The 6th. Status Conference in the case of USA v Dzhokhar Tsarnaev took place at 10.00 am on Thursday, 14th August at Moakley Federal Courthouse in Boston with Judge O’Toole presiding. Nadine Pellegrini, Aloke Chakravarty and William Weinreb were in court for the prosecution and Judy Clarke, David Bruck, William Fick and Timothy Watkins for the defense.
Leftcoast5 is our guest reporter for yesterday’s proceedings. (Thank you leftcoast5.)
Report on Proceedings & Observations by Leftcoast5:
The attorneys for the prosecution were the first to arrive in the courtroom closely followed by the attorneys for the defense, who immediately took their seats. Surprisingly, Miriam Conrad was not present at yesterday's conference. Pellegrini was particularly solicitous of the victims, (and their families), and spent several minutes conversing with them.The courtroom officers were friendly and joshing with the prosecution team. Clearly they were all familiar with one another. There was no fraternizing between the defense and prosecution teams. At least 14 media/journalist types were present as well as victims and/or family members of victims and assorted law enforcement personnel. In Order of Discussion: 1) Leaks & Public Comments: Judge O'Toole acknowledged Ortiz' letter sent to le regarding leaks as "An appropriate government response" but noted that it had not been effective as evidenced by the Silva leaks. He expressed "a concern that it be taken to heart by all parties concerned" and wants "an affirmative response from all the concerned parties." He also requested the prosecution make sure ALL ranks of le are aware of his concerns regarding potential leaks. (In other words, make sure the lower ranking personnel are getting the message!) He concluded the discussion on the subject by DENYING the defense motion for a hearing regarding leaks. 2) Firewalls: Judge O'Toole acknowledged the "prudence in monitoring" interactions and agreed that the appointed "neutral" AUSA maintain a log to keep track of said interactions. Defense requests that copies in writing be maintained fell by the wayside. 3) Defense Motion to Compel Discovery: (Re: Todashev) Judge O'Toole said he had reviewed this issue " in camera" and determined that there was no reason to compel. The Defense motion was DENIED. 4) Defense disclosure of Expert Witness Info For Phase 2: (Penalty Phase) David Bruck asserted that the penalty phase exposure discovery requirement is foreign to Federal cases in that there is no precedent for the defense making phase exposure of expert witnesses prior to the penalty phase. Judge O'Toole asked about discovery concerning the defendant's upbringing, relationships and mental health. Bruck answered that to disclose this information would in fact be a violation of the defendant's Fifth Amendment right to remain silent, and, additionally, that the defense do not have to disclose phase 2 expert witnesses before phase one of the trial has even started. Judge O'Toole asked if there is discovery concerning non-personal,non-mental health things they can turn over? Bruck responded saying they wanted to lay out a path of Tsarnaev's upbringing IF there is a penalty phase, but are not willing to turn that over now, before phase 1. Bruck points out that this is a "grey" area and that mitigation in this regard is "uncharted territory", and that in 500 prior cases this has been rejected. Therefore, there is no authority for releasing such evaluations to the government and notes that the government doesn't get their own evaluations, much less the defendant's until after the guilt phase. Bruck also stated that the Defense team has been "bombarded with discovery" and "with all candor, the defense would not be ready to provide expert disclosure by 2nd September." (No doubt laying groundwork for delay of trial.) Judge O'Toole then referenced the schedule for discovery filed in April, 2014. Bruck responded that "these were projected dates and an attempt to compromise at the time." Mr. Weinreb, speaking for the government stated that, "this case is very "different" and that rules do not provide for discovery, yet the prosecution has received "absolutely nothing since the case began" from the defense. He went on to say that "their theory is that they be able to take us by complete surprise", precluding the prosecution's attempt to secure experts due to their delay in receiving this information. Weinreb further noted that the penalty phase disclosure was "simply" compelling the defense, to disclose at this point, something that they, (the defense), would disclose anyway in this proceeding. He continued that in legal/practical/fairness matters, the government is entitled to receive this disclosure significantly in advance, in order to present a two-sided account to the jury, and that it is necessary to provide, significantly in advance, so that the prosecution may prepare. Weinreb pointed out that the defense has had the last 18 months to accumulate evidence yet none has been provided to the government. Mr. Bruck retorted that, "The government has more information about Mr. Tsarnaev than most of us have about ourselves." (Including Facebook, computercontents, phones, tweets, etc.) He also pointed out that any mitigation evaluation will draw on the very information that the government has amassed and that "They have most of it already." Bruck continued by noting that the government is "dissatisfied" and "thinks the balance should be elsewhere", and went on to say that "We have more disclosure rights than the government to protect the defendant. That's how it's set up." Judge O'Toole stated that he will rule on this at a later date. 5) Other Discovery Issues: a) Expert Disclosure: Defence attorney Timothy Watkins stated that they have received "a massive amount of evidence: thousands of documents, reports