24 May 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 1 of the trial.
See other transcripts: http://cryptome.org/usa-v-ssy-dt.htm
Lynne Stewart web site with case documents: http://www.lynnestewart.org/
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1 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
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3 UNITED STATES OF AMERICA,
3
4 v. S1 02 Cr. 395 (JGK)
4
5 AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
5 a/k/a "Dr. Ahmed," LYNNE STEWART,
6 and MOHAMMED YOUSRY,
6
7 Defendants.
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8
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9 New York, N.Y.
10 May 19, 2004
10 10:00 a.m.
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11 Before:
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12 HON. JOHN G. KOELTL
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13 District Judge
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1 APPEARANCES
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2 DAVID N. KELLEY
2 United States Attorney for the
3 Southern District of New York
3 ANDREW DEMBER
4 CHRISTOPHER MORVILLO
4 ROBIN BAKER
5 ANTHONY BARKOW
5 Assistant United States Attorneys
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6 JILL R. SHELLOW-LAVINE
7 MICHAEL TIGAR
7 Attorneys for Defendant Stewart
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8 DAVID A. RUHNKE
9 DAVID STERN
9 Attorneys for Defendant Yousry
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10 KENNETH A. PAUL
11 BARRY M. FALLICK
11 Attorneys for Defendant Sattar
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1 (Case called)
2 MR. DEMBER: Your Honor, for the government, Andrew
3 Dember, with Christopher Morvillo, Robin Baker, and Anthony
4 Barkow.
5 MS. SHELLOW-LAVINE: Jill Shellow-Lavine with Michael
6 Tigar, and Lynne Stewart is present.
7 MR. STERN: David Stern and David Ruhnke for
8 Mr. Yousry.
9 MR. FALLICK: Barry Fallick and Kenneth Paul for Mr.
10 Sattar, who is also present in court.
11 THE COURT: Good morning.
12 MR. PAUL: Judge, I would like to raise an issue
13 immediately before we begin the process of going forward today.
14 This is the first time we have been in this courtroom as set
15 up.
16 I am going to voice my objection to the way this is
17 arranged, certainly being at the end, sitting as what could be
18 described as a card table and behind a screen I don't think is
19 an appropriate way. I don't mind being at the end of this
20 table but I certainly don't like the way this is set up and I
21 would ask the court if there is some way we can modify this,
22 whether it means -- and I don't know when this screen is going
23 to be utilized or if it has to be here the whole time.
24 I would like to have this table replaced with
25 something that is a little more appropriate and I certainly do
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1 not want to be at the very end almost against the wall. I also
2 don't think, having spoken to the marshals, that this is the
3 best way to proceed with regard to security with Mr. Sattar in
4 the corner here. But having said that, your Honor, I am open
5 to suggestions, but I certainly think that the way it's set up
6 right now is inappropriate.
7 THE COURT: I explored other alternatives and didn't
8 find any other reasonable alternatives. It is simply not a
9 fair description of the record that you are "behind the
10 screen." The defendants are set up across the table without
11 any division among the tables, any space between the tables.
12 The way in which the courtroom is fixed up, there are just
13 physical limits. As you know, this is one of the largest
14 courtrooms in the courthouse and is also technically set up.
15 I explored whether there were any alternatives to
16 having the screen there against the wall and I was told that
17 there was not. I welcome you -- I welcome you -- to discuss
18 with the court staff whether there are any other reasonable
19 alternatives. There is no reasonable distinction from the
20 nature of the tables and the parties are set up in the way in
21 which they are named in the indictment, and that is why, of
22 course, you are at that table. But, again, I welcome you,
23 since this is simply the first day and we are some time away
24 from the actual presentation of the evidence whether there is
25 any other reasonable alternative.
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1 MR. PAUL: One reasonable alternative is to move the
2 screen away from having to face it for 6 months. I believe,
3 having spoken to the prosecutors, that screen could be moved
4 closer to the wall where your Honor's back is.
5 Additionally, when we first came into and set up as we
6 were on the third floor, I thought that we were sitting in an L
7 shape of some sort. We had spoken to the marshals about that.
8 That is what their preference was. I understand your Honor did
9 not want that, at least that is what I have been told, because
10 your Honor didn't want any parties facing the jury.
11 And so that the record is clear, Mr. Sattar is seated
12 against the wall and the screen comes out approximately 4 feet,
13 3 to 4 feet away from this wall. I am literally seated
14 parallel facing the end of this screen.
15 I don't know what the answer is, your Honor, but I
16 think there has to be an alternative. I will explore with the
17 government and with security and with everybody else to perhaps
18 suggest something but I can't say that having walked in this
19 morning I was exactly thrilled that this is the way we were
20 going to proceed.
21 THE COURT: You know, I also invited, and I continue
22 to invite the parties to have tours of the courtroom to make
23 sure that everything is set up in a way that is reasonable for
24 everyone. And that continues to be the offer and I thought
25 that the parties had done that.
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1 MR. PAUL: We had quite sometime ago. We explored the
2 third floor where we originally thought we were going to be
3 seated. We discussed with the court deputy how it was going to
4 be set up in an L shape and it wasn't until recently that I
5 heard that your Honor was against that suggestion. But that is
6 what we were exploring and we had toured the courtroom but we
7 hadn't seen this seat set-up until today.
8 THE COURT: Okay.
9 Anything else before we begin to call in the jurors?
10 MR. BARKOW: We wanted to confirm that your Honor
11 received our letter by fax with respect to Lynne Stewart's
12 supplemental requested voir dire questions.
13 THE COURT: Yes.
14 MR. TIGAR: Your Honor, this coming Friday the
15 parties' responses to one another's proposed jury instructions
16 are due and Mr. Morvillo on behalf of the government has
17 agreed -- if the court will let us -- that Monday would suffice
18 so we would have over the weekend.
19 THE COURT: Yes. I am not going to get to the jury
20 instructions for some time so that Monday is just fine.
21 MR. TIGAR: Would Wednesday do? I thought I heard a
22 door opening, your Honor.
23 THE COURT: Yes, you did. Wednesday is fine for both
24 sides. In fact, I was the one who offered with respect to jury
25 instructions to extend them in view of the other work that all
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1 of you are doing and when a door is closed a window opens;
2 maybe when a window opens a door closes.
3 since you are not going to be working on the
4 objections, I should get by Saturday at noon the first three
5 days of your additional questions for the jurors next week so
6 that I can review those over the weekend.
7 MR. RUHNKE: Your Honor, just another housekeeping
8 matter.
9 I wanted to be sure that the court had received, and
10 the government had received, the supplemental voir dire
11 questions that I proposed on May 17. I didn't see a response
12 which is why I am wondering. I had not seen a response and the
13 government replies to everything.
14 THE COURT: I have received them.
15 MR. RUHNKE: You received them.
16 THE COURT: I received them.
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18 MR. RUHNKE: The government is reacting like they had
19 not received them.
20 MR. MORVILLO: We have not seen this, your Honor.
21 THE COURT: I will ease your work. I intend to ask a
22 modification of the first four questions and not the remaining
23 questions. I also don't intend to ask the additional voir dire
24 question proposed by Ms. Stewart.
25 I will ask the jurors at the outset individually
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1 whether in substance they have talked to other prospective
2 jurors about the case, whether they have talked to anyone about
3 the case, including reporters, friends or members of their
4 family.
5 Let me start that again.
6 Since they were here last has anything changed
7 concerning their ability to serve as a juror in the case or has
8 anything occurred that affects their ability to be fair and
9 impartial? I will explain that the day that the final jury
10 will be chosen will be Monday, June 21st, so after today it's
11 unlikely that they will be called back before June 18. Does
12 that present any serious hardship since you were here last?
13 Have you spoken to anyone about the case or have you looked at
14 or listened to anything about the case? Has anyone spoken to
15 you about the case, and this includes any conversations here in
16 the courthouse?
17 MR. PAUL: We are having difficulty hearing.
18 THE COURT: I am sorry?
19 MR. PAUL: We cannot hear you.
20 THE COURT: I am talking too fast, I am sorry.
21 Since you were here last have you spoken to anybody
22 about the case or have you looked at or listened to anybody
23 about the case? Has anyone spoken to you about the case, and
24 this includes any conversations here at the courthouse or with
25 any any other prospective jurors? While you were waiting with
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1 other prospective jurors did you or anyone you heard discuss
2 the case?
3 All right. We will now call in the first juror.
4 Are we ready?
5 MR. RUHNKE: Where do you intend to have the juror
6 seated when they come in?
7 THE COURT: Where Juror Number 1 is seated so that the
8 juror is sufficiently separated and people can see.
9 MR. RUHNKE: The second mechanical question, if a
10 juror expresses or wishes to reply to something privately,
11 mechanically how do you expect to proceed understanding that
12 the defendants will want to be present during that discussion?
13 THE COURT: I would intend to do it at the side bar,
14 which means that you will have to approach the side bar. There
15 are relatively few questions that were indicated that the juror
16 wanted to discuss privately. But I do not see an alternative
17 to your coming up and doing it at the side bar over here.
18 MR. RUHNKE: Okay, your Honor.
19 Thank you.
20 MR. PAUL: Your Honor, is there any way, because I
21 believe all the parties wish to be present if there is a side
22 bar, and I am told by the marshals that if in fact that happens
23 they obviously are going to accompany my client to such a side
24 bar, which I obviously would prefer not to proceed that way.
25 Is it possible if we have an occasion where a juror
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1 wishes to seek a private side bar that we do it in the robing
2 room so that all parties can, in fact, appear and there
3 wouldn't be the issue of the marshals ushering my client up to
4 the bench?
5 THE COURT: We could do it in the robing room but I
6 don't see how that would make any difference. All of the group
7 would be either there or approach the side bar.
8 MR. PAUL: Well, Judge, my concern obviously is as Mr.
9 Sattar walks his way down this area, that the marshals will be
10 standing right behind him. I assume they will be as discreet
11 as possible but obviously for security reasons they have to be
12 close by. If we all go into the robing room and everybody in
13 the well stands up and everybody moves outside the courtroom,
14 that I believe is a different approach than the marshals
15 standing next to my client as we go and stand next to the
16 court. That is why I suggest that.
17 THE COURT: I don't follow. If it's at the side bar
18 all would get up and move to the side bar. If you are in the
19 robing room, everyone would be there.
20 MR. PAUL: But the marshals will be standing next to
21 my client in front of the juror right next to him, right behind
22 him I suppose.
23 THE COURT: They would be there in the robing room
24 too.
25 MR. PAUL: But we would be sitting in a room in a much
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1 more casual setting and the juror wouldn't know necessarily who
2 the marshals are in that situation. That is my concern, that
3 the juror not know.
4 THE COURT: How would the jurors know if we just do it
5 at the side bar?
6 MR. PAUL: I think it would be apparent, Judge, if
7 that happened. If they stood behind my client as we were
8 questioning the jury.
9 THE COURT: I tell you what, we will see how it goes
10 by doing it in the robing room.
11 Okay, anything else?
12 Call in the first juror, Juror Number 4.
13 MR. FALLICK: Your Honor, would you remind the
14 prospective juror to speak into the microphone.
15 THE COURT: Yes, thank you.
16 (Juror present)
17 BY THE COURT:
18 Q. All right, Juror Number 4, good morning.
19 A. Good morning.
20 Q. It's good to see you.
21 Let me ask you some preliminary questions before I get
22 to the questionnaire and just ask if you would in responding
23 please remember to use the microphone because it's a fairly
24 large courtroom.
25 Since you were here last has anything happened,
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1 anything changed concerning your ability to serve as a juror in
2 this case or has anything occurred to you that may affect your
3 ability to serve as a fair and impartial juror in this case?
4 A. No, nothing.
5 Q. Okay.
6 It now appears that the date that the final jury will
7 be chosen in this case will be Monday, June 21st. So after
8 today it's unlikely that you will be called to come back before
9 June 18.
10 Does that present any serious hardship for you?
11 A. No, none.
12 Q. Okay.
13 Since you were here last have you spoken to anyone
14 about this case or have you looked at or listened to anything
15 about the case?
16 A. No.
17 Q. Has anyone spoken to you about the case?
18 A. No.
19 Q. And this includes any conversations here at the courthouse
20 or with any other prospective jurors.
21 A. No. You told us not to talk to anyone.
22 Q. Right.
23 A. So I didn't.
24 Q. And I very much appreciate your following my instructions.
25 While you were waiting with the other prospective
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1 jurors, did you talk to any of them or overhear any
2 conversations about the case?
3 A. No one.
4 Q. Okay.
5 Now, Juror Number 4, you responded to all of the
6 questions and in responding to one of the questions you gave us
7 your age and I explained in my instructions, my preliminary
8 instructions, that jury service is a responsibility of
9 citizenship. It's a privilege. It's an obligation.
10 I just want to make sure that you are aware that given
11 your age, you would not be required to serve. If you wanted to
12 be deferred or excused you could be. And I just bring that to
13 your attention.
14 A. If I wanted to be excused I would have asked you to excuse
15 me.
16 Q. Okay. Thank you.
17 In response to the question about your degrees and
18 areas of study, I am not sure whether you gave us degrees or
19 prior occupations, so you explained dancer, real estate
20 salesman and hairdresser.
21 Could you just tell me about that?
22 A. I will tell you, I had three full careers. I danced for
23 about 15 years. I was a real estate salesman for one year,
24 then I was a beautician for about 13 years or so, and then I
25 think I left something out. I used to manage the executive
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1 dining rooms at Sony Music and CBS. And that was the last job
2 I have had when I retired.
3 Q. Okay. Could you keep your voice up.
4 What did you do at the executive dining room?
5 A. I used to manage the dining rooms and do the menus.
6 Q. Thank you.
7 In response to the questions about employment by you
8 or a family member or a close friend or relative with various
9 law enforcement or judiciary -- you pointed out that you have a
10 nephew who is a guard at Rikers Island.
11 A. Yes.
12 Q. Your nephew is currently a guard there?
13 A. Yes, but I hardly see them. I didn't even know he was a
14 guard until somebody mentioned it.
15 Q. Okay.
16 You don't talk to him often?
17 A. Not often. I talk to his mother occasionally. I mean, we
18 are close, but at a distance.
19 Q. Okay.
20 And is there anything about your nephew's employment
21 as a guard at Rikers that would prevent you from being a fair
22 and impartial juror in this case?
23 A. No, there is nothing. He has a job.
24 Q. I think you left out the answer to question 78. 78 asked
25 do you work or socialize with people of Middle Eastern descent,
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1 yes or no?
2 Do you?
3 A. No.
4 Q. Okay.
5 A. It's not that I wouldn't. I just don't know any.
6 Q. Okay.
7 Do you have any biases, prejudices with respect to any
8 people of Middle Eastern descent?
9 A. No.
10 Q. You explained you were not very knowledgeable about the
11 practices of Islam. To the extent you got any information,
12 where did that information come from?
13 A. Say that again.
14 Q. You indicated that you were not very knowledgeable about
15 the history and practices of Islam. To the extent you have any
16 information do you know where that information came from?
17 A. I don't understand the question.
18 Q. Well, you said you were not very knowledgeable --
19 A. I am not very knowledgeable about it.
20 Q. Okay. That suggests you have some knowledge.
21 A. Oh, yes, some. I visited Turkey and I went to some of the
22 mosques that were beautiful, and that is about the extent.
23 Q. All right.
24 Is there anything about any thoughts that you have
25 about Islam or any people who practice Islam that would prevent
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1 you from being a fair and impartial juror in this case?
2 A. No.
3 Q. All right.
4 In response to question 90, and that was the question
5 of whether you had heard of Sheikh Abdel Rahman and you had
6 indicated yes.
7 Tell me what you have heard about the sheikh.
8 A. The only thing I remember is seeing his picture in the
9 paper and that the man was blind.
10 Q. Okay. Anything else?
11 A. That is about it.
12 Q. You had indicated that you saw that he was arrested, is
13 that right?
14 A. Well, there was so much news about it, you could hardly --
15 I was just more impressed with the idea that the man was blind
16 but I didn't go into it any further.
17 Q. Do you recall anything else about that?
18 A. That is about it.
19 Q. If you were chosen as a juror in this case, you would be
20 required to listen to the evidence in this case and decide this
21 case based solely upon the evidence or lack of evidence in this
22 case and my instructions on the law.
23 Would you do that?
24 A. Yes, of course.
25 Q. Is there anything that you have seen or heard or read that
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1 would prevent you from doing that?
2 A. No.
3 Q. As you can tell from all of my questions, the fundamental
4 issue is whether there is anything in your personal history or
5 life experience that would prevent you from acting as a fair
6 and impartial juror in this case. So let me ask you one final
7 time whether there is anything, whether I have asked you about
8 it specifically or not, that would prevent you from being a
9 fair and impartial juror in this case?
10 A. There is nothing.
11 Q. Okay.
12 Thank you, sir.
13 Could you step out please with the security officer.
14 (Juror absent)
15 THE COURT: Anything further?
16 No challenges for cause?
17 I will call the juror back.
18 MR. DEMBER: We would like to know if you would ask
19 him how long ago he worked. He identified his employer so the
20 concern is possibly disclosing his anonymity. The issue is we
21 would like you to ask whether or not -- how long ago he worked
22 at Sony.
23 THE COURT: He is retired.
24 MR. DEMBER: I understand, your Honor.
25 THE COURT: All right.
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1 MR. DEMBER: If your Honor doesn't want to ask the
2 specific, how long ago, was it recently or in the distant past.
3 THE COURT: All right. And if there is nothing that
4 comes up as a result of that question I expect to tell the
5 juror that he will be called on June 18th and given further
6 instructions and we have a slip to give to the jurors.
7 Have you shown it to counsel?
8 MR. TIGAR: Your Honor, may I make just a suggestion
9 to the court. When you asked a juror to step out with the
10 security person, could you say bailiff? May I suggest a more
11 neutral word?
12 THE COURT: I will just gentleman. We just don't use
13 bailiff here.
14 MR. TIGAR: I understand, your Honor. It was my
15 concern about the "security" word, that is all.
16 THE COURT: Okay. I will say the gentleman.
17 (Juror present)
18 BY THE COURT:
19 Q. Juror Number 4, just one other question.
20 Your work in the executive dining room, was that
21 something that was recent, a long time ago? How long?
22 A. I fell into it by accident.
23 Q. About how long ago?
24 A. Oh, '76, '77.
25 Q. And how long did you do that?
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1 A. I did that until '93.
2 Q. Okay. So 11 years ago or so.
3 A. Yes. Well, I retired in '93.
4 Q. Okay. Thank you.
5 I am going to ask you to come back and you will be
6 notified on June 18th. You are still in the prospective jury
7 pool and you will be notified on June 18 about reporting.
8 Mr. Fletcher will give you a notice about that just to
9 remind you.
10 A. Okay.
11 Q. And I remind you to follow my continuing orders not to talk
12 about this case at all or anything to do with it and always
13 remember, as I told you in the preliminary instructions, to
14 keep an open mind, as I will tell the jurors in this case,
15 until they have heard all of the evidence, my instructions on
16 the law, and they have gone to the jury room to begin their
17 deliberations, because fairness and justice requires that the
18 jurors do that.
19 So I appreciate your participation in the process and
20 Mr. Fletcher will give you the note to remind you.
21 (Juror absent)
22 THE COURT: Let's bring in Juror Number 5.
23 (Juror present)
24 BY THE COURT:
25 Q. Good morning, Juror Number 5.
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1 A. Good morning.
2 Q. It's good to see you.
3 Since you were here last has anything changed
4 concerning your ability to serve as a juror in this case or has
5 anything occurred to you that may affect your ability to be a
6 fair and impartial juror in this case?
7 A. No. Just the fact that I have a few appointments with the
8 doctors, nothing has changed.
9 Q. Okay.
10 I was going to get into that. Let me come back to
11 your doctors' appointments, okay?
12 It now appears that the date that the final jury will
13 be chosen in this case will be Monday, June 21st. So after
14 today, it's unlikely that you will be called back before June
15 18th. And so any appointments that occur between now and June
16 18 are not a problem at all.
17 Does that schedule present any serious hardship for
18 you?
19 A. Yes, I have appointments for July, one tomorrow, I think
20 one in June, July.
21 Q. Okay.
22 Let's deal with that.
23 The appointment in June -- the appointment tomorrow is
24 not a problem because you would not be called back until June
25 18. After June 18 if you were selected as a juror in this case
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1 what is your schedule of appointments at this point?
2 Is this for your back problem?
3 A. No. I also have an eye condition and I have to be followed
4 up.
5 Q. Okay.
6 A. So that appointment was made in January.
7 Q. All right.
8 Beginning June 18 or actually June 21st, do you have
9 any doctors' appointments that are now scheduled?
10 A. No.
11 Did you say June?
12 Q. Beginning June 21, after June 21st.
13 A. Just the one in July.
14 Q. One in July?
15 A. One in July.
16 Q. Okay.
17 I will tell you that if you were selected as a juror
18 in this case and if you couldn't schedule that appointment on
19 Friday when we don't sit, I would not sit with this case and
20 with the jurors on that individual date so that we could
21 accommodate your appointment. I would ask, if you could, to
22 try to make the appointment on a Friday but if you couldn't and
23 it's a doctor's appointment that you had to do and you couldn't
24 do it at the end of the day after we finished sitting or on
25 Friday or on Saturday, then we just could wouldn't sit.
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1 Because as I told the jurors at the outset, we will attempt to
2 accommodate reasonable emergency needs of individual jurors
3 because a doctor's appointment that can't be deferred is an
4 important commitment and the fact that you would have one
5 appointment after June would not be a problem. Okay?
6 Now, since you were here last have you spoken to
7 anyone about this case or have you looked at or listened to
8 anything about the case?
9 A. No.
10 Q. Could you make sure to speak up and talk into the
11 microphone? It's a big courtroom.
12 A. No, your Honor.
13 Q. Thank you.
14 Have you looked at or listened to anything about the
15 case?
16 A. No.
17 Q. Has anyone spoken to you about the case?
18 A. No.
19 Q. And that includes any conversations here at the courthouse
20 or with any other prospective jurors.
21 A. No.
22 Q. While you were waiting with the other prospective jurors
23 did you or anyone you heard discuss the case?
24 A. No.
25 Q. Okay.
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1 Juror Number 5, let me follow up on some of the
2 questions on the questionnaire.
3 You explained to us that this case would not be a
4 serious hardship for you but you also pointed out that you were
5 having problems with your back and that you took muscle
6 relaxants.
7 A. Yes.
8 Q. Okay.
9 Now, it's unfortunately not uncommon for people to
10 have back problems, and let me just ask you, is there anything
11 about the medication that you take, the muscle relaxant, that
12 interferes at all with your abilities to concentrate, pay
13 attention?
14 A. Well, the muscle relaxants make me tired. They make me
15 feel sleepy.
16 Q. Sleepy?
17 A. Yes.
18 Q. We usually sit for periods of an hour and a half and then
19 take a break.
20 If we had a juror with a back problem who had to stand
21 up to stretch that is okay. We could do that. And, similarly,
22 if any juror felt tired so that the juror felt that the juror
23 couldn't pay attention at that point, I would take a break.
24 All I do is I ask that the jurors simply inform me, raise their
25 hand to show that they need a break.
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1 Now, with all of that in mind, could you serve
2 attentively and conscientiously on the jury?
3 Could you pay attention and be a fair and impartial
4 juror?
5 A. Yes. Yes, your Honor.
6 Q. Okay.
7 (Continued on next page)
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1 (Juror Number 5)
2 BY THE COURT:
3 Q. Is there anything about your back problem that would make
4 it so uncomfortable for you to sit as a juror that it would
5 interfere with your ability to be a fair and conscientious
6 juror?
7 A. No. No, your Honor.
8 Q. And will you follow my instructions that if at anytime
9 you're tired or want a break or anything like that, you'll let
10 me know?
