEL ROCHE: Yes, ma'am.
MS. CONRAD: And is that your current assignment?
MS. CONRAD: And were you working as a U.S. marshal back on April 19th, 2013, when Jahar Tsarnaev was arrested? April 20th. Excuse me.
KEVIN MICHAEL ROCHE: What was the date again?
MS. CONRAD: April 20th, 2013.
KEVIN MICHAEL ROCHE: That was the Friday?
MS. CONRAD: Friday was the 19th. 20th was Saturday.
KEVIN MICHAEL ROCHE: I was not working Saturday, no.
MS. CONRAD: Okay. Did you encounter Mr. Tsarnaev shortly after he was taken into federal custody?
KEVIN MICHAEL ROCHE: Yes, ma'am.
MS. CONRAD: And where did that occur?
KEVIN MICHAEL ROCHE: At the Beth Israel Hospital on Sunday. I think that was the 21st.
MS. CONRAD: And do you see Mr. Tsarnaev in the courtroom?
KEVIN MICHAEL ROCHE: I do.
MS. CONRAD: From the time of his arrest to, let's say, the date of his first appearance in this courthouse on July 10, 2013, how many times did you personally interact with Mr. Tsarnaev?
KEVIN MICHAEL ROCHE: Prior to the arraignment? I would say half dozen probably.
MS. CONRAD: And tell us what your role was and how you came to interact with him.
KEVIN MICHAEL ROCHE: On the Sunday after his apprehension, the clerk magistrate -- I mean the judge magistrate, Marianne Bowler, came to the hospital to give him his initial appearance in the hospital. And from that point on, he became a Marshal's Service in-custody detainee. He remained at the hospital that day, and we had a detail on him while he was at the hospital until the time of his discharge.
MS. CONRAD: And could you explain what you mean by "a detail"?
KEVIN MICHAEL ROCHE: There were maybe six of us that were inside the actual wing that he was being treated in, and then there was other law enforcement throughout the hospital for security purposes. But we stayed with him the entire time he was in the hospital.
MS. CONRAD: And you were part of that detail?
KEVIN MICHAEL ROCHE: Yes, ma'am.
MS. CONRAD: And was Deputy U.S. Marshal Gary Oliveira also part of that detail?
KEVIN MICHAEL ROCHE: Not the day that I was there. I did a 12-hour shift from the Sunday that he was -- he had his initial appearance until Monday morning. I'm sure that he did. I think everyone in the district did at some point.
MS. CONRAD: At some point was Mr. Tsarnaev transferred to the Federal Medical Center at Devens?
KEVIN MICHAEL ROCHE: He was.
MS. CONRAD: And that was -- again, he was still in federal custody?
KEVIN MICHAEL ROCHE: Correct.
MS. CONRAD: And after his transfer out of Beth Israel, did you have interaction with him as part of your duties as a U.S. marshal?
MR. MELLIN: Your Honor, objection to this line as irrelevant.
MS. CONRAD: It's foundation, your Honor.
MR. MELLIN: There's no question about the foundation.
MS. CONRAD: Well, I'll make a proffer at sidebar, your Honor, but --
THE COURT: Well -- yeah. Let me see you.
(Discussion at sidebar and out of the hearing of the jury:)
THE COURT: You seem to be taking a while to get to the point.
MS. CONRAD: Well, no. The point is that, in his interactions with him, he was never defiant, hostile or uncooperative. And that's exactly the point. The July 10th event is what the government wants to focus on --
MR. WEINREB: Your Honor, two days when he lay in the bed in Beth Israel, he wrote one defiant note after another. He couldn't be defiant physically. He was physically --
MS. CONRAD: I was getting to after he went to Devens. I just had to establish when he first went there. Now we're talking --
MR. MELLIN: They're trying to draw these fine lines and --
MS. CONRAD: I'm done with Beth Israel.
THE COURT: No, no. But it's fair game for them to point out that he was defiant on other occasions.
MS. CONRAD: I'm talking about this --
MS. CLARKE: He's not been defiant.
MS. CONRAD: He has not been defiant.
THE COURT: He just said -- I don't know what the evidence is.
