5.Prejean Proffer and Visit Details, Rebuttal Disclosure, and Waltham Materials Motion Denied
178 lines(LOBBY CONFERENCE AS FOLLOWS:
THE COURT: So I've been thinking about this issue, and I think it is a substantial enough issue for either side, either way it goes, that I want to take my time on it, and I want more information. I think we're going to suspend today. If she gets called, she can get called on Monday morning. If she doesn't get called on Monday morning, we'll do something else. But I would like from the defense a very specific proffer so I will know exactly what she proposes to say, okay? Detailed.
MS. CONRAD: Okay. But should that include, for example, the issue of remorse?
THE COURT: It should include anything you would propose to ask her about. I could conceive that I would look at it and say, That's okay; that isn't. That's why I want it so specific.
MS. CONRAD: May we make that ex parte so the government --
THE COURT: No, no, no. I want them to weigh in on it too. I would like that and any authority you would like to submit for doing it this way and so on and so forth, any applicable -- I'd like that, since you've been thinking about this for a while -- I'm not going to squeeze you.
MS. CONRAD: The government just filed last night, but, yeah.
THE COURT: But you know you were going to try to use her. So by noon tomorrow, if I could, okay? And then I'd like from the government a response by 5 on Saturday, okay?
MR. WEINREB: That's no problem.
THE COURT: Then I'll have some time to look at it before we convene on Monday morning.
MR. WEINREB: I assume though that that will be it from the defense for Monday morning. This is not --
THE COURT: That is the end of the evidence for the defense?
MR. BRUCK: Yes.
MR. WEINREB: So we'll be ready to go on Monday.
THE COURT: So you want to tell us anything about that?
MR. WEINREB: Well, we're still deciding.
THE COURT: This is my nondirective counseling.
MR. WEINREB: The only thing I think we could tell you is that -- because we really think that we didn't quite get enough into B.O.P. today, that we will likely have someone from B.O.P. who is actually knowledgeable to testify about some matters in rebuttal. I know it has to be genuine rebuttal. I understand that.
THE COURT: It has to be genuine rebuttal; it has to be new, that is to say, noncumulative.
MR. WEINREB: Well, noncumulative, but I think that this witness has left a lot of questions with the jury because he -- he gave a lot of answers where he really didn't know what he was talking about.
THE COURT: You know what? I think maybe we should have a proffer from you on that so the defense can see, and we can fight it out before we're out in front of the public.
MR. BRUCK: You're thinking about one witness or --
MR. MELLIN: I would say possibly two but two very short witnesses, one being Ms. Nicolet and then one being the warden, again, very focused on specific points.
Your Honor, frankly, the other issue is the amenities issue that the Court has kept out up to this point. Mr. Bezy --
THE COURT: I think they've heard a lot about it, actually.
MR. MELLIN: Not about television and what they can actually listen to while they're in the room. Mr. Bezy made the point of saying that these people will be locked down in their cell, and that's just leaving an impression with the jury that --
THE COURT: It will be part of your proffer, so we'll look at it then.
MR. WEINREB: Why hide this from the jury when they've been given so much other information about prison life? Why hide this one fact, which is a significant fact that we want to put in front of them to complete the picture?
MS. CONRAD: Why hide remorse from the jury?
MR. BRUCK: I mean, we've briefed the issue about why and what the relevance of our showing was, and the fact that Mr. Mellin asked the questions on cross, not about H Unit but about ADX, and got an answer he didn't like doesn't open the door.
MR. MELLIN: I didn't get an answer I didn't like, your Honor. I just wasn't given a chance to expand on his answer.
THE COURT: Anyway, put it in your proffer.
MR. WEINREB: So we have that. The rest of it is really -- I mean, they just finished their case. We're still trying to --
THE COURT: Do you have a general time estimate?
MR. WEINREB: For when we'll have a list?
THE COURT: No, for how long you'll --
MR. WEINREB: Oh, yes. I think a day.
THE COURT: Monday?
MR. WEINREB: Monday.
MR. CHAKRAVARTY: Assuming this last defense witness, if she's called, doesn't take very long, I think we expect to finish in one day.
MR. WEINREB: Yes, I think that's realistic.
MR. BRUCK: A day with B.O.P. or you've got other --
MR. WEINREB: No, no, Probably -- there are half a dozen civilians we're thinking of calling and potentially one expert.
MR. CHAKRAVARTY: Potentially.
MR. WEINREB: Is that right?
THE COURT: Okay.
MR. WEINREB: One or two but they would be brief.
MS. CONRAD: When will we find out who those are and get any Jencks that hasn't previously been provided?
