The 7th. Status Conference in the case of USA v Dzhokhar Tsarnaev took place today, (09/18/14), at 10.00 am at Moakley Courthouse in Boston with Judge George A. O’Toole Jr. presiding. The prosecution were represented by William Weinreb, Aloke Chakravarty, Nadine Pellegrini and the newest edition to the prosecution team in this case, Donald Cabell. David Bruck and Timothy Watkins were in court for the defense. The defendant, Dzhokhar Tsarnaev waived his right to attend.
Judge O’Toole’s first action was to address, (some), of the motions pending. Motions denied were Doc. 461, ( Change of Venue and Submission of Supplemental …), Doc. 531, (Motion to Supplement the Record on Motion for Change of Venue or Alternatively for an Evidentiary Hearing), and Doc. 548, (Motion for Leave to Reply to Government’s Opposition to Defendant’s Motion to Continue Trial.) Motions granted were Doc. 550, (Government’s Surreply to Defendant’s Motion to Continue Trial), and Doc. 558, (Motion to File Reply).
The second item to be discussed at today’s hearing was reciprocal discovery. William Weinreb was the first to speak on this, complaining that the prosecution had received “nothing” from the defense. David Bruck’s response was that the defense were under no obligation to provide such at this time and that the development of the defense’s case had not reached the point where they would even be able to do so.
William Weinreb insisted that the defense had already had plenty of time to work on their case and suggested that perhaps they had “not used that time wisely”, going on to say that rules governing discovery should be “interpreted reasonably” and that the government needs reciprocal discovery from the defense in order to form their strategy, prepare rebuttal and decide which witnesses to call at trial. (I understand that witnesses have to be listed 3 days prior to trial under normal circumstances.)
David Bruck stated that his client’s “entire life had been seized by the government.” He cited “truckloads” of evidence including the entire contents of Dzhokhar Tsarnaev’s dorm room and immigration files on not only the defendant, but also his friends and entire family and stated that the only evidence in the form of documents in the possession of the defense team had actually been provided by the government in the first place. David Bruck claimed that the defense have “very little” as regards physical items and suggested that if the prosecution knew how very little the defense has they would probably not have filed the Motion to Compel!
William Weireb then requested that Judge O’Toole use his authority to order production of discovery. David Bruck reiterated that it would not be possible for the defense to comply at this time and said that the defense were “hard at work half way around the world.” He mentioned that if the prosecution insisted ,the defense could “get some stuff together, unrelated, hand it over and let the government scratch their heads.” (But went on to point out that this would be a waste of everyone’s time.)
Judge O’Toole questioned whether or not the defense was in the process of preparing for both phases of trial. (Guilt and penalty.) David Bruck confirmed that indeed they are.
Expert Witnesses For The Defense:
William Weinreb then went on to reference the defense’s disclosure of expert witnesses for potential mitigation and that they have, thus far, only given notice of their intention to present the testimony of a social worker. His complaint was that no summary of this person’s intended testimony had been provided to the prosecution. David Bruck responded by simply stating that this was because the social worker’s input was still in progress and, to date, incomplete.
William Weinreb said that this information was needed immediately as it could be a useful inclusion in the questionnaire given to potential jurors. Bruck declared this prospect an infringement of his client’s rights under the Fifth Amendment and advised that such a thing had “never been done before” and that there “was a reason for this.” Weinreb denied that an infringement of Constitutional rights would occur.
Delay in Providing Evidence/Volume of Evidence:
David Bruck spoke at length today on the prosecution’s delay in providing evidence to the defense. He observed that the deadline for this “keeps being put back” and that it is the understanding of the defense that this is still not complete. He referenced again the sheer volume, (177 FBI technicians are said to have worked on this case), of documentation, physical evidence and digital evidence, (7.5 terabytes ), and again complained about the manner and form of its presentation, explaining that this had made the evidence difficult for the defense to “grasp or use.” (An incomplete and unsigned report received earlier this month from the FBI was cited as but one example. )
Analysis of the hard drive from Dzhokhar Tsarnaev’s computer was given as an example of the digital evidence provided. David Bruck said that he understood that the government’s case was that Dzhokhar Tsarnaev was “self radicalized” and that the defense disputed this and also that they may very well challenge forensic evidence allegedly linking Dzhokhar Tsarnaev to the crime.
Change of Venue:
Judge O’Toole indicated that he is not prepared to hear further arguments concerning this and that he will rule “on the papers.”
At today’s hearing David Bruck maintained, (as has the defense from day one), that it is not possible for them to be prepared to go to trial by 3rd. November, 2013. He again mentioned that comparable cases had taken 3 to 4 years to go to trial rather than the few months proposed in this case and described this case as atypical as regards the amount of evidence as well as the need to prepare for two phases of trial. It was at this point he said, “this case would have been over a long time ago if the government had not asked for the death penalty.” This remark has been much quoted and appears to have been mistakenly, (imo), perceived by some as an admission of guilt. (??!) When taken in context I believe it to be an illustration of the amount of work involved in defense preparation for a capital case.
What has been quoted far less, (at least to my knowledge), is David Bruck’s reference to President Obama’s statements almost immediately after the bombing of the Boston Marathon. The President said,”We will get to the bottom of this. We will find out who did this and why.”David Bruck emphasized the obvious importance of gaining the knowledge necessary to enable the ability to answer these questions and stressed that justice would not be served unless this is done.
Weinreb’s response was that deadlines are made to be kept and that “if the defense were given 3 years to prepare their case they would take 3 years.”
Judge O’Toole declined to rule on the issues discussed today saying he would take all “under consideration” and that he would then “rule on the papers.” He expressed his intention to send out jury summons imminently.
The final pretrial conference in this case remains scheduled for Monday, 20th. October.
William Weinreb said that he believes the defendant should be present at jury selection, particularly as he has not appeared in court since his arraignment nearly 14 months ago. Bruck replied that he was confident that his client would not insist on being present. Weinreb responded that if the defendant were not present then “issues” could arise in the event of a conviction in this case and that if the defendant did indeed waive his right to be present that this should be “on the record.” David Bruck said that he would “discuss the matter” with Dzhokhar Tsarnaev.
The hearing concluded at a few minutes after 11.00 am. Notably no mention was made today of the prosecutions recent allegations regarding the conduct of some members of the defense team whilst they were in Russia.