11 A. Yes. Yes, your Honor.
12 Q. Because it's very important to me that all of the jurors
13 are paying attention all of the time and concentrating on the
14 case. And will you do that?
15 A. Yes, yes, your Honor.
16 Q. Okay. You had indicated that you were, before your current
17 job, you had had another -- before your current job at the
18 nursing home you had had another job I believe for about four
19 and a half years, is that right?
20 A. For seven years.
21 Q. And what was that?
22 A. I was a coordinator in a home health agency.
23 Q. And you had indicated that you read a newspaper daily. Can
24 you tell me what newspapers you read?
25 A. The Daily News and the New York Post.
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1 Q. Okay. Thank you. There was a question that you didn't
2 answer, overlooked it. The question said, explained that one
3 of the defendants is a lawyer, and do you have any personal
4 views about lawyers that would prevent you from reaching a fair
5 and impartial verdict in this case based solely upon the
6 evidence or lack of evidence presented here in court?
7 A. No.
8 Q. Okay. You had indicated that you had read about Sheikh
9 Abdel Rahman in the newspapers. Can you tell me what you
10 recall reading about Sheikh Abdel Rahman in the newspapers?
11 A. I don't remember, I really don't remember. I read it, but
12 I just -- you know, it didn't stay in my mind. I don't
13 remember.
14 Q. The name is familiar, but you don't recall anything?
15 A. Exactly.
16 Q. Now, if you were chosen as a juror in this case, you would
17 have to listen to the evidence in the case and decide the case
18 based solely upon the evidence or lack of evidence presented
19 here in court. Would you -- in accordance with my instructions
20 on the law. Would you do that?
21 A. Yes.
22 Q. All right. In response to another question, you were asked
23 if you had -- whether you knew or whether you had read, seen or
24 heard anything about this case, and you said that you had read
25 about the case. Do you recall what you read about the case?
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1 A. No, I don't think I understood that right. When I came
2 here that day, I had pain. I was just -- you know, I was
3 answering as best I could. I did not feel good that day, on
4 the fourth.
5 BY THE COURT:
6 Q. Okay.
7 A. So maybe I misunderstood that. No, I never read about this
8 case in the paper.
9 Q. Okay. Is there -- how are you feeling today?
10 A. A little bit better. I have my medicine. I took it.
11 Better.
12 Q. All right. Is there anything that you've thought about in
13 response to any of the questions that I asked on the
14 questionnaire or anything that I told you in open court in
15 explaining the nature of the case and the charges in the case
16 and who the parties in the case are and the preliminary
17 instructions that I gave you about the law, is there anything
18 about that that causes you to have any doubts about your
19 ability to be a fair and impartial juror in this case?
20 A. No, your Honor.
21 Q. Okay. Question 104 you had overlooked, so let me just ask
22 it to you:
23 Do you know any of the other prospective jurors who
24 have been called to serve in this case? Anyone whom you saw in
25 that group?
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1 A. No, no, your Honor.
2 Q. Okay. In response to the final series of questions about
3 whether you had any doubts about your ability to serve, you
4 pointed out that your son had been killed some 11 years ago?
5 A. Yeah.
6 Q. And that being in court brought back emotions. Now,
7 obviously this case has nothing -- nothing whatever -- to do
8 with the events about your son. You understand that?
9 A. Yes, I do.
10 Q. And I have no desire to intrude on your personal privacy.
11 I just want to ask you a couple of questions about that event
12 and was someone prosecuted in that case for the shooting?
13 A. Yes, your Honor.
14 Q. And was that person convicted?
15 A. Yes, your Honor.
16 Q. And that person was then sentenced?
17 A. (Witness nods head)
18 Q. Now, as I say, that has nothing to do with this case. The
19 parties in this case are entitled to have jurors who are fair
20 and impartial, who listen to the evidence or lack of evidence
21 in this case and any my instructions on the law. And then
22 decide this case based solely upon the evidence or lack of
23 evidence in this case and my instructions on the law. And
24 you've had a prior experience with the criminal justice system
25 and the tragedy with your son. Is there anything about that
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1 experience that would prevent you from being a fair and
2 impartial juror in this case?
3 A. No, your Honor.
4 Q. All right. If you were chosen as a juror in this case,
5 would you listen to the evidence in this case and decide this
6 case based solely upon the evidence or lack of evidence in this
7 case and my instructions on the law?
8 A. Yes, your Honor.
9 Q. And can you do that based upon your knowledge of everything
10 that I've told you about this case and based upon all of your
11 personal experiences and life history? Can you do that?
12 A. Yes, your Honor.
13 Q. Let me ask you one final question:
14 As you can tell from all of the questions that I've
15 been asking, the fundamental issue is whether there is anything
16 in your personal history or life experience that would prevent
17 you from acting as a fair and impartial juror in this case so
18 let me ask you one final time whether there is anything,
19 whether I have asked you about it specifically or not, that
20 would prevent you from being a fair and impartial juror in this
21 case?
22 A. No, your Honor.
23 THE COURT: All right. Juror Number 5, could you step
24 out, please, into the other room briefly, and then I'll call
25 you back.
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1 JUROR NO. 5: Okay.
2 THE COURT: Thank you.
3 JUROR NO. 5: You're welcome.
4 (Juror absent)
5 THE COURT: All right. Anything further?
6 MR. DEMBER: Yes, your Honor. The juror indicated
7 that she had an eye condition of some kind that required some
8 medical attention. We'd request that you ask her whether --
9 what the condition is, whether she's taking any medication that
10 will affect her ability to sit as a juror in the case,
11 questions along those lines, please.
12 THE COURT: Okay.
13 MR. DEMBER: Your Honor, just one other thing. With
14 respect to her back injury and the pain she feels, ask her as
15 well whether she takes medication on a daily basis or how
16 frequently, just so we get a sense of how badly that back
17 problem is. Thank you.
18 MR. TIGAR: Yes, your Honor, it would help us to know
19 what medications she takes. Does she -- given her experience
20 with the criminal justice system, would your Honor ask her what
21 does she think of criminal defense lawyers, positive, negative,
22 neutral? Did she testify at the sentencing of the person who
23 killed her son. And did she ever hire a lawyer.
24 Oh, and your Honor, was there a trial in that case,
25 and did she attend.
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1 THE COURT: I'll ask some of those questions. All
2 right.
3 (Juror present)
4 BY THE COURT:
5 Q. Juror Number 5, I had a few follow-up questions. You had
6 mentioned that you had an eye condition. Can you tell us what
7 the eye condition is?
8 A. Yes, I have sarcoidosis of the eyes. That's what I have
9 been followed up for. At one point in my life I lost my
10 eyesight in the right side.
11 Q. Okay.
12 A. Now it's in remission. It's been years in remission, but I
13 have been followed up, because my retina was detaching at one
14 time.
15 Q. Are you able to see and are you able to read?
16 A. Yes, yes, your Honor.
17 Q. Okay. Anything about your eye condition that would prevent
18 you from following the proceedings and seeing what goes on and
19 reading any exhibits that might be received in evidence?
20 A. No, no, your Honor.
21 Q. With respect to your back condition, how often do you take
22 the medicine for your back?
23 A. Okay. I just started a new medication, and tomorrow I have
24 to go see the doctor, and he says he's going to take it from
25 there. If that hasn't helped he's going to send me for an MRI.
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1 So I'm going to be followed up, as far as with my back.
2 Q. Okay. How -- the medicine that you now have been
3 prescribed, how often do you have to take that medicine?
4 A. Once a day.
5 Q. Once a day. Do you know what the name of that medicine is?
6 A. Yes, Celebrex. He just put me on Celebrex.
7 Q. Oh, Celebrex. Okay. And in the case involving your -- the
8 person who was responsible for the killing of your son, did
9 that case go to trial?
10 A. Yes, it did, but I didn't attend.
11 Q. Okay.
12 A. I didn't want to go.
13 Q. And you didn't attend and you didn't testify?
14 A. No.
15 Q. As a result of that process, do you have any views of
16 lawyers that would affect your ability to be a fair and
17 impartial juror in this case?
18 A. No, your Honor.
19 THE COURT: Juror Number 5, could you just step out
20 one more time? Thank you.
21 (Juror absent)
22 THE COURT: All right. Nothing further? And I see no
23 challenges for cause. I will call the juror back and tell the
24 juror to be available for call on June the 18th.
25 (Juror present)
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1 THE COURT: Juror Number 5, I'm going to ask you to be
2 available to be called back. You're still in the jury pool.
3 You will be called on June the 18th to give you further
4 instructions. As I've told you, the further jury selection
5 will not go on until June the 21st. So you can go about your
6 regular work until then.
7 Please remember my continuing instructions: Don't
8 talk about this case at all or anything to do with it. And
9 always remember to keep an open mind, as I'll continually tell
10 the jurors, until they've heard all of the evidence, I've
11 instructed them on the law and they've gone to the jury room to
12 begin their deliberations. Fairness and justice requires that
13 they do that
14 JUROR NO. 5: Okay.
15 THE COURT: With that, again, I appreciate your being
16 here and have a good trip home.
17 JUROR NO. 5: Thank you.
18 THE COURT: Thank you very much.
19 (Juror absent)
20 THE COURT: Juror Number 7.
21 MR. MORVILLO: We've noticed, your Honor, you've been
22 rising whenever the jurors enter the courtroom. Would you like
23 the parties to do that as well?
24 MR. RUHNKE: We did not hear what Mr. Morvillo just
25 said.
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1 THE COURT: Mr. Morvillo said, he notices that I rise
2 when jurors come in and leave. Do I prefer that the parties
3 rise when the jurors come in and leave. And I hadn't responded
4 to him yet.
5 MR. RUHNKE: Okay.
6 THE COURT: And the answer to that question is: When
7 the trial is on, I always tell the jurors that I ask everyone
8 in the courtroom to rise when the jurors come in or leave, and
9 I as well as everyone in the courtroom will rise. During this
10 process, I think, personally, I think it would be awkward. And
11 I don't require it. Plainly, if anyone were going to do it,
12 everyone would do it, so that there's no distinction among
13 everyone. I don't require it, and so it's perfectly all right
14 by me for everyone to be seated, and I have no problem with me
15 being the only one rising each time the juror comes in and
16 leaves.
17 MR. RUHNKE: I think we agree it would be very awkward
18 indeed. So...
19 THE COURT: Okay. Juror Number 7.
20 (Off the record)
21 THE COURT: I'm told that Juror Number 7 is not here.
22 So Mr. -- we'll move to Juror Number 12.
23 U.S. MARSHAL: Juror Number 12 is the other juror not
24 present. Seven and 12.
25 THE COURT: We should get Juror Number 7 -- Juror 7 is
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1 here. If Juror 7 is not here, then the next juror is Juror 12.
2 U.S. MARSHAL: Juror 7 and Juror 12 -- neither one of
3 them is here right now.
4 THE COURT: Juror number 12 is not here. We'll have
5 to follow up with Juror 12.
6 U.S. MARSHAL: The next juror is Juror Number 13.
7 (Juror 13 present)
8 BY THE COURT:
9 Q. Juror Number 13, good morning.
10 A. Good morning.
11 Q. Let me ask you some preliminary questions before I get to
12 the questionnaire. Since you were here last, has anything
13 changed concerning your ability to serve as a juror in this
14 case or has anything occurred to you that may affect your
15 ability to be a fair and impartial juror in this case?
16 A. No.
17 Q. In answering my questions, could you speak up and talk into
18 the microphone? It's a pretty big courtroom.
19 A. Oh.
20 Q. It now appears that the date that the final jury will be
21 chosen in this case will be Monday, June 21st. So after today,
22 it's unlikely that you'll be called back before June the 18th.
23 Does that present any serious hardship for you?
24 A. No.
25 Q. Okay. Since you were here last, have you spoken to anyone
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1 about this case or have you looked at or listened to anything
2 about the case?
3 A. No.
4 Q. Has anyone spoken to you about the case?
5 A. No.
6 Q. And that includes any conversations here at the courthouse
7 or with any other prospective jurors?
8 A. No.
9 Q. While you were waiting with the other prospective jurors,
10 did you or anyone you overheard discuss the case?
11 A. No. There's been no talking in that room at all.
12 Q. Okay. Let me turn to some of the questions on the
13 questionnaire. You had indicated that the -- serving on the
14 jury would cause you economic hardship, but it's not serious
15 hardship.
16 A. Correct.
17 Q. And could you just explain that for me?
18 A. Over the next several months, or between now and September,
19 I had begun a process to do more of my own practice than work
20 in the office. But that's still developing. It's not
21 something definite.
22 Q. Okay. And are you in architecture?
23 A. Yes.
24 Q. Could you keep your voice up?
25 A. Okay.
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1 Q. All right. You know, in terms of developing your own
2 practice, I just -- we usually will not sit on Fridays, we
3 obviously don't sit on weekends, and we usually end the day at
4 about 4:30. So that jurors have the ability to work at the
5 other times just in terms of flexibility for you.
6 A. Right. And considering the time schedule you just
7 mentioned, the next couple of weeks are going to be very busy,
8 but after that, not so busy. So if it's mid to late June, the
9 issue is less critical.
10 Q. Better for you?
11 A. Right.
12 Q. Okay. You had indicated that your partner had a law
13 degree. What kind of law does your partner practice?
14 A. He's actually not practicing now. When he did practice and
15 when it is an issue is purely real estate. So he's in
16 commercial real estate -- actually, retail commercial real
17 estate, and has been throughout his career.
18 Q. I'm sorry, has been?
19 A. Throughout his career. He's never done anything but
20 commercial real estate legal operations.
21 Q. How long since he's ceased to practice law, real estate
22 law?
23 A. It's been six or seven years.
24 Q. Okay. You had indicated that your brother was an Army ROTC
25 in college. Is there anything about that that would prevent
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1 you from being a fair and impartial juror in this case?
2 A. No.
3 Q. You had also indicated that your brother is a licensed
4 private detective and studied at John Jay.
5 A. Correct.
6 Q. Is there anything about your brother's occupation that
7 would prevent you from being a fair and impartial juror in this
8 case?
9 A. No.
10 Q. Will you follow my instruction that no person is entitled
11 to any greater or lesser credibility because of their
12 occupation? There may be law enforcement witnesses who will
13 testify at the trial, and you have to assess their credibility
14 in the same way as you would any other witness in the case.
15 Will you do that?
16 A. Yeah.
17 Q. You indicate also that you have several friends and your
18 father's cousin is a lawyer.
19 A. Right.
20 Q. And your father's cousin, what sort of law does that person
21 practice?
22 A. Mostly union -- union law related, and corporate on that
23 side, not major corporate, but commercial legal, and he
24 represented several unions. He's more or less retired at this
25 point.
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1 Q. And the friends that you have who are lawyers, what sorts
2 of law do they practice?
3 A. Let's see, one of them used to be in the -- in the Attorney
4 General's office, Solicitor General's office. He's since left
5 that position. Still working in Washington in law related to
6 that. Any other lawyer I'm in contact with would just be
7 domestic law, wills, that kind of thing.
8 Q. Your friend who was at the Solicitor General's office, when
9 did he leave the Solicitor General's office?
10 A. Oh, three, four years ago. Actually, it was four years
11 ago.
12 Q. All right. Is there anything about your relations with
13 lawyers or with or what any of these people do as lawyers that
14 would prevent you from being a fair and impartial juror in this
15 case?
16 A. No.
17 Q. You mentioned that you had had two friends who visited
18 Egypt. Why did they visit Egypt? Business or pleasure?
19 A. Yeah, it was pleasure. It was one of those cruises, and it
20 was before -- it was six or seven years ago, before there was
21 any restriction on travel there.
22 Q. All right. Have you talked to them about their experiences
23 in Egypt?
24 A. Only in terms of, you know, typical tourist reactions.
25 Q. Is there anything about any of that tourist trips or
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1 conversation that would prevent you from being a fair and
2 impartial juror in this case?
3 A. No.
4 Q. You said that you were somewhat knowledgeable about the
5 history and practices of Islam. Could you tell me generally
6 what your knowledge of Islam is?
7 A. Only from, let's say the usual instruments like the
8 New York Times or PBS. And pretty much at that depth, so in
9 terms of discussions of traditions or of non-Islams'
10 understanding what it is, what the dress is, or recently, I
11 guess, the issues with the prison -- kind of at that depth. No
12 study deeper than that.
13 Q. Which prison are you referring to?
14 A. The Abu --
15 Q. Abu Ghraib in Iraq?
16 A. Yes, why that's such an issue, why that humiliation would
17 be so much of an issue.
18 Q. Why it would be offensive?
19 A. Right, right.
20 Q. Okay. Do you have any biases or prejudices with respect to
21 any people of Middle East descent or any people of the Islamic
22 faith?
23 A. No.
24 Q. If you were chosen as a juror in this case, you would have
25 to decide this case based solely upon the evidence in the case
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1 or the lack of evidence, and my instructions on the law. So
2 you could not rely upon anything which you have seen, heard or
3 read. This is a case that must be decided solely on the
4 evidence or lack of evidence presented here in court. Can you
5 do that?
6 A. Yes.
7 Q. You mention that you had heard of Sheikh Abdel Rahman.
8 Tell me what you've heard about him.
9 A. The only things I can remember were that he does have -- he
10 is partially blind, he does have a head cover that he wears,
11 and that his trial was, I believe, here in New York, and that
12 he's incarcerated. I couldn't tell you where he's
13 incarcerated.
14 Q. All right.
15 A. Actually, I couldn't tell you what the case was.
16 Q. All right. Now, is there anything about what you've seen
17 or heard or read about Sheikh Rahman that would prevent you
18 from deciding this case based solely upon the evidence or lack
19 of evidence in this case?
20 A. Could you repeat the question? I don't know if that's a
21 yes or --
22 Q. I may have -- I sometimes don't phrase my questions
23 correctly or put --
24 A. The knowledge I have would not impact my decision-making.
25 Q. All right.
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1 A. I've told you what I know.
2 Q. You understood what I was asking?
3 A. Yes, yes.
4 Q. Would you decide this case based solely upon the evidence
5 or lack of evidence in this case and my instructions on the
6 law?
7 A. Yes.
8 Q. You mention that you had had several friends or neighbors
9 and a school mate who were victims of the World Trade Center
10 9/11 attack. Now, let me tell you first of all this case has
11 nothing to do with 9/11. And the defendants in this case are
12 not charged with anything to do with 9/11. The charges in this
13 case don't concern 9/11 or the events of 9/11.
14 Now, is there anything about the fact that you know
15 people who were victims of 9/11 that would prevent you in any
16 way from being a fair and impartial juror in this case?
17 A. No.
18 Q. You mention that you had a friend years ago -- or years
19 ago, a friend of yours worked at the Department of Justice.
20 Was that the friend who was at the Solicitor General's office
21 or is this someone else?
22 A. Actually, a different one, and the contact hasn't been made
23 in 14 years or so. I couldn't tell you what that person's now
24 doing.
25 Q. Okay. Where did that person work at the Department of
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1 Justice?
2 A. In the Tampa region.
3 Q. Okay. Is there anything about that that would affect your
4 ability --
5 A. No.
6 Q. -- to be fair and impartial in this case?
7 A. No.
8 Q. All right. As you can tell from -- well, let me back up.
9 I know I've asked you this before, but let me ask you again:
10 If you were chosen as a juror in this case, you would
11 be required to decide this case based solely on the evidence or
12 lack of evidence in this case, and my instructions on the law.
13 Would you do that?
14 A. Yes.
15 Q. And as you can tell from all of these questions, the
16 fundamental issue is whether there's anything in your personal
17 history or life experience that would prevent you from acting
18 as a fair and impartial juror in this case. So let me ask you
19 one final time whether there's anything, whether I've asked you
20 about it specifically or not, that would prevent you from being
21 a fair and impartial juror in this case.
22 A. No.
23 Q. All right. Thank you, Sir. Could you step out for a few
24 moments, please? And then I'll call you back. Thank you.
25 (Juror absent)
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1 THE COURT: All right? Nothing further? No
2 challenges for cause?
3 MR. TIGAR: Your Honor, could we ask the juror if his
4 partner has ever expressed a view or an opinion about Lynne
5 Stewart, this case or criminal defense lawyers? Being his
6 partner is a lawyer, it would be a natural subject to discuss.
7 THE COURT: Okay. I'll ask something similar. If the
8 answer does not suggest some disqualification, I will explain
9 to the juror to return on June the 18th rather than asking the
10 juror to leave and then come back.
11 All right. Let's call in Juror Number 13 again,
12 please.
13 (Juror present)
14 BY THE COURT:
15 Q. Juror Number 13, has your partner ever expressed to you any
16 views about this case or the parties in this case or the
17 lawyers in this case, or about lawyers who prosecute or defend
18 criminal cases?
19 A. No.
20 Q. All right. I'm going to ask you to be available to be
21 called back for the juror pool. You'll be called on June the
22 18th or there will be a number for you to call. It's written
23 out on instructions for you.
24 A. Okay.
25 Q. And Mr. Fletcher will give you a slip of paper, and please,
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1 please remember my continuing instructions.
2 A. Yes.
3 Q. Please, don't talk about this case at all or anything to do
4 with it. Remember to keep an open mind, as I'll tell all of
5 the jurors, until the jurors have heard all of the evidence,
6 I've instructed them on the law and they've gone to the jury
7 room to begin their deliberations. Fairness and justice
8 requires that they do that?
9 A. Okay.
10 Q. So thank you for participating in the process. All right.
11 (Juror absent)
12 THE COURT: Mr. Fletcher has given me a note that says
13 that Jurors 28 and 43 are absent, also absent.
14 DEPUTY CLERK: In addition to the other two.
15 THE COURT: And Mr. Greg will have to follow up.
16 The next juror will be Juror number 16.
17 (Off the record)
18 THE COURT: Actually, now Juror Number 12 is here. So
19 we'll go back to juror number 12.
20 (Juror 12 present)
21 BY THE COURT:
22 Q. Good morning, Juror Number 12.
23 A. Good morning.
24 Q. It's good to see you. Before I turn to the questions on
25 the questionnaire, I had some preliminary questions for you.
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1 Since you were here last, has anything changed concerning your
2 ability to serve as a juror in this case, or has anything
3 occurred to you that may affect your ability to be a fair and
4 impartial juror in this case?
5 A. Since I'm a teacher and I have talked to my principal, and
6 her -- really want me to go back to school, I can't really --
7 Q. Please keep your voice up; talk into the microphone.
8 A. I have talked to my principal about that, if I'm going to
9 go on this jury, it's going to probably last for four to six
10 months. But since I'm a teacher, so -- she thinks it's going
11 to be a hardship for her, for me, like, out for so many months.
12 Because don't have like regular math teachers. I'm a math
13 teacher.
14 Q. This would be the essentially the fall semester, because we
15 won't be beginning, and I was going to explain this, until June
16 the 21st. So it would be really the next semester, and, would
17 you be paid for that?
18 A. Yes, I hope so. I'm not sure. But the problem is, like
19 math is such a shortage area for teachers, so they -- even if I
20 don't go to summer school, and the principal has asked me to
21 teach summer school also, so the summer school is going to
22 start at the second week of July to August 12.
23 Q. The principal says that they can't get a replacement for
24 you?
25 A. They haven't really tried yet, but like since the math
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1 teacher is a shortage area, they even have a hard time to find
2 a teacher for this year, so I'm not sure they could find one or
3 not.
4 Q. You believe that your salary would be paid, right?
5 A. I'm not sure. I haven't asked.
6 Q. When you spoke to your principal, did you explain anything
7 about this case other than that it was scheduled to last for
8 four to six months?
9 A. No, I didn't explain the case. I just say that it's a big
10 case and there's a chance that I'll be out for four months to
11 six months.
12 Q. Right. And the principal hasn't tried to get a replacement
13 teacher?
14 A. I don't think she has tried yet, because like she's not
15 sure, and I'm not sure that will I be here not neither.
