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

This is the transcript of Day 56 of the trial, May 30, 2001.

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


   2   ------------------------------x


   4              v.                           S(7) 98 Cr. 1023

   5   USAMA BIN LADEN, et al.,

   6                  Defendants.

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

                                               New York, N.Y.
   9                                           May 30, 2001
                                               9:30 a.m.


  12   Before:

  13                       HON. LEONARD B. SAND,

  14                                           District Judge













   1                            APPEARANCES

            United States Attorney for the
   3        Southern District of New York
   4        MICHAEL GARCIA
            Assistant United States Attorneys

   7        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali




















   1            (Trial resumed)

   2            (Pages 6655-6659 sealed)

   3            (Jury present)

   4            THE COURT:  Good morning, ladies and gentlemen.

   5            JURORS:  Good morning, your Honor.

   6            THE COURT:  And we welcome back the four alternates,

   7   who have not been with us in the past several weeks, and we

   8   express appreciation and gratitude to you.  We understand it

   9   is very destructive of one's life to have these periods of

  10   time when you are on the jury and when you are not.  I assume

  11   when you are not, you adhere to all the admonitions that apply

  12   to jurors.

  13            Let me repeat something that I said yesterday for the

  14   benefit of the alternates who were not here, and that is that

  15   the verdict which the jury rendered yesterday is a final,

  16   complete, definitive verdict, and it is inappropriate to

  17   re-question or revisit any of the decisions that were made by

  18   the jury.  That is a given.  As I will explain in a moment,

  19   the process which we begin today is a process which follows

  20   the verdict rendered by the jury, and whereas the proceedings

  21   completed yesterday related solely to the question whether or

  22   not guilt had been proven beyond a reasonable doubt, the

  23   question which we begin to examine today is a different

  24   question.

  25            Because the proceedings are relatively new and


   1   unfamiliar, I am going to spend a moment or two explaining

   2   some of the things that will happen and introduce you to some

   3   of the terminology which has developed with respect to this

   4   process.

   5            I will furnish to you in writing before you begin

   6   your deliberations a full, definitive statement of the issues

   7   that you are to determine and the verdicts that you are called

   8   upon to render.  This is simply in the nature of a preliminary

   9   introduction, which I think is appropriate because this is the

  10   first time in the Southern District of New York that we will

  11   engage in this process.  So if it is somewhat unfamiliar to

  12   you, it is unfamiliar to many of us.

  13            Members of the jury, you have unanimously found the

  14   defendant Mohamed Rashed Daoud Al-'Owhali guilty of the

  15   following counts contained in the indictment:  One count of

  16   destruction of property of the United States resulting in

  17   death, as charged in Count 5; one count of the use of a weapon

  18   of mass destruction against a national of the United States

  19   resulting in death, as charged in Count 7; 213 counts of

  20   murder in the course of an attack on a federal facility

  21   involving the use of a dangerous weapon, as charged in Counts

  22   9 through 221; 41 counts of murder of officers and employees

  23   of the United States on account of their duties, as charged in

  24   Counts 233 to 273; and two counts of murder of an

  25   internationally protected person; as charged in Counts 278 and


   1   279.  These are all capital counts, by which I mean that the

   2   death penalty is a possible punishment for these offenses.

   3   Thus we are about to begin the penalty phase of this trial.

   4            We must now consider separately, with regard to each

   5   of these counts, whether imposition of a sentence of death is

   6   the appropriate sentence or whether the defendant should be

   7   sentenced to life imprisonment without the possibility of

   8   release.  The law leaves this decision exclusively to you the

   9   jury.  If you determine that defendant Al-'Owhali should be

  10   sentenced to death or to life imprisonment without possibility

  11   of release, the court is required to impose that sentence.

  12            The penalty phase itself amounts to a second trial

  13   and in many ways is like the trial you have just completed on

  14   the issue of guilt, although now the sole issue for your

  15   consideration is punishment.  You should note that in making

  16   all the determinations you are required to make in this phase

  17   of the case, you may consider any evidence that was presented

  18   during the guilt phase of the trial as well as information

  19   that is presented at this penalty phase of the trial.  The

  20   term "information" is sometimes used to describe what is

  21   presented to you in these proceedings.  The statute refers to

  22   these proceedings as a hearing, not a trial.  But you should

  23   understand that for our purposes, the terms "evidence" and

  24   "information" have the same meaning, that which is presented

  25   before you, and the term "information" is used because some of


   1   the rules of evidence applicable at the guilt phase of the

   2   case don't apply now.  The parties are given greater latitude

   3   in what may be presented for your consideration.

   4            During the penalty phase there will be opening

   5   statements by both sides.  There will be witnesses examined

   6   and cross-examined.  There will be closing arguments and

   7   instructions from the court.

   8            Please understand that what I am about to tell you is

   9   not a substitute for my closing instructions.  As I indicated,

  10   it is a broad general statement of what will transpire in the

  11   next several days.

  12            Obviously, it is impossible for me to overstate the

  13   importance of the decision before you or the careful and

  14   thorough consideration you give to this matter.  I remind you

  15   that at the time you were selected as jurors, each of you

  16   assured me that if this case required a capital punishment

  17   hearing you would follow the law as I told you it would apply,

  18   and it is imperative that you do that.

  19            Although Congress has left to juries the decision

  20   whether a defendant in Mr. Al-'Owhali's situation should be

  21   sentenced to death or to life imprisonment without possibility

  22   of release, it has specifically narrowed and channeled your

  23   discretion by requiring with certain findings to be made

  24   before the death penalty is even considered.  A sentence of

  25   death on a particular count may be considered if, but only if,


   1   you have made both of the following two findings unanimously

   2   and beyond a reasonable doubt with regard to the count you are

   3   considering:

   4            First, for each of the capital counts you must

   5   unanimously and beyond a reasonable doubt find that defendant

   6   Al-'Owhali's actions and his intent satisfied one or more of

   7   the following four elements, which I refer to as the gateway

   8   element or factors.  The term "gateway" is sort of

   9   self-explanatory.  It is the initial threshold which must be

  10   crossed unanimously and beyond a reasonable doubt.  (1) that

  11   the defendant intentionally killed the victim or victims of

  12   the particular capital offense charged in the respective count

  13   of the indictment; or (2) that the defendant intentionally

  14   inflicted serious bodily injury that resulted in the death of

  15   the victim or victims of the particular capital offense

  16   charged in the particular count of the indictment; or (3) that

  17   the defendant intentionally participated in an act

  18   contemplating that the life of a person would be taken or

  19   intending that lethal force would be used in connection with a

  20   person other than one of the participants in the offense and

  21   the victim or victims of the particular capital offense

  22   charged in the respective count of the indictment died as a

  23   result of the act; or (4) that the defendant intentionally and

  24   specifically engaged in an act of violence, knowing that the

  25   act created a grave risk of death to a person other than one


   1   of the participants of the offense, such that participation in

   2   the act constituted a reckless disregard for human life, and

   3   the victim or victims of the particular capital offense

   4   charged in the respective count of the indictment died as a

   5   direct result of the act.

   6            Those then are the four gateway elements or factors,

   7   one of which you must find, unanimously and beyond a

   8   reasonable doubt, before the process continues.

   9            At this point, let me define for you two terms that

  10   you will hear throughout this phase of the case:  Aggravating

  11   factors and mitigating factors.  In general, these factors

  12   relate to the circumstances of the crime or the personal

  13   traits, character or background of the defendant.  The word

  14   "aggravate" means to make worse or more offensive, to

  15   intensify.  The word "mitigate" means to make less severe or

  16   to moderate.  An aggravating factor, then, is a fact or

  17   circumstance that would tend to support imposition of the

  18   death penalty.  A mitigating factor is any aspect of the

  19   defendant's character or background, any circumstances of the

  20   offenses or any other relevant fact or circumstance that might

  21   indicate that the defendant should not be sentenced to death.

  22            The second finding that you must make unanimously and

  23   beyond a reasonable doubt, that is, after the gateway factor

  24   which we have already described, before you may consider

  25   imposition of a death sentence, is that the government has


   1   proved the existence of at least one statutory aggravating

   2   factor.  That's another term.  A statutory aggravating factor

   3   is one which is specifically set forth in the death penalty

   4   statute and which has been explicitly identified by the

   5   government for consideration in this case.  The government

   6   alleges the following statutory aggravating factors with

   7   regard to each of the capital counts, and you of course will

   8   have the text of these before you during your deliberations:

   9            (1) The deaths and injuries resulting in death

  10   occurred during the commission of other crimes, namely,

  11   certain offenses listed under a provision of the United States

  12   Code which we will identify for you in the instructions you

  13   will have before your deliberations.  So one is that the death

  14   and injuries resulting in death occurred during the commission

  15   of other crimes which we will identify.

  16            (2) The defendant in the commission of the offense

  17   knowingly created a grave risk of death to one or more persons

  18   in addition to the victims of the offense.

  19            (3) The defendant committed the offense after

  20   substantial planning and premeditation to cause the death of

  21   one or more persons or to commit an act of terrorism.

  22            (4) The defendant intentionally killed or attempted

  23   to kill more than one person in a single episode.

  24            If, after a fair and impartial consideration of all

  25   the evidence in the case, you unanimously find that the


   1   government has proven beyond a reasonable doubt at least one

   2   gateway factor and at least one statutory aggravating factor

   3   with regard to a particular capital count, you will then

   4   proceed to the balancing or weighing stage of your analysis.

   5   If, however, you find with regard to a particular count that

   6   no gateway factor has been proved beyond a reasonable doubt or

   7   that no statutory aggravating factor has been proved beyond a

   8   reasonable doubt, your deliberations will be over as to that

   9   count, and as to that count the court will impose on the

  10   defendant Al-'Owhali a sentence of life imprisonment without

  11   possibility of release.  If, but only if, you find the

  12   existence of at least one gateway factor and at least one

  13   statutory aggravating factor, you will proceed to the

  14   balancing stage of the analysis.  At that time you will

  15   consider whether you unanimously find that the government has

  16   proven beyond a reasonable doubt the existence of any

  17   nonstatutory aggravating factor, which refers to factors which

  18   are not specifically set out in the death penalty statute but

  19   which have been specifically identified by the government for

  20   consideration in this case.

  21            The government alleges the following nonstatutory

  22   aggravating factors with regard to each of the capital counts,

  23   and, again, you will have the text of these before you during

  24   your deliberation:

  25            (1) The defendant poses a continuing and serious


   1   threat to the lives and safety of others with whom he will

   2   come in contact.

   3            (2) As demonstrated by the deceased victims' personal

   4   characteristics as individual human beings and the impact of

   5   the deaths upon the deceased victims' families, the defendant

   6   caused injury, harm and loss to those victims and to their

   7   families and the defendant caused serious physical and

   8   emotional injury and grievous economic hardship to numerous

   9   individuals who survived the bombing.

  10            (3) The victims and intended victims included

  11   high-ranking public officials of the United States serving

  12   abroad and the offense was motivated by such status.

  13            Again, your finding as to any nonstatutory

  14   aggravating factor, that is, whether it exists, must be

  15   unanimous and beyond a reasonable doubt.

  16            In addition to considering the existence of any

  17   nonstatutory aggravating factors, you must determine whether

  18   any of you find that the defendant has established the

  19   existence of any mitigating factors by a preponderance of the

  20   evidence, and there are some important distinctions I want to

  21   highlight for you with respect to the proof of mitigating

  22   factors.  The defendant has the burden of proving any

  23   mitigating factors.  However, there is a different standard of

  24   proof as to mitigating factors.  The defendant is not, not

  25   required to prove beyond a reasonable doubt the existence of a


   1   mitigating factor.  He need only establish its existence by a

   2   preponderance of the evidence; that is, he need only be

   3   convinced that it is more likely true than not true in order

   4   to find that the mitigating factor exists.

   5            Also, a unanimous finding is not required.  Any one

   6   of you may individually and independently find the existence

   7   of a mitigating factor, regardless of the number of other

   8   jurors who may agree, and any juror who so finds may weigh

   9   that factor.  Thus, if even a single member of the jury finds

  10   that a mitigating factor has been proved, that member of the

  11   jury is allowed to weigh that factor in making up his or her

  12   own mind in weighing whether or not to vote for a death

  13   sentence.

  14            Mitigating factors.  Defendant Al-'Owhali alleges the

  15   following mitigating factors:

  16            (1) that other members of the conspiracy previously

  17   arrested or presently cooperating with the United States,

  18   guilty of or charged with planning and facilitating the

  19   bombings of the United States embassies and the killing of

  20   United States nationals will not be punished by death;

  21            (2) that the defendant is less culpable than those

  22   conspirators who planned and facilitated the bombing of the

  23   United States Embassy in Nairobi, Kenya, and continue to plan

  24   and execute similar acts in the future.