and audio tapes, at least 12 HD's, thousands, if not tens of thousands of photos, with government expert testimony loaded on top of all of that." Also, that the defense has been asking the government to provide tests and examinations. Mr. Watkins stated that the scale of disclosure is "breathtaking", including the following: Forensic evidence from Massachusetts State Police, from 6 experts regarding ballistics, DNA and fingerprints. Also, as of 1st Augaust: (Last disclosure) 18 experts testifying on a variety of fields, including the "soft sciences" of terrorism and geopolitics. All of this data presents a "very daunting challenge" for the Defense. While it is "possible" to tease out opinions and summaries, it is not probable. In poring over the information provided, the defense is unable to determine whether they need to go to experts, and if so, which line of experts. Watkins cited Rule 16: Recognizing that expert disclosure is different and that there are specific rules regarding discovery and the ways it may be disclosed. He pointed out that the government has provided NO summaries of the opinion or notation of which expert will testify, or what makes that expert reliable and, well, an expert. He also stated that 90 GB of data from the FBI is not usable in the form received and that only some of the MSP data is usable. (i.e. fingerprint data.) Mr. Watkins was emphatic in stating that it was "massive and disorganized disclosure that the government that the government has given us" and that there is "an obligation where the stakes couldn't be higher to ensure that disclosure and data are reliable." He said that the defense is having "difficulty seeing the trees for the forest", with the larger "forest of disclosure", and that, "summaries are not numbers - not enough to grab onto and go to experts", noting as an example: Computer forensics - "the government says there will be people testifying, that's it! Is it reliable science? Can it be applied?" The defense wants "true summaries" and "organizing principals" from the government. Watkins continued saying that it is a random process now, that will take months to get through. He concluded by asking the court to order that government disclosure in an organized and usable format. At this point, there was some drama in the right-hand section of attendees. An elderly man wearing a cervical collar appeared to be fainting and in some distress and was eventually escorted from the courtroom. Meanwhile, the Government response to Mr. Watkins as stated by Mr, Weinreb was, "We understood it to be a general request for everything, so we produced everything." At this point, over at the defense table, Mr. Watkins was vehemently shaking his head as if to gesture "no." Weinreb continued, saying, "Opinions are set forth in reports", citing ballistics examples. He alleged that he was "mystified as to what the defense wants",adding, "Have we adequately disclosed? We've given them everything we have!" At this point Judge O'Toole weighed in, asking, "Have you indicated which experts you intend to call at trial?" Weinreb's reply was "No, not yet." He further noted that, "We have given them materials we ourselves found useful", and that they were, "Organized in the way that a lab uses them", saying, "It is not our obligation to go through every single one and rename them. They can do that. It's a secretarial matter." He continued, "In some sense, the position that the defense is in right now is one of their own making." The defense response: "Weinreb's comment that it's way too early has got it wrong", when it comes to government disclosure of the expert witness list. Mr. Watkins went on to explain that the government needs to identify which ones onthe spreadsheet provided by the government will be testifying at trial. He opined that the government included, "The bathtub, the bathwater and everything else. Some of the files require proprietary software. Expert testimony is too important to put a secretary on it. We could have 3 or 4 more attorneys work on it, but that would not be helpful as they do not know the case." Watkins added, "Conceptualizing the evidence: Basis is as important as actual evidence. There is currently no way in the government disclosure to match evidence to expert disclosure. We would need years to do it, which is not consistent with a 3rd. November trial date. The government can pick up a phone and ask an FBI agent. The defense can't. The court can order the government to narrow it down, with the basis and reason for the opinion. Watkins further noted that the government has had evidence, (provided by the FBI), since February, yet only recently was it provided to the defense. Judge O'Toole said that he would rule on this at a later date. 6) Other Issues: a) Change of Venue: Judge O'Toole will allow more filings regarding this request. He has given the government one more week to respond to the newest defense motion for a change of venue. b) Jury Selection: Mr. Weinreb asked about jury selection, suggesting that: 1) Jury summons be sent out with preliminary letters providing potential for those summoned to be excused due to hardship. 2) That pretrial publicity voir dire be conducted. Judge O'Toole indicated that he would meet with the jury clerk's office that day to talk about the logistics of summoning a jury for trial and that he plans that summons should be sent out mid September. O'Toole also suggested that the prosecution should talk with the defense about "These interesting ideas." (See 1 & 2 above,). He also noted that cooperation between the prosecution and defense was successful in 2 prior cases, namely, Bulger and Kadyrbayev.K (Did he mean Tazhayakov?!) c) Next Status Conference set for 18th. September. d) Budgeting: Shorten time frame. e) Judge is still, (!), reviewing other motions.