16 Q. Right. So at this point, there's been -- I'm just
17 repeating this, but so far there's been no effort to get a
18 replacement for you?
19 A. Not yet. We have not even tried. That's why there's no
20 effort.
21 Q. Let me follow up on the other questions with you and then
22 we can come back to that. It now appears that the date that
23 the final jury will be chosen will be Monday, June 21st. So
24 you wouldn't be asked to call in or be here until June the
25 18th, and that would just be a telephone call. Does that
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1 schedule present any serious hardship for you?
2 A. Not yet.
3 (Continued on next page)
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1 Q. Since you were here last have you spoken to anyone about
2 this case or have you looked at or listened to anything about
3 the case?
4 A. No.
5 Q. Has anyone spoken to you about the case?
6 A. No.
7 Q. And this includes any conversations here at the courthouse
8 or with any other prospective jurors.
9 A. No.
10 Q. While you were waiting with the other prospective jurors,
11 did you or anyone you overheard discuss the case?
12 A. No.
13 Q. Let me follow-up on the other questions.
14 In response to some of the questions you said that you
15 had not seen, heard or read anything about this case, is that
16 correct?
17 A. Correct.
18 Q. And you were asked whether you had discussed this case with
19 anyone or heard anyone discussing it and you said no, is that
20 right?
21 A. Right.
22 Q. And it may be my way of wording questions, but in response
23 to the next question, the next question was the jurors who sit
24 in this case will be instructed that they must base their
25 decisions entirely on the evidence produced in court, not from
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1 any outside source or pre-existing opinion or attitudes, and
2 you were asked can you do that despite anything you have read,
3 seen or heard about the case, and you said no.
4 Was that a mistake? Let me not phrase it that way.
5 Can you decide this case based solely upon the
6 evidence or lack of evidence in this case and my instructions
7 on the law?
8 A. Because I am not sure that is why I put down no.
9 Q. I am sorry?
10 A. Because I am not sure, that is why I put down "no".
11 Q. You are not sure --
12 A. I am not sure, that is why the answer I put down is no. I
13 put down "no" as an answer.
14 Q. You said "no", correct.
15 A. I think because I am not sure, that is why I put down no.
16 Q. Why is it that you have any doubt about that?
17 A. Because I think this seems like a complicated case, so I am
18 not sure that could I make my judgment based on just upon what
19 I heard from the trial.
20 Q. I see.
21 Your concern is not that you have seen or heard
22 something about the case or about --
23 A. No, not at all.
24 Q. Or what the evidence is. You are just concerned because
25 it's a complicated case?
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1 A. Yes.
2 Q. Okay.
3 You are a teacher, right?
4 A. Yes, I am.
5 Q. And you have a masters?
6 A. Yes.
7 Q. In education?
8 A. Correct.
9 Q. Jurors are to come from a cross section of the community
10 and to bring to the jury process common sense, fairness,
11 impartiality, a willingness to listen to the evidence or lack
12 of evidence, and decide the case. It's up to the parties to
13 explain to you what they believe the evidence has shown or not
14 shown and to present it in a way that is understandable. The
15 fact that the case is long or complicated doesn't change any of
16 the regular rules that apply.
17 Do you have any biases or prejudices about any of the
18 parties or the lawyers in this case?
19 A. I won't say I have a prejudice but like I have to say after
20 9/11 I am a little bit afraid of terrorism.
21 Q. Okay.
22 Could you keep your voice up please.
23 A. Repeat what I said before?
24 Q. Yes.
25 A. Okay. I say that I don't have any prejudice or bias but
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1 like after 9/11 I think I am a little bit afraid of terrorism.
2 Q. All right.
3 Let me explain a couple of things.
4 First of all, this case has nothing to do with 9/11
5 and none of the defendants in this case are charged with
6 anything to do with 9/11 and the charges in this case do not
7 concern 9/11. I have explained to you in general what the
8 charges in the case are and you have raised the issue of 9/11.
9 I tell you that this case does not concern 9/11.
10 Now, the question is you know about 9/11, of course.
11 9/11 has nothing to do with this case, but is there anything
12 about that that would interfere with your giving the parties in
13 this case a fair trial?
14 A. No.
15 Q. I am sorry?
16 A. No.
17 Q. If you were chosen as a juror in this case, would you
18 fairly and conscientiously listen to the evidence in this case
19 or the lack of evidence and decide the case based solely on the
20 evidence or lack of evidence and my instructions on the law?
21 A. I would try.
22 Q. You say you would try?
23 A. Yes.
24 Q. Do you have doubts whether you could do that?
25 A. No, but, as I say, I would try my best.
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1 Q. Well, trying is actually not --
2 A. Enough.
3 Q. Not good enough.
4 The parties in the case are entitled to a fair and
5 impartial jury and no one can look into your mind but you and
6 you have to tell me what is in your mind and if you have a
7 doubt for whatever reason that you can be fair and impartial,
8 that you can listen to the evidence, follow the law and be fair
9 and impartial, then you are not qualified to serve, but I
10 remind you you are under oath and you have to look into your
11 mind and heart and tell me whether you will be fair and
12 impartial.
13 And if the truthful answer to that is you don't know
14 or you have doubts about that, that is your truthful answer.
15 If your truthful answer is you have thought about it, you have
16 thought about the issues, you have thought about what I have
17 told you about the case and, yes, you will be fair and
18 impartial, not you will try but you will be, knowing yourself
19 and the way in which you think and act and follow your
20 responsibilities, but you have to be able to tell me.
21 So you have said a couple of times that you would try
22 to be fair and impartial but, tell me, do you have doubts about
23 whether you could be fair and impartial?
24 A. I don't think I have doubts. If I am going to serve as a
25 juror I want to be honest and I want to be fair to everyone.
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1 Q. Yes. And you told me you want to be fair.
2 A. I want to be fair to everyone and to be honest.
3 Q. And to be honest.
4 A. Yes.
5 Q. And my question is: Based upon all of the questions and
6 what I have explained about the case, you want to be fair and
7 impartial but do you have doubts about whether you could be
8 fair and impartial in this case?
9 A. No.
10 Q. Are you sure of that?
11 A. I am sure.
12 Q. It's very important to me and to all of the parties in this
13 case that you tell me, having thought about the case, what your
14 thinking is and there is no right answer to this question.
15 There is only a truthful answer about what is in your mind.
16 This is a case where you told me that you don't know anything
17 about the case. You raised an issue with respect to 9/11 but
18 this case doesn't concern 9/11.
19 You raised an issue with respect to the complicated
20 nature of the case, but I have gone through with you the
21 importance of common sense and, tell me, if you were chosen as
22 a juror in this case, would you be able to be fair and
23 impartial and to decide this case based solely on the evidence
24 or lack of evidence and my instructions on the law?
25 A. Yes.
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1 Q. Are you sure of that?
2 A. Yes, I am sure.
3 Q. Do you have any doubts about that?
4 A. I don't think so.
5 Q. No.
6 A. No, I have no doubts.
7 Q. Some people express themselves in different ways and I
8 realize that.
9 A. Okay.
10 Q. If you had doubts about your ability to be fair and
11 impartial, you would be excused. So tell me, if you were
12 chosen as a juror in this case would you listen to the evidence
13 and decide this case based solely on the evidence or lack of
14 evidence and my instructions on the law?
15 A. Yes, I will.
16 Q. And can you do that?
17 A. Yes.
18 Q. Will you do that if you were chosen as a juror in this
19 case?
20 A. Yes, I will.
21 Q. Do you have any doubts about that?
22 A. No.
23 Q. As you can tell from all of my questions, the fundamental
24 issue is whether there is anything in your personal history or
25 life experience that would prevent you from acting as a fair
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1 and impartial juror in this case. So let me ask you one final
2 time whether there is anything, whether I have asked you about
3 it specifically or not, that would prevent you from being a
4 fair and impartial juror in this case?
5 A. No.
6 Q. All right.
7 Could you step out please.
8 (Juror absent)
9 MR. RUHNKE: Your Honor, for this juror by way of
10 follow-up question, if we get to that, she did say she was
11 scheduled to teach a summer school course. She did say she is
12 going to be paid her salary. It wasn't clear to me that she
13 was going to be paid for her summer school course if she is
14 required to be here during the summer and whether if that is
15 true and she is not going to get paid for the summer, is that a
16 problem for her? Because whatever happens she is going to be
17 here during the summer. It may not be a problem. It may be a
18 problem.
19 In terms of follow-up questions, and questions 96 and
20 97 on the questionnaire, she said that she could not be fair.
21 In fact, question 97 said she couldn't be fair to the
22 prosecution and the defense. And as you explored that issue
23 with the juror, she initially told you, well, what she meant
24 was it was a complicated case, and when you kind of went
25 through that, it really turned out it wasn't such a complicated
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1 case that the problem was, it is that she is afraid of
2 terrorism and she is afraid of what that attitude might bring
3 to the table.
4 And as your Honor continued to explore it, she got to
5 the point where she said absolutely without equivocation that
6 she could be fair, she has no biases despite what she had said
7 on the questionnaire.
8 We would ask you -- first of all, we think that the
9 answers are contradictory and they have progressed and on the
10 basis of what we have heard so far we doubt this juror's
11 ability to be 100 percent fair and we would move to excuse her
12 for cause.
13 If your Honor is not persuaded at this point that a
14 cause challenge is warranted, we would ask the court to ask her
15 is she afraid of the defendants in this case? Is she afraid of
16 retaliation if she serves on the jury? And does she honestly
17 think the defendants are guilty as she is sitting here or
18 probably guilty?
19 Without asking those kinds of questions we are not
20 getting behind the bias that she did express and we think those
21 questions are appropriate and should be asked.
22 THE COURT: Okay, the government.
23 MR. DEMBER: Your Honor, it's our view that she just
24 shouldn't be excused. It's our position she should not be
25 excused for cause; that your Honor explored those questions 96
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1 and 97 thoroughly with her. Obviously you didn't badger her.
2 You slowly took her through those questions and related
3 questions and she clarified her position. So I don't believe
4 that a challenge for cause at this point is appropriate.
5 The only question, your Honor, that we would ask your
6 Honor to ask this juror relates to question number 28 on the
7 questionnaire which refers to prior jury service. She
8 indicated that she was on a jury that did not reach a verdict
9 and one of the problems with the questionnaire, your Honor, is
10 it's not clear whether she didn't reach a verdict in this case,
11 the jury didn't reach a verdict because the case was resolved
12 before they reached a decision or whether it was a hung jury
13 essentially and they couldn't decide it.
14 This comes up with a number of jurors, your Honor,
15 so --
16 THE COURT: I really think it's sufficient to just ask
17 whether the jury reached a verdict. And this really follows
18 what the parties had asked me to ask of the jurors and I think
19 it provides more than adequate information to know whether the
20 jury reached a verdict in that case, yes or no, without telling
21 us, of course, what the verdict was.
22 MR. TIGAR: Your Honor, it may be a typo that this got
23 missed but on page 28 of the questionnaire the juror checked
24 that she was familiar with 351 Broadway. That is Ms. Stewart's
25 law office in that building and there is nothing in that
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1 building except lawyers and a deli.
2 THE COURT: Okay, thank you. I will explore that.
3 MR. TIGAR: And we join in Mr. Ruhnke's remarks. We
4 don't have to go over what the exchange was.
5 THE COURT: Right.
6 There is an issue with respect to the teaching
7 hardship that I would have to have her tell the principal,
8 without naming the case, that if I conclude that she remains a
9 possible juror that they should explore a replacement.
10 MR. TIGAR: Your Honor, Ms. Stewart is a veteran of
11 the New York public school system and informs me that for
12 summer school, her impression is whatever other the union
13 contract provides you don't get paid if you don't teach. It's
14 not a thing where it's for jury service during the regular
15 year. So that would be an economic issue.
16 THE COURT: It would be a question whether it's still
17 a serious hardship. If the students were left without a
18 teacher that may rise to the level of hardship. But that has
19 to be explored.
20 MR. TIGAR: In that connection, your Honor, she didn't
21 answer question number 19 about the occupation of her marital
22 partner or other partner, which might be relevant to the issue
23 of economic hardship to the household. There was no answer to
24 that question 19. Is she a single person, a single mother?
25 MR. MORVILLO: Yes.
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1 MR. TIGAR: Excuse me, I am reminded I made an error.
2 In joining Mr. Ruhnke's comment, in common law the
3 jurors are required to judge without fear or favor and it's the
4 "fear" word that we are concerned with.
5 THE COURT: I will be happy to explore that with her.
6 Let's call back Juror Number 12.
7 (Juror present)
8 BY THE COURT:
9 Q. Please have a seat.
10 Juror Number 12, I wanted to follow up just on a
11 couple of things.
12 First, with respect to summer school, if you were
13 serving as a juror in this case during summer school, would you
14 be paid?
15 A. If I am not working summer school I am not going to get
16 paid. I mean, summer school is an extra pay. It's like
17 overtime pay.
18 Q. It's overtime.
19 Would the lack of that summer school pay be a serious
20 economic hardship for you?
21 A. Not serious.
22 Q. No, okay.
23 In response to the questions that I asked earlier
24 about whether you could be fair and impartial, we went through
25 your background and whether you had heard anything about the
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1 case and your issues with respect to the complicated nature of
2 the case, and you raised the issue of 9/11 and I explained this
3 case is not about 9/11. But let me ask you whether you have
4 any fears about serving as a juror in this case?
5 A. No.
6 Q. Do you have, going into this case, any beliefs as to
7 whether the charges in the indictment against the defendants
8 are true or not true?
9 A. I don't know yet. I haven't heard the case yet, so I can't
10 say it's true or not true.
11 Q. Okay.
12 If you were chosen as a juror in this case, would you
13 give all of the parties in this case a fair trial? Would you
14 listen to the evidence and decide this case based solely upon
15 the evidence or lack of evidence and not based upon any outside
16 considerations at all?
17 A. Yes.
18 Q. And can you do that?
19 A. Yes, I can.
20 Q. You mentioned in response to the questions that you were
21 familiar with 351 Broadway.
22 A. Yes.
23 Q. Can you tell me how you are familiar with 351 Broadway?
24 A. I think like I pass by there many times and I know that
25 there are a lot of lawyers working in that building.
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1 Q. Okay.
2 Do you know anything about any of the specific lawyers
3 in that building?
4 A. I forget. I may have gone there once or twice but
5 definitely not the lawyers that are on the list there.
6 Q. Okay.
7 Can you tell me why you went into the building? I
8 realize you have told me it's not any of the lawyers who are on
9 the list but do you recall why you went into that building?
10 A. I am a notary public. I think I remember one time like one
11 of my clients asked me to do the notary public for her.
12 Q. I see.
13 A. It was like at least 5 years ago.
14 Q. Okay.
15 All right. Anything about that or your role as a
16 notary public that would affect your ability to be fair and
17 impartial in this case?
18 A. No.
19 Q. Okay.
20 Can you step out for a moment.
21 (Juror absent)
22 THE COURT: I see no challenge for cause. I have
23 thoroughly gone over all of the questions. The juror has
24 explained all of the answers and I find her to be credible and
25 she answered all of the questions and the follow-up questions
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1 in a way that is credible and persuasive, including the
2 open-ended questions that I was asked.
3 Mr. Ruhnke, you are sitting there nodding.
4 MR. RUHNKE: I am nodding that that is exactly what
5 happened in court but we maintain our challenge for cause and I
6 know the court is going to deny it.
7 THE COURT: Right.
8 That leaves the issue of her employment and I see no
9 alternative but to say to her, look, you remain a possible
10 juror in this case. Please talk to your principal and say you
11 are a possible juror in this case. Please look to alternative
12 arrangements for next semester, and she will have to get back
13 to Mr. Grate on that and, again, don't talk about the specifics
14 of the case at all but simply that she has been asked to serve
15 as a juror in a long case.
16 Do the parties agree?
17 MR. DEMBER: Yes, your Honor. Though I think she
18 indicated she wasn't sure whether she would be paid, not for
19 summer school but for her regular so she should also ask,
20 whether her principal or an administrator, whether she would
21 get paid.
22 THE COURT: One would think under the regular union
23 contract she would continue to be paid. But she can explore
24 that.
25 MR. DEMBER: Yes, sir.
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1 THE COURT: All right.
2 Okay, let's call back Juror Number 12.
3 (Juror present)
4 BY THE COURT:
5 Q. Juror Number 12, at this point you remain as a possible
6 juror in this case. But it is important to explore two things.
7 First is whether you will continue to be paid for your
8 next semester, which would be the fall semester at your school.
9 And, second, whether when the principal tries to get a
10 replacement in fact that there can be a substitute in that area
11 so that the students don't lose out on their math education.
12 So those two issues. And you have to essentially
13 report back on those issues, whether you will be paid and
14 whether a substitute can be found. I realize that in order to
15 answer those questions you have to talk to your principal.
16 When you talk to your principal, please, you are not to talk
17 about the case or anything to do with it. The only thing that
18 you should talk to your principal about is the fact that you
19 are a prospective juror in a long case that will last for the
20 fall semester and so the principal should tell you whether you
21 will be paid and attempt to get a substitute for you.
22 Do you understand that?
23 A. I do.
24 Q. Okay.
25 Now, if you remain as a prospective juror in this
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1 case, you will be asked to call back on June 18 and Mr.
2 Fletcher will give you a little note, and remember to report
3 back to Mr. Grate, the jury administrator, with respect to the
4 other issues, all right?
5 A. At that day?
6 Q. No, before that, when you are able to get a response on
7 those questions. It may take some time to get a back-up
8 substitute for you because, you know, just because you are a
9 prospective juror in this case doesn't mean that you will
10 actually be selected as a juror in this case. You just remain
11 as a prospective juror. It could be that you never eventually
12 get selected as a juror in this case. You just remain in the
13 jury pool and you will know the answer to those questions on
14 about June 21st. So what you are looking at is having your
15 principal get a back-up substitute for you for the next
16 semester if in fact you end up being selected as a juror in
17 this case.
18 A. Okay.
19 Q. But, again, just say that you are being asked to be a juror
20 in a long case and that the court has asked that a back-up
21 substitute be found and that the court has instructed you not
22 to talk about the details of the case.
23 Okay?
24 A. Only the time frame.
25 Q. Only the time frame, right.
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1 A. Yes.
2 Q. And you should report back to Mr. Grate, the jury
3 administrator, on that subject when you reasonably have answers
4 to those questions.
5 A. Okay.
6 Q. And then you will not have to call back again until June
7 18th for further instructions, and that is what Mr. Fletcher
8 has written out on that sheet of paper for you, okay?
9 A. Okay.
10 Q. It's also very important to follow my continuing
11 instructions. Please don't talk about this case at all or
12 anything to do with it. Please always remember to keep an open
13 mind until you have heard all of the evidence, my instructions
14 on the law, and you have gone to the jury room to begin your
15 deliberations if you are one of the jurors who is finally
16 chosen, all right?
17 A. Okay.
18 Q. Okay. It's good to see you.
19 A. Thank you.
20 (Juror absent)
21 THE COURT: Juror number 16.
22 MR. TIGAR: Can we take a five-minute break before we
23 hear the next juror?
24 THE COURT: If it's necessary we can. Alternatively,
25 we can go for another half hour and break for lunch. But if
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1 you want to break we can take a break and break for 5 minutes
2 and return and then probably go through 1 or so.
3 Do you want to break for 5 minutes?
4 MR. TIGAR: Yes, your Honor.
5 THE COURT: Okay.
6 (Recess)
7 THE COURT: Please be seated all.
8 MR. TIGAR: If your Honor please, Ms. Stewart is in
9 the ladies' room. There was a line.
10 THE COURT: We will wait.
11 MR. TIGAR: Thank you.
12 THE COURT: Sure.
13 (Pause)
14 THE COURT: Let me raise one issue before we call in
15 Juror Number 16.
16 Mr. Grate gave you the correspondence from Juror
17 Number 107. Juror Number 107 would otherwise be called in in
18 the near future.
19 Do the parties wish to seek to excuse Juror Number 107
20 for the medical excuse or call Juror Number 107 in? No one has
21 raised any questions with respect to Juror Number 107 before
22 and I can certainly explore with juror 107 the nature of the
23 physical problem.
24 MR. RUHNKE: Based on what we have seen on the medical
25 records and what we received today certainly the defense would
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1 have no objection to excusing him without being called in.
2 MR. DEMBER: The government agrees, your Honor.
3 THE COURT: Okay. Then we will strike Juror 107 for
4 cause by agreement.
5 And Mr. Grate will notify Juror 107 that Juror 107 is
6 excused.
7 Let's bring in Juror Number 16.
8 (Juror present)
9 BY THE COURT:
10 Q. Good afternoon, Juror 16.
11 A. Hi.
12 Q. Please keep your voice up and talk into the microphone
13 because it's a big courtroom.
14 A. Okay.
15 Q. Before I ask you some specific questions to follow-up on
16 the questionnaire let me ask you some preliminary questions.
17 Since you were here last, has anything changed
18 concerning your ability to serve as a juror in this case or has
19 anything occurred to you that may affect your ability to be a
20 fair and impartial juror in this case?
21 A. No. The only thing is I mentioned to my supervisor at work
22 that it could take a long time and I don't know if they would
23 challenge that, but that is the only thing.
24 (Continued on next page)
25
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1 (Juror 16)
2 BY THE COURT:
3 Q. Okay. Did you give them any details about the case?
4 A. No, because you told us not to talk about it.
5 Q. Okay. You said that you were possibly a juror on a long
6 case?
7 A. That's it. That's all they know.
8 Q. Okay. And of course, I appreciate your following my
9 instructions.
10 It now appears that the date that the final jury will
11 be chosen in this case will be Monday, June 21st, so after
12 today, it's unlikely that you will be called back or have to
13 call in until June the 18th. So does that present any serious
14 hardship for you?
15 A. No.
16 Q. Since you were here last, have you spoken to anyone about
17 the case or have you looked at or listened to anything about
18 the case?
19 A. No, I haven't. I mean, I've mentioned that I might
20 possibly be on jury duty, but nothing about the specific case.
21 Q. Okay. And you mentioned that to your supervisor. Have you
22 mentioned that to others?
23 A. Yeah, to a couple of relatives. People who would have to
24 know. For a specific reason if I were not able to attend an
25 event.
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1 Q. Right, okay.
2 A. But all they know is -- nothing about the case.
3 Q. Okay. And in fact, that is a -- you have followed
4 scrupulously instruction that I would be giving in the course
5 of the trial. It's obvious that a person cannot disappear for
6 a long period of time.
7 A. A juror.
8 Q. Or not tell people where they are. So they have to say,
9 I'm a juror on a case. But they can't say anything about the
10 case.
11 A. Right.
12 Q. So what I'm telling you is you've done exactly right.
13 A. Okay.
14 Q. You can't say anything about the case.
15 A. Right.
16 Q. All you can do is to say that you're a potential juror in a
17 long case.
18 A. Right.
19 Q. Okay. Now, has anyone spoken to you about the case?
20 A. No.
21 Q. And that includes any conversations here in the courthouse
22 or with any other prospective jurors?
23 A. No.
24 Q. Okay. While you were waiting with the other prospective
25 jurors, did you or anyone you overheard discuss the case?
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1 A. No. There's just some discussion about the inconvenience
2 of jury duty. Nobody that I spoke to was discussing the case.
3 Q. Did you overhear anyone discuss the case?
4 A. No.
5 Q. In the answers to some of the questions, there was a
6 question in which you indicated that as a reporter, you were
7 called before a state grand jury?
8 A. Right.
9 Q. Is there anything about that experience that would prevent
10 you from being a fair and impartial juror in this case?
11 A. No, it had nothing to do with any kind of subject matter
12 that's going to be on trial here.
13 Q. Okay. And it is possible that reporters may be called as
14 witnesses in this case. If that occurs, you would have to
15 assess their credibility in the same way that you would the
16 credibility of any other witness, you'd have to listen to the
17 testimony and make a judgment about whether the testimony was
18 accurate or not accurate, bringing to bear all of the
19 instructions about credibility that I would give you.