  25            (3) that the defendant does not have a prior history


   1   of criminal conduct.

   2            (4) that although having intentionally participated

   3   in an act contemplating that the lives of Americans be taken,

   4   the defendant did not intend that the Kenyan victims not

   5   employed by the United States Embassy be injured or killed.

   6            The fifth has three components:  (a) that the

   7   defendant intended by the commission of the offenses of which

   8   he has been convicted to save members of his Umma, that is,

   9   his religious community, regardless of nationality, from

  10   imminent death, injury, terrorism and genocide; (b) that the

  11   defendant committed the offenses for which he has been

  12   convicted based upon his sincere belief, whether or not you

  13   agree with that belief, that his conduct was mandated by his

  14   religion; (c) that the defendant believed that the United

  15   States embassies were legitimate military targets because he

  16   had the sincere belief, as proposed by Usama Bin Laden, that

  17   embassies fulfilled military and intelligence surveillance

  18   functions which furthered the aims of the United States

  19   government and opposed the aims and objectives of Usama Bin

  20   Laden;

  21            (6) that the defendant committed the offenses for

  22   which he has been convicted while young in age;

  23            (7) that the defendant was indoctrinated in

  24   conservative Muslim teachings which promoted jihad and

  25   martyrdom during his early and formative years.


   1            As you can see, the defense is entitled to present

   2   evidence in mitigation of sentence that consists of a broad

   3   range of information about the defendant Al-'Owhali's

   4   background, record, character and circumstances of defense

   5   which may lead a juror to conclude that the defendant should

   6   not receive the death penalty but instead should be punished

   7   by spending the rest of his life in prison.

   8            Once this process of deciding on the existence of

   9   aggravating and mitigating factors has been completed, each of

  10   you must individually engage in a balancing process in which

  11   you will weigh the aggravating factor or factors, statutory

  12   and nonstatutory, that all 12 jurors have unanimously and

  13   beyond a reasonable doubt found to exist, against any

  14   mitigating factor or factors which you, individually or with

  15   other jurors, have by a preponderance of the evidence found to

  16   exist.

  17            The relevant statute then tells us that after

  18   weighing the aggravating and any mitigating factors, the jury

  19   must "consider whether all the aggravating factor or factors

  20   found to exist sufficiently outweigh all the mitigating factor

  21   or factors found to exist to justify a sentence of death, or,

  22   in the absence of a mitigating factor, whether the aggravating

  23   factor or factors alone are sufficient to justify a sentence

  24   of death."

  25            That's the end of the quotation from the statute.


   1            In carrying out this weighing and balancing process,

   2   the members of the jury are not mere fact finders.  Jurors are

   3   called upon to make a unique individualized judgment about the

   4   appropriateness of sentencing another human being to death.

   5   This is not a mechanical process.  Neither is the decision

   6   determined by raw numbers.  Members of a death penalty jury do

   7   not simply count factors.  Instead, individual jurors consider

   8   such factors qualitatively, assessing the weight and value of

   9   each factor.  Any one factor proved, if sufficiently serious,

  10   may outweigh several mitigating factors.  On the other hand, a

  11   single mitigating factor may outweigh several aggravating

  12   factors.

  13            In short, what is called for in weighing the varying

  14   factors is not arithmetic but an individual's careful,

  15   considered, and mature judgment.  Again, whether or not the

  16   circumstances in this case justify a sentence of death is a

  17   decision the law leaves entirely to you, and you should not

  18   take anything I may say or do during this phase of the trial

  19   as indicating what I think of the evidence or what I think

  20   your verdict should be.  That is your responsibility.

  21            As I mentioned earlier, you must deliberate and

  22   determine the sentence to each of the capital counts

  23   separately.  You may conclude that aggravating and mitigating

  24   factors should receive different weights in conducting the

  25   separate weighing of the aggravating and mitigating factors


   1   applicable to each of the capital counts.

   2            As we begin this process, two final points I wish to

   3   make, or perhaps emphasize.  The first, which I mentioned

   4   briefly before, is that you are never required to return a

   5   verdict of death.  The law provides you with guidance in

   6   making a decision but, as stated earlier, your decision on

   7   this question of life or death is a uniquely individual

   8   judgment which the law in the final analysis leaves up to each

   9   of you.

  10            The last thing I wish to explain, to restate, is that

  11   in order to impose a sentence of death, all 12 jurors must

  12   agree that death is the appropriate sentence.  If the jury

  13   does not vote for a sentence of death, then I will impose a

  14   sentence of life imprisonment without the possibility of

  15   release.  I have no other sentencing option.

  16            I will repeat and elaborate on these points after you

  17   have heard all of the evidence and before you begin your

  18   deliberations, and, again, as in the prior proceedings, you

  19   will have a special verdict form to assist you.  As I said

  20   earlier, because these procedures are relatively new in our

  21   system of justice, I thought it advisable that you have this

  22   preliminary explanation.  My final and definitive instructions

  23   will be in writing and available to you during your

  24   deliberations.

  25            I thank you for your patience and attention, and we


   1   will turn now to the opening statement made in the first

   2   instance by the government.

   3            MR. FITZGERALD:  Good morning.

   4            JURORS:  Good morning.

   5            MR. FITZGERALD:  It was about three weeks ago at the

   6   end of my closing argument I stood before you and I talked to

   7   you about a woman named Roselyn Wanjiku Mwangi, the woman who

   8   was buried beneath the rubble of the Ufundi House on August 7,

   9   1998, waiting and hoping to be rescued.  You learned that,

  10   tragically, she was not rescued in time and she died.  At that

  11   time I reminded you and me and all of us in this room that she

  12   was not just a name, not just a count in the indictment, but a

  13   person, a human being with a family and a personality, with

  14   hopes and with dreams.  I asked you at that time to hold the

  15   defendant Mohamed Al-'Owhali accountable for her murder,

  16   accountable for delivering the bomb that turned the Ufundi

  17   House into a heap of rubble beneath which she was buried.  By

  18   your verdict, you have found the defendant Al-'Owhali guilty

  19   of her murder.  He brought the bomb that turned a seven-story

  20   building into a tomb for Roselyn Wanjiku Mwangi and so many

  21   others.

  22            But justice is not done yet.  You are here today to

  23   decide the most serious question a jury can decide, which is,

  24   what punishment should Al-'Owhali receive for the horrible

  25   crimes he committed that day.  I submit to you that based on


   1   the evidence you have seen so far at the first phase of the

   2   trial and the evidence you will see over the coming days, each

   3   of you will be convinced in the end that the only just

   4   punishment, the only punishment that does justice for the

   5   victims, the only punishment that fits the crime is the death

   6   penalty.

   7            Judge Sand just explained the process to you and the

   8   aggravating factors.  I would like to talk to you this morning

   9   about just two of the aggravating factors.  The first one is

  10   future dangerousness.  The government will prove to you beyond

  11   a reasonable doubt that the defendant Al-'Owhali poses a

  12   future danger to anyone he will come in contact with if he is

  13   sentenced to spend the rest of his life in jail.  The second

  14   factor and the most important factor is the impact

  15   Al-'Owhali's bombing had on the victims, the horrific impact.

  16            Let's talk for a moment about future dangerousness.

  17   You have seen already most of the proof of Al-'Owhali's future

  18   dangerousness.  You learned that he went to Afghanistan,

  19   attended a basic terrorist training camp.  You learned that

  20   after that he went to three more terrorist training camps run

  21   by Al Qaeda, was trained in how to kidnap, how to take

  22   hostages, how to take over buses and planes.  He was trained

  23   in how to take over buildings.  And you learned that after he

  24   fought with the Taliban he took a mission.  He took a mission

  25   to leave Afghanistan, to go to Africa, to carry out a


   1   terrorist attack against Americans.  When he got to Nairobi

   2   and when he met with Saleh and Harun at 43 Runda Estates, he

   3   was briefed on the plan.  He knew there were two attacks, the

   4   attack on the embassy in Nairobi, and he knew about the attack

   5   on the embassy in Dar es Salaam, Tanzania.

   6            Most importantly, Al-'Owhali went with others to the

   7   scene of the crime two days before the bombing.  The defendant

   8   Al-'Owhali went to a building in bustling downtown Nairobi in

   9   broad daylight, and he saw what it was:  A building, a large

  10   building with glass windows, with people working inside, with

  11   people walking in and people walking out, and a building next

  12   door and an even larger building next door to that, in a

  13   downtown area where people passed on the street, people drove

  14   by in cars, people went by on buses.  And he went ahead, and

  15   he came back on Friday, August 7, in that bomb truck on a

  16   mission of death.  And he came there and the bomb went off,

  17   and he was at the scene alive.  He had to see the carnage he

  18   had wrought.  There were people lying there dead.  There were

  19   people badly, badly injured and maimed.  And he went to the

  20   hospital himself.  He went to the hospital with his cuts and

  21   his bruises, and he was treated in the same hospital with his

  22   victims.  And yet after all he did, after killing hundreds,

  23   after maiming, injuring and blinding -- and you have heard

  24   that the injuries were more than 4,000 -- and seeing it at the

  25   scene, and seeing it at the hospital, he posed for that


   1   picture, the picture for the reporter.  Posed like he was some

   2   sort of champion.  An utter and total lack of remorse.

   3            I submit to you that any person like Al-'Owhali who

   4   would do when he did to human beings, who could leave that

   5   carnage in a downtown street and pose for that picture poses

   6   the ultimate danger to anyone he will come in contact with in

   7   the jail system.  Because remember, if he is in a jail, he is

   8   in a jail of the United States, a sworn enemy, the enemy he

   9   wants so badly to kill.  To him, the guards in that jail will

  10   represent the enemy forever.

  11            Let me talk to you now about victim impact, which I

  12   submit to you is the most important aggravating factor for you

  13   to consider.  Words, numbers cannot describe the horror that

  14   Al-'Owhali wrought on August 7, 1998.  I am going to make an

  15   odd statement to you that, sadly, I think you will understand

  16   in a couple of days.  You as a jury have sat on a bombing

  17   trial since early February 2001.  After all these months you

  18   have heard precious little about what that bombing did to

  19   human beings.  That was appropriate, because at the first part

  20   of the trial your task was to decide whether or not with the

  21   defendant Mohamed Al-'Owhali was guilty.  This phase of the

  22   trial is different.  You need to understand the pain, the

  23   horror and the agony that that bombing put so many people, so

  24   many families through.  You need to weigh that in the

  25   balancing, in making your reasoned, moral judgment as to the


   1   appropriate penalty.

   2            Let me give you some examples of what it is at the

   3   first phase of the trial you heard and what it is that you

   4   will hear and see and experience at this phase of the trial

   5   over the course of the next few days when the government calls

   6   victims before you.

   7            You may remember there was brief testimony at the

   8   first part of the trial from a man named Frank Pressley.  He

   9   probably testified for 10 or 15 minutes.  He worked at the

  10   embassy, and he had part of his jaw ripped out by the force of

  11   the explosion.  He was an information management officer.  He

  12   worked in communications.  He told you that on the morning of

  13   August 7, shortly before 10:30 in the morning, he went

  14   downstairs in the embassy to meet with a woman named Michelle

  15   O'Connor.  Michelle O'Connor was a colleague in the embassy

  16   but she was also a neighbor of Mr. Pressley and a close

  17   friend.  Frank Pressley had children, Michelle O'Connor had

  18   three daughters.  The Pressley children and the O'Connor

  19   daughters played together.  Frank Pressley told you that

  20   shortly before 10:30 in the morning he and Michelle O'Connor

  21   were talking about a fax machine that Michelle O'Connor could

  22   not get to work properly.  Obviously, as Frank Pressley and

  23   Michelle O'Connor focused on the fax machine as the issue of

  24   the day, they had no idea what the defendant Al-'Owhali had in

  25   store for them just seconds away, because as they spoke about


   1   the fax machine, Al-'Owhali and Azzam were coming in a truck,

   2   a truck loaded with a bomb hurtling down Haile Selassie

   3   Avenue.

   4            Pressley told you something else.  As he turned and

   5   walked away from his conversation with Michelle O'Connor, he

   6   saw some other people in the area.  One was Lydia Sparks, whom

   7   you will hear from.  The other was Jay Bartley, the young,

   8   college-aged son of Julian Bartley, the consul general.

   9            Frank Pressley heard a noise, a small explosion, an

  10   explosion you now know was one of Al-'Owhali's stun grenades.

  11   He didn't go to the window, which is probably why he is alive

  12   and able to come before you and testify.

  13            But thereafter, a huge explosion went off.  It threw

  14   Frank Pressley into the air.  He picked himself up with part

  15   of his jaw missing, and through the darkness and the dust he

  16   started walking down the embassy hall.  He walked past with

  17   Michelle O'Connor, that friend, that colleague, the mother he

  18   had just been speaking with.  And you heard from Dr. Gretchen

  19   McCall.  Michelle O'Connor had basically been decapitated.

  20            Frank Pressley also told you that when he walked down

  21   the hall he walked past the legs of an unidentified man.