MS. CONRAD: He's talking about the interrogation by the FBI the government said they're not offering. I'm talking about his interaction.
MR. WEINREB: We're not offering it in our case-in-chief but to cross-examine him to rebut a claim. The defense isn't entitled to put on a one-sided presentation and then keep out evidence that contradicts it. The jury's being misled.
MS. CONRAD: First of all --
THE COURT: I think it opens the door to evidence of defiance if they have it. I don't know what it is.
MS. CONRAD: I don't know what it is either.
THE COURT: But be warned, it opens --
MS. CONRAD: Even if it's during the course of an un-Mirandized interrogation, which I think is what they're talking about --
THE COURT: I don't know. I'll have to hear what it is.
MS. CONRAD: Well, if it's statements by the defendant, we have not been given discovery under Rule 16(a)(1)(A)--
MR. WEINREB: They have all the statements.
THE COURT: I'm just -- okay. I think you may have to be careful because I think it may open the door to something you don't want. I'm sorry.
MS. CONRAD: It would help if the government would tell me what they're talking about because I'm not aware of what they're talking about.
MR. WEINREB: We don't need to preview our cross-examination. All the statements the defendant made at Beth Israel were produced to the defense. It's up to the jury to decide if they were defiant statements or not. We happen to believe that many of them were.
MS. CONRAD: I do not want to ask whether he was defiant at Beth Israel; I just want to establish when he first met him and under what circumstances.
MR. WEINREB: The question is, was he defiant?
MS. CONRAD: That wasn't the question. I'm focusing --
THE COURT: If you focus on a particular quality, like defiance, they can meet with a particular quality. A more general focused quality of what his demeanor was might not --
MS. CONRAD: Okay.
(In open court:)
BY MS. CONRAD:
MS. CONRAD: Were there occasions when you escorted Mr. Tsarnaev to medical appointments from Devens?
KEVIN MICHAEL ROCHE: Yes. I believe on at least two occasions.
MS. CONRAD: And on those occasions, what was his demeanor in his interaction with you?
KEVIN MICHAEL ROCHE: On the first time that we took him to a hospital, I believe he was still pretty lethargic. It seemed like he was -- he was pretty fresh from his discharge, and he may have still been medicated.
MS. CONRAD: And when you say "fresh from his discharge," did you actually observe physical injuries?
MS. CONRAD: And, specifically, did you observe physical injuries to his face?
KEVIN MICHAEL ROCHE: I did.
MS. CONRAD: What did you observe?
KEVIN MICHAEL ROCHE: He had a wound that appeared to have been sutured, and his head was deformed. I believe it was his left side of his -- his head seemed swollen.
MS. CONRAD: And did you notice anything about his mouth?
KEVIN MICHAEL ROCHE: Not to my recollection, no.
MS. CONRAD: Were you aware that he had been shot in the face?
KEVIN MICHAEL ROCHE: Yes. I take that back. I'm sorry. I knew he had an upper body wound and a hand wound and a leg wound. I don't know -- I mean, other than the obvious suture, that was my first indication.
MS. CONRAD: And when you escorted him to medical appointments, did you give him instructions?
KEVIN MICHAEL ROCHE: I did.
MS. CONRAD: And did he follow those instructions?
KEVIN MICHAEL ROCHE: He did.
MS. CONRAD: And I want to turn your attention to July 10th, 2013. And that was the day that Mr. Tsarnaev first came to this courthouse for his arraignment, correct?
KEVIN MICHAEL ROCHE: Yes, ma'am.
MS. CONRAD: And did you -- have you seen the video of a gesture he made to the camera in the cellblock?
KEVIN MICHAEL ROCHE: I have.
MS. CONRAD: Now, you're familiar with the cellblock?
MS. CONRAD: And are you familiar with the camera in the cellblock?
MS. CONRAD: And by the way, what was your assignment that day on July 10, 2013?
KEVIN MICHAEL ROCHE: I was part of the team that moved him from the facility here on that morning, and then -- I don't recall if I actually escorted him to court that day. I believe I did.
MS. CONRAD: At some point did you go with a supervisor to speak to him after becoming aware of a gesture that he made to the camera?