20 A. Right.
21 Q. Would you do that?
22 A. Yes.
23 Q. You mentioned that your brother is a lawyer in private
24 practice. Can you --
25 A. After I wrote that, I -- he's not in private practice. His
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1 own practice. What I what I meant to say was he's not a
2 government lawyer. He works for a large law firm.
3 Q. You could describe that as private practice. That's fine.
4 A. I just didn't want to give the impression he had his own
5 practice.
6 Q. And what kind of law does he practice? Do you know?
7 A. No, not really. I mean, I sort of know some cases. I
8 think he handles stuff --
9 Q. Don't tell me specific cases. But just does he do
10 litigation or corporate work or real estate work?
11 A. He does some work having to do with taxes, and I think also
12 some communications law.
13 Q. Okay.
14 A. He may do other types of cases, but I'm not that familiar
15 with what he does.
16 Q. Okay. Is there anything about your brother's occupation as
17 a lawyer that would prevent you from being a fair and impartial
18 juror in this case?
19 A. No.
20 Q. You also mention that you have a cousin who is a lawyer in
21 a United States Attorney's office in another state?
22 A. Uh-huh.
23 Q. Is that person currently employed in that other state?
24 A. Yes.
25 Q. Do you talk frequently with that other person?
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1 A. No.
2 Q. And is there anything about that person's occupation that
3 would affect your ability to be fair and impartial in this
4 case?
5 A. No.
6 Q. All right. You've told us that in the past, you've worked
7 with people of Middle Eastern descent. Is that right?
8 A. Yeah.
9 Q. Do you know what countries, offhand?
10 A. No, just people who have been at work.
11 Q. Okay.
12 A. I think one person I'm thinking of may have been from
13 Lebanon, but I'm not sure.
14 Q. All right. Is there anything about any of those
15 experiences with people of Middle Eastern descent that leads
16 you to have any biases or prejudices towards people of Middle
17 Eastern descent?
18 A. No. Actually, just thinking, I didn't put this on there, I
19 have a friend who's of Syrian descent, but I forgot that.
20 So....
21 Q. Anything about that that would --
22 A. No.
23 Q. -- prevent you from being fair and impartial?
24 A. No, no.
25 Q. You indicated that you were not very knowledgeable about
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1 Islam. Can you just tell me what the basis for any knowledge
2 you have about Islam is?
3 A. Really, just what I've read in the newspapers, and in
4 college I took a course in comparative religion. You know, so,
5 that kind of knowledge. But I couldn't really get up and tell
6 you too much about Islam. I don't consider myself very
7 knowledgeable at all. Just, you know, the ordinary knowledge
8 that everybody has.
9 Q. Is there anything that you've heard or learned or read
10 about Islam that would lead you to be biased or prejudiced
11 towards anyone of the Islamic faith?
12 A. No.
13 Q. You told us that you've read about Lynn Stewart, et al.?
14 A. Uh-huh.
15 Q. In newspaper accounts. Can you tell me what you've heard
16 or read?
17 A. Well, I believe there was a case prior to this case in
18 which she was involved. And I know that it involved charges
19 that she passed information from her client to associates of
20 her client. And I can't remember the -- all I remember is that
21 other case came to a conclusion. I forget what happened with
22 her.
23 Q. Okay.
24 A. I should say she allegedly passed.
25 Q. Okay.
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1 A. Okay. I mean, I understand that that was not proven. I
2 think.
3 Q. All right. Now, anything else you can recall seeing or
4 hearing about --
5 A. About Lynn Stewart?
6 Q. -- about Lynn Stewart or any of the other parties in this
7 case?
8 A. Nothing that stands out in my mind.
9 Q. Okay. Now, if you were chosen as a juror in this case, I
10 realize that you have seen or heard something, and as I told
11 you in my preliminary instructions when I talked about
12 publicity, publicity in some cases is actually not correct.
13 And I know reporters try very hard to get it correct, but
14 sometimes they don't. And sometimes what you recall even from
15 publicity is not accurate.
16 Now, if you were chosen as a juror in this case, you
17 would have to listen to the evidence in this case and decide
18 this case based solely on the evidence or lack of evidence in
19 this case, and not about -- not based upon anything you think
20 you may have seen, heard or read in the past.
21 A. Right.
22 Q. And will you do that?
23 A. Yes.
24 Q. And can you do that?
25 A. Yes.
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1 Q. Will you follow my instructions exactly to that, that your
2 decision in this case must be based solely upon the evidence or
3 lack of evidence in this case and my instructions on the law?
4 A. Yes.
5 Q. In response to another question, you said that you had
6 heard news accounts about the blind sheikh. What did you see,
7 hear or read about the blind sheikh?
8 A. Just stories related to terrorist activities, and the World
9 Trade Center.
10 Q. Okay.
11 A. Just, you know, stories over the years. Nothing specific
12 that -- you know, I'm sure there were stories in the Times and
13 the Wall Street Journal.
14 Q. All right. Now, the same things that I discussed with you
15 before apply equally to anything you may have seen, heard or
16 read about the blind sheikh. If you came into -- if you were
17 selected as a juror in this case, you would have to ask
18 yourself at all times whether, based upon the evidence or lack
19 of evidence in this case, the government has proven the charges
20 in this case beyond a reasonable doubt under my instructions
21 under the law, and you could not consider anything you saw,
22 heard or read outside of court. That simply could not be a
23 consideration in your deliberations. Do you understand that?
24 A. Uh-huh, yes.
25 Q. And can you do that?
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1 A. Yes.
2 Q. You also indicated that you've not read anything about this
3 trial, but you have read about Ms. Stewart in the past?
4 A. Right. I read about the past case. I don't remember
5 reading anything about this case. I did see a story I think in
6 the Times after the last time we met over in the other
7 courthouse, but I did not read the story.
8 Q. Okay. Very good. As I told you, there's always a
9 possibility of some publicity, and if you see publicity, you
10 just turn away.
11 A. Right.
12 Q. Do you recall anything that was in that article?
13 A. I didn't read it.
14 Q. Okay. Other than you've already told us about -- that
15 you've read about Ms. Stewart -- is there anything else that
16 you can recall seeing or hearing about any of the parties in
17 this case?
18 A. I just know that there were alleged terrorist connections.
19 But that's about it.
20 Q. That was something you had seen or read in the past?
21 A. Yeah, I guess it was last summer or last year.
22 Q. And I gave you instructions in my preliminary instructions
23 about how publicity may not be accurate, and I've just gone
24 through with you the importance under your oath as a juror to
25 assure that if you were chosen as a juror in this case, your
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1 decision would be based solely -- solely -- upon the evidence
2 or lack of evidence in this case.
3 A. Right.
4 Q. And will you do that?
5 A. Yes.
6 Q. I reiterate this so often, and I'm sorry to be repetitious,
7 but it's very important to me --
8 A. No, I understand.
9 Q. -- to assure myself with respect to all of the prospective
10 jurors that they understand the importance of what I say and
11 that they will follow those instructions scrupulously, and that
12 they can do that.
13 All right. On the list of people, you mentioned that
14 you know Patty Hurtado. It is possible of course that any of
15 the names on the list may come up in the course of the trial;
16 any of the names on the list always have the possibility that
17 they could be called as a witness. By no means would all of
18 these people ever be called as witnesses, but that's the reason
19 to go through the names. Is there anything about the fact that
20 you know Ms. Hurtado that would prevent you from being a fair
21 and impartial juror?
22 A. I don't think so. I mean, are you asking me how I know her
23 or...?
24 Q. No, I'm not asking how you know her. I'm saying if she,
25 for example -- and I have no idea whether this will happen --
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1 if she were called as a witness in this case?
2 A. I don't think she'd be called as a witness.
3 Q. I really don't know about her. But I'm just using that as
4 an example. And if she were called, would you be able to
5 assess her credibility in the same way as any other witness and
6 decide the case fairly, irrespective of the fact that she
7 happened to be called as a witness?
8 A. If she were called as a witness?
9 Q. Yeah.
10 A. Yeah.
11 Q. Okay. You indicate that you have visited the MCC and that
12 you've also visited, I believe, the FBI building.
13 A. Right.
14 Q. In connection with stories?
15 A. Stories, right.
16 Q. Is there anything about those visits or stories that leads
17 you to be biased in favor or against any of the parties in this
18 case?
19 A. No.
20 Q. Is there anything about any of those visits that would
21 prevent you from being fair and impartial juror in this case?
22 A. No.
23 Q. In response to the request for additional information, you
24 pointed out that you have some dental appointments scheduled?
25 A. Right.
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1 Q. And I realize that with the trial only beginning the
2 earliest on June 21st, most of these are -- will have passed by
3 then.
4 A. Right. I have two before June 21st. And might conceivably
5 have one more. But I think that would be it.
6 Q. If you -- we don't usually sit on Fridays. So you could
7 schedule it on Fridays?
8 A. Yeah, I think I could schedule it on a Friday.
9 Q. Okay. If you were chosen as a juror in this case, you
10 would have to decide this case solely on the evidence or lack
11 of evidence and my instructions on the law.
12 A. Right.
13 Q. Will you do that?
14 A. Yes.
15 Q. And can you do that?
16 A. Yes.
17 Q. As you can tell from all of my questions, the fundamental
18 issue is why there is anything in your personal history or life
19 experience that would prevent you from acting as a fair and
20 impartial juror in this case. So let me ask you one final
21 time: Whether there is anything, whether I've asked you about
22 it specifically or not, that would prevent you from being a
23 fair and impartial juror in this case?
24 A. No, I can't think of anything.
25 THE COURT: Thank you. Could you step out just for a
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1 moment?
2 JUROR: Sure. Should I leave my stuff here?
3 THE COURT: You can, sure.
4 (Juror absent)
5 THE COURT: All right.
6 MR. DEMBER: Your Honor, we would request that you ask
7 this juror, even though obviously you have asked her already,
8 whether the fact that reporters may be called as witnesses in
9 the case -- you've asked her whether she could be fair and
10 impartial. What you didn't ask was and what may come up is the
11 fact that those reporters were subpoenaed or may be subpoenaed,
12 and whether that affects her ability to be fair and impartial
13 in this case. One of the reasons why we've asked that
14 question, your Honor, is because when you asked her about Miss
15 Hurtado, her response was, Oh, no, she won't be a witness in
16 this case. She may be a witness in this case, your Honor.
17 Miss Hurtado, by the way, was in court earlier today.
18 Something I also want to bring to your attention with regards
19 to Miss Hurtado is whether she's a witness or simply a reporter
20 who has covered this case in the past, that may compromise this
21 juror's anonymity since obviously there is somebody who does
22 know who she is.
23 THE COURT: I've plainly instructed the reporters who
24 were here the first time not to contact any of the potential
25 jurors in the case at all. And I've carefully given several
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1 instructions to the jurors including in writing. I don't see
2 this as an issue. If the parties do, they can certainly raise
3 it with me.
4 I'll ask the additional question about whether if
5 reporters are subpoenaed, if this affects her ability to be
6 fair and impartial.
7 MR. TIGAR: Your Honor, we have the same question with
8 respect to people's attitudes for some of the electronic
9 surveillance in the case, and found sufficient to simply tell
10 the jury whoever testifies here or whatever evidence is
11 produced here will be done according to lawful order and
12 knowing that would the witness have a problem. The government
13 suggested some such formulation at Page 6 of its memorandum.
14 THE COURT: Yes, that's not a problem. I can make a
15 point on that.
16 I take it there are no challenges for cause. And if
17 the juror answers these questions without any answer that
18 suggests a challenge, the juror will be told to be available to
19 be called back on the 18th. Okay?
20 (Juror present)
21 BY THE COURT:
22 Q. Juror Number 16, I just have another couple of questions.
23 A. Okay.
24 Q. I explained to you that it's always possible that reporters
25 may be witnesses, and I've explored that with you. I should
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1 also tell you that it may be possible that reporters are
2 subpoenaed to be witnesses in the case.
3 A. Uh-huh, okay.
4 Q. And if that's true, I can assure you that if any witness,
5 any reporter, testifies, it's because I've determined that as a
6 matter of law that that is permissible.
7 Now, is there anything about the fact that reporters
8 may be witnesses or may be subpoenaed to be witnesses that
9 would prevent you from being a fair and impartial juror in this
10 case?
11 A. No. No.
12 Q. All right. All right. What's going to happen now is you
13 remain in the possible jury pool, and you will be asked to call
14 back on June the 18th for further instructions. You should go
15 about your regular business and call back on June the 18th.
16 Mr. Fletcher will give you a note to remind you about that.
17 A. Okay. I just have one question.
18 Q. Sure.
19 A. I don't know what my employer plans to do or not to do or
20 how they feel about this. You know, like I said I've made my
21 supervisor aware of it. And yesterday when I reminded her that
22 I was coming today and that it could be a long time if I were
23 chosen, and she said, well, what can we do? And I said, I
24 don't know, I guess you write a note or something. What should
25 I tell them about that.
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1 THE COURT: Any correspondence should go to Mr. Grate.
2 A. G-r-a-y?
3 Q. G-r-a-t-e. He's the jury administrator that has been
4 communicating with you. As I've told you, I respect the
5 confidentiality of the jurors.
6 A. Right.
7 Q. And so anything like that goes to Mr. Grate.
8 A. And they should put my -- the name of my workplace on the
9 correspondence?
10 Q. He is familiar with you and who you are.
11 A. Oh, okay.
12 Q. I've told you that. The jury administrator is. I am not.
13 A. Okay.
14 Q. He is.
15 A. So if they decide to correspond, that's who they should
16 correspond to.
17 Q. It's always to Mr. Grate. And I would not -- I would not
18 see it without it being redacted, so I don't know.
19 A. I don't even know if they're going to do that. I'm just
20 saying, if it comes up.
21 Q. Again, when you deal with your employer, the only thing you
22 should say is that you're a possible -- possible -- juror.
23 A. Right.
24 Q. In a long case. And it is a matter of importance that, as
25 I told you in the preliminary instructions, that people
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1 recognize the importance of jury service, and the law
2 acknowledges that and protects jurors from any actions by
3 employers.
4 A. Yeah. Like I said, I really don't know if they even
5 planned to write a note, but since she was asking me questions,
6 I thought I should get the information.
7 Q. I appreciate you bringing that to my attention.
8 And let me end by reminding you about the instructions
9 that I have given you: You've done exactly right to simply say
10 to those who have a need to know that you're a potential juror
11 in a long case, period. Please, don't talk about the case or
12 anything to do with it.
13 Always remember to keep an open mind -- as I'll tell
14 the jurors who are selected -- keep an open mind until you've
15 heard all of the evidence, my instructions on the law, you've
16 gone to the jury room to begin your deliberations. Fairness
17 and justice to the parties requires that you do that.
18 A. Right.
19 Q. All right?
20 A. Uh-huh.
21 Q. Good to see you.
22 A. Thanks.
23 (Juror absent)
24 THE COURT: It's time for lunch. Let me -- I'll take
25 up any other issues at the end of the day. We'll break until
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1 2:00 o'clock, and I'll see you this afternoon.
2 (Luncheon recess)
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 AFTERNOON SESSION
2 2 p.m.
3 THE COURT: Good afternoon all. Please be seated.
4 I got the defense request for realtime but we are not
5 doing realtime today, unless this was intended to be for the
6 trial.
7 MR. FALLICK: It was for the trial, your Honor.
8 THE COURT: I endorsed your letter so ordered.
9 Do I have to sign this also today?
10 MR. FALLICK: We can take care of that. I think we
11 had done all that already.
12 THE COURT: So I don't have to sign this?
13 MR. FALLICK: No.
14 MR. TIGAR: We did get set up for realtime today. The
15 government has it.
16 MR. MORVILLO: We do have it.
17 MR. TIGAR: The stenographers came in and set us up
18 for it.
19 THE COURT: I am not getting realtime but if the
20 parties are getting it, so be it.
21 MR. TIGAR: I will say this, there are a couple of
22 words that it was very important for me to get on the realtime
23 because I couldn't hear the jurors say them. So it did help
24 us.
25 THE COURT: I told Mr. Grate that the remaining or the
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1 15 jurors who are going to come in this afternoon could be sent
2 home and we are working through the 20 that I had called in
3 from this morning and we will see where we are at the end of
4 the day about how many to call in tomorrow morning and
5 afternoon.
6 The next juror is Juror Number 18.
7 (Juror present)
8 BY THE COURT:
9 Q. Please have a seat in the first chair.
10 Good afternoon, Juror 18.
11 A. Good afternoon to you.
12 Q. It's good to see you.
13 A. Thank you.
14 Q. Before I get to some follow-up questions on the
15 questionnaire, let me ask you a couple of preliminary
16 questions.
17 Since you were here last has anything changed
18 concerning your ability to serve as a juror in this case or has
19 anything occurred to you that may affect your ability to be a
20 fair and impartial juror in this case?
21 A. Well, the only thing is I have a 90-year-old mother and she
22 requires my help during the week. I do her shopping and what
23 not, so that would basically be my only problem.
24 Q. Okay.
25 Your mother?
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1 A. Yes.
2 Q. Okay.
3 Does your mother live with you?
4 A. No, she lives out on Long Island and I live upstate New
5 York.
6 Q. Okay.
7 Is there anything about the care that you provide to
8 your mother that would prevent you from serving as a juror in
9 this case?
10 A. Well, I do her shopping at least once a week and take her
11 to the doctor. If the case goes on awhile I will run into some
12 doctor appointments with her. Other than that if it's a long
13 case I would have problems that way.
14 Q. We don't sit on Fridays and if there were an emergency
15 doctor's appointment, we wouldn't sit if there were an
16 emergency appointment because I appreciate that in a long trial
17 there are things that come up. So individual appointments that
18 couldn't be scheduled on a Friday are things that we would just
19 have to live with.
20 A. Then I have a wedding and a birth, and not that I am trying
21 to get out of anything but I just went to let you know.
22 Q. You have a wedding?
23 A. A wedding. My son is getting married in August and my
24 daughter is having a baby in October. And I will be doing the
25 baby-sitting.
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1 Q. Well, the wedding would be over the weekend?
2 A. Yes.
3 Q. And we don't sit on Friday.
4 A. Okay. It's just a lot to do, that is all.
5 Q. Oh, I understand. And the baby -- it may be -- what would
6 your responsibilities be in terms of the baby?
7 A. I told my daughter I would do the baby-sitting for her
8 because she would have to go back to work. She works for the
9 Town of Chappaqua.
10 Q. When you say you would do the baby-sitting -- full-time?
11 A. Yes. It would be a newborn.
12 Q. Beginning when?
13 A. She told me about the 18th of October the baby would be
14 born and then I think she gets 6 weeks off.
15 Q. Okay.
16 You said your daughter was going to take 6 weeks off
17 after the baby?
18 A. I think she is entitled -- I am not sure the amount of time
19 but she is entitled to take some time off after the baby is
20 born. Just how long that is, I don't know. But I will pick up
21 after she goes back to work.
22 Q. So that would take us through essentially the end of
23 November.
24 A. Right.
25 Q. One of the things that I was going to mention to you was
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1 that it now appears that the jury to be chosen in the case will
2 only be chosen on June 21st. So you would only have to call
3 back on June 21st and this case would not impose on your time
4 at all until at the earliest June 21st. And I wanted to know
5 whether understanding that schedule whether that would present
6 any serious hardship for you.
7 A. No.
8 Q. Okay.
9 Since you were here last, have you spoken to anyone
10 about the case or have you looked at or listened to anything
11 about the case?
12 A. This case, no.
13 Q. Has anyone spoken to you about this case?
14 A. No one really knows anything that I am going to be here.
15 Q. And when I talk about that, that includes anyone here in
16 the courthouse or any other potential jurors?
17 A. No, I don't know anyone here or any other jurors.
18 Q. While you were waiting with the other prospective jurors,
19 did you talk to anyone or did you hear anyone else talking
20 about the case?
21 A. Not about the case. But we were concerned -- not concerned
22 but there wasn't that many jurors that showed up within our
23 group and we just had made comments about that.
24 Q. About not many jurors?
25 A. Not many jurors showing up.
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1 Q. Okay. We bring in jurors in groups.
2 A. But I think I think I had up to number 43 or something like
3 that and I think when we were sitting there all morning maybe
4 only 14 showed up, so we were just trying to see what was going
5 on.
6 Q. We bring jurors in in groups and you shouldn't take any
7 significance from the numbers.
8 A. That is what we were talking about. That was the only
9 thing about the case that we were talking about.
10 Q. And you shouldn't attempt to find any significance in the
11 numbers, you know, what numbers individual jurors have or what
12 juror numbers you all are who are brought together. It's very
13 important that you continue to follow my instruction about not
14 talking about the case.
15 A. Right.
16 Q. Have you done that?
17 A. Yes.
18 Q. And will you continue to do that?
19 A. Yes.
20 Q. Let me go over some of the follow-up questions.
21 You had indicated that the serving on the jury would
22 not be a serious hardship for you but that it would be an
23 economic hardship.
24 A. Economic to what point? I don't know.
25 Q. Can you keep your voice up?
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1 A. When you say economic, what do you mean by economic point?
2 Q. Well, in answering the question you said would serving on
3 the jury cause you economic hardship, and you said "yes" on the
4 questionnaire you filled out. And you said that you would not
5 be paid during jury service.
6 A. Well, we are self-employed and I work as a bookkeeper for
7 the company and from that perspective being a small company
8 that would hurt that way, yes. It would hurt the company more
9 than, you know, me as an individual.
10 Q. Okay.
11 But serving would not be a serious economic hardship
12 for you?
13 A. Not a serious one, I don't believe.
14 Q. Okay.
15 Don't tell me the village that you live in but what
16 town do you live in?
17 A. I live in Putnam County.
18 Q. Is there a town in Putnam?
19 A. Yes.
20 Q. What town?
21 A. Putnam Valley.
22 Q. All right.
23 And I believe it's your spouse who was in the Army?
24 A. Yes, he is a retired lieutenant colonel from the Corps of
25 Engineers.
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1 Q. Okay.
2 And is there anything about that that would prevent
3 you from being a fair and impartial juror in this case?
4 A. I don't believe so.
5 Q. People express themselves in different ways. Is there
6 anything about that that causes you any doubt as to whether you
7 could be fair and impartial in this case?
8 A. No. I do support our military, that is for sure. So I
9 don't know how that would have an effect on the case.
10 Q. I have explained the allegations in the case and if you
11 were chosen as a juror you would have to listen to the evidence
12 and decide the case based solely upon the evidence or lack of
13 evidence in the case. And you would have to afford all of the
14 parties in the case a fair trial. The fact that your husband
15 is retired from the military and that you support the military,
16 would that affect your ability to be a fair and impartial juror
17 in the case?
18 A. I don't know because I don't know how it would be presented
19 to me and I don't know if that would have any kind of affect on
20 my judgment. It's too vague to me right now to answer a
21 question like that.
22 Q. Okay.
23 That is fair. Do you recall my --
24 A. Can I just say something?
25 Q. Sure.
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1 A. My husband, he didn't serve in the first part of the Gulf
2 War but we do know military people there so I just want you to
3 be appear of that.
4 Q. Okay.
5 The allegations in this case concern events, charges
6 from 1997 through 2002. They don't concern the Gulf War. They
7 don't concern 9/11, but I have described the charges to you.
8 When you listened to the charges and what I told you
9 about the charges, is there anything about those charges that
10 causes you to doubt whether you could be a fair and impartial
11 juror in the case?
12 A. I would like to think I am a fair and impartial person, a
13 thinking person, so hopefully that wouldn't have any influence
14 on me. I think I could be fair and impartial.
