11 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.

This is the transcript of Day 62 of the trial, June 11, 2001.

See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm

                                                                    7293

       1   UNITED STATES DISTRICT COURT
           SOUTHERN DISTRICT OF NEW YORK
       2   ------------------------------x

       3   UNITED STATES OF AMERICA

       4              v.                           S(7) 98 Cr. 1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

       7   ------------------------------x

       8
                                                   New York, N.Y.
       9                                           June 11, 2001
                                                   9:15 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    7294

       1                            APPEARANCES

       2   MARY JO WHITE
                United States Attorney for the
       3        Southern District of New York
           BY:  PATRICK FITZGERALD
       4        MICHAEL GARCIA
                Assistant United States Attorneys
       5

       6   FREDRICK H. COHN
           DAVID P. BAUGH
       7   LAURA GASIOROWSKI
                Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
       8
           DAVID RUHNKE
       9        Attorney for defendant Khalfan Khamis Mohamed

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    7301

       1            (Deliberations resumed)

       2            (Pages 7295-7300 sealed)

       3            (In open court; time noted, 12:45 p.m.; defendant

       4   present)

       5            THE COURT:  The note from the jury reads:  "The jury

       6   has a question regarding whether the jurors' personal

       7   knowledge of such subjects as developmental psychology, social

       8   learning and abnormal personality can be used in the weighing

       9   of mitigating factors or whether we are to weigh such factors

      10   based solely on the evidence."

      11            I would propose as an answer the following:  That the

      12   jurors bring to their deliberations all of their general

      13   background, training, and experience, on which they may rely,

      14   but are not free to speculate or reach any conclusions not

      15   based on the evidence presented to them.  Any comments?

      16            MR. FITZGERALD:  Your Honor, the one concern I have

      17   is whether we address the issue of one juror basically

      18   providing expertise to the other jurors, such as if there was

      19   a legal question a juror who was a lawyer could not explain

      20   the law to other jurors, other than based upon the charge.

      21            THE COURT:  Lawyers is another matter.  What they are

      22   talking about here are developmental psychology, social

      23   learning and abnormal personality, and we know that we have at

      24   least one person on the jury who has training in such matters.

      25            MR. COHN:  Your Honor, I would note that it is the

                                                                    7302

       1   jurors in the plural, S apostrophe, not apostrophe S.  So you

       2   can't limit this to one juror.

       3            THE COURT:  No, no.

       4            MR. COHN:  All I am suggesting is that you are not

       5   talking about one runaway juror who is becoming an expert in

       6   the jury room.

       7            MR. BAUGH:  May I suggest an answer?

       8            THE COURT:  Yes.

       9            MR. BAUGH:  You are to base your decisions solely on

      10   the evidence as presented.  You may use your collective

      11   knowledge or training to interpret that evidence.

      12            THE COURT:  That sounds all right.

      13            MR. FITZGERALD:  Your Honor, I thought yours sounded

      14   more balanced, but my concern is whether or not one or more

      15   jurors can testify as to expertise to other jurors.

      16            THE COURT:  I don't know about testify.  Can a juror

      17   say, I know based on my training as a therapist that persons

      18   who at a very young age undergo certain experiences are

      19   affected in certain ways by those experiences?  Isn't that

      20   something which is perfectly proper?

      21            MR. FITZGERALD:  I think there is a difference

      22   between someone who describes a personal experience and expert

      23   training.  The risk in someone relaying a personal experience

      24   and saying --

      25            THE COURT:  What language would you suggest?

                                                                    7303

       1            MR. FITZGERALD:  Your Honor, might I suggest this?

       2   Since we are 10 minutes before, I think, lunch begins, if we

       3   could have a short break to think this over, because I

       4   recognize this is a novel issue and I prefer to make sure we

       5   don't suggest something inappropriate.

       6            THE COURT:  Make it five minutes.  I would like to

       7   respond.

       8            Do you have yours in writing?

       9            MR. BAUGH:  Yes, your Honor.  I will hand it up.

      10            (Pause)

      11            THE COURT:  I would suggest the following.  I have

      12   taken some language from Mr. Baugh's suggestion and I have

      13   added to that, to put it in context, and I have quoted from

      14   the charge.  I have some concern that collective judgment is

      15   inconsistent with some other things we have said.  What I

      16   propose is the following:

      17            Ladies and gentlemen.  As jurors, you bring to your

      18   deliberations all of the knowledge, training, education and

      19   experience you have acquired during your lifetimes.  You are

      20   to base your decision solely upon the evidence as presented,

      21   using your collective knowledge and experience to evaluate

      22   that evidence.  Your ultimate "decision on the question of

      23   punishment is a uniquely personal judgment which the law in

      24   the final analysis leaves up to each of you."  Charge page 2.