KEVIN MICHAEL ROCHE: Yes, ma'am.
MS. CONRAD: And what did -- and when you spoke to him -- or your supervisor spoke to him on that occasion, how would you describe his demeanor?
KEVIN MICHAEL ROCHE: It was very brief, that discussion we had with him, and his demeanor was -- he basically listened to what we had to say, and he didn't have much to offer.
MS. CONRAD: Did he apologize?
KEVIN MICHAEL ROCHE: He did.
MS. CONRAD: Have you seen other detainees use the housing on that camera as sort of a reflection or a mirror?
MR. MELLIN: Objection to "others."
THE COURT: No. Overruled. That may stand.
BY MS. CONRAD:
MS. CONRAD: And after you spoke with him that day, did you receive any report -- strike that. Was he given any instructions at that time?
KEVIN MICHAEL ROCHE: Was he given instructions?
MS. CONRAD: Yes. In your presence.
KEVIN MICHAEL ROCHE: He was.
MS. CONRAD: And did he follow those instructions?
KEVIN MICHAEL ROCHE: Well, let me just clarify that. I don't know if we gave him instructions, but we addressed what we had observed and informed him that that was not going to be tolerated here in this house, and it was going to be dealt with if it continued and asked him if he had any plans to continue that behavior.
MS. CONRAD: And what did he say?
KEVIN MICHAEL ROCHE: And he had said, "No. I'm done. I'm sorry."
MS. CONRAD: And did he engage in any other behavior like that that day in the cellblock?
KEVIN MICHAEL ROCHE: Not that day, no.
MS. CONRAD: In your experience, what types of things have inmates done in the cellblock?
KEVIN MICHAEL ROCHE: You name it. We've seen attempted suicides in our cellblock, inmate-on-inmate assaults. They flood the toilets. You know, they act out verbally, physically to each other.
MS. CONRAD: Do they ever act out verbally to you?
KEVIN MICHAEL ROCHE: Anyone or him?
MS. CONRAD: Other detainees.
MS. CONRAD: And have you ever -- strike that. In terms of the hand gesture, would that normally result in writing up an incident report?
KEVIN MICHAEL ROCHE: I would -- it would depend on the detainee. Different inmates rise to a different level of attention from the Marshal's Service in what's considered, you know, important or significant. I can say, in my experience, I've never written a report about a hand gesture.
MS. CONRAD: May I have a moment, please?
(Counsel confer off the record.)
MS. CONRAD: Thank you very much, Mr. Roche. I don't have any further questions for you at this time.
CROSS-EXAMINATION BY MR. MELLIN:
MR. MELLIN: Mr. Roche, by the time the defendant came to court in July, he was healing, correct?
MR. MELLIN: His face was no longer swollen like you talked about, correct?
KEVIN MICHAEL ROCHE: In July?
MR. MELLIN: Yes.
KEVIN MICHAEL ROCHE: I believe it was still in July.
MR. MELLIN: Okay. Did you see his hand gestures that day?
KEVIN MICHAEL ROCHE: Yes, sir.
MR. MELLIN: Now, Ms. Conrad just asked you about your experience and what types of things are done, in your experience. Did you ever see him make a peace sign that day?
KEVIN MICHAEL ROCHE: In my opinion, no.
MR. MELLIN: Did he ever once put his hands up like this during that video and make a peace sign like this?
MS. CONRAD: Objection, your Honor. The video speaks for itself.
THE COURT: I agree. The video speaks for itself.
BY MR. MELLIN:
MR. MELLIN: Did you see that sign?
MS. CONRAD: Objection.
THE COURT: Sustained.
BY MR. MELLIN:
MR. MELLIN: What gestures did you see the defendant make, and what gestures were the reasons for why he was talked to that day?
THE COURT: That's a multiple question. You can answer the second part of it.
KEVIN MICHAEL ROCHE: Can you repeat that? I'm sorry.
BY MR. MELLIN:
MR. MELLIN: Sure. What gestures were made that required someone -- in this case, you -- to go talk to the defendant?