15 Q. Okay.
16 If you were chosen as a juror, what the jurors in the
17 case have to do is they have to listen to the evidence and
18 decide the case based solely upon the evidence or lack of
19 evidence, and my instructions on the law. Jurors come from
20 many occupations, many walks of life, and it is absolutely
21 critical that jurors do not let any of their past experiences
22 or preferences or anything like that enter into the decision as
23 to whether in this case the government has proven the charges
24 in the case beyond a reasonable doubt. That is the only thing
25 that the jurors have to determine at the trial based upon the
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1 evidence or lack of evidence and my instructions on the law.
2 Now, can you do that?
3 A. I think I can, but I have never been a juror before and I
4 don't know if I am qualified to handle such an important case.
5 I realize that it comes down to the evidence but personally I
6 just think it's too big for me to handle because I don't really
7 have any experience in, you know, the judicial system and I
8 just want to make sure I am going down the right road.
9 Q. I told you that jurors come from many walks of life and
10 have many, many past experiences. What the law requires is
11 that the jurors be fair and impartial, and that is the most
12 important thing for the jurors to bring with them. You say
13 that you don't know, given the importance of the case, whether
14 you are qualified.
15 A. Right.
16 Q. What qualifies a juror is the commitment under the juror's
17 oath to be fair and impartial, to listen to the evidence and
18 decide the case based solely upon the evidence or lack of
19 evidence and my instructions on the law. That is the
20 commitment and it's up to the parties to present evidence in
21 the case, the government's obligation to prove the charges in
22 the indictment beyond a reasonable doubt. And it's up to the
23 jurors to listen carefully to the evidence and make the
24 determination based on the evidence or lack of evidence whether
25 the charges have been proven beyond a reasonable doubt. And so
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1 that is what the jurors have to do. And the fact that the case
2 is long or may appear complicated is really not beyond jurors
3 who are fair, impartial and decide the case based solely upon
4 the evidence or the lack of evidence. And what all of these
5 questions are meant to do is to determine whether there is
6 anything in your history or prior experience, whether it be you
7 have relations to the military or any other thoughts that you
8 have or experiences that you have, that would based upon those
9 experiences lead you to doubt your ability to be a fair and
10 impartial juror in the case.
11 A. I don't see anything that would lead me to not be fair or
12 impartial. But I still -- I don't have the confidence in
13 myself. I feel that the case is beyond me. It's big and I
14 don't know if I am qualified to take it on. I don't know.
15 Q. In terms of qualified, you are qualified. There are no
16 educational prerequisites to being a juror and you are a
17 two-year college graduate, in any event, but what the law
18 requires is that you be fair and impartial and that you listen
19 to the evidence or lack of evidence and that you bring with you
20 to the courtroom the common sense that you bring with you to
21 making the important decisions in your life. And that is what
22 the parties are looking for and that is the question and is
23 there anything in your experience that leads you to be biased
24 or prejudiced for or against any of the parties in the case?
25 A. Nothing in my past that would lead me to be biased or
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1 prejudiced, no.
2 Q. Do you feel any bias or prejudice towards any of the
3 parties in the case?
4 A. No.
5 Q. If you were chosen as a juror would you be fair and
6 impartial?
7 A. I would like to think I would be.
8 Q. One of the things that it's important to understand is I
9 can't get into your mind. I have to listen to what you tell me
10 under your oath. And when you tell me that you would like to
11 think you could be fair, and you have said it in different
12 ways, that you want to be fair, at various times you say you
13 think you will be fair, that you will try to be fair --
14 A. Well, I am a fair person I feel, if you put it that way.
15 Q. Okay.
16 And I will ask you a couple of other questions about
17 some of your past experiences, but the issue -- and all I am
18 doing is looking for your best truthful answer. There is no
19 right answer to this. It's just what you believe in your mind.
20 Will you be fair and impartial in this case?
21 A. Yes, I would. I believe I would.
22 Q. And do you doubt whether you could be fair and impartial in
23 the case?
24 A. No, I don't doubt that.
25 Q. I realize that you have told me about questions you have
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1 about your competence and the fact that this is a complicated
2 case and it's really up to the parties to explain it and it's
3 up to you to listen to the evidence and decide the evidence.
4 But it's absolutely critical for me to understand whether under
5 your oath as a juror you have any doubt in your mind whether
6 you will be a fair and impartial juror, whether you will decide
7 this case solely on the evidence or lack of evidence and my
8 instructions on the law. And all you can do is to tell me, you
9 know, to the best of your knowledge and belief whether you will
10 be fair.
11 A. I will be fair, but I come from a lifestyle that is -- how
12 can I put it? I don't want to say sheltered, but I just come
13 from a lifestyle that is so different than what most people
14 experience and I just want to make sure that -- I am not saying
15 I am naive or anything like that, but I think I would be fair.
16 I know I put that I think I would, but knowing myself I would
17 be fair. But I come from like a sheltered life basically and I
18 just know that this case is so big and I don't know if -- what
19 I am trying to say if I am capable of handling it.
20 Q. Okay.
21 A. I am trying to be as honest as I can.
22 Q. Absolutely. And you have expressed yourself very well. Is
23 it fair that any concerns you have about the case are not about
24 whether you will be fair but, rather, about whether the
25 complicated nature of the case would lead you to not fully
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1 understand?
2 A. I don't know if I would fully understand, but I don't know
3 if I would have feelings that would creep in. I know when I
4 filled out the questionnaire and I saw the defendants stand up
5 and I saw people and bodies and faces that went with the names,
6 it sort of made me think in a different realm. And I know I
7 could be fair, but when I saw faces inside I felt bad and I
8 don't know if I am expressing it right, but I saw faces with
9 the charges and I really felt bad for those people that they
10 were in such a predicament and I just felt it was like a waste
11 of life. There is no much out there to do and to be caught up
12 in something like this, when I went home and I thought about it
13 I just felt so bad inside that people got caught up in
14 something like this.
15 Q. Okay.
16 When you thought about your thoughts about the parties
17 in the case and the charges, did that make you --
18 A. I didn't have any feeling right or wrong about what they
19 did. I just knew the situation and as a human being looking at
20 another human being, I felt bad for them and for their life,
21 how it had turned out and it just gave me a different sense
22 about the case and that is why I am saying I don't know if I
23 have the gravity to pull it altogether and not let feelings
24 like that interfere with what I am looking at.
25 Q. Well, all of the parties in the case, the government, the
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1 defendants, only want you to decide the case based on the
2 evidence or the lack of evidence. You say that you see that
3 the case has real effect on real people.
4 A. Right.
5 Q. And I am sure that everyone appreciates that. And if you
6 were called as a juror would you go in with the belief that the
7 charges in the case were true or not true, or would you go into
8 it with the attitude that these are just charges and it's up to
9 the government to prove them beyond a reasonable doubt?
10 A. I guess the second would be -- the latter of your question.
11 Q. It's up to the government to prove the charges?
12 A. Right.
13 Q. Would any of your feelings prevent you from listening to
14 the evidence and deciding the case based solely on the evidence
15 or lack of evidence? In other words, would the fact that you
16 have sympathies prevent you from deciding the case based solely
17 on the evidence or lack of evidence?
18 Will you look at the charges and ask yourself have
19 they been proved? Or, would you allow any sympathy or bias or
20 prejudice to lead you to another decision?
21 A. I think I would listen to all the evidence and I don't
22 think bias would enter into it because I think I am past that
23 now when I said I saw humans, human beings being attached to
24 these charges and that took me back. But I think now the time
25 has passed and I think I can look at the case objectively.
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1 Q. And would you do that and can you do that?
2 A. I believe I can do that, yes.
3 Q. Would anyone in the case have to do more or less than I
4 have told you that the law is? In other words, the law is that
5 it's the government's burden to prove the charges against the
6 defendants beyond a reasonable doubt. The jurors have to ask
7 themselves whether the charges have been proven and whether
8 based on the evidence or lack of evidence the jurors find that
9 the charges have been proven beyond a reasonable doubt. And
10 there can't be any sort of preconception as to what the rules
11 are other than I have already set out.
12 The defendants come into the case with the presumption
13 of innocence. The government has to prove the charges beyond a
14 reasonable doubt based upon the evidence that is presented.
15 And you have to make your decision without sympathy, prejudice
16 or bias. And that is what the case is about. And will you do
17 that?
18 A. I will try. I know that is an open-ended -- I will try but
19 what I think I am trying to say is I don't know because the
20 case has gotten so far that I don't know if I am prejudiced
21 against -- if there is that much evidence to bring them to a
22 court trial, am I persuaded? I don't know that answer.
23 Q. Do you go into your thinking about whether you will be fair
24 and impartial --
25 A. It's very important to me, that is why I keep bringing it
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1 up.
2 Q. Oh, well, it's important to everyone here to attempt to
3 understand where you are.
4 You told me that you had sympathy and now you have
5 told me that you think that you have questions about the fact
6 that the charges have gotten this far.
7 Do you go into this case with any belief as to the
8 guilt of the defendants?
9 A. I can't honestly answer that only because I feel if it has
10 gotten this far into the courts there must be something there.
11 And I don't know these people so I don't know if they are
12 guilty or not guilty. And I know the information that will be
13 presented to the jury, but if it comes so far through the
14 court, then I don't know, there must be something there. So I
15 don't know if I can say with an open mind or with an open
16 heart, yes, I am going in with these people and I feel in my
17 heart they are innocent when on the other side I am thinking,
18 well, it came through the system so far that there must be
19 something there. So it's like a balancing act to me right now.
20 Q. You know, you are being very honest, open and candid with
21 me.
22 As you have explained it, you have different emotions.
23 A. Right.
24 Q. And they are different emotions. The charges in the
25 indictment are only charges. They are not evidence of
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1 anything. And if you were chosen as a juror you would have to
2 accept that.
3 A. Right.
4 Q. As a matter of law. And can you do that?
5 A. I believe I can accept that as a matter of law, yes.
6 Q. It's also true that the defendants are presumed to be
7 innocent and that is a presumption that starts at the beginning
8 of the trial, it continues with the defendants throughout the
9 trial and continues even into jury deliberations. There is a
10 presumption of innocence. And can you accept that proposition?
11 A. Yes, I can accept that. And in my heart I know that is the
12 system that everybody should have their day in court and they
13 are presumed innocent until the evidence is presented against
14 them. And then you have to make a decision. I understand that
15 part. But it's the decision-making part that is underneath all
16 the layers there that is going to be tough.
17 Q. The duty of a juror is not something that is taken on
18 lightly. Of course it's a matter of enormous importance to all
19 of the parties in the case. And all that the parties are
20 asking for is to have jurors who are truly fair, who take their
21 duties seriously and who truly are committed to the proposition
22 that they must be fair and impartial and that they will be fair
23 and impartial. And I understand what you have told me about
24 the sympathies, the considerations, and so I come back to the
25 question that I asked before: If you were chosen as a juror
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1 would you be fair and impartial?
2 A. My brain tells me yes I would be fair and impartial. I
3 know that is not the answer you are looking for.
4 Q. I am not looking for any answer truly.
5 Let me make something very clear. If you have a doubt
6 as to whether you can be fair and impartial, you are plainly a
7 candid person who is attempting to tell me what is really in
8 your mind and if you tell me that you have doubts about whether
9 you can be fair and impartial, that is truly all right. All I
10 am asking for are your truthful answers. It's perfectly all
11 right. Trust me that the parties are just looking for fair and
12 impartial jurors who will listen to the evidence. And if you
13 have a doubt as to whether you can be a fair and impartial
14 juror, that is you. That is up to you. All you can do is to
15 give me, to the best of your ability, your truthful answer as
16 to whether you have doubts about whether you can be a fair and
17 impartial juror in this case.
18 A. That is hard. I have all things going around and I am
19 trying to separate will I be fair and impartial.
20 I am going to err on the side that I might have
21 problems.
22 Q. Okay. As I said, all I am trying to do is really to find
23 out the answers to the questions and before I follow up on some
24 other questions, let me ask you to step out.
25 Can I just ask you to step out?
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1 A. Sure.
2 (Juror absent)
3 MR. RUHNKE: It's the position of the defense that
4 this juror should not be seated.
5 THE COURT: I agree.
6 MR. DEMBER: The government agrees, your Honor.
7 THE COURT: Okay, I will excuse Juror Number 18.
8 Call Juror Number 18 back.
9 (Juror present)
10 BY THE COURT:
11 Q. Juror Number 18, I am going to excuse you and I very much
12 appreciate your participating in the process --
13 A. It's an experience.
14 Q. Well, and I appreciate your openness and candor and
15 discussing these issues with me. Let me assure you again, as I
16 said before, there are no right or wrong answers to these
17 questions. There are just truthful answers and I very much
18 appreciate your participating in the process.
19 You will now be excused and you will go home without
20 going back into the other room.
21 A. Fine, thank you.
22 Q. Thank you.
23 (Juror absent)
24 THE COURT: Juror number 19.
25 (Juror present)
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1 BY THE COURT:
2 Q. Good afternoon, Juror 19.
3 A. Good afternoon.
4 Q. Let me just ask you some preliminary questions before I
5 turn to the questionnaire.
6 Since you were here last has anything changed
7 concerning your ability to serve as a juror in this case or has
8 anything occurred to you that may affect your ability to be a
9 fair and impartial juror in this case?
10 A. No.
11 Q. It now appears that the date that the final jury will be
12 chosen in this case will be Monday, June 21st, so after today
13 it's unlikely that you will be called to come back or that you
14 will have to contact the jury office before June 18.
15 Does that schedule present any serious hardship for
16 you?
17 A. No.
18 Q. Okay.
19 Since you were here last have you spoken to anyone
20 about the case or have you looked at or listened to anything
21 about the case?
22 A. No.
23 Q. Has anyone spoken to you about the case?
24 A. No.
25 Q. And this includes any conversations with anyone here at the
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1 courthouse or with any other prospective jurors.
2 A. No.
3 Q. While you were waiting with the other prospective jurors,
4 did you or anyone you overheard discuss this case?
5 A. No.
6 Q. Okay.
7 Let me follow up on some of the questions. You said
8 that you lived in the Bronx. What area of the Bronx do you
9 live in?
10 Just tell me the general area. Don't give me any
11 street.
12 A. The Fordham Road area.
13 Q. Okay. Fordham Road?
14 A. Yes.
15 Q. Okay.
16 It's a big area.
17 You told me that you had some jury service in Bronx
18 County Court, right?
19 A. Yes.
20 (Continued on next page)
21
22
23
24
25
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1 (Juror Number 19)
2 BY THE COURT:
3 Q. You've told me that you had some jury service in Bronx
4 County Court, right?
5 A. Yes.
6 Q. And that was in 2002?
7 A. Yes.
8 Q. How long was that jury service for?
9 A. 26 days.
10 Q. 26 days?
11 A. Yes.
12 Q. And how many cases did you sit on in that trial?
13 A. Just one.
14 Q. And that case was submitted to a jury -- you mentioned that
15 case on the jury form. That case was submitted to the jury?
16 A. Yes.
17 Q. Did the jury reach a verdict? Don't tell us what it was.
18 A. Yes.
19 Q. Is there anything about that experience that would prevent
20 you from being a fair and impartial juror in this case?
21 A. No.
22 Q. And you have not served on a grand jury, that's correct?
23 A. No.
24 Q. All right. You had mentioned that you or someone close to
25 you was a victim of a crime?
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1 A. Yes.
2 Q. Could you -- you were?
3 A. No, not me. Someone that I knew.
4 Q. Could you tell me who that was and what the nature of the
5 crime was?
6 A. I don't even remember. I've had several --
7 Q. Could you keep your voice up and talk into the microphone?
8 A. I said, I had several cases. But I'll just give one.
9 Q. No, as best you can recall, just -- you're going to start
10 with one, but tell me as best you can recall either you or
11 people close to you who have been victims of crime, serious
12 crime?
13 A. My mother had got robbed on the subway.
14 Q. Could you keep your voice up?
15 A. I said my mother had got robbed on the subway.
16 Q. Okay.
17 A. But they never found the person who did it.
18 Q. I'm sorry?
19 A. They never found the person who did it.
20 Q. Okay. Any other instances?
21 A. Not that I can think of.
22 Q. Not that you can recall right now?
23 A. No, not that I can recall.
24 Q. You had also indicated that a close friend had sued
25 someone?
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1 A. Yes.
2 Q. Can you tell me what that was about?
3 A. Okay. She sued the city because she had fell and -- where
4 the sidewalk was broken. And she sued the city because the
5 sidewalk was cracked, and she fell and damaged her knees real
6 bad. And she sued the city.
7 Q. And was she able to -- did she prevail?
8 A. Yeah, she won the case.
9 Q. Okay. You also indicated that you have a cousin who's in
10 jail?
11 A. Yes.
12 Q. And you had marked yes for, been in prison. Is that the
13 only person close to you who's --
14 A. That's in prison, yes.
15 Q. -- who's been in jail?
16 A. Yes.
17 Q. All right. And how -- can you give me some idea about how
18 much of a sentence that is that your cousin is serving? Do you
19 know?
20 A. He's serving a long time. He was released and he was on
21 work release, and then he messed up and they -- he wind up
22 having to do his whole sentence. I think he's doing like 15
23 years or something like that.
24 Q. Now, is there anything about any of these experiences,
25 being a victim or suing or your cousin who's in jail --
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1 anything about any of those experiences that would prevent you
2 from being a fair and impartial juror in this case?
3 A. No.
4 Q. Okay. And you actually also indicated that, specifically
5 with respect to your cousin on the answer to another question,
6 you had indicated that you are not knowledgeable at all about
7 the history and practices of Islam, and to the extent that you
8 have any knowledge, the basis for that knowledge is Malcolm X,
9 right?
10 A. Yes, that's right.
11 Q. Can you tell me just what you meant by that?
12 A. Only what I've seen on TV about him, what I've read about
13 him.
14 Q. About Malcolm X?"
15 A. About Malcolm X. That's it.
16 Q. Okay. Is there anything about that that causes you to have
17 any biases or prejudices concerning Islam or any people who
18 follow Islam?
19 A. No.
20 Q. If you were chosen as a juror in this case, you would be
21 required to listen to the evidence in the case and decide the
22 case based solely upon the evidence or lack of evidence in the
23 case and my instructions on the law. Will you do that?
24 A. Yes.
25 Q. And could you do that?
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1 A. Yes.
2 Q. By the way, are you seeking any -- do you wish to be
3 deferred or considered for deferment based upon your prior jury
4 service in another court?
5 A. No.
6 Q. As you can tell from all of the questions that I've asked,
7 the fundamental issue is whether there is anything in your
8 personal history or life experience that would prevent you from
9 being a fair and impartial juror in this case?
10 A. No.
11 Q. Well, let me ask you one final time, whether there's
12 anything --
13 A. No.
14 Q. -- whether I've asked you about it specifically or not --
15 A. No.
16 Q. -- that would prevent you from being a fair and impartial
17 juror in this case?
18 A. There is nothing that would prevent me from being fair.
19 Q. Okay. Could you step out just for a moment?
20 A. Sure.
21 (Juror absent)
22 THE COURT: All right. Yes?
23 MR. TIGAR: Would the Court ask whether she visited
24 her cousin in prison or attended his trial?
25 THE COURT: Yes.
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1 MR. TIGAR: And then specifically with respect to the
2 Malcolm X, of course, this juror had not been born when Malcolm
3 was killed, but the name Louis Farrakhan may arise in this
4 trial.
5 THE COURT: I'm sorry?
6 MR. TIGAR: The name Louis Farrakhan may arise in this
7 trial. Is there anything she's seen or heard with respect to
8 Louis Farrakhan that has an impact? How does she feel about
9 him. Because -- well, for obvious reasons.
10 THE COURT: Okay. Nothing else?
11 MR. DEMBER: Your Honor, I'm sorry, would your Honor
12 consider asking this juror whether she has any -- any feelings
13 about the fact that nobody was caught who is responsible for
14 robbing her mother? I know you asked whether she could be fair
15 and impartial based on a number of things but you didn't
16 isolate on that particular matter. We'd just ask that --
17 THE COURT: No, I really did. I kicked off the three
18 connections with the justice system. I asked her specifically
19 with respect to that whether there was anything that would
20 affected her ability to be fair and impartial. She said no.
21 MR. DEMBER: Okay.
22 THE COURT: Okay. If the juror responds to the
23 remaining questions in such a way that doesn't suggest a
24 challenge for cause, I intend to ask the juror they be to come
25 back without having the juror leave and then come back again.
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1 Okay.
2 (Juror present)
3 BY THE COURT:
4 Q. Hi. Just a few follow-up questions. Have you visited your
5 cousin while your cousin's been in prison?
6 A. No.
7 Q. The name Louis Farrakhan may come up in the course of this
8 trial. Is there anything about that that would prevent you
9 from being a fair and impartial juror in this case?
10 A. No.
11 Q. All right. I very much appreciate your participating in
12 the process. What will happen now is you'll be asked to call
13 in to the jury office on June the 18th. You're still part of
14 the jury selection process. You'll be asked to call in on June
15 the 18th and receive further instructions about coming back.
16 Remember to -- and Mr. Fletcher will give you a note,
17 a piece of paper, explaining that.
18 Please remember to follow my continuing instructions.
19 Please, don't talk about the case or anything to do with it.
20 Please remember to keep an open mind until if you're selected
21 as a juror, all the jurors have heard all the evidence I've
22 instructed them on the law, they've gone to the jury room to
23 begin their deliberations.
24 Remember not to look at or listen to anything to do
25 with the case. If you should inadvertently see something, by
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1 all means just turn away. Don't look at or listen to anything
2 to do with the case.
3 A. Okay.
4 Q. Thank you for coming in today.
5 A. Okay.
6 (Juror absent)
7 THE COURT: All right. Juror Number 20.
8 Mr. Fletcher advises me that Juror Number 41 has
9 finals tomorrow. We'll talk about it later.
10 (Juror present)
11 THE COURT: Please have a seat.
12 JUROR: Thanks.
13 BY THE COURT:
14 Q. Juror Number 20, thank you for coming in. Before I go to
15 the questionnaire and some follow-up questions, let me ask some
16 preliminary questions.
17 Since you were here last, has anything changed
18 concerning your acted to serve as a juror in this case or has
19 anything occurred to you that may affect your ability to be a
20 fair and impartial juror in this case?
21 A. No.
22 Q. It now appears that the date that the final jury will be
23 chosen in this case will be Monday, June the 21st. So after
24 today, it's unlikely that you will be called back or have to
25 call in before June 18th. Does that present any serious
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1 hardship for you?
2 A. The case in general or the date?
3 Q. The dates, right now.
4 A. If it lasts for six months, yeah.
5 Q. Okay. Why is that?
6 A. I am in the process of changing jobs at my company, and I'm
7 going to be going through a lot of training for that. It's
8 going to take a few months just to get me up to speed. I'll
9 start in September. So if the trial is starting in June --
10 Q. Please keep your voice up?
11 A. Yeah, if the trial starts in June and goes to whenever,
12 it's going to be difficult for me to advance professionally.
13 Q. If the trial starts in end of June and even if it goes the
14 outer limit, you will probably be looking at from the time that
15 you would otherwise be changing jobs in the company, about
16 three months, and. Tell me what kind of work you do?
17 A. Currently I'm a manager of insurance programs.
18 Q. And what would the nature of the change in the job be?
19 A. It will be a complete change. I'll be going into our
20 corporate finance, capital markets division.
21 Q. Without telling me the name of your employer, is it a large
22 employer?
23 A. Yes.
24 Q. You've indicated over 250 people. Large employer?
25 A. Well over 100,000.
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1 Q. Okay. And you'd be changing jobs?
2 A. Correct.
3 Q. Won't there be other opportunities in terms of changes in
4 jobs in your company?
5 A. For myself, no.
6 Q. Yes?
7 A. No.
8 Q. Wouldn't your company be understanding if the reason that
9 you couldn't move to the other job right now was that you were
10 on jury service?