      25            Any comments?

                                                                    7304

       1            MR. FITZGERALD:  Your Honor, I would object to the

       2   last portion of the charge.  I don't think that is the right

       3   response to the question.  What I would suggest is that the

       4   language say something to the effect of each juror should

       5   apply his or her common sense and experience and discuss these

       6   views and experience with others.  However, no juror should be

       7   viewed by the other jurors as an expert in particular areas.

       8   I think the notion is that they can share their common

       9   experiences and they should discuss them, but no one person

      10   should dwarf the other's views.

      11            MR. COHN:  Judge, I oppose that.  I mean, everybody

      12   makes a value judgment in discussions about things and about

      13   whose experience is more compelling.  I don't think that an

      14   instruction that we are all equals and that nobody has

      15   compelling knowledge is a proper standard.

      16            THE COURT:  I will strike collective.  I have trouble

      17   with collective.  I will substitute weigh for evaluate,

      18   because that's the term that they use.  So that I propose

      19   this:  As jurors you bring to your deliberations all of the

      20   knowledge, training, education and experience you have

      21   acquired during your lifetimes.  You are to base your decision

      22   solely upon the evidence as presented, using your knowledge

      23   and experience to weigh that evidence.  You should discuss and

      24   consider the issues presented, sharing with each other your

      25   views.  Ultimately, each juror must determine for himself or

                                                                    7305

       1   herself the weight to be given to the evidence.

       2            Everybody is nodding their head in the affirmative.

       3   All right, I will send that note in to the jury.

       4            The jurors are going home at 3:00 today.  That was to

       5   enable a juror to attend a closing.  The closing has been

       6   postponed till Friday afternoon but the other jurors in

       7   reliance made conflicting engagements.  So we will sit today

       8   until 3:00, and let's defer the issue of Friday until we get

       9   further along in the week.

      10            (Luncheon recess)

      11                         AFTERNOON SESSION

      12                             2:15 p.m.

      13            THE COURT:  We have reached a point in light of the

      14   jury's most recent note, which I take it you have all seen,

      15   which is a matter that we discussed at some length earlier,

      16   and that is the consequence if the jury should not be

      17   unanimously in favor of the death penalty, and we very

      18   consciously, after considerable discussion, drafted the charge

      19   and the special verdict form as we did, and did not

      20   specifically advise the jury what the consequence of a lack of

      21   unanimity would be, although there was a consensus that the

      22   consequence of a lack of unanimity is that the sentence

      23   becomes a sentence of life imprisonment.

      24            I propose the following answer to the jury's

      25   question:  Ladies and gentlemen of the jury.  The charge

                                                                    7306

       1   correctly informs you, page 28, line 1, that if you do not

       2   unanimously find beyond a reasonable doubt that the death

       3   sentence should be imposed, you should indicate this in

       4   section V of the special verdict form.  Let me elaborate on

       5   how this is done.  If the jury has not unanimously found that

       6   death is the appropriate sentence, then the government has

       7   failed to prove that death is appropriate to your unanimous

       8   satisfaction.  If this is the case, then your verdict is that

       9   Al-'Owhali should be sentenced to life imprisonment, and you

      10   should check the first box on page 15.  Before you reach any

      11   conclusion based on a lack of unanimity in favor of a death

      12   sentence, you should continue your discussions until you are

      13   fully satisfied that further discussion will not yield a

      14   unanimous verdict in favor of death.

      15            I put the last sentence in in anticipation of a

      16   government request for an Allen charge, which I think is not

      17   appropriate, the classic Allen charge is not appropriate in a

      18   situation such as this, where there is no such thing as a hung

      19   jury.

      20            Mr. Cohn.

      21            MR. COHN:  Your Honor, while I agree if an answer

      22   were to be given this would be an appropriate one, in my view

      23   this is a deadlock notice and a verdict, and that giving any

      24   further charge other than inquiring whether or not they are

      25   not unanimous -- sorry about the double negative -- is

                                                                    7307

       1   inappropriate.

       2            THE COURT:  But they haven't said that.  They have

       3   said there is no room to indicate if the jury is not

       4   unanimous.  They have not said and in fact we are not

       5   unanimous.  They are raising a question as to the structure of

       6   the charge.  The incredibly perceptive way they have focused

       7   on the deliberate --

       8            MR. COHN:  Omission.

       9            THE COURT:  Deliberate omission is a little

      10   oxymoronic -- the deliberate structuring of the charge.