  22   Gretchen McCall also told you that young Jay Bartley, his legs

  23   were thrown off by the force of the blast, the blast of

  24   Al-'Owhali's bomb.

  25            At that moment, when young Jay Bartley had his life


   1   stolen from him by the defendant Al-'Owhali, elsewhere in the

   2   same building his father Julian Bartley was also killed by

   3   that same blast.  Later today, the government's first witness

   4   from that witness stand will be Susan Bartley.  She will tell

   5   you what Julian Bartley was like as a man, as a human being,

   6   as a husband, as a father.  She will tell you about her son

   7   Jay Bartley, what he was like.  She will tell you the pain she

   8   has suffered with her daughter Edith, to have both of them

   9   stolen from her in the same instant.  You need to know that.

  10            Frank Pressley told you something else.  He told you

  11   that after he walked past Michelle O'Connor and Jay Bartley,

  12   he walked out of the embassy building and he went to look for

  13   his own wife, because Frank Pressley's wife worked at the

  14   embassy that day.  She was fortunate enough to live through

  15   the bombing, but when he went outside he didn't know that.

  16   And he saw a man by the name of Howard Kavaler.  Kavaler was

  17   his wife's boss.  He went to Howard Kavaler and he said do you

  18   know where my wife is?  Mr. Kavaler didn't know.  Frank

  19   Pressley told you one thing.  He said Kavaler was standing

  20   there, nervous and crying.  You will learn from Howard Kavaler

  21   when he takes the witness stand what happened to him that day,

  22   because Howard Kavaler's wife also worked in the embassy, and

  23   on August 7, 1998, his worst nightmare came true.  He lived

  24   through that bombing but his wife was killed.  Howard Kavaler

  25   will tell you what a hole that left in his life and the void


   1   it left in the lives of the two young daughters, Tara and

   2   Maia, that lost their mother that day.

   3            The first phase of the trial you heard from Staff

   4   Sergeant Daniel Briehl, a United States marine who was off

   5   duty.  Yet he came by the embassy that morning to drop off

   6   someone whose name you saw in the indictment.  It was Jessie

   7   Nathaniel Aliganga.  Sergeant Aliganga went in to cash a

   8   check.  When he went in to cash a check, that's the last time

   9   he ever cashed a check, because he was killed.  But you heard

  10   nothing about Jessie Nathaniel Aliganga as a person.  In fact,

  11   you learned that he liked to be called Nathan.  He was a good

  12   marine.  He was a great man.  You will hear about him as a

  13   person, as a human being, as a person with a great smile, a

  14   wonderful personality, hopes, dreams and accomplishment, when

  15   his mother Clara comes to tell you about her loss.

  16            You need to know about the loss not only of the

  17   people in the embassy building but the people next door.

  18   Remember that Ufundi House, that many-storied structure just

  19   flattened.  And think about the pain and suffering of the

  20   people who had loved ones, spouses, daughters, friends,

  21   relatives who worked in that building and showed up on the day

  22   of the bombing and just saw that it was gone.  You will learn

  23   that there were a hundred bodies of human beings buried in the

  24   rubble of the Ufundi House.  You heard at the first phase from

  25   Sammy Nganga who told you about his two days buried beneath


   1   the rubble.  But he lived.  And he told you about his pain,

   2   and how he was talking to Rosie Wanjiku during those two days,

   3   hoping that she would survive.  You heard that she did not.

   4   But her husband has come to testify, to tell you what Rosie

   5   was like as a human being, as a person, as a mother.

   6            The pain didn't stop at those buildings, because you

   7   saw that tall structure, the Kenyan Cooperative Bank Building.

   8   Think about the force of the blast in this way.  Ambassador

   9   Bushnell was on the top floor, some 23 stories up.  The bomb

  10   was in the parking lot down at the basement level.  When the

  11   bomb went off, the ceiling of the top floor of that giant

  12   structure collapsed.  Ambassador Bushnell was lucky enough to

  13   escape without permanent serious physical injury, but many

  14   others were not.

  15            You will hear from a woman named Teresia Karanja, who

  16   will come here and testify.  For her, August 7, 1998 began

  17   like any other day.  She went to work, she walked in the

  18   building, she went up to her office, and she began her day.

  19   But by the end of the day she could not walk.  She was carried

  20   out of the building as a paraplegic.  She will come before

  21   you.  She will testify and she will tell you about her pain.

  22   She will testify from a wheelchair she did not need before

  23   that day.  When she walks in, the first thing that may strike

  24   you is that she was reduced to a wheelchair by Al-'Owhali's

  25   bomb.  But when she leaves, you will be overwhelmed by her


   1   dignity and her strength.  She is a profile in courage that

   2   you need to hear from.

   3            And the buses.  You heard at the first phase of the

   4   trial about the people you ever unfortunate enough to be

   5   traveling in the buses down Haile Salassie Avenue.  You may

   6   hear about Minna Hopje, who when she looked out the bus with

   7   the stun grenades and the blast came threw she lost her

   8   eyesight.  Al-'Owhali, one of the few people who knew about

   9   the bomb that was about to go off, turned and ran to save his

  10   own life.  He ran south to Haile Salassie Avenue, south to

  11   where the buses were going by.

  12            (Continued on next page)















   1            You're going to hear from someone else who was on one

   2   of those buses that day.  You'll hear from Sandeep Patel

   3   Jadava, a 12 year old boy that day coming home from his last

   4   day of school, and he played at school having gotten his

   5   grades, and was on the bus with his two brothers and when the

   6   bomb went off the glass ripped through one of Sandeep's eyes

   7   and stole from him his sight in his right eye and badly

   8   damaged his left eye.

   9            When you see him testifying, you will now see a 15

  10   year old boy forced to become a man way ahead of his time.

  11   You will learn that the defendant 'Owhali stole the sight from

  12   one of his eyes and stole his youth.

  13            You will learn something else.  August 7, 1998 when

  14   Sandeep was taken to the hospital and they saw what had

  15   happened to one of his eyes, they had to take him to another

  16   hospital to operate on.  Sandeep Patel does not know this, but

  17   when he was taken to MP Sha Hospital to be operated on that

  18   was the same hospital that Al-'Owhali went to for his cuts and

  19   bruises.  Sandeep Patel was being treated in the same hospital

  20   as his bomber.

  21            A word about people being blinded.  We have to

  22   understand that you're gong to hear a lot about flying glass

  23   in the course of the next few days, and what happens in a

  24   downtown bustling area with buildings with windows, surrounded

  25   by buildings with more windows, and cars and buses with glass


   1   is that when a bomb goes off all those windows turn into

   2   thousands and tens of thousands of little swords, fly through

   3   the air and cut and rip, and tear and maim and blind and kill.

   4            You will have to know what that pain caused.  You'll

   5   hear from a woman named Ellen Bomer who was working at the

   6   American Embassy.  She heard Al-'Owhali's stun grenades.  She

   7   made the mistake of going to the window to see what happened.

   8   Now she's completely and totally blind.

   9            Let's talk for a minute about photographs.  You will

  10   see a limited number of photographs during this part of the

  11   trial.  Some of the photographs will show you the victims who

  12   were killed while they were alive so you have a sense that

  13   it's not just a name, but a person and a personality, so you

  14   can know that it was a human being that was stolen from all of

  15   us.

  16            You will see some photographs of injuries, and when

  17   you see that recognize that as painful as it is to look at

  18   some of those photographs for the people that were there on

  19   August 7, 1998 they had to live through that pain or die

  20   through that pain, and for those that survived, they did not

  21   see a photograph, they saw a running unending horror, a

  22   picture that they could not stop and for some it may have been

  23   the last thing this saw.

  24            For others it's a nightmare that does not end.  And

  25   remember when you see the witnesses that you're seeing them


   1   almost three years later, and you can still feel their pain.

   2   A word about the witnesses.  You will not hear from a relative

   3   of every victim who was killed.  You cannot.  It's so great

   4   the atrocity that al'Owhali committed that we can't bring

   5   before you a relative of each 213 people who were murdered.

   6   We are going to bring before you a cross section, but remember

   7   when you see someone testify before you and tell you how they

   8   lost their wife, their husband, their daughter, or their son,

   9   that there are a dozen more or dozens more behind them that

  10   suffered a similar fate.

  11            A word about the injuries.  The frightening thing in

  12   this case is to think about how many people were killed, 213,

  13   and how to get a sense that all those people are human beings

  14   that for everyone killed there is a family torn asunder.  You

  15   can also forget that there are injuries.

  16            You heard at the first part of the trial by

  17   stipulation that there were more than four thousand injuries.

  18   There are no counts for specific injuries.  If we read the

  19   individual count for each person injured you'd still be here

  20   today, if we if we had a count for every person who is harmed,

  21   injured or maimed in that blast.  Remember when you see

  22   Teresia Karanja, reduced to being a paraplegic, when you see

  23   Ellen Bomer who can see no more, that they are just one and

  24   two out of more than four thousand injuries.

  25            Let me talk to you a moment about the pain, about the


   1   emotion.  It will not be easy to call before you the people

   2   who suffered through this grievous atrocity.  It will not be

   3   easy to ask questions.  It certainly will not be easy for them

   4   to answer questions.

   5            It's not going to be easy for you to sit there and

   6   listen and hear and feel that pain.  That's only natural that

   7   you may sit there and say to yourself at some point, do I

   8   really need to hear this?  Did I really need to see this?  Do

   9   I need to see one who has lost their sight?  Do I need to hear

  10   from a woman who lost her husband and her son in the same

  11   instance.

  12            Make no mistake about it, you do.  You are sitting

  13   here to make the most serious moral judgment.  You're entitled

  14   to the most serious information and you must weigh the pain of

  15   that horror that the defendant Al'-Owhali caused by his bomb

  16   in making your decision, and remember when you see a

  17   crosssection, a glimpse of the pain and suffering that it is

  18   the defendant who brought that horror into this world.  It's

  19   the defendant Al-'Owhali who is responsible for that snapshot

  20   of horror and pain that you will see.

  21            You will have your emotions affected.  We are not

  22   asking you to make any decision based upon emotion.  We're

  23   asking you to make decisions based upon hard horrible facts

  24   that you need to be aware of.  I will close by reminding you

  25   of your oath.  Each of you at the beginning of the trial took


   1   an oath that said if you found the defendant Al'-Owhali guilty

   2   of the murders he was charged with you would fairly, honestly

   3   and carefully deliberate at the penalty phase.  And we know

   4   you will.

   5            You knew at the beginning that the law provides that

   6   for murder a person can be punished by death, that there are

   7   some cases for which the death penalty is the appropriate

   8   punishment.

   9            I submit to you based upon the evidence you have

  10   heard to date from the first part of the trial, and based upon

  11   what you will see of the horrible indescribable pain and

  12   suffering the defendant caused, at the end of this proceeding

  13   each of you will be convinced that the only just punishment

  14   for this crime, the only punishment that does justice for the

  15   victims is the death penalty.

  16            Thank you.

  17            THE COURT:  Thank you, Mr. Fitzgerald.  Mr. Baugh.

  18            MR. BAUGH:  Good morning.  It's been weeks since I

  19   spoke with you.  Your Honor.  You've already heard now, this

  20   is your third opening.  You heard openings during the guilt

  21   phase and now you're hearing an opening during the punishment

  22   phase.

  23            And you've heard from Mr. Fitzgerald.  Just like with

  24   the first part of the trial, the purpose of an opening

  25   statement is to give you an idea of where we plan to go with


   1   the information we're going to present so you'll know to

   2   analyze it as it comes in.

   3            When I used to teach law students I would tell them

   4   that a trial is like a puzzle, and the purpose of the opening

   5   statement is to show you the puzzle box, show you the top so

   6   you know what the picture is going to look like so you can

   7   understand where these pieces go.

   8            During this phase of the case the government will be

   9   putting on evidence of its aggravators and the Court has

  10   defined those for you.  The defense will be putting on

  11   evidence of its mitigators and the defense has defined that

  12   for you.  But I want you to understand is that mitigators are

  13   not an excuse, and I don't think that anyone can make an

  14   excuse for what happened in this case.

  15            The purpose of mitigators is not to offer you a

  16   justification for what the defendant has done because there

  17   can be no justification.  However, there can be for whatever

  18   purpose it should be used, an explanation because you see

  19   first, as we go through this part of the trial there are

  20   certain issues that are no longer in controversy.  The

  21   defendant has been convicted beyond a reasonable doubt by you

  22   of doing certain things.  He is guilty of this charge under

  23   the law.  You have found that he did the acts that were

  24   alleged.  You found that the statement he gave to Special

  25   Agent Gaudin by your verdict you have found that that


   1   statement was voluntary, and that you can consider it in

   2   determining what should be the appropriate sentence.