KEVIN MICHAEL ROCHE: I saw a two-fingered sideways gesture and then a middle finger straight up.
MR. MELLIN: In your experience, what did you take the two-finger sideways gesture to mean?
MS. CONRAD: Objection.
THE COURT: A little foundation.
BY MR. MELLIN:
MR. MELLIN: Have you seen that gesture before, in your experience?
MS. CONRAD: Objection.
THE COURT: Overruled.
BY MR. MELLIN:
MR. MELLIN: And putting -- considering the context of the time -- the context of what happened after you saw that gesture, what did you take that gesture to mean?
MS. CONRAD: Objection.
THE COURT: Overruled.
KEVIN MICHAEL ROCHE: If I could elaborate?
BY MR. MELLIN:
MR. MELLIN: Yes.
KEVIN MICHAEL ROCHE: I'm purebred Irish, and all four of my grandparents emigrated here from Ireland, so that --
MS. CONRAD: Objection.
THE COURT: I don't know --
MS. CONRAD: I don't think there's any evidence that the defendant is Irish.
THE COURT: I'm not sure what this --
MS. CONRAD: May we approach?
THE COURT: There's got to be deeper background than --
MR. MELLIN: Let me rephrase it.
BY MR. MELLIN:
MR. MELLIN: The two-finger sideways, did you take that to be a sign of disdain by the defendant, or how did you perceive that gesture?
MS. CONRAD: Objection.
THE COURT: Again, you can have the second part of the question. How did you perceive it?
KEVIN MICHAEL ROCHE: I perceived it as defiance. The way that I understood it growing up around my family and circle of people, that was it. That was a disrespectful sign.
BY MR. MELLIN:
MR. MELLIN: And after -- immediately after the defendant uses the two-finger sideways, does he then use the middle finger to send another hand gesture?
MS. CONRAD: Objection. The video speaks for itself.
THE COURT: Go ahead. You can answer it.
KEVIN MICHAEL ROCHE: To me they were one and the same. I mean, they were similar. They meant the same to me.
BY MR. MELLIN:
MR. MELLIN: After that is when you went to speak to the defendant, correct?
KEVIN MICHAEL ROCHE: I did not see him make the sign when he initially made it. It was told to me from the deputy in charge that he was making obscene gestures in the camera, so at the time that I went in to discuss that with him, I don't even know if I knew what the sign was. I just knew that my colleagues identified them as obscene gestures, and it didn't matter to me what it was.
MR. MELLIN: I asked an imprecise question. I --
MS. CONRAD: Your Honor, in light of -- if I may. In light of that answer, your Honor, I move to strike the previous testimony about how he interpreted it when he saw it, which wasn't until after the fact.
THE COURT: The motion is denied.
BY MR. MELLIN:
MR. MELLIN: I asked an imprecise question. I was only trying to indicate that you went to see the defendant after that incident happened, correct?
KEVIN MICHAEL ROCHE: That is correct.
MR. MELLIN: And at the time that you went to see the defendant, he admitted, in fact, that he had done that, correct?
KEVIN MICHAEL ROCHE: He acknowledged -- my reading in his mannerisms, he acknowledged that he -- he knew we were there for a reason, and he did it to a camera, so clearly we saw it, and he apologized for it.
MR. MELLIN: And what is it that he said?
KEVIN MICHAEL ROCHE: He said -- we asked him if he was going to continue to be a problem, or if he was going to be a problem for the rest of the day, and he said, "No. I'm done. I'm sorry."
MR. MELLIN: And that was -- he said that just after he was confronted and not any time before that, correct?
MS. CONRAD: Objection, your Honor.
THE COURT: Sustained.
BY MR. MELLIN:
MR. MELLIN: Did he make that statement voluntarily or when you were questioning him about what happened?
MS. CONRAD: Objection, your Honor.
THE COURT: Sustained. I think we have the circumstances.
MR. MELLIN: All right. Thank you, your Honor.
MS. CONRAD: Nothing further. Thank you.
THE COURT: All right, Deputy. Thank you. You may step down.
KEVIN MICHAEL ROCHE: Thank you.
(The witness is excused.)
MR. BRUCK: I call Mark Bezy.