11 A. I suppose they would, but it would be difficult.
12 Q. I'm not sure why you say it would be difficult. I mean,
13 large companies have people who are on jury duty all the time,
14 and they rely upon the Court system to be part of the way in
15 which they exist in society. They plainly must recognize the
16 importance of jury service, and as I told you at the outset,
17 the law prohibits them from penalizing anyone because of jury
18 service. Why do you think that they wouldn't be understanding
19 of you when you told them that you've been asked to serve as a
20 juror on a long case?
21 A. You mentioned hardship. I have a steep learning curve, so
22 for me to take four days out of the week to go to court and to
23 try and new my learn job and learn my new job is going to be
24 difficult.
25 Q. Okay. But you know, that's a different statement, the fact
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1 that it would be difficult for you to learn the new job doesn't
2 indicate that the company would hold it against you in any way
3 if you had to be on jury service, right?
4 A. No.
5 Q. And you would still be able to move into the new job, yes?
6 A. Well, by law, you said they can't let me go.
7 Q. And so it might take you a little longer to get acclimated
8 to the new job?
9 A. It definitely will.
10 Q. Is there anything about the fact that you're changing jobs
11 that would prevent you from being a fair and impartial juror in
12 the case?
13 A. I don't think so.
14 Q. Okay. And I appreciate your, you know, your candor.
15 Let me ask a couple of other preliminary questions:
16 Since you were here last, have you spoken to anyone about the
17 case or have you looked at or listened to anything about the
18 case?
19 A. I don't even remember the details of the case.
20 Q. I'm sorry?
21 A. I don't even remember the details of the case.
22 Q. Okay. Has anyone spoken to you about the case?
23 A. No.
24 Q. And that includes any conversations here at the courthouse
25 or with any other prospective jurors?
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1 A. No.
2 Q. While you were waiting with the other prospective jurors,
3 did you or anyone you overheard discuss the case?
4 A. No.
5 Q. You had indicated that you -- some member of your family
6 may have been in ROTC or the national guard or reserves at some
7 time, but that you didn't know?
8 A. Yeah, I still can't recall. I know there was someone in
9 our family, I just can't recall right now.
10 Q. Not someone so close to you that you have a recollection of
11 who it was?
12 A. Oh, no, no.
13 Q. Anything about that that would prevent you from being a
14 fair and impartial juror in this case?
15 A. Definitely not.
16 Q. And similarly, you don't -- as you sit here, you don't know
17 whether anyone in your family ever saw combat duty; is that
18 right?
19 A. Saw combat duty? I don't think so.
20 Q. You had indicated that you rely mostly on the Internet for
21 news. Is there any particular source of news on the Internet
22 that you use?
23 A. In terms of what I'm reading?
24 Q. One of the questions was, which one source do you rely on
25 most for news?
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1 A. Uh-huh.
2 Q. And you said the Internet. And so my question is: Is
3 there a particular source on the Internet that you turn to for
4 news?
5 A. Newspapers, generally.
6 Q. Okay. The newspaper websites?
7 A. Newspaper websites, Yahoo, things like that.
8 Q. Okay. You indicated that someone in your family had been
9 the victim of a serious crime, and could you just tell me who
10 that was in relationship to you and what the crime was?
11 A. It was a cousin and it was molestation.
12 Q. And were charges brought against the person who was
13 responsible?
14 A. Yes.
15 Q. And was that person convicted?
16 A. Yes.
17 Q. And sentenced?
18 A. Yes.
19 Q. And you also indicated that someone close to you brought
20 criminal charges against someone. Can you tell me who --
21 A. That's the same case.
22 Q. Same case. And that you have a close friend who sued
23 someone?
24 A. Yes.
25 Q. What was -- can you tell me who that -- what the
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1 relationship to you was?
2 A. Just a friend, nothing more than that.
3 Q. Friend. And they sued as a result of a car accident?
4 A. It was a car accident, correct.
5 Q. Did that case go to trial or settle?
6 A. I can't remember. It was just a friend at work. But
7 someone I knew.
8 Q. Is there anything about any of those experiences with the
9 judicial system that would prevent you from being a fair and
10 impartial juror in this case?
11 A. No, nothing.
12 Q. You mention that there was someone, either you or someone
13 close to you, who was a member of an organization which took
14 positions on begun control like the national rifle association.
15 Can you tell me who that was and what the organization is?
16 A. Republican party, and it was all friends, and myself
17 included.
18 Q. Anything about any of that that would prevent you from
19 being a fair and impartial juror in this case?
20 A. No.
21 Q. You mentioned that you have had legal training?
22 A. No.
23 Q. Or someone close to you? Question 56 asks: Have you or
24 has any member of your -- any family member ever had any
25 training or education in the law?
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1 And you said, Yes, yourself.
2 A. Oh, no, that was wrong. Sorry. My family members have,
3 but I have not.
4 Q. Tell me what your -- what family members have had that have
5 had training in the law?
6 A. Cousins, and I believe an uncle. I may have said yes
7 because I had a course in Constitutional law. But I didn't
8 consider that training.
9 Q. Okay. College course in Constitutional law?
10 A. Correct.
11 Q. And with your -- can you tell me, your cousins, who have
12 had training in the law, can you tell me what kind of law they
13 practice? Again, don't give me any names. Just tell me what
14 kinds of law your cousins practice.
15 A. Criminal.
16 Q. You have how many cousins who practice criminal law?
17 A. At least three.
18 Q. Afternoon do they do that on the prosecution side or the
19 defense side?
20 A. I think it's defense.
21 Q. Is there anything about that that would prevent you from
22 being a fair and impartial juror in this case?
23 A. No.
24 Q. And you said you had an uncle who was also involved with
25 the law?
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1 A. I believe he is. I'm not too sure about that.
2 Q. You're not close to him?
3 A. No, no.
4 Q. All right. Anything about any of that that would prevent
5 you from being a fair and impartial juror in this case?
6 A. No.
7 Q. You indicated in response to another question that you did
8 have a cousin who was in a public defender's office or a
9 criminal defense attorney. On the other hand, you indicated in
10 response to the question about whether you had strong views
11 about lawyers in general, or about lawyers who prosecute
12 criminal cases or lawyers who defend criminal cases, that you
13 thought that trial lawyers were ambulance chasers, and you
14 plainly have reasonable number of relatives who practice
15 criminal defense law; and you yourself have taken law in
16 college.
17 Could you tell me what you were referring to in your
18 answer?
19 A. I'm in insurance, so I handle a lot of workers'
20 compensation and general liabilities claims, so I see a lot of
21 cases like that.
22 Q. I see. So you were really referring to plaintiffs lawyers
23 in workers' comp cases?
24 A. And we do a lots of that at work too. So we see plots of
25 those kind of cases, people bringing these things against us.
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1 When I was in insurance, I saw a lot of cases like that.
2 Q. Is there anything about your view of lawyers that would
3 prevent you from being a fair and impartial juror in a case
4 such as this, which is a criminal prosecution?
5 A. No.
6 Q. There were a series of questions which I asked on the
7 questionnaire which directed your attention to some kinds of
8 evidence that might be admitted in the course of trial. One
9 was evidence that was obtained by electronic devices commonly
10 known as bugs or wiretaps. The fact that there may be reported
11 conversations between attorneys and their client and the fact
12 that there may be surveillance or evidence that was seized
13 through the searches of various places and evidence obtained by
14 surveillance and photographs, and in answer to those questions,
15 you -- the questions asked whether any of those things would
16 prevent you from being a fair and impartial juror. And you
17 noted some concerns about violation of privacy and -- in
18 response to another question, the need for warrants.
19 Let me give you a brief instruction. If you were
20 chosen as a juror in this case and listened to the evidence in
21 the case, it's my obligation to pass on -- to rule on the
22 admissibility of any evidence first instance. So if you heard
23 any evidence, whether it be conversations between attorneys and
24 clients or evidence that was obtained through electronic
25 surveillance or bugs or any of the other issues that were
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1 raised in these questions, you would only hear it because the
2 court has ruled that you can hear it. And the issue have
3 whether it is admissible or not admissible is for the Court.
4 It's a matter of law for the Court. It's not for the jurors.
5 And the jurors, as a matter of law, can't second-guess that.
6 It's for the jurors to look at the evidence which is admitted
7 and make a determination whether the evidence or the lack of
8 evidence, based upon that, the government has proven the
9 charges in the indictment beyond a reasonable doubt.
10 Whether the jurors like or don't like any way in which
11 the evidence was obtained, or whether the jurors have any legal
12 questions about whether the evidence should be admitted is not
13 relevant to their determination. Questions of law are for the
14 Court. Questions of fact are for the jury. The jury has to
15 look at the evidence or lack of evidence and answer whether the
16 government has proven the charges in the indictment beyond a
17 reasonable doubt.
18 Do you understand that?
19 A. Yes.
20 Q. And if you were chosen as a juror in this case, would you
21 follow that instruction?
22 A. Certainly.
23 Q. And is there anything about your feelings about any of
24 these various kinds of methods of obtaining evidence that would
25 prevent you from being a fair and impartial juror and listening
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1 to the evidence or lack of evidence and deciding the case based
2 solely on the evidence or lack of evidence?
3 A. I don't think so.
4 Q. Okay. And when you say you don't think so, is that a
5 way -- do you mean the answer to that is no?
6 A. No.
7 Q. Okay. You indicated that you were somewhat knowledgeable
8 about Islam from your reading. Could you explain to me what
9 kind of reading you were referring to?
10 A. It would be readings from church.
11 Q. I'm sorry?
12 A. Readings from church.
13 Q. And is there anything that you've read about Islam that
14 leads you to be biased or prejudiced against anyone of the
15 Islamic faith or anyone from the mid east?
16 A. No.
17 Q. You also indicated -- I had asked a similar question on the
18 questionnaire, and you pointed out that you had worked in the
19 World Financial Center on September the 11th. Let me explain
20 something about -- you said you didn't recall much about this
21 case. Let me explain something to you: This case has nothing
22 to do with 9/11, and the defendants in the case are not charged
23 with anything with 9/11. So 9/11 is -- has nothing to do with
24 this case. And is there anything about the fact that you had
25 worked in world financial center on September the 11th, that
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1 would cause you to be biased or prejudiced against any of the
2 parties in this case?
3 A. I hope not.
4 Q. Well, you also pointed out that your former firm lost an
5 employee in the World Trade Center. And I've told you this
6 case has nothing to do with the World Trade Center. You are a
7 very bright, conscientious person. And you said you hoped not,
8 and again, that anything to do with 9/11 would prejudice you in
9 any way.
10 And the parties are entitled to have a jury that is
11 completely fair and impartial. As I've told you before, people
12 express themselves in different ways. People say, I think so,
13 I believe so, I hope so, but the real issue is will you be fair
14 and impartial? Everyone brings to the role of the jury their
15 personal history and life experience, their common sense, their
16 ability to listen to evidence, but the parties are entitled to
17 know at the outset that the jurors will decide this case based
18 solely on the evidence or the lack of evidence. Not on any
19 prior prejudices, sympathies, biases or anything else.
20 Now, I've told you this case is not about 9/11. And
21 the question is -- you had some experiences, plainly, and your
22 firm had experiences with 9/11, but this case doesn't deal with
23 9/11. And the question is whether, if you were chosen as a
24 juror in this case, would you be fair and impartial? Would you
25 provide the parties in this case the fair trial to which they
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1 are entitled?
2 A. Yes.
3 Q. And can you do that?
4 A. Yes.
5 Q. Would anything about the experience with 9/11 prevent you
6 from being a fair and impartial juror in this case?
7 A. No.
8 (Continued on next page)
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1 Q. In responding to the individual names that may come up in
2 the course of the trial, you indicated that you -- well, you
3 indicated that you had a friend who visited Israel and Egypt,
4 is that right?
5 A. Correct.
6 Q. When was that?
7 A. I think he went last year sometime.
8 Q. Okay.
9 Anything about that that would prevent you from being
10 fair and impartial?
11 A. No, he is a friend of mine.
12 Q. You also indicated that you were familiar with Al-Jazeera?
13 A. Yes.
14 Q. Do you watch Al-Jazeera?
15 A. The news I watch covers news that is brought from
16 Al-Jazeera.
17 Q. What is the regular Web site that you would look at for
18 news?
19 A. That wasn't a Web site. It was French news.
20 Q. I am sorry?
21 A. It wasn't a Web site, it was French news.
22 Q. French news?
23 A. Yes.
24 Q. As in a French newspaper?
25 A. French television station.
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1 Q. Do you regularly watch French television?
2 A. Every night, yes.
3 Q. Okay.
4 You also indicated that William Simon may be an
5 alumnus of one of your schools and do you know him personally?
6 A. No.
7 Q. And you also indicated some knowledge of the USS COLE.
8 Could you tell me what you know about the USS COLE?
9 A. Just the situation that occurred with the attack. That is
10 it.
11 Q. Do you have any opinions or knowledge about who was
12 responsible for that?
13 A. No.
14 Q. If you were chosen as a juror in this case, you would have
15 to listen to the evidence in this case and decide this case
16 based solely upon the evidence or lack of evidence that was
17 presented here in court. Would you do that?
18 A. Yes.
19 Q. As you can tell from all of my questions, the fundamental
20 question is whether there is anything in your personal history
21 or life experience that would prevent you from being a fair and
22 impartial juror. So let me ask you one final time whether
23 there is anything, whether I have asked you about it
24 specifically or not, that would prevent you from being a fair
25 and impartial juror in this case?
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1 A. No.
2 Q. All right.
3 Could you step out for a moment please.
4 A. Can I leave my things here?
5 Q. Yes, you can leave your stuff there.
6 (Juror absent)
7 MR. RUHNKE: Your Honor, by way of just follow-up
8 questions to this juror, he seemed to tell us very firmly,
9 although politely, that he very, very much wants to pursue this
10 student job opportunity at his company and I think that we
11 should at least ask him whether he feels that this will be a
12 lost opportunity that he will not be able to regain and whether
13 if he is required to serve on this jury that he will harbor
14 some resentment about that fact.
15 THE COURT: I actually asked those questions because I
16 asked him so you will get the job in any event but your
17 learning curve will be steeper, and he said yes. And as to the
18 second question I asked him whether there was anything about
19 that job position or the way in which the case interacted, in
20 words or substance, that would prevent him from being fair and
21 impartial. It was precisely at that point that I thanked him
22 for his candor because he was not attempting to use that as a
23 reason not to be a juror in this case. And so I really did ask
24 those questions.
25 MR. RUHNKE: Your Honor, the question of whether he
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1 feels resentful is a question that may have been subsumed into
2 the larger question but I think we have a right to know if he
3 is going to sit there --
4 THE COURT: I will ask that, but we will see. And
5 people who are conscientious would find it breathtaking to even
6 suggest that they would not be a fair and impartial juror
7 because they were concerned about their job. But I will ask.
8 MR. RUHNKE: Thank you.
9 The other question, for some reason both sides missed
10 his answer to question number 84, if he had strong feelings
11 against the religion of Islam and for some reason we did not
12 follow that and neither did the government.
13 THE COURT: Okay.
14 MR. TIGAR: In addition, your Honor, he did say at
15 page 68 that he has personal views that would prevent him from
16 reaching a fair and impartial verdict. That is question 68,
17 based on his answer to 59, which is the lawyer question. That
18 is one item.
19 Second --
20 THE COURT: But he certainly didn't say that in
21 response to the follow-up questions today.
22 MR. TIGAR: But he said he was prevented from reaching
23 a fair and impartial verdict. So now at best we have a
24 contradiction.
25 THE COURT: I will follow up, even though the answers
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1 to those questions I think are clear from everything that he
2 said. He explained what he meant about the answer to question
3 59 and I didn't direct him to the answer to 68, no one had
4 asked me to, but I will follow up.
5 MR. TIGAR: Thank you, your Honor.
6 Then with respect to this question 84, he said that he
7 had -- and then the fact that his former firm lost I believe a
8 colleague, lost relatives -- and I don't think he lost
9 relatives in 93, and then he says what he knows about Islam he
10 learned from reading in his church. Now, if you put that
11 together with 84 until I converted I was raised a baptist and I
12 think if you read in the paper what the attitude of baptist
13 churches have been towards Islam and all of the things that
14 have gone on there, I can't of course, and would not,
15 generalize to say that in this person's church somebody said
16 that, but I do think that it's something that we should follow
17 up.
18 THE COURT: I will follow up.
19 MR. TIGAR: Thank you, your Honor.
20 Bring the juror back please.
21 (Juror present)
22 BY THE COURT:
23 Q. Please have a seat.
24 I wanted to follow up on a few of the questions that I
25 had asked. I explored with you your change in jobs and if you
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1 were chosen as a juror in this case would you be fair and
2 impartial?
3 A. Yes.
4 Q. If being chosen as a juror in this case caused you any
5 difficulties in your work or with your career, would you hold
6 it against any of the parties in this case?
7 A. No.
8 Q. Do you appreciate the absolute importance of being a fair
9 and impartial juror in this case?
10 A. Absolutely.
11 Q. And would anything about your work or your career, if you
12 were chosen as a juror in this case, interfere with your
13 ability to be a fair and impartial juror in this case?
14 A. No.
15 Q. In answering the questionnaire, there was a question which
16 said one of the defendants is a lawyer. Do you have any
17 personal views about lawyers that would prevent you from
18 reaching a fair and impartial verdict in this case based solely
19 on the evidence presented in court, and you said yes. And then
20 you said please see the answer to 59. And then the answer to
21 59 was the comment that you made that trial lawyers are
22 ambulance chasers.
23 Let me ask you the questions today. One of the
24 defendants in the case is a lawyer and would you be a fair and
25 impartial juror in a case in which a defendant is a lawyer?
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1 A. Sure.
2 Q. And is there anything in your view about trial lawyers
3 which you explained to us before that would prevent you from
4 being a fair and impartial juror in a case in which one of the
5 defendants is a lawyer?
6 A. No.
7 Q. In response to another question, and the question was do
8 you have any strong views against the religion of Islam or its
9 adherents, and you said yes. Could you explain that for me? I
10 had asked you various questions about Islam and whether you
11 would have any biases or prejudices against persons of Islamic
12 faith or people from the Mideast, but could you tell me what
13 you meant by your answer on the questionnaire?
14 A. It's a theological question. I am a Christian so that is
15 what I was responding to.
16 Q. Is there anything about your personal beliefs that would
17 lead you to be biased or prejudiced against persons of the
18 Islamic faith?
19 A. No.
20 Q. Is there anything in your beliefs or personal history or
21 life experience that would lead you to be biased or prejudiced
22 against anyone from the Middle East or anyone who holds the
23 Islamic faith?
24 A. No.
25 Q. As I told you before, we bring to this process our life's
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1 experience. The parties are entitled to know that the jurors
2 will be fair and impartial and decide this case based solely
3 upon the evidence or lack of evidence presented in court and my
4 instructions on the law. Will you do that?
5 A. Yes.
6 Q. Is there anything that has been raised in any of the
7 questions that I asked you, or anything on the questionnaire
8 that leads you to doubt in any way your ability to do that?
9 A. No.
10 Q. Will you be a fair and impartial juror in this case and
11 decide this case based solely upon the evidence or lack of
12 evidence and my instructions on the law?
13 A. Sure.
14 Q. Okay.
15 Could you step out for a moment please.
16 (Juror absent)
17 MR. TIGAR: Your Honor, the defense challenges the
18 juror for cause. The juror said under oath that he has
19 personal views about lawyers that would prevent him from
20 reaching a fair and impartial verdict in this case based solely
21 on the evidence and he said it under oath. Having said under
22 oath something that is different from that or that he has a
23 different view, then in our respectful submission does not
24 establish that he is qualified.
25 Second, he did answer the question 84 and he said it's
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1 a theological question.
2 Now, you know, if a juror had said on the
3 questionnaire I have strong feelings about Jews and in my
4 Christian church we learned a lot about them, and, as I say, I
5 grew up a baptist and we sure did. I get a lot of what I now
6 do understand were terrible, terrible misimpressions. A person
7 who gave that answer we would say it's just too much to risk.
8 Religious conviction is deeply held, and this young man is a
9 deacon and a Sunday school teacher. It's one of those things
10 that gets very hard to drive away from a person when they are
11 called upon to make judgments here. So it's that combination
12 of things, your Honor, that leads us to say that the juror's
13 qualifications to be, in Blackstone's words, indifferent as he
14 stands unsworn are not right.
15 THE COURT: The government?
16 MR. DEMBER: Your Honor, we believe that this juror
17 can be fair. He has indicated he can be fair. All the answers
18 to your questions obviously he has indicated he could be
19 impartial and fair in this case. He is obviously a very bright
20 young man, very articulate. And he has clearly expressed his
21 ability to be fair. I don't think there is a challenge for
22 cause here at all.
23 THE COURT: All right.
24 The challenge for cause is rejected.
25 I have listened to the juror's responses to my
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1 questions. It's obvious from observing his demeanor and
2 listening to the responses to the questions that he will be a
3 fair and impartial juror and that none of his prior experiences
4 will interfere with his ability to be fair and impartial. I
5 have gone over every question that raised a question for any of
6 the parties in the case and each of those questions has been
7 resolved to my satisfaction. I find the juror, the prospective
8 juror, to be wholly credible in all of his statements and all
9 of his statements show that he has thought about the issues and
10 the importance of being a fair and impartial juror and that he
11 has considered the various answers and that he will be a fair
12 and impartial juror in this case. And that nothing about his
13 past will prevent him from being a fair and impartial juror.
14 I went over that with him numerous times on each of
15 the issues that have come up and his responses were, based upon
16 the responses and my observations of his demeanor, completely
17 credible.
18 So the challenge for cause is denied.
19 I will ask the juror to return.
20 (Juror present)
21 BY THE COURT:
22 Q. Juror number 20, you are still in the jury selection
23 process. As I told you, you won't be called back or asked to
24 call in until June 18th, and Mr. Fletcher will have a slip to
25 give you which sets out those instructions.
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1 It's very important that you continue to follow my
2 instructions. Please don't talk about this case or anything to
3 do with it. Please don't look at or listen to anything to do
4 with the case. If you should inadvertently see or hear
5 something turn away.
6 And always remember, as I will tell the jurors who are
7 finally selected in the case, please keep an open mind until
8 you have heard all of the evidence, I have instructed you on
9 the law, and you have gone to the jury room to begin your
10 deliberations. Fairness and justice to the parties requires
11 that you do that. All right?
12 A. Okay.
13 Q. Have a good day.
14 A. Thank you.
15 Q. And you may go home.
16 (Juror absent)
17 MR. RUHNKE: Your Honor, before the next juror comes
18 in, we join in that last challenge and just want to know if
19 it's necessary to do that with every juror, unless we speak,
20 otherwise it's on behalf of everyone, is that correct?
21 THE COURT: Yes.
22 MR. RUHNKE: Thank you.
23 THE COURT: Does the government have any different
24 view?
25 MR. DEMBER: No, your Honor.
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1 (Juror present)
2 BY THE COURT:
3 Q. Please have a seat.
4 A. Thank you.
5 Q. Good afternoon.
6 A. Good afternoon.
7 Q. Juror 21, let me ask you some preliminary questions, then,
8 before we turn to the questionnaire.
9 Since you were here last has anything changed
10 concerning your ability to serve as a juror in this case or has
11 anything occurred to you that may affect your ability to be a
12 fair and impartial juror in this case?
13 A. I do have religious holidays coming up next week.
14 Q. I am sorry?
15 A. I have religious holidays coming up next week, that is
16 Wednesday and Thursday. And the doctor's appointment I can
17 change but other than that there is nothing that should be in
18 my way.
19 Q. All right. That actually brings me to my next point, which
20 is it now appears that the date that the final jury will be
21 chosen in this case will be Monday, June 21st. So after today
22 it's unlikely you will be called to come back before June 18.
23 A. Okay.
24 Q. Does that present any serious problems for you?
25 A. No.
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1 Q. Since you were here last have you spoken to anyone about
2 this case or have you looked at or listened to anything about
3 the case?