   3            Additionally, something that has been resolved is

   4   that no matter what happens from this point forward in this

   5   case, that young man right there will either be killed by you

   6   or he will spend the rest of his life in prison in a country

   7   that is not his own, and that is it.  Those are the only two

   8   options available.  So to a certain extent many options are

   9   gone, and that is the only thing that remains.

  10            If all 12 of you vote that he will die, he will die,

  11   and no one can stop it, not that judge, and not any of us.

  12   I'm serious.  The Judge has a duty to, if you vote it, he has

  13   to sign the order.

  14            Now, the mitigators that we're going to offer, and

  15   the Judge has told you what they are, they can be

  16   circumstances of the defendant's life or they can

  17   circumstances of the offense, the purpose of the defense in

  18   this portion of the case is for the past four months you've

  19   heard a lot of evidence about who was killed, and who did the

  20   killing.  You've heard about where it happened.  You've

  21   learned about how it happened.  And you know when it happened.

  22   August 7, 1998 will never be the same.

  23            But you've heard precious little of why, and to

  24   understand the importance of this some day if you vote for

  25   death, you'll pick up the paper, and you'll see that that


   1   young man over there is going to be killed.  And when you read

   2   that, you should know as much about the circumstances of this

   3   case so that when you read it you will say:  I know today just

   4   like I knew the day that I said that he should die, I know

   5   that was the only appropriate sentence.

   6            You are going to sign a piece of paper saying that if

   7   you give him death that you would have given him death even if

   8   he were not Muslim, if he were not Arab, if he were a

   9   American, if he lived in Indiana, the decision would have been

  10   the same.  And you are going to be, by understanding the

  11   circumstances, you will be confident of the decision.

  12            Why does a young man agree to die?  Why does Usama

  13   Bin Laden hate America so?  Why is it that so many young

  14   people, people who should be worried about, am I going to meet

  15   a girl?  Am I going to grow up?  Am I going to have children?

  16   Am I going to find a job?  Why is it these people are willing

  17   to kill themselves to strike at America?  Why is it, as

  18   al-Fadl testified, why is it that Mr. Bin Laden and al Qaeda

  19   have more people, more young people who are willing to die

  20   than they have projects for them to do?  Why is that?

  21            Now, there has been some testimony that Mr. Bin Laden

  22   hates America, calls it the great Satan.  Is that the

  23   explanation?  No.

  24            To understand the circumstances of this you have to

  25   understand all of what went on and what has gone on that led


   1   up to this, because then and only then can you determine, only

   2   by understanding as much as possible can you determine is

   3   death the only appropriate sentence.  Appropriate to what?

   4   And that's the key, and you're going to have to define what

   5   that is.

   6            Now, I will tell you, and I will agree with the

   7   United States, you should not forget about the victims in this

   8   case.  I want you when you're deliberating in this case to

   9   remember the human beings that were killed, the human beings

  10   that have been maimed and injured, not just the Americans who

  11   there has been testimony about, in fact, because it's going to

  12   be hard and it should be hard.

  13            It should be hard.  You should work with this, with

  14   the same dedication and intensity you worked for your

  15   deliberations on the guilty phase, because each of you is

  16   going to have to be convinced beyond a reasonable doubt, each

  17   of you as individuals, that death is the only appropriate

  18   sentence.

  19            You'll be seeing these pictures at the close of the

  20   government's case and you'll be reading these names.  These

  21   are the people that died that day.  And I'm going to try and

  22   pronounce their names to you.  Never forget them, and I don't

  23   forget them.  Bonita Achola is dead.  Samson Odour Ahomo,

  24   Margaret Akinyi, Jessie Nathaniel Aliganga, Emma Anulo,

  25   Elizabeth Anyango, Monicah Apondi, Rosetta Barasa, Julian


   1   Leotis Bartley, Julian Leotis Bartley Sr..

   2            Chrispine Bonyo, Daniel Cheruiyot, Jean Rose Dalizu,

   3   Eva Gacheru, Alice Nduta Gachiri, Jame Wangui Gakuru, Ralph

   4   Johnstone Gathumbi, Justus Njeru Geoffrey, Agne Wanjiku Gitau,

   5   Lawrence Ambrose Gitau, Benard Mugambi Gitonga, Susan Gitu,

   6   Rosemary Njery Gituma, Hassan Guracha, Burhan Aden Hanshi.

   7   Molly Hardy, Kenneth Hobson, HIndu Omar Iddi.

   8            Tony Irungu, George Irungu, Jane Wangari Itutia,

   9   Dorine Aluoch Jow, Gilbert Mugo Kahindi, John Kahuthu,

  10   Geoffrey Mulu Kalio, Joel Kamau, Francis Kamiti, Margaret

  11   Kangi, Rachel Kraba, Charles Karanja, Lucy Karigi, Beatyrice

  12   Kariuki, Moses Kariuki, Kristein Karumba, Prabhi Kavaler,

  13   Thomas Khahenzi, Francis Kibathi;

  14            Jackline Kibera, Rael Biiri Kimami, Felistas Njeri

  15   Kimani, Stephen Kimani, Philip Kioko, Joseph Kiongo, Teresa

  16   Kiongo, Arlene Bradley Kirk, David Koimburi, Naftali Kuria,

  17   Juliana Kwali, Peter Kyalo, Moses Kyule, Tirus Macharia.

  18            Dennis Evans Radcliffe Madegwa, Francis Maina, Linda

  19   Maingi, Fred Maloba, Cecilia Mamboleo, Mary Martin, James

  20   Masea, Anne Mathenge, James Mathenge, Pity Mathenge, Simon

  21   Peter Matu, Daniel Maundu, June Mary Maweu, Lydia Mayaka.

  22            Allan Mbandu, Doreen Mbayaki, Pamela Mobya, Rachael

  23   Mobya, Francis Mboya, Lucy Mbunja, Stephen Mburu, Catherine

  24   Mibere, Elizabeth NMito, Ahmed Mohammed, Edward Mokaya, Lucian

  25   Mugambi, Sharon Mugo, Josephat Muia.


   1            Emmanuel Mujyambere, Samuel Mulalya, Francis Mulehi,

   2   Edward Mungai, John Mugai, Domi Munzala, Tommy Munzala,

   3   Caroline Muraguir, Fiddes Muritu, Alice Muriuki, Mary Muriuki,

   4   Frobert Murijuki, Dominic Musyoka, Ruth Musyoka;

   5            Wilson Mutahi, Florence Muthama, Josephine Mutinda,

   6   Emmanuel Mutiira, Catherine Mutua, Patrick Mutui, Caroline

   7   Mutuiri, Gloria Mutuiri, Gabriel Mwadime, Harrison Mwangi,

   8   Roselyn Mwangi, Samuel Githua Mwangi, Moses Aston Mwani, Anna

   9   Mwaniki;

  10            Isaac Mwaria, Abdalla Mwilu, Eliabeth Nakhale,

  11   Geoffrey Namai, Moses Namayi, Mary Ndirangu, Simon Ndirangu,

  12   Caroline Ndolo, Martin Nduati, Julius Ndulu, Edwin Ndumbi,

  13   Peter Ndungu, Ephraim Ndunu, Joyce Ng'ang'a.

  14            Loice Nganga, John Ngaragari, Peter Ngugi, Jacinta

  15   Njau, Siomon Njiima, Abel Njiru, Agatha Njoki, Catherine

  16   Njoroge, Francis Njoroge, Grace Njoroge, William Njoroge,

  17   Francis Njuguna, Godfrey Njuguna, Patrick Njuguna.

  18            Francis Njuige, Michael Nyademba, Vincent Nyoike,

  19   Janet Nzioka, Johnson Nzioka, Magdaline Nzoka, Joseph Nzwili,

  20   Aineah Obonyo, Frederick Ochieng, Francis Ochito, Lawrence

  21   Ochola, Ann O'Connor, Duncan Odhiambo, John Odhiambo.

  22            Patricia Ogol, Maurice Ogola, Michael Okieyo, Simon

  23   Olang, Dominic Olango, Sherry Olds, Lepeine Olotono, Hanson

  24   Omar, Margaret Ombunya, Edwin Omori, Enoch Omweno, Lucy Onono,

  25   Evans Onsongo, Eric Onyango.


   1            John Onyango, Caroline Opati, Sylvia Oriedo, Godfrey

   2   Orono, Elizabeth Orwa, Joseph Osamba, Elias Osir, Julius

   3   Otieno, Mathews Otieno, Rogers Otolo, Elijah Owino, Josiah

   4   Iowuor, Margaret Rading.

   5            Peter Evans Rungu, Ruth Rungu, Timothy Sande, Uttamal

   6   Shah, Fahat Sheikh, Hassan Soka, Shadrack Thitu, Samuel Thuo,

   7   Maedra Vrontamis, Gloria Wachia, Shadrack Wagaiyu, James

   8   Wainaina, Adams Wami, Anne Wambugu.

   9            John Wamutwe, Margaret Wangethi, Gladys Wangui, Mercy

  10   Wanjiku, John Wanyoike, Margaret Wasike, Sabina Wateri, Benson

  11   Wathigo, Margaret Waweru, Ann Zakayo.

  12            Everyone one of these people died as an innocent, and

  13   that is conceded.  By an innocent I mean that they died for

  14   reasons totally unrelated to who they were as human beings.

  15   They didn't die because they were bad.  They didn't die

  16   because they were good.  They didn't die because of their

  17   political affiliation.  They died because they were Americans

  18   or they worked for Americans, or they happened to be standing

  19   close to Americans when this attack took place.

  20            Do not forget this because this is part of the sorrow

  21   and this is part of the circumstance and the question is what

  22   must be done.  You're also going to hear me use words like

  23   terrorism and genocide.  They'll be defined.

  24            There will be no evidence presented in this case that

  25   anyone who lost a loved one or a father or a mother or a child


   1   or a sister is not suffering.  I will not offer any

   2   information, nor does any exist that will lessen that degree

   3   of suffering.

   4            People who have suffered can tell you that sometimes

   5   you think you're doing fine, and then you come to a holiday,

   6   or a birthday or an outing, or you hear a certain song, and

   7   you start to hurt all over again, and that suffering

   8   continues, even though the loss was three years ago, and no

   9   one is going to tell you that there is anything you can do to

  10   make that loss go away because it's going to have to run its

  11   course.

  12            I can tell you something else you're not going to

  13   hear.  You're not going to hear the usual stuff in a death

  14   case about the defendant's life other what you've heard.  I

  15   can tell that you no family members are going to come from

  16   Saudi Arabia and testify as to what he was like when he was

  17   growing up.  No family members are going to tell you about his

  18   schooling or his nurturing.  I mean you've heard that he was

  19   raised and he learned the fundamental Islamic issues when he

  20   was young.  You heard that from the statement he made to Agent

  21   Gaudin.  I believe he talked about his influences.  But other

  22   than that, you're not going to hear anything.

  23            You know that he was present when Usama Bin Laden

  24   made some of his statements according to the indictment.  And

  25   Amnesty International provided a brochure of the Saudi


   1   government and Saudi life.  Perhaps we ought to offer that and

   2   perhaps explain why the family is not here.

   3            We're also going to introduce some correspondence

   4   from my co-counsel just trying to get authorization for

   5   letters to go back and forth between my client and jail and

   6   his family in Saudi Arabia.

   7            You are not going to hear about the defendant's

   8   childhood where he was subjected to abuse or did anybody beat

   9   him or that his parents were uncaring or unloving.  No, none

  10   of that.

  11            No one is going to come in here and say he's not

  12   responsible for what he did, or that he had a choice to make

  13   and his actions were a consequence of that choice.  No.  The

  14   reason surrounding this case are very, very complex and

  15   literally grow back hundreds of years.  The atmosphere over in

  16   that part of the world is amazing.

  17            I can tell that you in the past few months we, and I

  18   say "we" because Ms. Davis from my office in Virginia is

  19   working, soon to be Mrs. Robert Harmon; Mrs. Brown from my

  20   office in Virginia, and Mrs. Donna Moralez, had been reading,

  21   we have spent hours talking to professors, talking to clerics,

  22   talking to historians, talking to economists, trying to figure

  23   out what is going on over there so we can explain it to you,

  24   so that you can understand all the circumstances of this

  25   offense.


   1            I don't want to bore you, but I can tell you that to

   2   avoid weeks of academic testimony and I mean literally weeks

   3   if we were to put those people on the stand, even those who

   4   would come, because no one wants to be associated with

   5   terrorists, to put those people on the stand it would be like

   6   you're going back to school.  You'd have to sit there and take

   7   notes like you're having an exam.

