Today’s hearing in the case of US v Tsanraev began at 10.00 am. As expected, Dzhokhar Tsarnaev had waived his right to attend. Judy Clarke, Miriam Conrad, David Bruck and Timothy Watkins were present for the defense today as were William Weinreb, Aloke Chakravarty and Nadine Pellegrini for the prosecution. The defense team entered the courtroom just a few minutes prior to the prosecution.

Proceedings opened with what Judge O’Toole referred to as “old business.” David Bruck, who did most of the speaking for the defense today, complained to the court that the presence of an FBI agent when Dzhokhar is visited by his sisters and a member of the defense team   continues to be problematic. Bruck stated that these visits are in fact legal visits and should be treated as such. He reminded the court that at the last status conference in April the government had proposed a “firewall” , that being an FBI agent who would not be part of the prosecution, and that the judge had not in fact ruled on this matter yet.

Dzhokhar has, apparently, received two such visits since the last conference in April. When Judge O’Toole inquired as to whether the presence of an FBI agent was “merely an inconvenience”, David Bruck responded with “No!”, ( loudly – for DB), and went on to explain that these visits “should be confidential” and that an agent in the room, “listening to every word and taking notes”, violated that confidentiality. He stressed the point that the presence of the FBI at legal visits prevented the defense from “doing their work” and insisted that there were no security concerns to justify this presence. (Following this a brief discussion between the concerned parties ensued, regarding the suitability of an FBI agent from out of state for “sitting in” on visits. Rhode Island was mentioned, but as all appeared to have moved away from their microphones  at this point I missed most of this and believe the majority of others in the courtroom most likely missed it too.)

The prosecution’s response, presented by William Weinreb, was to inform the court that any FBI agent sitting in on Dzhokhar’s visits with his sisters and members of his defense team, did not in fact report to the prosecution, but rather to the office of the US Attorney, and only in the case that it might be suspected that the SAMs restrictions might be violated. Weinreb stressed that “mixed legal and social visits” were not recognized under Special Administrative Measures, nor indeed by the Bureau of Prisons. At this point Judge O’Toole hurriedly declared that “things are satisfactory as they are.” David Bruck responded briefly, saying that the defense will “do what we can”, but added that it was most likely that they would have cause to bring this matter before the court again.

The second issue to be dealt with in court today was the Motion to Schedule a Hearing Re: Leaks and Public Comments by LE. (Doc 280)  Judge O’Toole stated that he had “seen the interviews in real time.” (Presumably he was referring to both “60 Minutes” and the “National Geographic Special.) He went on to say that he was “unhappy” and considered the participation of the two retired FBI agents, Richard DesLauriers and Stephanie Douglas, to be “unnecessary”, adding that had Deslauriers and Douglas been active agents at the time of filming, their actions would have been considered inappropriate. The prosecution was reminded that although they may not have legal control over former agents, they do in fact have practical control. O’Toole did ask the prosecution if they intended to call either DesLauriers or Douglas as witnesses at trial and Weinreb responded that they did not. The judge then requested that prosecution remind all involved with their case to be mindful of “integrity at trial.” His next action was to deny the Motion to Schedule a Hearing, commenting that to do so would, in his opinion, “make things worse.” (?)

Judy Clarke then responded for the defense citing a “high level of rhetoric.” She requested a court order and offered the opinion that admonishments had thus far failed to stop leaks. Judge O’Toole said that he considered a court order “unnecessary” and stated that should he choose to act, he could do so without a court order.

The Motion for Grand Jury Instructions Regarding the Death Penalty, and to Strike the Capital “Special Finding’, (Doc 288) was denied.

The judge indicated that a court order will be made in regard to the Motion for Disclosure of Jury Records. (Doc 305) It was stated by the prosecution that this information would be provided “shortly.” When pressed they were able to confirm that this meant within a few days. Much was made of the fact that it has taken five days to remove jurors personal information. Prosecution added that some items as requested by the defense, in regard to jury records, “does not in fact exist.”

Motions to suppress were discussed in court today and both parties agreed that evidential hearings would need to be scheduled. The prosecution confirmed that they do not intend to use statements made by Dzhokhar Tsarnaev whilst under interrogation in Beth Israel Deaconess hospital as part of their case in the liability phase of a trial, but that they may use these statements in any sentencing phase which may result from a trial. Miriam Conrad, for the defense, again raised the issue that searches for both digital and physical evidence may have exceeded the scope of the respective warrants. Judge O’Toole said that he intended to defer on these matters.

The judge ruled in favor of the defense regarding their Motion to Strike “Betrayal of the United States”as a Non-Statutory Aggravating Factor. (Doc 279) He went on to say that it was “both prejudicial and inappropriate to distinguish between a  “naturalized and born citizen” and that “only the former take an oath.”

The remainder of the hearing was taken up with discussion on discovery, disclosure of expert witnesses and the fact that a trial would be conducted in two phases for which the same jury would be empaneled. The disclosure of expert witnesses will also take place in two phases upon the recommendation of the defense. Eighty items of digital evidence recently requested by Dzhokhar’s defense were said by the prosecution to have only recently become available. They added that the defense might expect to receive this evidence within the next few days. There was some discord over what would be considered expert witness testimony as opposed to non-expert witness. It was at this point that Judy Clarke said ” I can’t believe we are excluding explosives as expertise in this case.” The prosecution has requested the names of expert witnesses for the defense, in addition to their areas of expertise. Judy Clarke objected to this, citing the Fifth Amendment. She claims to provide these names to the prosecution would serve to provide advance notice of the defense strategy to the prosecution.

When Judge O’Toole moved to adjourn the hearing the defense was quick to remind him that there are further motions upon which he has yet to rule. O’Toole declined discussion of these motions and expressed an intention to “rule on the papers.”  (I understand that one of David Frank’s tweets referenced this and the fact that O’Toole seems inclined to rule on the outstanding motions “without the benefit of hearing oral argument”?) The defense appeared surprised and certainly less than happy with O’Toole’s refusal to discuss any further issues today. The next status conference in the case of US v Tsarnaev was set for 08/14/14 at 10.00 am in courtroom 9. The possibility of an additional hearing to be scheduled between now and then was mentioned. Today’s hearing concluded at 10.40 am. Dzhokhar’s defense team left the courtroom almost immediately following the adjournment of the hearing, while the prosecution lingered in the courtroom for  fifteen minutes.

As I have already indicated on woodybox’s thread, I am far from impressed with Judge O’Toole’s performance on this case. My opinion on his ability as a judge declines with each hearing I attend. If O’Toole continues to preside over this case I fear that a fair trial will not result.