4 A. No, I signed the statement not to do that.
5 Q. You signed the statement meaning you got my order.
6 A. Yes, that is what I mean.
7 Q. Has anyone spoken to you about the case?
8 A. No.
9 Q. And this includes any conversations here at the courthouse
10 or with any other prospective juror?
11 A. No, I don't know anyone here in the courthouse. I didn't
12 speak to anyone at the courthouse.
13 Q. While you were waiting with the other prospective jurors
14 did you or anyone you overheard discuss the case?
15 A. I didn't hear anyone speaking about it.
16 Q. And you did not?
17 A. No.
18 Q. Let me go over some of the answers to the questions. You
19 had indicated that there -- that there might be some hardship
20 on you from sitting on this case?
21 A. Yes. That is the doctor's appointment June 1st that I was
22 talking about and I can substantiate it with bills and letters
23 if you want.
24 Q. No, you are not going to have to be here June 1st.
25 A. Okay.
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1 Q. You also indicated that you were taking medication.
2 A. No, I don't take medication now. I was on radiation is
3 what I wrote and thank goodness I am not taking any medication
4 now.
5 Q. You indicated that your condition makes you have to use the
6 rest room?
7 A. I did use it 4 times today since 9 o'clock. It might have
8 been nerves. I can't tell.
9 Q. Can you sit for periods -- how long can you sit?
10 A. I usually can sit long. I am just saying that at times I
11 do have to use the rest room to be honest with you.
12 Q. Well, we usually sit for periods of an hour and a half or
13 so.
14 A. I should be able to do that.
15 Q. Okay. So is there anything about your personal medical
16 situation that would be a hardship for you on the case?
17 A. I don't think so.
18 Q. Okay.
19 Could you tell me what grade and subject you teach?
20 A. I teach -- well, now I am a part-time teacher at a yeshiva,
21 Westchester Hebrew High School, which is located --
22 Q. Don't tell me.
23 A. I teach foreign language.
24 Q. Okay.
25 You also told me in response to the question that one
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1 of the organizations that you have been involved in is AMIT?
2 A. AMIT. It used to be called Mizraghi.
3 Q. I am sorry?
4 A. It cruised to be called Mizraghi. The name has been
5 changed to AMIT and they basically build high schools in
6 Israel. I also belong to APAC and other organizations which
7 are Israel based.
8 Q. Okay.
9 Is there anything about your participation in those
10 organizations that causes you to doubt whether you would be a
11 fair and impartial juror in this case?
12 A. Well, I do have some idea of what the case is about and I
13 would not say that I am philosophically in agreement with the
14 cause of the people who are here on trial.
15 Q. All right.
16 We begin with your statement that you are not in
17 philosophical agreement with what you heard about the
18 defendants but, of course, if you were chosen as a juror you
19 would have to decide the case based solely upon the evidence or
20 lack of evidence and my instructions on the law.
21 A. I understand that. I do understand that. I would feel
22 comfortable in a different case but I understand what you are
23 saying.
24 Q. Would you be able to do that?
25 A. I have never been a juror before in my life. I would try
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1 my best, I will tell you that. I am not going to shirk my
2 responsibility. I will try my best.
3 Q. You are not shirking your responsibilities. You are candid
4 and forthright.
5 You say that you would try your best.
6 A. Yes, sir.
7 Q. And the parties are rightfully entitled to jurors who go
8 into the process who say that they will be fair and impartial.
9 I take what you say exactly as you say it, that you would try
10 to be fair and impartial. And the question is as you look into
11 your own mind, do you have any doubts whether in this case you
12 could be fair and impartial? You are not shirking your
13 responsibilities. In fact, you are living up to them by giving
14 me fair and truthful answers to these questions.
15 A. I don't think I could do it. Put me on another case. I
16 don't think I could do it.
17 Q. You know, you are answering my questions in a way that
18 shows that you are giving me candid, truthful answers to my
19 questions. That is not shirking your responsibilities. That
20 is living to what you told me you would do. And that is very
21 important.
22 So you don't have to feel that you are not doing the
23 right thing by being candid with me. You are doing the right
24 thing by looking deeply and answering my questions in a
25 forthright fashion.
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1 A. My parents loved this country to such a degree that my
2 brother and I were indoctrinated with that and that is why I am
3 saying this.
4 Q. Okay.
5 Could you step out for a moment?
6 A. Sure.
7 (Juror absent)
8 THE COURT: I am prepared to strike the juror for
9 cause. The parties agree?
10 MR. DEMBER: Yes, your Honor.
11 MR. RUHNKE: Yes, your Honor.
12 THE COURT: Okay.
13 Let's call the juror back.
14 (Juror present)
15 BY THE COURT:
16 Q. Please have a seat.
17 Juror number 21, I am going to excuse you and I
18 reiterate what I told you before, which is that you have
19 fulfilled your responsibilities by participating in this
20 process and by explaining your answers to me and I very much
21 appreciate your participating in the process. And you can now
22 go home and you will not return to the other room.
23 A. Thank you.
24 (Juror absent)
25 THE COURT: Juror number 24.
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1 (Juror present)
2 BY THE COURT:
3 Q. Good afternoon, Juror 24.
4 I have some preliminary questions for you before I go
5 to the questions on the questionnaire, and I will have some
6 follow-up questions on the questionnaire.
7 Since you were here last has anything changed
8 concerning your ability to serve as a juror in this case or has
9 anything occurred to you that may affect your ability to be a
10 fair and impartial juror in this case?
11 A. Well, my job actually involves current event.
12 Q. Could you keep your voice up please.
13 A. I wanted to mention that I didn't put in the questionnaire
14 that my job does involve current events and being away for an
15 extended period may complicate going back to work or being away
16 from the news or being sort of cutoff. That may make it
17 difficult for me to get back to work.
18 I didn't really explain that in the questionnaire but
19 I work for a magazine that comes out every week, so we have to
20 be tuned into current events and news items.
21 Q. If you were chosen as a juror in this case, you would not
22 have to be shut off from the news. What you would have to do,
23 as I told you in the preliminary instructions, is not to look
24 at or listen to anything to do with this case and so one never
25 knows what publicity, if any, this case will get. But if you
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1 were watching the news and saw something or heard something to
2 do with this case, you would have to turn away. You can't look
3 at or listen to anything to do with this case and in a way that
4 is not that hard because if you were chosen as a juror in this
5 case everything that was relevant for you you will have heard
6 in the course of the day. You will have heard it at trial, and
7 so it's important for you not to get any other information
8 other than you get here in the courtroom at trial. But it
9 doesn't mean that you have to stop listening to other news or
10 broadcasts. You just can't look at or listen to anything to do
11 with this case. And if you saw something to do with this case,
12 you would have to turn away.
13 Do you understand that?
14 A. Yes, I do.
15 Q. And could you do that?
16 A. Certainly.
17 Q. Okay.
18 Could you keep your voice up because it's a big
19 courtroom.
20 It now appears that the date that the final jury will
21 be chosen in this case will be Monday, June 21st. So after
22 today it's unlikely that you will be called in or have to call
23 in until June 18.
24 Does that present any serious hardship for you?
25 A. I can't think of anything.
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1 Q. Okay.
2 Q. Since you were here last have you spoken to anyone about
3 the case or have you looked at or listened to anything about
4 the case?
5 A. No.
6 Q. Has anyone spoken to you about the case?
7 A. No.
8 Q. And that includes any conversations here at the courthouse
9 or with other prospective jurors.
10 A. Yes.
11 Q. While you were waiting with the other prospective jurors
12 did you or anyone you overheard discuss the case?
13 A. No, I heard nothing. No, I didn't, sir.
14 Q. Okay.
15 You had indicated that your mother was a legal
16 secretary?
17 A. Yes.
18 Q. Could you tell me what kind of a law office your mother
19 works in? Don't tell me the name of it but is it a law firm or
20 is it an individual lawyer or a company?
21 A. It was an individual lawyer.
22 Q. Okay.
23 And what sort of law did that lawyer practice?
24 A. I think most of it involved real estate, wills, estates.
25 Q. Okay.
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1 A. That is as far as I know for the most part.
2 Q. You had indicated that your father was in the Navy.
3 Is there anything about that that would prevent you
4 from being a fair and impartial juror in this case?
5 A. No. It was the Korean War and he spent the entire war in
6 Sandy Hook, New Jersey.
7 Q. Okay.
8 You mentioned that you were a juror in a prior
9 criminal case in Washington and the jury reached a verdict. Is
10 there anything about that experience that would prevent you
11 from being a fair and impartial juror in this case?
12 A. No, I don't believe so.
13 Q. You mentioned in response to a question that you had heard
14 of Lynne Stewart as an activist attorney. Could you tell me
15 what you heard or read about her?
16 A. Well, I didn't study that but I am aware that she does have
17 a web I site and I have heard news stories about it but, as I
18 say, I didn't study them in any great detail. But I simply
19 have heard of her.
20 Q. Okay.
21 You say you have heard news stories about her. Do you
22 remember anything about the content of those news stories?
23 A. Not really specifically. I have heard of her involvement
24 with the blind sheikh, but I couldn't really tell you too many
25 of the details. I simply have heard just very basic
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1 information.
2 Q. Please keep your voice up.
3 Is there anything about anything you have heard about
4 Ms. Stewart that would prevent you from being a fair and
5 impartial juror in a case in which she is a defendant?
6 A. I don't believe so, not necessarily, no.
7 Q. Well, do you have any doubt about that?
8 A. No, I think I can be impartial.
9 Q. Okay.
10 It's very important to the parties to understand
11 whether your belief is that you will be fair and impartial and
12 that you will decide the case based solely on the evidence or
13 lack of evidence and not based upon anything you may have seen
14 or heard in the past. So if you were chosen as a juror, would
15 you do that?
16 A. Yes, I believe I could do that, yes.
17 Q. Would you be fair and impartial and decide the case based
18 solely on the evidence or lack of evidence in the case?
19 A. Yes.
20 Q. You also mentioned in the next question what you have
21 already told me, I believe, that you had heard about Sheikh
22 Abdel Rahman, and can you tell just tell me in your own words
23 what you recall hearing or reading about Sheikh Abdel Rahman?
24 A. As I recall, he was involved in the first parking garage
25 bombing that took place at the World Trade Center and I believe
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1 he is serving time in prison for being convicted of his
2 involvement.
3 Q. All right.
4 Anything else?
5 A. No, that is basically what I recall.
6 Q. All right.
7 If you were chosen as a juror, you would have to
8 decide the case not on the basis of anything you had seen or
9 heard in the past, indeed things which you ever seen or heard,
10 any publicity that you may have seen or heard may not even be
11 accurate, so you would have to listen to the evidence in this
12 case and ask yourself whether based upon the evidence or lack
13 of evidence in this case, which you hear in court while the
14 jury is in session, whether the government has proven the
15 charges in the indictment beyond a reasonable doubt. Do you
16 understand that?
17 A. Yes.
18 Q. And could you do that?
19 A. Yes. I realize that some of the news stories sometimes may
20 be biased one way or the other but I believe I can do that,
21 yes.
22 Q. Would you decide the case based solely on the evidence or
23 lack of evidence here in court?
24 A. Yes.
25 Q. Would you be able to decide it irrespective of anything
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1 that you had seen, heard or read in the past?
2 A. Yes, I would.
3 Q. You were asked whether you had seen, heard, read anything
4 about this case and you said yes, and, again, tell me in your
5 own words what you recall reading about this case.
6 A. Well, what I recall hearing or reading is that -- it
7 involved a communication, and I understand the blind sheikh is
8 in prison and I guess I understand that he is in solitary
9 confinement or something along those lines, where he is not
10 supposed to be communicating with anybody on the outside and
11 that the case involves somehow delivering messages to some of
12 his followers or his friends or somebody and that apparently
13 was not part of the arrangement or it was some violation. So
14 it had something to do with communications that took place
15 between his friends or legal representatives and people outside
16 the prison.
17 Q. When you approached the case, do you have any beliefs about
18 the validity of the charges?
19 A. I am not sure I entirely understand what you mean, the
20 validity of the charges?
21 Q. Let me put it another way.
22 I told you in my preliminary instructions that the
23 charges in the case are only charges. They are allegations
24 which the government makes. Each of the defendants is presumed
25 to be innocent. The fact that there are charges there is not
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1 evidence that the charges are true in any way. They are
2 allegations. The defendants are presumed to be innocent. The
3 government is required to prove the charges beyond a reasonable
4 doubt. So the question is do you accept all of those
5 propositions?
6 A. Yes, I understand that they have to or that the state has
7 to prove beyond a reasonable doubt the charges that they are
8 alleging these people committed or these crimes or the charges
9 against them.
10 Q. And do you understand that each of the defendants is
11 presumed to be innocent?
12 A. Yes, I understand that.
13 Q. Do you start the case with any belief at all that the
14 defendants are guilty of the charges because there are charges
15 out there?
16 A. I believe I could be impartial. I mean, if you have heard
17 something it's hard to just completely forget it, but I think I
18 could listen to the evidence and be able to look at the
19 evidence objectively and then decide realizing that they are
20 innocent until proven guilty.
21 Q. Do you have any doubts in your mind as to whether you would
22 be able to do that?
23 A. No, I don't have any doubts.
24 Q. Would you decide the case based solely upon the evidence or
25 lack of evidence presented in the court?
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1 A. Yes.
2 Q. Would you hold the government to its obligation to prove
3 all of the charges in the indictment beyond a reasonable doubt?
4 A. Yes.
5 Q. Do you have any question in your mind whether you would be
6 able to do that?
7 A. No, I don't.
8 Q. You mentioned that you have seen the English language Web
9 site for Al-Jazeera.
10 Do you regularly look at Al-Jazeera?
11 A. Not necessarily. I occasionally might look at it but it
12 has been quite awhile. I do not regularly. I mean, I have
13 seen it but it's not something that I regularly look at.
14 Q. If you were chosen as a juror in this case, you would be
15 required to decide the case based solely on the evidence or
16 lack of evidence that you had heard in court and in accordance
17 with my instructions on the law. Will you do that?
18 A. Yes.
19 Q. As you can tell from all of the questions that I have
20 asked, the fundamental issue is whether there is anything in
21 your personal history or life experience, whether I have asked
22 you about it specifically or not, that would prevent you from
23 being a fair and impartial juror in this case. So let me ask
24 you one final time whether there is anything, whether I have
25 asked you about it specifically or not, that would prevent you
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1 from being a fair and impartial juror in this case?
2 A. I would not say so, no.
3 Q. People have different ways of expressing themselves. When
4 you say you would not say so, is the answer no or is the answer
5 that you have any questions about that?
6 A. I would say no.
7 Q. So let me ask you one final time whether there is anything,
8 whether I have asked you about it specifically or not, that
9 would prevent you from being a fair and impartial juror in this
10 case?
11 A. No.
12 Q. Okay.
13 Could you step out please.
14 (Juror absent)
15 MR. DEMBER: Your Honor, this juror mentioned that he
16 was aware of the fact that Ms. Stewart has a Web site. It's my
17 understanding that Web site has been in existence for quite a
18 while now. He did not indicate that he had actually visited
19 the Web site but from my understanding of what the Web site is,
20 it essentially is a Web site that advocates her position in
21 this case. It's different than the general media which may
22 take sides one way or another with respect to this case but
23 that Web site does advocate her position.
24 I ask your Honor to ask this juror whether in fact he
25 has visited the Web site, how frequently, and specifically
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1 probe as to what he has learned from that Web site.
2 MR. TIGAR: Your Honor, there is a defense committee
3 for Ms. Stewart. It's not her Web site. But we have no
4 objection to the inquiry. There is an obvious distinction for
5 us.
6 THE COURT: All right. I will ask him.
7 Anything else?
8 I don't see a challenge for cause and I will pursue
9 this question, but unless it produces a challenge for cause I
10 will ask the juror to come back.
11 All right.
12 (juror present)
13 BY THE COURT:
14 Q. You indicated that you were aware that Ms. Stewart had a
15 Web site. Have you visited that Web site yourself?
16 A. Yes, I have.
17 Q. Okay.
18 A. Or I have seen it.
19 Q. You have seen it, okay.
20 Can you tell me how often that you visited it?
21 A. Oh, a handful of times, 3, 4 times maybe.
22 Q. Can you tell me over what period of time?
23 A. Oh, over the last several months perhaps.
24 Q. All right.
25 And could you tell me what it was that led you to
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1 follow up that Web site?
2 A. I actually couldn't tell you. It may have been a news
3 story or some mention that I saw and I just took a glance at it
4 just out of curiosity mostly.
5 Q. Okay.
6 You say just a glance. Can you recall anything that
7 you have seen or read on that Web site?
8 A. No, I couldn't tell you.
9 Q. All right.
10 Is there anything on that Web site that would prevent
11 you from being a fair and impartial juror in this case?
12 A. No.
13 Q. You understand, as I have told you before on numerous
14 times, if you were a juror in this case you would have to
15 decide the case based solely upon the evidence or lack of
16 evidence that was presented here in court.
17 A. I understand that.
18 Q. And would you do that?
19 A. Yes.
20 Q. And on a going-forward basis from now on, as I told you the
21 last time we met, you shouldn't look at or listen to anything
22 to do with this case, and that would of course involve that Web
23 site.
24 A. I understand that.
25 Q. And from the time we met last time until today did you look
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1 at that Web site?
2 A. No. It was before that.
3 Q. It was before that?
4 A. Yes.
5 Q. Okay.
6 And from now on you won't look at or listen to
7 anything to do with this case, and that includes that Web site,
8 correct?
9 A. Yes, I understand that.
10 Q. All right.
11 And do you have any difficulty following that
12 instruction?
13 A. No.
14 Q. Okay.
15 Juror 21, I am going to -- Juror 24, I am sorry, I am
16 going to ask you to remain. You are still in the jury pool and
17 you will be called or asked to call back on June 18th. You
18 won't have anything to do with this case between now and June
19 18th. Mr. Fletcher will give you a piece of paper to advise
20 you about the details of calling in.
21 Please, it's very important, follow my continuing
22 instructions don't talk about this case at all or anything to
23 do with it. Remember not to look at or listen to anything to
24 do with the case. If for any reason in the course of looking
25 at other materials something comes up about this case, simply
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1 turn away and, finally, always remember to keep an open mind
2 until you have heard all of the evidence, I have instructed you
3 on the law, and you have gone to the jury room to begin your
4 deliberation. That is the instruction I will give to all of
5 the jurors. It's very important that you follow that.
6 Fairness and justice to all of the parties requires that you do
7 that.
8 Do you understand that?
9 A. Yes, I do.
10 Q. Okay. You may go home now and have a good day.
11 (Juror absent)
12 THE COURT: All right we will send the rest of the
13 jurors home. I wanted to break around 4:30 and I have a
14 commitment across the street but I will be back because I
15 wanted to talk to the parties about a couple of open issues.
16 So I should be back in about 20 minutes but we are going to
17 send the rest of the jurors home who are waiting and it would
18 seem to me that tomorrow we will call in -- I will try to be
19 optimistic to begin at 9:30 tomorrow and we will call in 20
20 jurors tomorrow, ten in the morning and ten in the afternoon,
21 Mr. Grate, and we will do the next 20.
22 I will see all of you in about 20 minutes.
23 The parties, we have to contact Mr. Grate. Juror
24 number 41 told the marshal that she had exams tomorrow so
25 couldn't come back tomorrow. I will ask Mr. Grate to
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1 substitute the next juror down and bring Juror 41 back when
2 Juror 41 can come back. I will ask Mr. Fletcher to contact Mr.
3 Grate to tell him that.
4 MR. RUHNKE: Before you leave the bench, would it be
5 okay for Mr. Yousry to waive his presence?
6 THE COURT: Yes, I just wanted to discuss legal issues
7 and if Mr. Yousry wished to waive his presence, the government
8 no problem?
9 MR. MORVILLO: No objection.
10 THE COURT: Mr. Yousry, you understand that you have
11 the right to be here?
12 DEFENDANT YOUSRY: Yes, I am waiving the right to be
13 here, Judge.
14 THE COURT: All right.
15 DEFENDANT YOUSRY: Thank you.
16 MR. RUHNKE: Thank you, your Honor.
17 (Continued on next page)
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25
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1 (5:25 p.m.)
2 THE COURT: Please be seated. Thank you all for
3 staying. We can look at where we are at the end of tomorrow
4 for a determination of what questionnaires -- questions on the
5 questionnaires you should provide to me by Saturday at noon.
6 I'd like to be able to get as much preparation in advance from
7 over the weekend as I can, which is why I like a sufficient
8 backlog, so let's look at the numbers. More is better for me,
9 without imposing any unreasonable burdens on you to provide to
10 me the questions. That was the first item.
11 Second item, I know that there is a motion to quash
12 the subpoena for the New York Times reporter, and I assume that
13 in the same way as the Reuters reporter, the parties will work
14 out a schedule for a response and a reply.
15 MR. BARKOW: Your Honor, I've actually been trading
16 messages with Mr. Schults, who's the lawyer for the New York
17 Times, and he has informed me that the New York Times is going
18 to -- there's another subpoena that has been served that
19 Mr. Schults is also going to be representing that journalist,
20 and he anticipates -- I don't know exactly when because we were
21 trading messages but he anticipates filing a motion to quash
22 that subpoena soon, as in I think this week, and so I'm trying
23 to get ahold of him and we're going to propose a joint schedule
24 so they can be opposed together and then he could reply at the
25 same time.
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1 THE COURT: Okay. I just wanted to make sure that you
2 were on that.
3 MR. TIGAR: May we know to whom this other subpoena
4 was served, or upon whom?
5 MR. BARKOW: That is to George Packer.
6 THE COURT: George?
7 MR. BARKOW: P-a-c-k-e-r.
8 THE COURT: All right. Let me bring to your attention
9 something which you probably know: In private practice, I
10 represented the Times, including on reporter subpoena cases. I
11 also represented Time, Time was involved -- and some others.
12 Time was involved in this. I list the New York Times as a
13 party that I disqualify myself in a case in which they're a
14 party. I have heard at least one access issue involving the
15 Times in another case after I've disclosed all of this to the
16 parties. There is another criminal case.
17 I -- the Times is not a party to this action. I don't
18 believe that there is anything about my prior representation
19 that would affect my ability to be fair and impartial in
20 deciding the motion or motions involving the Times, but I bring
21 it to all of your attention if anyone wants to raise any issue
22 with respect to that. I'm sure that this will be known to the
23 Times.
24 MR. TIGAR: A suggestion that some of us on the
25 defense team have been talking about. We would certainly have
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1 no objection with respect to jurors who have answered the
2 sensitive case attitude questions in a way that suggests there
3 might there lie some challenge for cause, to your Honor
4 starting from there. As for instance the juror -- the elderly
5 gentleman from Westchester County, we would have had no
6 objection to going right to that, and again, thanking him for
7 his candor. Again, I understand it's a problem that perhaps by
8 starting with the other questions, one induces a sense of trust
9 between the interrogator and the person being interrogated that
10 leads to more candid answers. We would have no objection to
11 that, if the Court decided to do it.
12 THE COURT: I understand that. I really think I have
13 to deal with each individual juror on an individual basis, and
14 I don't want to fore close by the order of questions what the
15 answers may be. So I take the questioning on an individual
16 basis.
17 The defendants can speed up the process by not having
18 asked me to follow up on as many questions as the defendants
19 have asked me to follow up on. Some of which, a reasonable
20 number of which, I've simply stricken from my own notes because
21 I find no reason to follow up. But if I divine some reason to
22 follow up, I've followed up, but there are lots of questions,
23 it seemed to me, that really didn't suggest that following up
24 the question would produce reasonable, additional information
25 for exercising peremptories or a challenge for cause. But I
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1 mean, if you're analyzing all of the items that the parties
2 have asked me to ask about....
3 Another item: The -- and I'll try and go more quickly
4 tomorrow in response to the defense request.