   8            So what we've decided to do so that you can

   9   understand this there will be some live testimony about the

  10   Middle East and Islam and Usama Bin Laden and believe me those

  11   are going to show them here in court will save you many, many

  12   hours of testimony if you want to understand the circumstances

  13   surrounding why this happened.  And now of course if you were

  14   to put the witnesses on the stand you could listen to them and

  15   decide whether or not you wish to believe them, and you could

  16   decide what part of the testimony you wanted to keep and what

  17   part you wanted to disregard.

  18            Well, the same thing with the tape.  You can listen

  19   to the tape and if you believe it's accurate you can keep that

  20   part, and if you believe it's inaccurate, you can leave it

  21   out.  We're not offering the tapes to lessen the importance of

  22   what must be taught.  We're actually trying to increase the

  23   likelihood that you can understand all the circumstances.

  24            I'm also going to ask you to read some information.

  25   Remember Mr. Al Fadl said you can't understand al Qaeda unless


   1   you really understand Islam.  You have to understand what

   2   their motivation is, and when I crossed and I pulled out my

   3   little pinch yourself Islam book I tell you this is not the

   4   Koran, and it's not the definitive statement on Islam, but it

   5   is a resource type and during the deliberations I believe if

   6   you just read a few pages you might understand the perspective

   7   of these people who hate America so.

   8            Now I can tell you some of these things in here.

   9   There is a section here that I've tabbed about what jihad is

  10   and what it can be used for.  And I can tell you this is in

  11   disagreement with many of the things you've heard, many

  12   assertions that have been made.  It can only be used in the

  13   sense of Allah, not for armed conquest.  Use it for the

  14   freedom of, only when led by spiritual leaders.  You can hear

  15   it and I'm thinking why would I want to give them things in

  16   there with which I will disagree, but then I'm reminded that

  17   my Bible with its peace has also been used in the past to

  18   justify colonialism, and slavery, and the crusades and the

  19   inquisition.  So this will be offered as a resource so you can

  20   use it as you wish.

  21            I'm also telling you and I've learned this in

  22   understanding this philosophy I have been told by some really

  23   smart professors that you really can't understand Islam unless

  24   you read the Koran, which I've not read, and you can't really

  25   understand the Koran unless you can read it in Arabic.  Yes,


   1   because you heard Bin Laden on the interview talking.  This is

   2   The World's Religious by Huston Smith.  You don't have to read

   3   this.  I did.  And the quote is:  "The language in which it

   4   was proclaimed, Arabic, provides an initial clue.  No people

   5   in the world, writes Philip Hitti, are so moved by the word,

   6   spoken or written as the Arabs.  Hardly any language seems

   7   capable of exercising over the minds of its users such

   8   irresistible influence as Arabic.  Crowds in Cairo, Damascus,

   9   or Baghdad can be stirred to the highest emotional pitch by

  10   statements that, when translated, seem banal.  The rhythm,

  11   melodic cadence, the rhyme produce a powerful hypnotic effect.

  12   Thus the power of the Koranic revelation lies not only in the

  13   literal meaning of its words but also in the language in which

  14   this meaning incorporated, including its sound.

  15            I want you to think about that when you think about

  16   Bin Laden up here on these tapes talking, the things you've

  17   seen already, how he sat there, how he communicated.  I will

  18   tell you that's the first time I've ever heard him speak.  I

  19   expected some great orator, somebody like attorney Rico,

  20   somebody who speaks forcefully, a Louis Farakhan, a Malcolm X,

  21   a Martin Luther King, and I didn't.  I heard somebody who was

  22   very calmly speaking.  And when you first listen, listen to

  23   the English translation, but then listen to what he is saying

  24   in his tone of voi8ce, and you could see how some young people

  25   might be stirred by that.


   1            I want you to remember what Mr. Bin Laden said.

   2   You've heard inumerable fatwas.  You heard him say that he is

   3   an enemy of the United States.  You've heard him say he's

   4   mentioned why, you've heard him, and some of you will remember

   5   this and some of you won't, Q-A-N-A he mentioned Satila, he

   6   mentioned Palestine, he mentioned the death of the children in

   7   Iraq, he mentioned Israel, the occupation of the land of the

   8   two shrines, all of these are political and religious issues

   9   as to why this animosity exists.

  10            I know what Qana is.  I know what Satila is.  They

  11   are very complicated issues.  So we're going to zero in on

  12   then Iraq, and we're going to talk about that because it is

  13   important, because that is one of the motivations.

  14            Briefly I will tell you this.  That since 1991

  15   because, and you'd be amazed the number of Arab people who

  16   know this, because of the sanctions and the bombings between

  17   one million and one and a half million Iraqis have died

  18   directly as a consequence of the sanction.  In fact, they die

  19   at the rate of 250 a day, most of them under the age of 5

  20   because we destroyed their water purification system and we've

  21   not allowed them to rebuild it and other things.

  22            As to the aggravators, during this case there is

  23   going to be very little factual disagreement.  When the United

  24   States says as their statutory aggravator number that the

  25   deaths and injuries resulting in death occurred during the


   1   commission or attempted commission of an offense under Title

   2   18 United States Code and then there are other offenses like

   3   two offenses that occurred at the same time, by your verdict

   4   you found that to be true.  Now, perhaps to lessen the weight

   5   of that aggravator we plan to offer evidence that we have done

   6   that to other countries as well, and that's why they hate us,

   7   and they do.

   8            Where it says defendant in the commission of his

   9   offense knowingly created a grave risk of death to one or more

  10   persons, let me tell you we issued subpoenas to the military

  11   trying to find out how bombs what kind of bombings they used

  12   and they said they can't tell us, so we don't know, we don't

  13   keep track of them.

  14            And we will hold up some pictures.

  15            MR. FITZGERALD:  Objection, your Honor.  None of this

  16   has been shown.  I think it's improper.

  17            MR. BAUGH:  I'll withdraw.

  18            I'll show you a picture of a six year old girl that

  19   died January 23, 1999 when a two thousand pound American bomb

  20   antiaircraft site was one mile on target,. because I can pull

  21   out the Associated Press for that day and the military

  22   acknowledge the bomb missed by a mile.

  23            We create grave risk to others also and that has to

  24   stop.  On the mitigators I don't believe there is going to

  25   be -- oh, on the continuing and serious threat the future


   1   dangerousness of Mr. Al-'Owhali the only evidence we plan to

   2   introduce is the law and the law contained in the Code of

   3   Federal Regulations is that if the Bureau of Prisons, and he's

   4   either going to die or he's going to go to prison for the rest

   5   of his life, if the Bureau of Prisons the day you sentence him

   6   think that he poses a threat to others, they have the power to

   7   put him in a room by himself and leave him there for 120 days.

   8            However, at the end of 120 days if the Bureau of

   9   Prisons or the Attorney General of United States or the head

  10   of any federal law enforcement agency, or the head of any

  11   government intelligence agency feels that he poses a threat

  12   they can write a letter and they can keep him there 120 days

  13   and at the end of 120 days they can do it again.  That's

  14   right.  That's the law and no one is going to say that's not

  15   the law.  And that's true.

  16            The victim impact, I'll tell you why, we'll come back

  17   to that.  They say that Mr. Al-'Owhali in his attack wasn't

  18   concerned about the people who died and you know he went away

  19   and had the exact opposite effect.  You know that testimony

  20   was that they suggested the bomb the place closer so they can

  21   kill more people, but I will tell you that when the United

  22   States flew to Panama to arrest Mr. Noriega we killed between

  23   two and four thousand Panamanians.  Imagine what would happen

  24   in your city if the police went to arrest somebody in Brooklyn

  25   and killed four thousand people doing it?


   1            So you're going to here all the aggravators and all

   2   the mitigators.  I want you to understand this information so

   3   you can figure out what weight to be given to the case, and

   4   where do we want to go what, do I want you to learn.

   5            I trust at the conclusion of this penalty phase you

   6   will find the killings never fixes anything.  It just makes

   7   more people more angry and this gives more reason for killing.

   8   Mr. Bin Laden says that we should, his people should kill

   9   people because our people killed their people.  The government

  10   says you people can kill him because he killed us.

  11   Everybody's got a reason for killing.

  12            I hope you will find at the conclusion of this

  13   penalty phase too many people have died, too many mothers, not

  14   just American mothers, not just Tanzanian mothers, not just

  15   Iraqui mothers, too many people have suffered and are

  16   suffering.  And I will tell you this, if in the discharge of

  17   your duties you find beyond a reasonable doubt that killing

  18   him will stop then, that's the appropriate sentence and I will

  19   concede that point.

  20            That young man over there if he's lucky will spend

  21   the rest of his life and that's going to be forty to fifty

  22   years in prison in a country where people think an Arab first

  23   word in the common liar where people think of Muslims the

  24   first word that comes to mind is fundamentalists or

  25   extremists.


   1            Read these books, look at this information because

   2   you're going to have to sign an oath when you finished that

   3   you would have given the same verdict regardless of his race,

   4   regardless of his ethnicity.  I will submit to you that you

   5   will have enough information to rely on your faith, your faith

   6   that doing what is right, even if it's hard, even if it

   7   resists or it goes against your emotion, is the appropriate

   8   thing to do.

   9            Thank you.

  10            THE COURT:  Thank you.  We'll take our mid-morning

  11   recess.

  12            (Recess)

  13            (Continued on next page)














   1            THE COURT:  Mr. Fitzgerald?

   2            MR. FITZGERALD:  Yes.  I have a number of objections

   3   from things that transpired at Mr. Baugh's opening.  I feel

   4   very strongly about them but I also don't want to waste the

   5   jurors' time.  Perhaps we can proceed and put them on the

   6   record after the jurors' lunch.

   7            THE COURT:  Mr. Baugh, did you say that you were

   8   going to give the jurors copies of the book?

   9            MR. BAUGH:  Yes, sir, 12 copies.

  10            THE COURT:  How many pages are in the book?

  11            MR. BAUGH:  Total is, reading from Teach Yourself

  12   Islam, the total number of pages of the book is 211.  However,

  13   the pages that we will probably argue from are pages 44

  14   through 87, which are the Pillars of Islam.

  15            THE COURT:  Do you anticipate the jury reading the

  16   book in its entirety?

  17            MR. BAUGH:  No, your Honor.  I offer it to them to

  18   use -- I am sorry.  I offer it to them as a resource.  It has

  19   an excellent index in the back.  If there are issues about

  20   Islam that they feel they need to look up -- because remember,

  21   they can also insert mitigators that we have not drafted on

  22   the mitigation side.

  23            THE COURT:  Obviously the rules of evidence that

  24   apply to what will be permissible.

  25            MR. BAUGH:  Obviously.


   1            THE COURT:  My concern is that this already very

   2   burdened jury not be told that they have to read a 211-page

   3   book, which may, depending on the rate that one reads, prolong

   4   deliberations unnecessarily and inappropriately.  But you are

   5   going to flag for them particular portions?

   6            MR. BAUGH:  Yes, your Honor.

   7            THE COURT:  Very well.  Let's bring the jury back

   8   then.

   9            MR. FITZGERALD:  For the record, your Honor, although

  10   the jury was advised that the government would be getting a

  11   copy we have never received a copy, as I understand it.  We

  12   did not receive discovery of the many items offered by Mr.

  13   Baugh including what was displayed to the jury.  I think it is

  14   a blatant violation of discovery rules.  There are other

  15   things that Mr. Baugh said --

  16            THE COURT:  If it happens again, ask for a sidebar

  17   and ask in the sidebar that they be excluded.

  18            MR. FITZGERALD:  I am asking that all of them be

  19   excluded now from the trial.  We haven't been provided them.

  20   There was reference to an Amnesty International report that we

  21   were never provided.

  22            Mr. Baugh's response to Rule 16 is to stand up and

  23   tell us in opening and display photographs.  It is blatantly

  24   improper.  Obviously the government -- I think it is

  25   outrageous, for him to tell the jury and testify to them about


   1   conversations that he had with the Defense Department.  I

   2   think Mr. Baugh needs to understand that the rules apply here

   3   and that he has to follow them.

   4            MR. BAUGH:  Your Honor, first, we were given 3500

   5   material last night.  We are dependent on Kinko's to run off

   6   the materials.  We had extra copies made.  Concerning the

   7   military, you know the changes we have gone through trying to

   8   get through to the military.  Last night I was able to find

   9   some of the information that the military says they were not

  10   able to give us.  Now we find it last night on the Internet.

  11            THE COURT:  You know, that is a non sequitur.  The

  12   fact that it is available on the Internet doesn't mean that it

  13   is available from the military.  There is a great deal of

  14   difference.  On the Internet furnished by the military?

  15            I think Mr. Fitzgerald's point about not wasting jury

  16   time is appropriate and we will take this all up at 4:30.