      11            MR. COHN:  Your Honor, I must say that I don't think

      12   you need to be Delphic to determine what they are saying.

      13   They are saying that there is no place on this jury verdict --

      14            THE COURT:  That's right, because --

      15            MR. COHN:  I believe they are saying there is no

      16   place for us to give the answer we want to give and it is

      17   clear to me what the answer is, which is we are not unanimous,

      18   particularly in light of the last note and your Honor's answer

      19   to it.  I believe even something as modified of an Allen

      20   charge as you can get, and you have made it not an Allen

      21   charge -- I concur that this is not an Allen charge.  I don't

      22   believe once they have indicated a deadlock that there is any

      23   choice but to determine --

      24            THE COURT:  They haven't said that.  They have said,

      25   in other words, there is no room to indicate if the jury is

                                                                    7308

       1   not unanimous.  So they may be saying, just as a matter of

       2   logic, we don't know what happens if we are not unanimous.

       3   They are not saying we are and in fact that is where we are.

       4   And if you are right, if this is in fact where they are, it

       5   won't take very long to tell us that they have reached a

       6   verdict.

       7            MR. COHN:  It's not a question of how long it takes.

       8   It is a question of what is appropriate.  It seems to me that

       9   although it is not a traditional deadlock note, given the way

      10   this charge is constructed and the strictures of Jones, it

      11   seems quite clear that they are not unanimous and it should

      12   not go further once they have informed us.

      13            THE COURT:  I understand your position.  I don't

      14   agree with it.

      15            MR. FITZGERALD:  Your Honor, I would object to the

      16   proposed answer on the following grounds.  The second

      17   paragraph first.  If the jury ends up being split, I don't

      18   think that the answer is that they unanimously found that the

      19   government failed to prove beyond a reasonable doubt.  I think

      20   we know what the result is.  I would suggest the following and

      21   I will explain.

      22            THE COURT:  Yes.

      23            MR. FITZGERALD:  Ladies and gentlemen.  If you come

      24   to a unanimous decision as to the appropriate sentence to be

      25   imposed, either life imprisonment or the death penalty, you

                                                                    7309

       1   are to so indicate on pages 15 and 16.  If you cannot come to

       2   a unanimous decision as to a particular count or all counts,

       3   then you should so indicate by a note, without telling the

       4   court how you are divided.  Then we would know where we are.

       5   If the jury sends a note saying we are divided and cannot um

       6   come to a conclusion, we can discuss whether an Allen charge

       7   is appropriate, but they should not check a box indicating a

       8   unanimous decision not to impose the death penalty when in

       9   fact they appear deadlocked.

      10            THE COURT:  I debated that, and the problem with that

      11   is, it doesn't tell them a consequence, right?

      12            MR. FITZGERALD:  Right.

      13            THE COURT:  If it just says you should tell us

      14   that -- in your language, then it seems to me we withhold from

      15   them the consequences of that, and it seems to me it makes the

      16   process fairer and more informed if they know that the

      17   consequence of that is not that it goes to another jury, which

      18   is what classically happens, but rather that it is

      19   dispositive.

      20            I debated including, in other words, putting in after

      21   you check the first box, in other words, the law on this

      22   subject is that if the jury is not unanimously in favor of

      23   death, then the jury is unanimous in favor of life

      24   imprisonment.  There is no such thing as a hung jury in a

      25   death penalty proceeding.

                                                                    7310

       1            MR. FITZGERALD:  Your Honor, I understand the concept

       2   but I don't think that is accurate.  If the jurors, whatever

       3   number there might be, are divided --

       4            THE COURT:  Well, could we say, this is because --

       5   you should check the first box on page 15.  This is because

       6   the consequence of a lack of unanimity in favoring death is a

       7   verdict in favor of life imprisonment.

       8            MR. FITZGERALD:  Your Honor, it is not a verdict.

       9   The holding in Jones is that the deliberative process has

      10   broken down.