(i.e. Motion to Suppress Evidence. My "in a nutshell" take away:
This appeared to be one of the longest status conferences to date. There was mutual finger pointing regarding lack of disclosure by the government and the defense, although defense IS at the mercy of the government's choice to delay then dump massive amounts of information and data in no discernible format, index or guidelines. The government was alternately whinny,disingenuous and snarky in their statements, not unlike a bully. Without Conrad, the defense lacked spark and Bruck and Clarke's understated approach seemed almost meek and resigned, although they are clearly playing it close to the vest. Timothy Watkins was the exception, speaking somewhat forcefully and willing to be confrontational. It was not the defense's best showing imo. Judge O'Toole continues to be less than impressive - does not evince a sense of strength or confidence. Still appears to be somewhat detached or hesitant, almost disinterested. He rarely rules on anything from the bench, seemingly requiring much more cogitation before rendering his decision(s), which, invariably, are not in favor of the defense. His refusal to address the issue of leaks beyond mild rebuke is unfathomable. Perhaps he is intimidated with the defense "star brain power" and high profile, (not to mention the high profile of the case itself, which adds additional pressure), and therefore, he defers to the "known quantity" of the prosecution? It's really hard to say. The Change of Venue issue could be the "make or break" for O'Toole's legacy imo. Brief Summary by jane24: For me, the most notable points in yesterday's status conference were as follows: I was disgusted, (though not surprised), by O'Toole's refusal to schedule a hearing to address the leaks and statements by le. The partial excuse given for the most recent leaks, (in the case of Stephen Silva, but nevertheless related to the case of Dzhokhar Tsarnaev), was laughable imo. It was suggested that at the time of Silva's arrest, le may not all have received caution regarding leaks. O'Toole described this as "coincidental timing." Both the judge and the government seem determined not to provide discovery in relation to Ibragim Todashev. Despite the judge's opinion that this is "not relevant", the defense obviously believe otherwise and this raises the question as to what they would expect to discover from this? As leftcoast5 has pointed out, the prosecution's strategy does seem to be to deluge the defense with large quantities of evidence in a state of disorder, whilst continuing to deny the defense access to some evidence upon which they appear to place great value. Whatever the defense's strategy may be, they are taking great pains to conceal this from the prosecution as best they can, for as long as they can. They are adamant as to their rights regarding their disclosure. It was indicated that their work is still being hampered by the situation at Devens, regarding the FBI agent attending visits between DT and his sisters, and, indeed, the "firewall" ADA. This was another issue O'Toole refused to address, other than to order that a log be kept of communications. Yesterday's most notable admission, imo, was that DT's case is unusual in that unlike "most" Federal criminal cases, the defense actually intends to put forward a case, and mount an active defense on behalf of their client. This was referenced by the prosecution and confirmed by the judge. What does this tell us? As leftcoast, I was pleasantly surprised by Timothy Watkins performance in court. I had not heard him speak at length prior to this. He is an effective and powerful speaker and is certainly capable of getting his point across. My take on Judge O'Toole is a little different from that of leftcoast. I not believe that he is in any way intimidated, but that for whatever reason, he is fully on the side of the prosecution, as he appeared to be in the case of Tarek Mehanna. Is he simply Islamophobic, does he have an "arrangement", or, has he been "bought"? Who knows. (But something's not right here!) Lastly, it is my understanding that a motion to continue in regard to DT's trial date is due by 29th. August and that a filing by his defense is expected. There is also much talk amongst the legal community regarding Change of Venue. Most do not seem to think that O'Toole could reasonably deny this. We shall see...