  17            MR. BAUGH:  All right.

  18            THE COURT:  Who is the government's first witness?

  19            MR. GARCIA:  Susan Bartley, Judge.

  20            MR. FITZGERALD:  Mr. Brady has her available.  Do you

  21   want her in before the jury?

  22            MR. COHN:  Your Honor, just as a technical matter,

  23   perhaps because some of these witnesses are going to be

  24   emotional, rather than send for water and tissues they ought

  25   to be readily available during their testimony, and in place.


   1            (Jury present)

   2            COURTROOM ARTIST:  Is there any problem with any

   3   witnesses, in terms of who I draw?

   4            MR. FITZGERALD:  Not with regard to Ms. Bartley, and

   5   we will check witness by witness.  Thank you for asking.

   6            (Jury present)

   7            THE COURT:  The government may call its first

   8   witness.



















   1            MR. GARCIA:  Your Honor, the government calls Susan

   2   Bartley.


   4        called as a witness by the government,

   5        having been duly sworn, testified as follows:

   6            MR. GARCIA:  May I proceed, Judge?

   7            THE COURT:  Yes.


   9   BY MR. GARCIA:

  10   Q   Good morning, Miss Bartley.

  11   A   Good morning.

  12   Q   In August of 1998, were you living in Nairobi?

  13   A   Yes, I was.

  14   Q   Was your husband Julian and your son Jay living with you

  15   at that time?

  16   A   Yes, they were.

  17   Q   What was your husband Julian's position with the embassy?

  18   A   He was the consul general.

  19   Q   And your son Jay, was he working in Nairobi at that time?

  20   A   Yes, he was.

  21   Q   What was he doing?

  22   A   He was a summer intern.

  23   Q   Ms. Bartley, did you lose both your husband and Julian and

  24   your son Jay in the August 7, 1998 bombing?

  25   A   Yes, I did.


   1   Q   Miss Bartley, have you provided us with some photographs

   2   of your family?

   3   A   Yes, I have.

   4            MR. GARCIA:  Your Honor, may I approach?

   5            THE COURT:  Yes.

   6   Q   I am showing the witness what has been marked Government's

   7   Exhibits 2018A through G.

   8            Are those the photographs you provided, Miss Bartley?

   9   A   Yes, they are.

  10            MR. GARCIA:  Your Honor, at this time I would offer

  11   Government's Exhibits 2018A through G.

  12            MR. BAUGH:  No objection.

  13            THE COURT:  Received.

  14            (Government Exhibits 2018A through G received in

  15   evidence)

  16            MR. GARCIA:  If we could have displayed for everyone

  17   Government's Exhibit 2018A.

  18   Q   Is that a photograph of your family, Ms. Bartley?

  19   A   Yes, it is.

  20   Q   Could you show us who everyone is in the photo.

  21            JUROR:  It is not on our screens.

  22            (Pause)

  23            MR. FITZGERALD:  Your Honor, the machine would

  24   indicate they are on.  Something must have happened and we

  25   will check it at the break.  Perhaps we can substitute for the


   1   moment.

   2            THE COURT:  Perhaps somebody could lift this from

   3   there -- not me.  It's heavy.

   4   Q   I apologize, Miss Bartley.  If you could explain to us who

   5   the people are in that photograph, 2018A.

   6   A   Jay is sitting with the navy blue T-shirt on.  His sister

   7   Edith is across the table in the dark navy blue.  My husband

   8   is sitting at the head of the table.  You can see the top of

   9   my head in back of Jay.

  10   Q   Ms. Bartley, did you prepare a statement about the impact

  11   of the loss of that your son and husband has had on your

  12   family?

  13   A   Yes, I did.

  14   Q   For the record that is marked Government's Exhibit

  15   35118-C.  Ms. Bartley, if you would read us that statement.

  16   A   On August 7, 1998, is a day that I will never forget.  I

  17   lost my husband and my son that tragic day.  That was half of

  18   my family.

  19            I wish all of you had had an opportunity to know them

  20   personally, but since that is not possible, I would like to

  21   take a few minutes to tell you about them.

  22            Julian was an only child, born in Jacksonville,

  23   Florida.  He spent his formative years in Queens, New York.

  24   We met while we were attending Tennessee State University.

  25   After completing his undergraduate studies, Julian entered the


   1   Peace Corps.  We corresponded weekly through letters and

   2   cards, which I still possess.  We knew each other six years

   3   before marrying, and we were married for almost 28 years,

   4   which is more than half of my life.  And we were blessed with

   5   one daughter and one son.

   6            Our experiences with living and traveling in foreign

   7   countries can be measured by the friends that we have made,

   8   the cross-cultural exchanges that we made, and our commitment

   9   to being the best representatives of the United States that we

  10   could be.

  11            To lose a spouse in the manner that I did has been

  12   excruciatingly painful.  There was no time to prepare, and in

  13   the aftermath what remains is a lingering unsettling feeling

  14   that is compounded with deep sadness and anger.  This pain is

  15   with me every day.  Oftentimes it is unthinkable.  There is no

  16   written formula for me to use to begin a life without my

  17   husband.  When you know someone, when you have known someone

  18   as long as I knew my husband and then they are no longer

  19   there, what is left is raw emptiness.  A part of me is

  20   missing.  The love we had for each other was unconditional and

  21   the life we shared together was solid.

  22            About a year ago a friend asked, what do you miss the

  23   most about them?  I found the question to be odd, because I

  24   miss everything about them.  With my husband, some of my

  25   fondest memories that come to mind would include his snoring


   1   while sleeping.  I miss hearing the sound of his snoring each

   2   night and the teasing about who snored the loudest.  I miss

   3   his laughter.  Julian had a hardy laugh.  I miss hearing his

   4   latest joke.  He wanted people around him to feel comfortable

   5   and at ease, so he would often warm the setting by telling a

   6   joke.  I miss his good-bye kiss in the morning and the hello

   7   kiss when he returned each evening.  I miss the hugs.  Just

   8   because.  And the winks and special looks that we passed back

   9   and forth to each other.  And the phone calls during the day.

  10   Julian was sometimes spontaneous.  It was not unusual for us

  11   to have dinner guests with very little advance notice.  It was

  12   not unusual for him to awake at 5 a.m. and suddenly decide for

  13   us to take a trip to the Nairobi game park.  It was not out of

  14   the ordinary for Julian to stop at our neighbor's house across

  15   the street for a drink and dinner, and then come home and eat

  16   dinner.

  17            Whenever either of us read something we thought would

  18   be of interest to the other, we would make a point to share it

  19   with one another.  I miss those quiet times when we would go

  20   for a walk and sit in the evenings, Julian with one of his

  21   favorite cigars and a cognac and me with a glass of wine, just

  22   talking and reflecting upon the day.

  23            Beyond the fact that Julian was successful

  24   professionally, his devotion to family was paramount.  While

  25   Julian walked with dignitaries and heads of state, throughout


   1   his brief tenure on this earth he held fast to the belief that

   2   regardless of your economic status, job title or position,

   3   everyone should be treated with respect and dignity.

   4            As the first African American consul general to

   5   Nairobi, Julian brought a new sensitivity to consular work

   6   that had been missing.  He loved his work and always commented

   7   on how some people spend a lifetime in search of the perfect

   8   position while going through the motions of unsatisfying jobs.

   9   Be assured that my husband loved his work and knew that his

  10   was a special calling.  He always said there was not a day

  11   that he didn't enjoy getting up and going to work.

  12            He left us with a challenge, to always look for the

  13   good in everyone.  There is where our true blessings lie.

  14            My son Jay was 20 years old.  He was a student at the

  15   United States International University in Nairobi, Kenya.  I

  16   will never understand the reason for Jay's death.  As a

  17   parent -- as parents Julian and I knew how important building

  18   self-esteem in our children was.  We constantly encouraged Jay

  19   to participate in extracurricular activities.

  20            Jay was an adventurous young man.  He learned to

  21   horseback ride at an early age in very well.  As a teenager he

  22   taught horseback riding at the YMCA.

  23            Jay's interests were varied and his intellect

  24   reflected signs of a person who was mature beyond his age.

  25   During his first year at the United States International


   1   University, Jay coached junior high basketball at his former

   2   high school.  He earned the respect of other coaches.  On game

   3   days he always wore a white shirt and tie, while the coaches

   4   from the opposing teams wore T-shirts and shorts.  His team

   5   finished the season as number one in their division.

   6            Jay blossomed at the university.  Any parent would

   7   have been proud.  Jay had an uncanny sense of humor.  He was a

   8   good friend and he had good friends.  Jay had a positive,

   9   determined mindset, cheerful disposition, and he was a

  10   terrific young man.  He was respectful and had a deep respect

  11   for his peers, and an abiding belief in the goodness of

  12   people.

  13            There isn't a day that goes by that I don't think

  14   about my losses and the losses of others.  Our lives have been

  15   catalogued in photo albums.  Julian loved to take photographs.

  16   He used to photograph each of our moves to the next country.

  17   He used to photograph everything, from our parties to holidays

  18   and trips.  Our entire lives in the foreign service, including

  19   when our children were infants, are documented.  Last week our

  20   daughter graduated from law school.  Although it was a joyous

  21   occasion, it was also sad.  Julian was not there to photograph

  22   and document the moment.  It is in moments such as

  23   graduations, holidays and birthdays when I am reminded not

  24   only of my loss but that of my daughter.  More importantly, I

  25   am reminded of what those who were killed were robbed of.  My


   1   son will never have the opportunity to complete college,

   2   pursue a career or raise a family of his own.  As a mother, I

   3   was looking forward to witnessing what was in store for Jay's

   4   future.  Now he has no future.  My husband will never have the

   5   opportunity to retire, walk his daughter down the aisle on her

   6   wedding day or enjoy the laughter of his grandchildren.

   7   People's lives have been changed forever, but what makes it

   8   possible for me to continue to live each day to the fullest,

   9   to do what I have to do, is knowing that Julian and Jay left

  10   rich legacies of commitment, dedication and service.  Our

  11   daughter is left with a challenge to do more than just

  12   succeed.  She is left with the challenge to carry on and excel

  13   in the spirit of both her father and her brother.

  14            Finally, I would like to share with you an African

  15   proverb which I believe represents a portion of the essence

  16   that is Julian and Jay:  I am because you are.  Therefore, you

  17   are because of me.

  18   Q   Thank you, Miss Bartley.  In addition, before coming to

  19   court, did you also review a videotape that was made of

  20   statements of other families of victims, American victims who

  21   were killed at the American Embassy?

  22   A   Yes, I did.

  23            MR. GARCIA:  For the record, that is Government's

  24   Exhibit 2001, and, your Honor, with the court's permission and

  25   no objection, the government would like to play it at this


   1   time.

   2            THE COURT:  Yes.

   3            (Videotape played)

   4            MR. GARCIA:  Your Honor, I have nothing further.

   5            MR. BAUGH:  No questions of this lady.

   6            THE COURT:  Thank you.  You may step down.

   7            (Witness excused)

   8            MR. FITZGERALD:  The government calls Teresia

   9   Karanja.

  10            THE COURT:  You were sworn earlier in these

  11   proceedings, were you not?

  12            THE INTERPRETER:  Yes, I was.


  14        called as a witness by the government,

  15        having been duly sworn, testified as follows:

  16            (Witness testifies in English)



  19   Q   Good morning, Miss Karanja.  Good afternoon.  If you wish,

  20   you can speak in English.  I will try to talk slowly.  Slow me

  21   down if I talk too fast.

  22            If you could just tell the jury what you did for a

  23   living in the Cooperative Bank Building.

  24   A   My name is Teresia Karanja.  The last name is

  25   K-A-R-A-N-J-A.


   1            Before the bomb I was working with Teachers Service

   2   Commission in Kenya.  On that fateful August 7, 1989, I was in

   3   the office in the Cooperative Building just next to the

   4   American Embassy.  I was in the office, busy working.  It was

   5   around exactly 10:30 when I heard a blast from outside.  I was

   6   just near the window.  I just looked through the window.  I

   7   didn't know what it was because we are not used with those

   8   blasts.  I thought it was a tire burst or a gunshot.  So I

   9   just looked through the window.  I saw people coming to the

  10   building and others going away from the building.  I just saw

  11   the coworkers.  I said I don't know what is happening now, can

  12   we just go down and check what is going on.  So everybody

  13   started walking towards the door.  I hesitated because I

  14   didn't know what it was, and now everybody was walking down.

  15   I had the thought when we reach down, what I am going to tell

  16   them.  So I hesitated, and the second blast went up, which was

  17   the loudest, and I just saw glasses landing, a lot of dust,

  18   and I was just near the door, and something hit me at the

  19   back.  Something hurt.  I didn't know what it was.  There was

  20   a lot of dust.  I couldn't see properly.  I just walked steps

  21   and then I fell down.  I tried to stand and I couldn't.  I had

  22   a severe pain at the back, so what I could do is just to lie

  23   down because I was helpless.