      11            THE COURT:  We have agreed that the substance is that

      12   the verdict is life imprisonment, and I don't know whether the

      13   difference that you make is a public relations difference, a

      14   difference with respect to the next jury phase, what --

      15            MR. FITZGERALD:  Two points, Judge.

      16            THE COURT:  Yes.

      17            MR. FITZGERALD:  The courts talk about an interest in

      18   finality.  Two things.  If the jury is deadlocked, I think we

      19   should have a note indicating they are deadlocked and an

      20   opportunity to have an Allen charge given, trying to reach a

      21   verdict in good conscience.  Number one.  Number two, it is

      22   not good public relations for us to get a right answer.  I

      23   think the jury is entitled to know if it is life imprisonment,

      24   but more important we need to know whether there is a

      25   deadlock, which could be an intellectual question, that there

                                                                    7311

       1   is a problem here.

       2            These three choices on the verdict form assume a

       3   unanimous decision has been reached.  If you cannot reach a

       4   unanimous decision, you are to let us know by note and the

       5   parties and the court can proceed from there.  But I don't

       6   think we should assume that they are deadlocked or take

       7   deadlocked as being unanimously against the death penalty.  I

       8   think we need to qualify whatever language is used by count in

       9   the unlikely event that there is a split by count.

      10            (Pause)

      11            THE COURT:  Let me read it again:  Ladies and

      12   gentlemen of the jury.  The charge correctly informs you, page

      13   28, line 1, that if you do not unanimously find beyond a

      14   reasonable doubt that the death sentence should be imposed,

      15   you should indicate this in section V of the special verdict

      16   form.  Let me elaborate on how this is done.  If the jury has

      17   not unanimously found that death is the appropriate sentence,

      18   then the government has failed to prove that death is

      19   appropriate to your unanimous satisfaction.  If this is the

      20   case, then your verdict is that Al-'Owhali should be sentenced

      21   to life imprisonment and you should check the first box on

      22   page 15.  This is because the consequence of a lack of

      23   unanimity in favor of death is a verdict in favor of life

      24   imprisonment.  Before you reach any conclusion based on a lack

      25   of unanimity in favor of a death sentence, you should continue

                                                                    7312

       1   your discussions until you are fully satisfied that further

       2   discussion will not yield a unanimous verdict in favor of

       3   death.  Again, you are to consider this separately as to each

       4   count listed in the special verdict form.

       5            MR. COHN:  I need a minute, Judge.

       6            THE COURT:  Yes.

       7            MR. FITZGERALD:  It might save time since I won't

       8   need a minute to say that we object on the grounds of 3593(e).

       9   It says that the jury by unanimous vote shall recommend

      10   whether the defendant should be sentenced to death, to life

      11   imprisonment without possibility of release, or some other

      12   lesser sentence, and the latter part does not apply.  A

      13   deadlock is not a verdict and I think we shouldn't tell the

      14   jury that it is a verdict.  The jury either agrees unanimously

      15   that death is appropriate, they agree unanimously that life is

      16   appropriate, or they deadlock.  The consequence of a deadlock

      17   may be a life sentence but that is not a verdict.

      18            THE COURT:  When you say may be --

      19            MR. FITZGERALD:  The consequence is, but it is not a

      20   verdict.

      21            THE COURT:  We are all in agreement if this jury is

      22   deadlocked it is a life sentence.  Shouldn't fairness indicate

      23   that they know that, so that the jurors may turn to one juror

      24   and say, you know, that's what is going to happen, if you

      25   don't vote in favor of death, then you understand that will

                                                                    7313

       1   override the 11.  Not it is going to go before some other

       2   jury, not that the judge is going to make some independent

       3   decision.  We are all in agreement that that is what happens,

       4   and what we are debating now is whether the jury should be

       5   told that is what will happen.

       6            MR. FITZGERALD:  But if they are told that, assuming

       7   we should tell them that, my only point is that we should tell

       8   them that a failure to agree upon on a verdict is not a

       9   verdict.  The consequence will be that this is not presented

      10   to another jury --

      11            THE COURT:  What is the difference between it not

      12   being a verdict and something which definitively indicates to

      13   the court what is to be in the judgment?

      14            MR. FITZGERALD:  I think it comes from Jones, where

      15   it says the government, particularly in a capital proceeding,

      16   has a very serious interest in the finality of having a

      17   verdict, a consensus as the conscience of the community.

      18   There is an interest in both sides to having 12 people be

      19   unanimous one way or the other, and for a verdict to be

      20   reached where 12 people say death versus life has a greater

      21   effect for the process than some split which may result --

      22   will result in life imprisonment on a practical sense but it

      23   is not the conscience of the community speaking with one

      24   voice.

      25            THE COURT:  Let me give it another try.

                                                                    7314

       1            MR. COHN:  Your Honor, before you do, the government

       2   is just clearly wrong.  Congress created a structure which

       3   said no unanimity, no death.