MR. WEINREB: I don't think there's any Jencks that wouldn't have previously been provided. I mean, you know, we've been getting the witness list from the defense and the exhibit lists 7:30 the night before the witnesses have testified.
MS. CLARKE: That's really not correct. We've tried to help you with the order the night before. We gave the witness list and in pretty much the order, and we kept trying to give you a more precise order. That's certainly not true, Bill.
MR. WEINREB: I disagree. Big changes have been made along the way that have really prevented us from getting ready for a lot of witnesses till 7:30 the night before.
MS. CONRAD: Are these all witnesses who are all on your statutory witness list?
MR. WEINREB: Yes -- no. The statute doesn't apply to rebuttal.
MS. CONRAD: So we don't have any notice as to who these witnesses are.
MR. MELLIN: We just gave you the two witnesses from B.O.P.
MS. CONRAD: Right. I want to know about the civilian witnesses.
MR. WEINREB: Well, we haven't decided yet. I think, when we decide, we'll let you know.
MS. CONRAD: Which will be when?
MR. WEINREB: As I said, we'll endeavor to do it as quickly as we can.
THE COURT: How about the other deadline, the Saturday at 5:00?
MR. WEINREB: Well, it's possible there are -- we could give them a preliminary list.
THE COURT: Do what you can.
MR. WEINREB: At least a partial list Saturday at 5:00.
MR. BRUCK: Can you tell us the experts you're considering calling?
MR. WEINREB: Yes. Park Dietz and --
MR. MELLIN: Al Francis?
MR. WEINREB: Not Edward --
MR. BRUCK: Not Aguirre?
MR. WEINREB: Not Aguirre.
MR. BRUCK: So Park Dietz and --
MR. WEINREB: Al Francis.
MS. CONRAD: Dietz is in rebuttal to what?
THE COURT: Well --
MR. WEINREB: I don't need to get into that.
THE COURT: Some other forum. This is mine right now.
MS. CONRAD: Well --
THE COURT: One thing, I'm just trying to sketch out what next week might look like. And so one possibility is completed on Monday. If that's the case -- no matter what it is, I think we'll take a day between the completion of the evidence and the proceeding to arguments and charge. So, for example -- and this is a sketch -- finish Monday. Tuesday is everybody's working on preparation, and Wednesday we present it to the jury.
MR. WEINREB: Right.
THE COURT: That would sort of track, if it was Tuesday, we'd probably take Wednesday and do it on Thursday. That's subject to amendment as conditions recommend.
MS. CONRAD: So on Dietz and on the other experts -- the other expert, I mean, are we going to get expert witness disclosure?
THE COURT: I presume there was some.
MS. CONRAD: I think there should be a proffer at least on Dietz as to whether this is actual rebuttal.
MR. WEINREB: That's the point, your Honor. We have to wait until the close of the defense case to determine what it is we need to rebut. We will give a disclosure, yes.
THE COURT: One thing that might affect that and the government's decision-making may be the final list of mitigating factors because then, once that's fixed, they will be able to assess what they need to do, so I'd like to --
MR. BRUCK: We could do that except for the ruling on Sister Helen.
THE COURT: So it might not be possible until Monday, so that might build in --
MR. MELLIN: Can we not get the final list now or tomorrow so that -- including --
THE COURT: How about this: How about the final list with her in it? And then if she's in, fine; if she's not, then that piece comes out or whatever.
MS. CLARKE: Didn't we submit a larger list already?
THE COURT: It's been sketched, I think. I'm not sure we have a final. I want a nonmoving version of it.
MR. BRUCK: We can do that.
THE COURT: Except for the one possible extraction if she doesn't testify, if that happens. I mean, maybe it doesn't affect the list at all. But if her testimony would affect the list, include whatever would relate to her testimony; and if she doesn't give it, then it will come out.
MR. WEINREB: I omitted to mention, one witness we might put on would be a -- I don't know if it would be a reader or -- but there are a few records that we may seek to put on just like the defense did.
MR. BRUCK: Whose?
MR. WEINREB: Well, we'll give you notice.
THE COURT: Okay.
MR. WEINREB: We want to compile the list.
THE COURT: I guess that's it for now. So we'll excuse the jury.
MR. WEINREB: There's some outstanding motions.
THE COURT: Yes.
MR. BRUCK: Before we leave mitigating factors, the deadline I just agreed to was when?
THE COURT: I don't know that we had one.
MR. BRUCK: Okay, good. I withdraw the question.
MR. MELLIN: Can we ask for it tomorrow?
MS. CLARKE: I'm beginning to wonder, if we're going to end up with all of this clog of information over the weekend, if you want to start the jury back on Tuesday so you can resolve rebuttal issues and things on Monday, because I can predict there's going to be a problem.