  24            Within no time I saw people landing.  Some were

  25   seriously hurt.  And there was another lady who just came


   1   where I was.  She had a broken leg and she was unable to walk.

   2   We just lied there with no hope of life because everybody was

   3   asking after his or her life.  There was no one to help you.

   4   So all what we could do was just to pray our last prayer.

   5            After four and a half hours, that's when we saw some

   6   ambulance came in.  They had no rescue equipments.  They had

   7   only a sheet.  They couldn't lift me because it was -- I had a

   8   lot of pain.  So what they did, they lifted the other lady.

   9   They told me to stay there, they will try all their best to

  10   come back for me.  So immediately later another group came in

  11   with a straight chair.  They took me out of the building.

  12   They took me in an ambulance where I also met another man, who

  13   had a very deep cut at her neck.  So they rescued all to take

  14   us to the hospital in Nairobi.

  15            We met the hospital team, and they first took the man

  16   out and I heard them saying that the man is already dead, and

  17   they took me out, and I heard a sister saying that this one is

  18   already paralyzed but I didn't take much consideration of that

  19   because I had severe pains.  And I had deep cuts in my legs.

  20   They took me to emergency room where they tried to control my

  21   temperature because it was very low.  They had a hard time but

  22   by the grace of God it was stable.  And then I was taken to

  23   theater where they stitched the legs.  They didn't have time

  24   to take much consideration on my back because there were so

  25   many people who needed emergency attention.


   1            So the doctor ordered them to take me to the ward

   2   where he requested for surgery.  The doctor found that I have

   3   a spinal injury, T12 and L1, and because the T12 was

   4   completely broken, he said that he must do a surgery.  He did

   5   a surgery after one week.  I can't say it was successful,

   6   though I didn't regain my consciousness after surgery.  They

   7   had to take me to ICU in life-supporting machine, where I

   8   stayed for three days.  After three days they took me back to

   9   ward.

  10            I stayed in hospital for four months Nairobi, and

  11   there was nothing better coming.  So the doctor decided we

  12   seek for medication outside the country, and since we didn't

  13   have enough, the cheapest country to get medication is South

  14   Africa.  I went in South Africa in December 7.  I stayed there

  15   up to April.  I got medication, I got rehabilitation.

  16            Then I went back to my own country, where I had to

  17   start from zero because we had only a small rented house.  We

  18   couldn't accommodate the wheelchair.  We didn't have a car.

  19   So everything was from zero.  We started from zero.  But when

  20   we got grace, we did what we could.

  21            After 10 months, because my husband had a hard time

  22   to keep me and the children, I decided to go back to work.  I

  23   went back to work, but till now I can't be able to work for

  24   long hours.  I can't go a full week.  So it has affected our

  25   lives financially, and even now our kids.  Up to today we are


   1   struggling to live day and day life.  I have to reduce my

   2   hours of working because of health.  My husband has to reduce

   3   working hours because he has to take care of me.  It has

   4   affected our live up to today.  But thank Lord I am alive.  I

   5   thank you.

   6            MR. FITZGERALD:  Nothing further.

   7            MR. BAUGH:  No questions.

   8            THE COURT:  Thank you very much.

   9            (Witness excused)

  10            MR. GARCIA:  The government calls Mary Khahenzi.


  12        called as a witness by the government,

  13        having been duly sworn, testified as follows:

  14            MR. GARCIA:  May I proceed, Judge?

  15            THE COURT:  Yes.


  17   BY MR. GARCIA:

  18   Q   Miss Khahenzi, were you born in Kenya?

  19   A   Yes.

  20   Q   Was your husband killed in the August 7, 1998 bomb?

  21   A   Yes.

  22   Q   What was his name?

  23   A   His names were Thomas Mudanyi Khahenzi.

  24   Q   When did you get married to Thomas?

  25   A   I was married by custom in 1989 and by judge in 1995.


   1   Q   Did you and Thomas have children?

   2   A   Yes.

   3   Q   How many?

   4   A   We had five children of my own and he had six children

   5   from his previous marriage.

   6   Q   Did you have a child with Thomas?

   7   A   Yes.

   8   Q   How many?

   9   A   One.

  10   Q   Did you provide a photo of your husband?

  11   A   Yes, I did.

  12            MR. GARCIA:  The government would offer at this time

  13   Government's Exhibit 2055.

  14            THE COURT:  Yes, received.

  15            (Government Exhibit 2055 received in evidence)

  16   Q   Is that the photograph of your husband?

  17   A   Yes.

  18   Q   Where did your husband work in Kenya?

  19   A   My husband worked at -- he was the general manager of a

  20   restaurant in town, 800 kilometers from.

  21   Q   From town?

  22   A   Yes.

  23   Q   Where were you working?

  24   A   I was working Cooperative House next to the U.S. Embassy.

  25   Q   Could you just describe your husband for us.


   1   A   Thomas was a very loving, kind husband.  He was the best

   2   thing that happened to me.  He gave me a lot of happiness.  He

   3   was very good with children.  We had 11 children between us,

   4   and there were never problems, because he knew how to handle

   5   each of them.  He was the sole breadwinner, and he toiled very

   6   much for us, to see that we were very comfortable.  He kept in

   7   touch with me the best part of the day, and any time he had

   8   time off he would come to my office just to be with me, and to

   9   help me around the office.

  10   Q   Do you recall seeing Thomas the morning of August 7?

  11   A   Yes.

  12   Q   Do you recall what he was wearing that morning?

  13   A   Pardon?

  14   Q   Do you recall what he was wearing that morning?

  15   A   Yes.

  16   Q   What was that?

  17   A   We woke up in the morning and my husband made a rather

  18   unusual request.  There is a T-shirt I bought for him as a

  19   present, one of Moez memorable occasions.  It was a white

  20   T-shirt and it had a message across, "I'm a Catholic, and

  21   Jesus loves me."  He requested that I give that shirt to him

  22   to wear that morning.  The T-shirt had been washed the

  23   previous night.  It was not dry, and he insisted he wanted to

  24   wear it.  I did not argue with him because I never wanted to

  25   enter into arguments.  I gave him the T-shirt and I left him


   1   dressing up.  I went to church, as was our practice.  I went

   2   to church for the morning service and I went to my place of

   3   work.

   4   Q   Could you tell us what happened when the bomb went off

   5   that day.

   6   A   When the bomb went off, I was in my office reading the

   7   morning daily.  My son who was with me in the building had

   8   just gone off to driving school.  When I heard the first blast

   9   I got out of the building, out of my office, and as I opened

  10   the door to leave the office I heard people coming -- my

  11   office was the ninth floor, and they were praying, Hail Mary

  12   full of grace, the Lord be with you.  And I joined them in

  13   prayer.  I did not know what they were praying about.  I just

  14   thought that a tire burst, and I was waiting out of curiosity.

  15   Before I went far I heard the second blast.  There was

  16   darkness, fumes, and falling objects from upper floors.  I

  17   remember what I said.  I said God, whatever it is, cover us

  18   with the blood of Jesus, and for those who will not be able to

  19   make it, forgive them their sins and give them eternal rest.

  20            Through the darkness I made my way out of the

  21   building.  I knew which way to go.  As I got out of the

  22   building I saw people running from the direction of the

  23   embassy in the opposite way.  They were bleeding and crying.

  24   Nobody was able to explain what had happened.  I went down on

  25   my knees and prayed again.  I thanked God for saving my life.


   1   I did not know that I was praying for my husband.  I did not

   2   know that moment in time that he was dead.

   3   Q   How did you learn that your husband had died that day?

   4   A   It took me more than four days to know that my husband was

   5   dead because we expected him to be there at that moment in

   6   time, because he had gone to his place of duty and by the time

   7   I was leaving the scene he had not shown up.  So I went home,

   8   hoping to hear from him or find him at home, or even get a

   9   telephone call.  Thomas was not at home.  That was not like

  10   him.  He always checked on us.  He always got in touch with

  11   anybody, a member of the family, to let them know that all was

  12   well.  We sat up the whole night, expecting him to come home,

  13   and he did not come home.

  14            That was the beginning of the search.  We went to all

  15   hospitals.  We did the city of Nairobi.  We went to the city

  16   mortuary and the mortuaries of the neighborhood, four, five

  17   times a day, finding bodies and checking and checking, for

  18   five days, with no success.  My husband's body was found among

  19   the last people to be retrieved in front of the Ufundi

  20   building, which had collapsed.  I got the message that the

  21   body has been found when I was in church, and I went down to

  22   the mortuary, not knowing what to expect.  I found him laying

  23   on the mortuary floor.  The T-shirt he had insisted on wearing

  24   was my means of identifying him.  Yes, he was wearing, "I am a

  25   Catholic and Jesus loves me."  He was very broken, but we


   1   identified him by the T-shirt he was wearing.

   2            MR. GARCIA:  Your Honor, I have nothing further.

   3            MR. BAUGH:  No questions of this witness, your Honor.

   4            THE COURT:  Thank you.  You may step down.

   5            (Witness excused)

   6            MR. FITZGERALD:  The government now calls Amos

   7   Murithi Karimi.


   9        called as a witness by the government,

  10        having been duly sworn, testified as follows:



  13   Q   Sir, did you lose your wife in the bombing of August 7,

  14   1998?

  15   A   Yes, I did.

  16   Q   Can you tell the jury her name.

  17   A   Mary Nyaguthi Ndirangu.

  18   Q   Is that spelled Mary and N-Y-A-G-U-T-H-I?

  19   A   Mary is M-A-R-Y.  Ndirangu is N-D-I-R-A-N-G-U.

  20   Q   Can you tell us how long you were married to Mary as of

  21   August 7, 1998.

  22   A   I was married to her for about 10 years.

  23   Q   Did you have any children?

  24   A   Yes.  I have two boys.

  25   Q   Can you tell the jury how old the boys were in 1998.


   1   A   The first one was five years old.  The second one was two

   2   years old.

   3   Q   What did your wife Mary do for work?

   4   A   She was working at Cooperative, Ufundi House.

   5   Q   Was she a secretary, Mr. Karimi?

   6   A   Yes, she was.

   7            MR. FITZGERALD:  Your Honor, I would offer at this

   8   time a photograph, Government's Exhibit 2132.

   9            THE COURT:  Yes, received.

  10            (Government Exhibit 2132 received in evidence)

  11   Q   Mr. Karimi, I am going to display a photograph to your

  12   left on the TV screen.  Is your wife one of the ladies

  13   depicted in that photograph?

  14   A   Yes.  From the left she is second, wearing spotted red

  15   skirt and red shoes.

  16   Q   Can you tell us where and when that photograph was taken?

  17   A   This photograph was taken near Silver Spoons Hotel.

  18   Q   In what year?

  19   A   Yes.

  20   Q   Do you know what year that was taken?

  21   A   Yes, it was taken around 1997.

  22   Q   Can you tell us who the other ladies in the photograph

  23   are?

  24   A   These were her working colleagues.

  25   Q   Do you know how many of those five women survived the


   1   bombing?

   2   A   Is only the one to the very left.

   3   Q   And the other four were killed?

   4   A   Yes, they were killed.

   5   Q   Can you tell us what happened on August 7, 1998, what you

   6   and your wife did that day.

   7   A   I remember that Friday, it was about some five days since

   8   I had arrived from South Africa.  I had come with a car which

   9   I had deposited at Lombaga border post.  It is border post

  10   between Kenya and Tanzania.  So for this particular day it was

  11   in the morning.  We woke up in the morning like usual, and we

  12   proceeded to work.  We had some assignment.  I was clearing

  13   the car through customs and I did not have enough money.  I

  14   had asked my wife to fetch some money for me from a friend, to

  15   enable me to clear the car.

  16            So this Friday morning in our country, by that time

  17   there was bank strike, and only clerical staff were working at

  18   the bank.  So I wanted to go and withdraw some money from the

  19   bank and I had to do it very early.  This bank was near her

  20   place of work, where she was working.  By about 8:30 I was

  21   waiting up near the bank so I could be among the first people

  22   who attended at 9:00.  So we went with my wife and I left her.

  23   We just parted ways just near there.  I went and I lined up

  24   and she was supposed to collect the money by 9:30, from a

  25   friend who was staying about seven kilometers away from town.


   1            So after lining up, I collected the money from the

   2   bank by about 9:15, and I proceeded to customs offices, which

   3   are situated some kilometers from the city.  The offices are

   4   situated in a heightened part from the city, overlooking the

   5   city.  You could see the city from that position.

   6            So I went about processing the documents for clearing

   7   the vehicle, but I had a problem with the documents which

   8   occurred on the third floor of the building, and I was

   9   referred to a senior officer who was situated at the ninth

  10   floor of that building.  It was when he was attending me that

  11   we heard a very loud explosion, and he said maybe that could

  12   be a transformer down here.  And everybody was running out.