       4            THE COURT:  But the government is saying that there

       5   is a difference, and in terms of the perception of what

       6   occurred here between saying the jury unanimously found that

       7   life was appropriate and that the jury did not unanimously

       8   find death was appropriate, and I think that is -- let me --

       9            MR. COHN:  Before you write it down, just hear me one

      10   second.

      11            THE COURT:  Yes.

      12            MR. COHN:  I don't think the perception argument

      13   holds a lot of water.  While victims' rights have seemed to

      14   have taken over our lives, I don't think their comfort in this

      15   is at the final analysis the issue.  Jones does not stand for

      16   the government's interest in having a unanimous verdict.

      17   Jones stands for the fact that you can't give the jury an out

      18   at the very beginning by inviting one juror to be stubborn.

      19   At that point it is because they didn't ask the question.

      20   They have clearly asked the question, and not answering the

      21   question in the way you intended to answer it seems to me to

      22   be an evasion at best, which is beneath this court.

      23            THE COURT:  Thank you.

      24            MR. FITZGERALD:  I would note for the record that the

      25   Supreme Court in Jones, two quotes from page 9, "It speaks to

                                                                    7315

       1   what happens in the event that the jury is unable to fulfill

       2   its role when deliberations break down and the jury is unable

       3   to produce a unanimous sentence recommendation."  Continuing,

       4   "We further have recognized that in a capital sentencing

       5   proceeding, the government has a 'strong interest in having

       6   the jury express the conscience of the community on the

       7   ultimate question of life or death', citing Lowenfield v.

       8   Phelps.  I think it is not a perception issue.  I think it is

       9   the law, and the Supreme Court has recognized it that way.

      10            THE COURT:  I think we are all in agreement as to

      11   what occurs if the jury is not unanimously in favor of the

      12   death penalty.  Let me take another crack at it.

      13            (Pause)

      14            THE COURT:  The other alternative is that we ask them

      15   to strike the word "unanimously."

      16            MR. FITZGERALD:  Your Honor, I would object to that,

      17   because we don't want to have them not reach a verdict but

      18   indicate that they did.

      19            MR. COHN:  The other alternative, your Honor, is to

      20   add a fourth clause in the verdict sheet which says that we

      21   are unable to find unanimously.

      22            THE COURT:  I may do that.

      23            MR. FITZGERALD:  Your Honor, in that regard we would

      24   suggest that we do it as we do in the guilt phase.  If the

      25   jury is unable to reach a verdict, they send out a note saying

                                                                    7316

       1   they are deadlocked.  They do not check a deadlocked box on

       2   the verdict sheet.

       3            (Pause)

       4            THE COURT:  Ladies and gentlemen.  If the jury does

       5   not unanimously find in favor of the death sentence on any

       6   count, then the consequence is that the defendant will be

       7   sentenced to life imprisonment on that count.  Before you

       8   reach any conclusion based on a lack of unanimity in favor of

       9   death on any count, you should continue your discussions until

      10   you are fully satisfied that no further discussion will lead

      11   to a unanimous verdict in favor of death.  If you are

      12   satisfied that you cannot achieve unanimity in favor of death

      13   on any count, you should write on the bottom of page 15 the

      14   following:  We the jury do not unanimously find that the death

      15   sentence is appropriate.  We understand that the consequence

      16   of this is that Mr. Al-'Owhali will be sentenced to life

      17   imprisonment.  Indicate whether this is for all counts or as

      18   to which counts this is applicable.

      19            I think I have tried to accommodate --

      20            MR. COHN:  Your Honor, just for accuracy sake, before

      21   I say I think this is an Allen charge and therefore not

      22   permissible, you should at least add the words life without

      23   possibility of release.

      24            THE COURT:  Without the possibility of release.

      25            MR. COHN:  But I think it is an Allen charge and that

                                                                    7317

       1   they have voted and having voted that it's over.  I know that

       2   your Honor has overruled it but I want to make the record

       3   clear.

       4            THE COURT:  Does the government have anything to say?

       5            MR. FITZGERALD:  No objection, Judge.

       6            THE COURT:  Very well.

       7            They indicated that they want to go home at 3:00.  We

       8   will see whether they adhere to that or not.

       9            MR. COHN:  Your Honor, do you wish to ask them

      10   whether or not they wish to go home at 3:00?

      11            THE COURT:  No.  They are a very self-sufficient

      12   jury.

      13            (At 3:00, the jury adjourned until 9:30 a.m.,

      14   Tuesday, June 11, 2001)

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