Here’s what I jotted down today at the status hearing. I tried to write down as much as I could, but this is definitely not word for word or the entirety of the hearing so consider that and I hope this fills in some of the holes left from the tweets today. I could barely hear the Judge, but the tweets cover his input and actions thoroughly.
The defense is not gathering things last minute, they have had material to be used for exhibits. The government needs this to strategize, make decisions about witnesses and exhibits.
We are so far from having this case prepared. We know where we’re going, but we don’t have the case. No objection to turn over anything material to the prosecution. We don’t have the outline of the case. Our clients entire life has been seized by the government, truckloads of stuff, his entire life and family. The contents of his dorm room, contents of his friends apartment. We have been hard at work halfway around the world. We are way behind on the process of discovery. We don’t intend to use whatever we have, we’re not at that point.
Govt needs affirmative witness list. Defense has only produced one expert, no summary has been produced. The social worker. The defense argument is that they don’t have to produce until the day before trial. At this point defense knows mitigating factors. We need to know what they are to fulfill obligations to rebut.
No court has asked for mitigating factors prior to the jury questionnaire. They don’t need it or are entitled to it. We are still receiving automatic discovery including a partial analysis of the defendants computer. We have no idea when is was completed, it was received in the last couple of weeks. We are trying to find out what government allegations will be. Govt has focused only on Jahar as if he self radicalized by himself with no context. That’s their strategy. The defense still doesn’t know about Tamerlan’s computer analysis. Here is discovery we don’t have regarding critical issues in the case. 177 FBI scientists and technicians have worked on this case. We have to know how to respond. Experts, witnesses etc. this work is compressed into 6 weeks. We are faced with a massive array, 7.5 terra bites of electronic discovery. What we have to guide us is the collective experience of courts in this country. 119 capital trials in the last decade, this case is half the median of those cases. We are so far behind, there has been just too much to do. This is a case that is atypical. Other cases have taken four or five years. We have done our best to meet this trial date, it cannot be done. We are part of the process, to get to the bottom of this, and find out why. Reasons to ensure both have time to do our job. If the govt had not asked for death, this case would have been over by now.
However much time you are given is your budget of time. This is a reasonable amount of time. Allowing more time will not improve understanding of the case. Govt provided forensic discovery of computers, they fault us for not doing analysis of Jahar’s computer. They were free to do FTK analysis on their own. FTK analysis, a narrative representation about what the agent would say about the evidence. The results of their exam. The government is not trying to prove Dzhokhar self radicalized alone. Tamerlan is not on trial. The govt is not going to do the same analysis on others computers. Defense are not novices and knew their theory would be that Dzhokhar was induced to commit this crime. They are doing the exact same analysis. Not an argument for continuance. We gave all the most important devices to them many months ago. Expert testimony - we gave them what was requested, most of it was not that complicated, DNA, ballistics. It doesn’t take that long to verify analysis and is not grounds for a continuation. Evidence in this case, we have videotape and basic forensic evidence that links the defendant to the crime.
Judge O’Toole, speaking about jury selection issues
October 20th for the final pre trial conference. Any other issues?
The Judge was concerned that there has been no conversation about witness lists.
It’s getting time to do that, two weeks?
The government would like the defendant present during the pre trial conference and jury selection.
We’ll certainly take that up with him.
At this point my hand was completely cramping up, and it was over!