5 The issue of transcripts and the process for reading
6 transcripts. This is an issue that the parties should work
7 out. I realize that there was a suggestion in defense
8 correspondence that I should direct the government to
9 stipulate. I don't direct the parties to stipulate, and it
10 takes two people to stipulate. I do have a view, and I'm not
11 going to rule finally on this, but I have a view. The law is
12 clear that with respect to conversations in a foreign language,
13 the tape is evidence or the medium is evidence, and the
14 transcript is evidence. And since it's evidence, it can be
15 read to the parties and displayed to the parties in the same
16 way as other evidence. There is an issue in this case because
17 transcripts will include both English and translations, and
18 it's clear that a transcript is an aid to the jury when it's in
19 English and it's evidence when it's not in English.
20 And with respect to the reading of the transcripts, of
21 course -- and the government could have cited more cases
22 including -- more cases, that it's commonly done by having two
23 people from the prosecution read the transcript. And I have no
24 problem, since the transcript, assuming it's a transcript of a
25 foreign language, is in evidence, I have no problem with
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1 displaying it while it's read or distributing copies so that
2 the jurors can read along, each of which I believe are methods
3 that have been used.
4 In terms of presenting it to the jurors, I tentatively
5 share the defendant's concerns simply for the appearance of the
6 way in which it would be presented. I -- the way in which I
7 believe it's usually presented is someone's on the witness
8 stand and someone is reading back and forth, and it's a more
9 formalized proceeding than people at a table, which was the
10 suggestion in the government's paper, reading with name plates
11 in front of them, and I also think that a better way can be
12 found than having the lead government lawyers play the
13 defendants by having name cards for them as though they were
14 the defendants on the table in front of them. There has to be
15 a more formalized way of, if it's going to be read, read to the
16 jury. One way of doing that is obviously to use agents,
17 paralegals, or the like.
18 There also has to be a way, it seems to me, to deal
19 with the issue of conversations which are part in English and
20 part in Arabic, so that the jury can listen and hear what's
21 actually going on, and I will give all the appropriate
22 instructions to the jury about transcripts being an aid and
23 only an aid if the tape is in English; and evidence if it's of
24 a foreign language. But from the standpoint of presentation,
25 it would seem to me -- and again I'm not ruling on this, I'm
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1 just laying out what my concerns and issues of -- that the jury
2 will have to listen to the conversations that the parties have
3 made, most of in which there is portions in English -- they'll
4 have to listen to what the English is and use the transcript as
5 an aid. And then, with respect to the language that they do
6 not understand, they would have to have that read to them. And
7 there has to be a way found to do both. If that means that
8 it's -- I'm not going to, at this point, dictate how that's
9 done. There are several possibilities that come to my mind,
10 but you all have the technical know-how to work this out.
11 But -- have I misunderstood any of the legal principals that
12 will apply to the way in which this is presented to the jury?
13 MR. TIGAR: No, your Honor. There is an additional
14 legal principal that we raised yesterday in a letter to the
15 Court. Some of the translations we have received contain
16 footnotes and bracketed material. So that a transcript of an
17 Arabic language conversation has bracketed laughing, laughing
18 out loud, sarcastically, and so on. Comments that are made.
19 THE COURT: First, you can work that out. Your
20 comment in the letter was -- something to the effect that it's
21 not serious or something but the transcripts can be worked out.
22 I mean --
23 MR. TIGAR: The second matter, though, is the more
24 serious one. That is, a person will say a word and the
25 translator will provide a footnote or parenthetical that
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1 purports either to say where the words came from -- citing a
2 Koran verse, for example, or filling out what the translator
3 thinks must have been in the speaker's mind that completes the
4 thought. Those are issues that we will need to work out.
5 MR. MORVILLO: Your Honor, it's the government's
6 belief that there will be none of that in the final versions of
7 the transcripts.
8 THE COURT: Okay. As far as the government's
9 concerned, is there anything that I've said that is
10 inconsistent with the law as you know it?
11 MR. MORVILLO: Absolutely not, your Honor. I do -- I
12 have been involved in cases myself where I have stood at
13 counsel table with a colleague and read transcripts to the
14 jury. It's been less formal than having someone at the podium
15 and the witness chair, but that's not a legal matter. That's
16 more of a procedural matter.
17 THE COURT: I'm you should think about how the
18 courtroom will be set up and how that can be presented to the
19 jury. It just seemed to me reading the proposal with two or
20 three people lined up at counsel table with placards in front
21 of them identifying which of the defendants they were was not
22 the most reasonable way to present it to the jury, particularly
23 when it was lead lawyers in the case. And it's not clear to me
24 that the defendants feel as strongly about whether it's from
25 the witness stand and the podium as they do about who's
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1 reading, so that if it was two paralegals at the table reading,
2 there might be a different reaction.
3 On the other hand, there is a benefit to the formality
4 of the podium and the witness stand reading matters that are in
5 evidence. I mean, this is not a -- it's not a hearing. It's a
6 trial. And the formalities of the trial are useful.
7 MR. MORVILLO: In that regard, your Honor, many of the
8 conversations -- I don't know what percentage -- but many of
9 them involve three people. And so that's just -- would present
10 a little bit of a logistical problem, obviously, with the third
11 person being involved in a conversation. But we can work that
12 out among the parties. We'll all put our heads together, try
13 to come up with a solution.
14 THE COURT: I wanted to bring that up now because the
15 parties had indicated there were going to be further responses
16 on that issue today. So if you need any further rulings from
17 me on that, you can bring it to me. And you should be able to
18 work that out.
19 MR. MORVILLO: Your Honor, you didn't want to us make
20 a decision today on that issue? We can take some time to
21 resolve that issue.
22 THE COURT: Right. Please. But I raised it now
23 because the government had said, this is something of immediacy
24 that has to be determined quickly because it affects the way in
25 which we are preparing, and so I wanted to give you, first of
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1 all, my thoughts on the subjected. And secondly, to indicated
2 that I thought that the -- you know, the matters had been
3 sufficiently outlined in the papers to give you my thoughts.
4 Yes, you're right, I urge you to talk about the best
5 way to present it, among yourselves.
6 MR. TIGAR: Your Honor, I've observed that I can only
7 hear half of Mr. Morvillo's words as he stood in this big
8 courtroom and addressed your Honor. And whatever is done,
9 we'll have a hearing problem if they do it at that table.
10 We'll work it out.
11 But Mr. Morvillo said that the final transcript
12 presented to the jurors would not contain the parenthetical and
13 footnote items. Some of the material that has been produced to
14 us and label final transcripts do contain it. May we take it
15 then from the government that there will be new final
16 transcripts that do not have this material?
17 MR. BARKOW: Your Honor, if the defendants bring to
18 our attention things that we did not notice, we will look at
19 them, and if it contains information like that, we'll take it
20 out. But we believe that the materials that we've been
21 providing to them as final -- we had thought that that stuff
22 was taken out, basically.
23 But there's a distinction in the transcripts between
24 footnotes and explanatory parentheticals on the one hand, and
25 characterizations also still on that side, like "sarcastically"
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1 and other things like "laughing", because when someone is
2 speaking in Arabic and the jury does not speak the language and
3 does not understand, the fact that someone laughs when they say
4 something is of evidentiary significance, and if the transcript
5 is the evidence, the fact of laughter is evidence.
6 Something like "sarcastically" we intend not to be in
7 the transcripts. A definition or a Koran citation, we intend
8 not to be in there. But something like "laughing", we do
9 intend to be in there. If the defendants were to bring to our
10 attention things that violate that principal, we would correct
11 it with the understanding things like "laughing" we intend to
12 keep in.
13 MR. TIGAR: In that case, your Honor, we would try to
14 take the translator, whoever put that there, on voir dire
15 because, in our respectful view, there are lots of noises that
16 sound to some people like laughing but to others do not.
17 Laughter can mean any of a dozen different things. I know I've
18 said, your Honor, catenation is not a foreign language. And I
19 said in it that form simply paraphrasing Christopher Fry, but I
20 was entirely serious about the point. I just raise that as an
21 authentication issue.
22 THE COURT: There was another related issue that I
23 bring to your attention. I was -- I've asked for some form of
24 schedule in order to assure myself that the parties were
25 tracked to do the things they had to do in preparation for
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1 trial. That request has not been followed.
2 Part of that request for a schedule, part of that
3 intend the intent of that request, was my understanding that
4 there will be issues of completeness in the case, and at this
5 point, the government has said, here are the final transcripts,
6 subject to various grammatical, spelling, other which we may
7 not be aware of for the conversations that we intend to -- but
8 we're not going to offer all of those, we're only going to
9 offer excerpts.
10 MR. BARKOW: Your Honor, on Tuesday or Wednesday of
11 next week we anticipate providing a substantial number -- I
12 can't give the number -- but it will be a substantial number,
13 more than 50, probably more than 75. I don't know the exact
14 number. It will be as many as we have done by that point of
15 excerpts of the transcripts of the very parts we intend to
16 offer, and that will happen on Tuesday or Wednesday of next
17 week, assuming no technological problems between then and now.
18 They're being generated now.
19 Additionally, although we gave your Honor an
20 indication of what we provided to the defendants as to the
21 transcripts your Honor was just talking about, that is the full
22 transcripts, not excerpted. We've continued to provide them to
23 the defendants. We're well above 100 on that.
24 THE COURT: All right.
25 MR. BARKOW: I think by the middle of next week there
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1 will be a substantial number of transcripts provided that will
2 take us probably through many weeks of this trial. We're going
3 to continual doing them and producing them, but the number that
4 we produce by the middle of next week would constitute weeks of
5 evidence.
6 We would suggest to deal with these issues of
7 completeness that perhaps when we provide the defendants with
8 our proposed excerpts, that within a week, they provide us with
9 their proposed completeness additions. Perhaps we can add some
10 of them, we might agree, and then those we don't agree, we can
11 present to the Court. But we can propose some kind of schedule
12 that we can air this issues out before bringing it to the
13 Court's attention.
14 And also, the defendants have noted I think in
15 Mr. Tigar's last letter the issue of -- or in one of the most
16 resent letters, the issue of translation disagreements. But we
17 haven't been specifically advised of any disagreements or
18 translations. They've had the draft transcripts for many
19 months. They've had all the recordings for many months.
20 And -- so we have not heard any actual disagreements, and we
21 would consider those as well. And we would propose that within
22 the same timeframe that they might respond with their
23 completeness objections, they might provide us with
24 transcription or translation disagreements so we can try to
25 work those out if that's possible as well.
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1 MR. RUHNKE: I agree in principal with the
2 government's thought that we should try to work this out and
3 try to get our objections. We the thought we're going to be
4 able to do it in one week after getting 75 to 80 redacted
5 transcripts while we're simultaneously selecting a jury in this
6 case and dealing with everything else in the case is of I think
7 highly, highly unrealistic. I don't know if other counsel
8 disagree, but that's asking -- not so much that it's difficult
9 but that's asking, respectfully, the impossible. Completeness
10 objections, we start talking about a master schedule and an
11 issue of how and when can we resolve completeness objections, I
12 think that's the thing we should be talking about. On some
13 levels, completeness will depend upon the context of where we
14 are in the case and what we hear. What may seem like a
15 reasonable completeness argument today may not be so reasonable
16 60 days from now.
17 THE COURT: No one has to decide all of these issues
18 prior to trial, providing that there is a schedule so that if I
19 am asked to rule on something, I have enough time to do that
20 prior to the time that all of this is being offered. It's --
21 because -- you know, the alternative is the government will
22 offer, as of next week, the government says, Okay, here's our
23 first month of transcripts and we intend to offer these, and I
24 have, at that point, no completeness designations, and unless
25 I'm given completeness designations in a reasonably timely
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1 fashion so I can rule on them, these excerpts go in; and then,
2 providing that the other issues are satisfied, then the
3 defendants have the opportunity to offer other parts in their
4 own case, if they wish to put on a case.
5 But, you know, I've repeated this to you before. You
6 know, it's just apparent to me that the parties really don't
7 talk. And you say, Not true, we really do. Okay.
8 MR. RUHNKE: Your Honor, just practically speaking, it
9 seems unfair to take us to task for not making -- for not
10 having earlier making completeness arguments when the
11 government -- we're in jury selection, and the government is
12 saying by next week.
13 THE COURT: I didn't take you to task for not making
14 completeness designations on excerpts you haven't received.
15 MR. RUHNKE: That's right.
16 THE COURT: I haven't.
17 MR. RUHNKE: Okay. We'll talk.
18 THE COURT: All I said was when the -- this began with
19 my comments to the government that the government really has to
20 produce excerpts so that completeness designations can be made,
21 and then it's really up to the parties to talk to provide some
22 reasonable schedule to get this done so that we don't face,
23 again, the issue that I was presented with after the
24 questionnaires had gone out and then told by the government
25 that all of this, really, every little bit of it, every last
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1 jot and tittle, had to be resolved prior to the time that the
2 parties opened.
3 MR. RUHNKE: We will endeavor to talk to the
4 government to try to agree upon something reasonable. But I
5 think our own point is one week after we're getting this here
6 in the middle of jury selection is not possible.
7 THE COURT: Let me raise one other perhaps related
8 issue, which is I got the box of designations from Miss Stewart
9 relating to attorney work product, and my question is: Is
10 there going to be a response to that, and if so, what the
11 schedule is going to be with respect to that?
12 MR. MORVILLO: Your Honor, that was not given to the
13 trial team, as you may know.
14 THE COURT: I thought part of it was and part of it
15 wasn't.
16 MR. MORVILLO: We received the cover letter. The
17 remainder was not given to the government. We think that it
18 makes sense to respond both to the attorney/client privilege
19 claims and the work product claims together to the extent that
20 that's possible, and the day for our response I believe is
21 June 2nd.
22 THE COURT: Okay.
23 MR. MORVILLO: So we would propose to the Court that
24 we respond to everything on June 2nd.
25 THE COURT: Okay.
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1 MR. MORVILLO: I have to coordinate with the Wall team
2 on that issue, but I believe they're okay with that schedule.
3 Did you hear that?
4 MR. TIGAR: Yes. Thank you very much, Mr. Morvillo.
5 If the government, with this production it's about to
6 make, would identify the material, this is the first week's
7 worth, the second week's worth and so on, give us some idea of
8 the order, then we could respond.
9 I've already asked Mr. Habib, who is on our team, and
10 we're already making a lot of progress, you know, what are the
11 translation issues here, what are the completeness issues here,
12 and also to flag the authentication issues. Go to the file
13 number get the file, create date and all that, that is progress
14 we've made, but until we know the order --
15 THE COURT: The government is going to tell you
16 approximately chronological.
17 MR. BARKOW: That's correct, your Honor.
18 MR. TIGAR: Thank you.
19 MR. PAUL: Your Honor?
20 THE COURT: That's what was said last time.
21 MR. PAUL: To go back to setting up the courtroom as
22 we proceed during the course of trial, I think I submitted -- I
23 know I submitted a letter to the Court advising your Honor that
24 we had requested the government to, so that my client could be
25 set up at least to listen to the tapes as they're being
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1 introduced, whether they are being utilized for the jury or
2 not, and I think the government's position is they desire not
3 to do that. So I raised that in a letter to the Court and I
4 raise it again today. It is our request that as the
5 transcripts are either presented to the jury, whether they are
6 completely in Arabic or Arabic and English, however they're
7 going to present them, that at the same time my client be set
8 up so that he can listen to these tapes, while in fact the
9 transcripts are being read to the jury, my client could be
10 listening to the actual conversation. That's what we've
11 requested.
12 MR. BARKOW: Your Honor, the remedy for this
13 situation, if it is indeed a problem, the problem lies with the
14 MCC and with its, to date, inability of Mr. Sattar to listen to
15 materials at the MCC. We have all been working, Mr. Sattar's
16 attorneys as well as the government, trying to make available a
17 meaningful opportunity to do that. But the remedy for that,
18 even if it's not cured, is not to provide discovery and put the
19 discovery process before the jury and to have the tapes played
20 in Arabic, which will be meaningless to the jury, and to take
21 up the jury's time to have them listen to them read in English
22 and then listen to Arabic tapes that they don't understand,
23 essentially doubling at a minimum the length of time.
24 THE COURT: I don't think that was the proposal. The
25 proposal -- there were two proposals in the letter, as I
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1 understood it. One was to make sure that there's some process
2 that Mr. Sattar can listen to the tapes with the transcripts
3 before the transcripts are actually read at trial. And he has
4 not been able to do that yet. So that was the first proposal.
5 The second proposal was, if that couldn't be done before trial,
6 that when the transcripts were being read, that he have ear
7 phones to be able to listen, not that the jury would listen
8 along, but that since he would be listening quietly with his
9 own ear phones --
10 MR. BARKOW: The only issue with that I think
11 potentially is that for example some of these calls could last
12 45 minutes and the government's excerpt might be one minute or
13 two minutes. And so I don't know if that's technologically
14 possible.
15 Aside from that, we don't have a problem with
16 Mr. Sattar listening to whatever he wants to with head phones
17 during the trial. Maybe I misunderstood the proposal.
18 MR. PAUL: That's exactly my proposal.
19 THE COURT: And with respect to the issue of excerpts,
20 I mean, you know, technologically you do this all the time.
21 MR. BARKOW: When they're in Arabic, though, I don't
22 know that anybody at the government trial table will be able to
23 key them up.
24 THE COURT: If they're only excerpts, it's -- it is
25 easier than to, it would seem to me, to provide him with the
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1 excerpts prior to trial so that he could listen to the excerpts
2 with the transcripts.
3 MR. BARKOW: We're not excerpting the recordings, in
4 part because we're not offering the Arabic recordings, in part
5 because the technological unfeasibility of doing so, and in
6 part because none of us speak any Arabic and we wouldn't be
7 able to do it and the people who speak Arabic are finalizing
8 the exhibits and finalizing the actual transcripts and
9 translations, and so we don't, quite honestly, I don't think we
10 have the resources to do the excerpting of the recordings even
11 if it were technologically feasible.
12 It seems that, unfortunately, the best remedy for
13 this -- and we are running out of time on this a little bit --
14 is for him to be able to listen to it in the MCC in a
15 meaningful way. I know that issue is still being worked on.
16 But I don't know that we can give to him Arabic excerpts for
17 him to listen to to correspond with the transcripts.
18 (Continued on next page)
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1 THE COURT: To the extent that this can be resolved at
2 the MCC, the MCC has shown itself very responsive to my
3 requests. At least that is my impression. So if there is a
4 request to have something that is reasonable at the MCC, let me
5 know and I will issue an appropriate request.
6 MR. BARKOW: I think that would probably help, your
7 Honor. You can speak with Mr. Sattar's lawyers on that.
8 THE COURT: But I can't just tell the MCC to do it to
9 make it happen. You have to explain to me what the
10 technological of it is so that I can reasonably put it into an
11 order to the MCC.
12 MR. BARKOW: I haven't had the communications with the
13 MCC. Ms. Baker can explain to your Honor in detail what the
14 situation is.
15 MS. BAKER: Just to be clear, your Honor, I have not
16 communicated directly with the MCC about this issue recently.
17 I did quite sometime ago. Recently I had some conversations
18 with Mr. Paul about the scope of the problem with the intention
19 of embarking on another round of trying to work with the MCC to
20 get the problem resolved.
21 THE COURT: Okay.
22 MS. BAKER: Mr. Morvillo and I have been trading calls
23 with Mr. Owen, the lawyer at the MCC, and if you like I can
24 summarize the issue we are trying to resolve.
25 THE COURT: I don't think it's necessary for you to do
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1 it. I am pleased that you are trying to work it out with the
2 MCC in a way that will resolve the problem and I don't have to
3 know the details of it. Okay?
4 MR. TIGAR: Your Honor, I hope I didn't hear Mr.
5 Barkow say that the tapes in Arabic or the recordings in Arabic
6 are not the evidence. They are evidence and we do intend or
7 wish to have the opportunity to cross examine translators about
8 the quality of what is there, the pauses, and even about
9 particular choices they have made about translations. To do
10 that we will need to be able to play the Arabic tapes at least
11 for the translator.
12 MR. BARKOW: I misspoke. That is what Mr. Morvillo
13 was telling me. I didn't mean to say that.
14 We intend to read the English translations but
15 obviously the Arabic portions would be available to be played.
16 I guess I can raise one other logistical issue with
17 Mr. Sattar's ability to listen to excerpts with completeness
18 objections if they get worked out on a rolling basis of any
19 sort, we wouldn't be able to make any, even if we were able to
20 excerpt the recordings those could just continually change.
21 THE COURT: But, you know, it's hard to deal with
22 these issues in the abstract. Many of these issues will be
23 resolved because I would assume that some of these calls, for
24 example, are sufficiently discrete that, you know, there would
25 be a reasonable portion that you are offering. To the extent
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1 that there is an issue with respect to the prison visits, I
2 don't know if there is or not with his listening to them.
3 MR. BARKOW: For the prison visits it will be less of
4 a problem because it's our intention to offer and play the
5 entirety of the redacted portion, the part that we, the trial
6 team, have access to and so the time correspondence between
7 what is offered and played in court should be very close to
8 what he might be able to be listening to simultaneously. The
9 problem arises more with the calls and probably a subset of the
10 calls.
11 There are definitely some we will play the call in its
12 entirety but there are others where the portion we offer, the
13 excerpted portion, is going to be substantially smaller.
14 THE COURT: Okay.
15 There was another motion in limine presented today.
16 What is the schedule for a response and a reply?
17 MR. TIGAR: I am sorry, are you asking us how much
18 time we want, your Honor?
19 THE COURT: Yes. Looking at it quickly, it was not
20 clear to me that this was a motion that had to be decided
21 before opening statements. I don't know.
22 MR. BARKOW: It depends what the defendants intend to
23 say in their opening statements. If they intend to refer, for
24 example, to the political situation in Egypt or the First
25 Amendment or some belief that the conduct they engaged in was
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1 protected, then we do believe it should be resolved before the
2 opening statements. If they don't intend to say anything that
3 touches on that, then it doesn't need to be decided.
4 MR. TIGAR: If your Honor please, I had briefly read
5 the motion. I think it is frivolous. I am therefore prepared
6 to waive a written response and to address it Friday at 2:30.
7 THE COURT: All right. That is a schedule.
8 Is there anything else that is outstanding? If not,
9 please be back here by 9:15 tomorrow morning and we will start
10 with the jurors at 9:30.
11 MR. DEMBER: It is not our intention going forward to
12 have all four government attorneys necessarily in the courtroom
13 during the individual voir dire.
14 Is that acceptable to the court?
15 THE COURT: Sure.
16 MR. DEMBER: Thank you.
17 MS. BAKER: Your Honor, just to be clear on that newly
18 filed motion in limine, the government specifically referred to
19 Ms. Stewart in the motion papers because she has raised these
20 issues in the past, but it's the government's view that were
21 any other defendant to wish to offer evidence of the political
22 situation in Egypt or to seek to invoke First Amendment
23 protection, that the arguments that we are making would apply
24 to that other defendant as well, and we have heard Mr. Tigar
25 agree to waive written responses but we wanted to find out what
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1 the other defendants thought about that.
2 MR. FALLICK: Your Honor, we will be prepared on
3 Friday to address the issues related to the motion filed today.
4 THE COURT: Mr. Stern, Mr. Ruhnke?
5 MR. STERN: No, I am not sure what the government
6 means when they say the political situation in Egypt since it
7 seems to me that is much of what this case is about. But we
8 don't intend to put in anything beyond what I think is going to
9 come out about the political situation, the sheikh's position
10 in the Islamic group and all of those kinds of things. First
11 Amendment issues I think we will leave to our colleagues here.
12 THE COURT: All right. So there is going to be no
13 written response to that motion.
14 Anything else?
15 See you all tomorrow at 9:15.
16 (Trial adjourned to May 20, 2004 at 9:15 a.m.)
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