MR. BRUCK: They will be in the jury room and we'll be struggling.
MR. WEINREB: Or we could bring them back in later on Monday. I don't think we're going to be long. If we call civilians they will be quick, at least on direct.
MS. CLARKE: I can just predict, two psychiatrists as experts, we're going to have a real problem trying to figure that out.
MR. WEINREB: There wouldn't be any psychological testimony. Basically, it would be -- there was a tremendous amount of evidence that came in in the defense case about the defendant's social history, his background going back several generations, the places that he lived, the conditions under which he was raised, his parents' ability to provide for him, various things like that. And the testimony that we would propose to offer would simply be on those subjects, to complete the picture, so to speak.
MS. CONRAD: But not opinion?
MS. CLARKE: We put on lay witnesses who were subject to cross-examination. This is going to open a can of worms for the Court to be able to --
THE COURT: I can't now on this, but I understand the point that it will require some attention.
MR. WEINREB: Yeah. The only problem with coming back Tuesday is that then, if we were to take a day off and do the closings and the instructions on Thursday, they wouldn't begin deliberating except after three days -- unless you're going to make them come back on Friday.
THE COURT: Oh, yeah. Once they deliberate, Fridays are in play. So if they get it on Thursday, they would deliberate Thursday, Friday.
MR. CHAKRAVARTY: We may pare down and --
MR. WEINREB: I think the -- despite my own long-windedness, we could argue these things Monday morning. We'd come in and get started on Monday.
MS. CLARKE: So --
THE COURT: I think I'd prefer that. I'd like to keep things moving along. I don't like the jury sitting out there not working.
MR. WEINREB: We could have them come in at 11.
THE COURT: No. I think they'll come in, and we have arrangements for them. So I don't want to start micromanaging that. So if it takes -- we'll just try -- we could -- we could plan to start at 8:30 to save a little time. Is that a problem for --
MR. WEINREB: No.
MS. CLARKE: No.
MR. WEINREB: That's fine.
MS. CLARKE: Can I get rid of these technical things before we push it into Monday? We have marked Exhibit 4010, which is the disk of Mr. Chakravarty's closing argument, that portion of the closing argument. I just wanted to have that marked for identification and made part of the record.
THE COURT: Okay.
MS. CLARKE: So that's done. And then the Court excluded the SMS text message, and that has been previously marked as 3200 and 3200A.
THE COURT: The Zubeidat --
MS. CLARKE: Yes. That's the Russian text with the English translation which was excluded. We just want that to be marked for identification as part of the record. I think I'm doing it incorrectly.
MS. CONRAD: No, you're not. That's different.
MS. CLARKE: And also 3249 and 3249A.
THE COURT: Which were this morning's.
MS. CLARKE: Right, should be marked for identification and made part of the record.
THE COURT: I think --
MS. CLARKE: Not for the jury because they've been excluded.
THE COURT: It was my understanding that anything that has a number has been marked for identification.
MS. CLARKE: Many of the things have never been talked about.
MS. CONRAD: And some haven't been offered. They need to be part of the court's record for purposes of appeal.
THE COURT: That's a good question. All right. I'll have to consult with the IT people about what happens in that circumstance.
MS. CLARKE: Sure. There were a lot of items provided that were never identified.
THE COURT: This gets into the technical operation of the JERS system. I think for this -- my brief answer is, I think, for this phase, they are, in fact, marked for identification whether they've been offered or not. That was not true in the first phase because we didn't load everything into JERS in the first instance because of the volume. But as I understand it, in this phase we did. Whatever marked exhibits either side had was just loaded in. That's the standard operation of JERS, which is, is the total universe.
Then the accounting goes as follows: There's a date when the item is identified, referred to in testimony, and then there's a date when it is admitted. So you'll see, for unadmitted exhibits, that it was identified on such and such occasion, but there will be no admission date. When the system sends the exhibits to the jury monitor for their consideration, it sends only the subset of admitted exhibits, but there still is a master list that shows they have been identified and not admitted. I think, for the second phase, we're probably all right, but we'll check with them.
MR. FICK: The exceptions are, as in the first phase, Exhibit 3206 in the second phase were computer files that can't go on JERS, so that, I presume, will go on the standalone computer that goes back to the jury. It's simply an addition. Then the government's closing is never on the JERS, so we just want to make sure it's in the transcript what it has been numbered so the Court of Appeals can identify it later if it goes on appeal.
MS. CLARKE: The other thing, we had asked the Court to make it clear for the record which juror, by number, was sick.
THE COURT: I don't know why that matters.
MS. CLARKE: We don't know why it mattered either, but it could matter in the future, and we thought that it would be --
THE COURT: Why would it matter in the future?
MS. CLARKE: I don't know. We don't know. We don't know what kind of misconduct could have occurred we don't know about, whether this is a person we moved to challenge for cause and stayed on the jury. We don't know whether there's going to be some kind of claim of what the sickness was. We have no way of knowing, but this is the only time we can ask the Court to identify the juror for purposes of the record.
THE COURT: Well, do you have any reason for being concerned about any particular juror?
MS. CLARKE: At this point in time, beyond what we know and have argued in the past about challenges for cause, no.
MR. WEINREB: I don't think it's appropriate to add things to the record when the proponent of it can't offer any grounds for it or any reason for it.
MS. CONRAD: It's just a question of the record. I mean, it's not --
THE COURT: I don't see its germaneness, but I'll think about it.
MR. WEINREB: Another thing might be worth some thought -- I don't know -- is whether it's advisable to include in the record items which were marked because of the possibility that they might want to be -- that counsel might want to refer to them in court but never were referred to. In other words, the defense marked an enormous amount of things, a number of things. We may have done the same for all I know. It seems odd to say keep all that in the record when --
THE COURT: I think it is a function of the JERS system that it is.
MR. WEINREB: But we could submit a new JERS disk, like we did at the end of the guilt phase, that is, a list of the things that were actually identified --
THE COURT: I don't know.
MR. WEINREB: -- and then were admitted.
THE COURT: We'll have to talk about that with the IT people.
MS. CLARKE: The last thing is I don't think the Court has ruled on the Waltham issue.
THE COURT: Yeah. The motion is denied for the usual reasons. It's been denied before, basically. That's one reason, that it's not really new matter. I'm not sure that I straight up have the authority to order the state authorities to give me their law enforcement materials. I don't know. Maybe I do. But, in any event, I think the law enforcement privilege applies.
MS. CONRAD: Certainly, the Court has the authority to order a police department --
THE COURT: I don't know. In a case where the police department is in front of me, I agree. It's a separate --
MS. CONRAD: Internal Affairs files for a witness, Boston police officer witness, done all the time.
THE COURT: That's because the officer is in front of me. Anyway, I don't want to debate it. There are multiple reasons why the motion is denied. Most of them you're familiar with.
MR. CHAKRAVARTY: Your Honor, there's one quick thing. I'm not sure whether we want to ask for this, but for purposes of -- if we -- the last defense witness testifies, we may want to do our own investigation of the witness. And to the extent that the witness is going to testify about contact she had with the defendant, then we want to make sure we're not running afoul of the SAMS or some other procedures in order to obtain that information, for example, when and where the meetings occurred and the duration of those meetings.
MR. WEINREB: In general, we think there no longer would be a firewall between us and Terence Donnelly (ph), who was overseeing the SAMS. The case is over pretty much. There's no longer an interest in the secrecy of it. Now that the defense is offering somebody who was permitted to meet with the defendant pursuant to the SAMS, we need to know. It's a waiver.
MS. CONRAD: We need to know what?
THE COURT: I think that has to be part of the proffer actually. I want to know the basis of her testimony, which would include details about when she had any meetings, what transpired in the meetings, et cetera, in some detail.
MR. WEINREB: But we also need to know the authority under which she went to see the defendant so that we can potentially impeach that. Basically, we need to know if she's part of the defense team because that would obviously give her a bias.
THE COURT: Let's see what the --
MS. CONRAD: She's not a paid expert if that's what you're asking.
THE COURT: I understand the point. So when I say detailed, I mean it. Okay. All right.
So let's call the jurors out from their lunch probably and let them know that they'll be back on Monday.
MS. CONRAD: Should we let them finish their lunch and then --
THE COURT: They can go back in.
. . . END OF LOBBY CONFERENCE.)
(The jury entered the courtroom at 1:02 p.m.)
(The Court and jury entered the courtroom at 1:02 p.m.)
THE COURT: Jurors, again, we appreciate your patience. There are some issues we've been working on. Actually, we need a little bit more time. We're going to actually end the day today here and the week and ask you to come back on Monday. I think this approach will make it smoother on Monday when we actually get going. All right.
So, once again, I caution you to avoid any discussion of the case. Don't make up your mind about any of the issues in the case, of course, and, as much as you can, as you've told me you have been able to do, avoid any accounts of the media in the case.
Have a good weekend. It looks like the weather is going to be delightful for a change. And we'll see you on Monday morning. We'll be in recess.
COURT CLERK: All rise for the Court and the jury. The court will be in recess.
(Whereupon, at 1:04 p.m. the trial recessed.)