  13   That was about, it was, about some minutes passed, about

  14   10-ish.  So we went and when we viewed from the windows --

  15   which were a bridge, a small bridge which was connecting two

  16   buildings.  We viewed the town.  We could not see the

  17   transformer, but we saw a very huge black smoke enveloping the

  18   Cooperative Building or nearby buildings.  So people started

  19   suggesting that could have been a bomb, and people started

  20   climbing down, and I joined them.  We did not continue

  21   processing the papers.  Everybody was running out of the

  22   building.  We headed to town.  It is a distance that we

  23   walked, or literally we ran.

  24            On our way to town, we could hear sirens of

  25   ambulances.  We could see people running here and there.  Most


   1   of them are on the way.  There were a lot of broken panes.

   2   When we were about near where the incident had taken place, we

   3   saw several people who are bleeding, and there was a lot of

   4   confusion.

   5            It was when I went near where she was working, past

   6   the bank building where I had gone that morning to withdraw

   7   the cash, I saw the building that used to be the building, the

   8   offices, it was leaning.  What came to my mind, I remembered

   9   immediately that my wife had gone to get money for me and she

  10   was supposed to maybe have brought the money back there,

  11   because we had agreed that I was to collect the money from

  12   her.  So I went nearest the coin booth, that is phone booth.

  13   I made a phone, inquiring about my wife, and I was told by the

  14   gentleman who had given her the money that your wife was here

  15   and she left, I give her the money, and we are just as worried

  16   because of what has happened in town.

  17            Now from there I -- you know, there was a lot of

  18   confusion, and for about maybe some 30 minutes or one hour, I

  19   did not know exactly what I was doing.  It was then that we

  20   decided with some other people to start looking for these

  21   people from the hospital.  So we started going throughout the

  22   hospitals which were near the city.  We went searching,

  23   searching, searching, until it was very late.  It was about 4

  24   in the night -- I mean, sorry, it was about 10, 10:00 in the

  25   night.  Then we had to retire.  I went home, hoping that my


   1   wife could have just gone home.  Very unfortunately I did not

   2   find her.  What I found were some people who had brought to

   3   our place because they had already learned that that bomb had

   4   taken place at the place of work and that the building had

   5   collapsed.

   6            And then the next morning I woke up.  With some

   7   friends, some of my neighbors, we joined those who had

   8   survived, who were not hurt, and we searched alongside.  We

   9   searched for the whole day without getting anywhere, until

  10   also about 10-ish.  Then we had to retire.

  11            Now the following day of that day we woke up.  We had

  12   to now look where we dared.  We had to start with the

  13   mortuary.  It was about 9:30 in the morning that we went to a

  14   mortuary which is known as City Mortuary, and first I stayed

  15   outside the mortuary.  My parents were there.  My relatives

  16   and her colleagues.  They went inside, but after viewing the

  17   bodies they could not identify her body.  So they came out,

  18   and I asked whether they have seen anything.  They told me no.

  19   So I decided I had to go inside.  When I passed through the

  20   mortuary, there was a passage in between.  It was two-sided.

  21   On one side there were those bodies which you would be able to

  22   identify.  On the other side there were parts of bodies --

  23   heads, other body parts which were not together, some which

  24   were beyond recognition, you could not identify.  So me, I

  25   started with the bodies which I could identify, and it was a


   1   long line where they were.  We were scrutinizing one by one.

   2   When I was just about to go out, I met my wife.  That is where

   3   I met my wife.

   4   Q   What did you do then?

   5   A   After meeting my wife, the body of my wife, that is, I

   6   went out, and I went and got my father, and I told him to send

   7   two or three people to go and confirm whether what I see,

   8   whether I had seen it correctly.

   9   Q   Did there come a time when you went home to your house, to

  10   your children?

  11   A   When I gone to my house?  No, by that time I had not

  12   called my house.  It was after a while that I went home.  I

  13   was not able to tell my children.  I heard my sister take them

  14   to their places and after a while they came to learn about it.

  15            MR. FITZGERALD:  I have nothing further.

  16            MR. BAUGH:  No questions of this witness.

  17            THE COURT:  Thank you.  You may step down.

  18            (Witness excused)

  19            MR. GARCIA:  The government calls Tabassum Butt.


  21        called as a witness by the government,

  22        having been duly sworn, testified as follows:

  23            MR. GARCIA:  May I, Judge?


  25   BY MR. GARCIA:


   1   Q   Were you born in Kenya, ma'am?

   2   A   Yes, I am born in Kenya.

   3   Q   Was your brother Fahat Sheikh killed in the bombing in

   4   Kenya on August 7, 1998?

   5   A   Yes, he was killed in the bomb blast.

   6   Q   Where did your brother work?

   7   A   He worked for the American Embassy in Nairobi.

   8   Q   What did he do, ma'am?

   9   A   He was the main cashier for the embassy.

  10   Q   How long had he been working at the embassy?

  11   A   He worked for about 26 years.

  12   Q   How old was he when he died?

  13   A   About 46.

  14            MR. GARCIA:  Your Honor, at this time the government

  15   would offer Government's Exhibit 2201.

  16            THE COURT:  Yes, received.

  17            (Government Exhibit 2201 received in evidence)

  18   Q   Could you tell us who is in that photograph.

  19   A   That's my brother Fahat.  His oldest son Faraz, the

  20   younger one Farin.  That is his wife, Nasrin.  And that is me

  21   standing next to them.

  22   Q   Did your brother also have a daughter?

  23   A   Yes, he had a daughter.  She wasn't with us on that day

  24   because she had exams at the school.

  25   Q   Could you tell us something about your brother.


   1   A   My brother was a very hard working.  He was the backbone

   2   of our family and he was a social worker for the neighborhood.

   3   He helped the old, he helped the sick.  In fact, on the day of

   4   the bomb blast he had a letter to write for an old woman down

   5   the road, and she was waiting for him on that Friday.  He

   6   never came home.

   7   Q   On that Friday, how did you learn that your brother had

   8   been killed?

   9   A   I was in my office, and this was about 10:30 in the

  10   morning, and we heard a big blast, although my office is about

  11   two miles away from the embassy.  We heard a big blast and it

  12   was too loud, and I felt as if something landed on the roof of

  13   our office.  So I was just joking with one of my colleagues

  14   and I said go outside and check, I think that airplanes landed

  15   on the roof.  So he said stop joking, I don't think it's an

  16   airplane.

  17            The next thing we heard, we got a call at the office

  18   and we were told that there is a blast in the town.  When we

  19   tried to find out where it was, they said it's the Cooperative

  20   House.  We thought somebody was just trying to scare the

  21   ministry for education there.  So I switched on the TV in my

  22   office, and I had the screen in front of me right there, and

  23   the news flash started coming on, and the scene I saw was the

  24   embassy, and all we could see was fire and smoke and people

  25   running in all directions screaming, and blood all over.


   1            I knew where his office was because I had seen the

   2   windows of his office many times.  So I said that's it, that's

   3   his office.  And like a fool I started dialing his number, the

   4   embassy number, and I asked my colleagues to try and phone

   5   this number, and I didn't realize everything was dead.  Our

   6   phones went dead.  I mean, there was no way we could reach the

   7   embassy.  There was nobody there.

   8   Q   Did you spend that night with your brother's family?

   9   A   Yes.  I went home.  I tried to ring home but something

  10   went wrong with all the Nairobi phones and we couldn't reach

  11   anyone.  So I had to go out of the office and look for a

  12   phone.  I tried to ring home, and the daughter told me that

  13   her mother wasn't at home.  She was in town as well.  So I

  14   said do you know anything, have you had a call from your

  15   father?  She said no, I haven't.  And I said look, if your

  16   mother rings you from town, tell her to come home as fast as

  17   you can because something very bad has happened.  I didn't

  18   tell her that it was the embassy that was bombed.  And she

  19   said please come home, I'm scared, I'm scared.

  20            So by the time I reached home, it was like 5 in the

  21   evening, and by then everybody had gathered up at the house

  22   and people were going in all directions.  Everybody started

  23   going in all different directions to look for him.  We thought

  24   maybe he's in the hospital or maybe he is still stuck in the

  25   embassy somewhere.  But the whole night we looked for him and


   1   the whole night we were making calls all over the place.  We

   2   couldn't find him.

   3            My husband went to the embassy in the morning.  I

   4   rang him and I said please come, there is something terrible

   5   happened.  So he came running to my office.  The traffic was

   6   at a standstill, so he had to walk.  He had to walk almost

   7   four miles to get to the embassy.  He was there from morning

   8   till evening, and there was no trace of my brother or any

   9   news.  So when I met him in the evening he told me look, I

  10   have seen the scene, I was at the scene the whole day, and

  11   things look very bad, and in fact I have been told by one of

  12   the embassy workers that please go and prepare the wife, the

  13   90 percent chance is that he is not going to be found.  I

  14   couldn't tell that to anyone.  We just had to wait until we

  15   had some informed information.

  16   Q   Did you wait with one of your brother's sons?

  17   A   Yes, we stayed up all night with the children.  I stayed

  18   up.  We sent his wife away in the next room.  The children

  19   were very scared.  We all sat on one couch holding each other,

  20   and they said we are scared, we want to -- I kept on telling

  21   them maybe he is trapped in the embassy somewhere.  We

  22   understood that some people were trapped.  But I knew it --

  23   not in the embassy, he couldn't be, because I had seen it on

  24   the TV, his office, picture.

  25            So when it came to about 5 in the morning, we have a


   1   mosque near us, and we are Muslims.  So the son, he is very

   2   good at his prayers.  He can go and give the Azzan.  You know

   3   what is the Azzan?  That's a call for the prayer.  So at 5:00

   4   he said let me go and pray at the mosque and my father will

   5   hear me wherever he is and he will come out wherever he is

   6   trapped, he will know we are looking for him.  Then he didn't

   7   go.  He said I am scared to go out of the house.  He didn't

   8   go.

   9   Q   Ma'am, could you tell us what the longterm impact has been

  10   on you and on your brother's family of his death.

  11   A   The children had a very tough time.  The girl had her

  12   exams in November, her final exams.  She failed.  We told her

  13   look, it's all right, you can repeat them again, there is no

  14   problem, everybody understands what happened.  But the boys

  15   had a very tough time.

  16            The older one -- that's Faraz -- I had to go to his

  17   school a number of times because the teacher said we don't

  18   know what to do with him.  We talk to him, he is not

  19   listening.  You tell him to write something, he is writing

  20   about the bomb blast.  You ask him to draw something, he keeps

  21   on drawing the embassy.  You ask him to do something in the

  22   art class and he is just building the Cooperative House and

  23   the Ufundi House there and the embassy there.  He made it out

  24   of clay.  He was so proud of it.  The teachers just looked at

  25   him and they didn't know what to do.  They said he draws the


   1   whole day and the only thing he draws is the embassy.

   2            I had to go to the school and explain to them.  They

   3   all knew but they said something's got to be done.  He would

   4   go in the school playground and tell all his friends leave me

   5   alone.  And he would sit there and talk to his father.  Every

   6   evening when I went to pick him he said you know, I told him

   7   this and I told him that, and my father actually answers back.

   8            We knew what he was doing but there was a time when

   9   we thought we might lose the boy.  He went for a picnic.  We

  10   sent him away to some friends.  This is a picnic site next to

  11   a lake, Lake Nabashat.  When he came back, he became worse.

  12   He said in the middle of the night I almost sleep, I almost

  13   drowned myself.  And everybody said you made a big mistake

  14   sending him way because he could have killed himself.

  15            We changed his school and it was the same.  I had to

  16   go to the school and talk to the teachers and explain to them

  17   why the boy behaves like this.  The religion teacher, when

  18   they heard that I am the aunt and I am in the school they said

  19   look, we've got to talk to you, we've got to talk to you.  Why

  20   does this boy hate religion so much?  Why does he hate

  21   everyone so much?  And that was the story.

  22            With the little one he is scared, he is still scared.

  23   He doesn't go out of the house alone.  I doesn't sleep alone.

  24   The daughter and the youngest one still sleep with the mother

  25   and the younger one still feels that he cannot leave the


   1   mother.  He goes to the school but she has to drop him inside

   2   the classroom and to pick him up.  She has to be there.  There

   3   is no way he go alone with anybody.

   4            MR. GARCIA:  Thank you, ma'am.  I have nothing

   5   further.

   6            MR. BAUGH:  No questions of this witness.

   7            THE COURT:  Thank you, you may step down.

   8            (Witness excused)

   9            THE COURT:  We will take our luncheon break until

  10   2:15.

  11            (Luncheon recess)
















   1                 A F T E R N O O N    S E S S I O N

   2                                2:15 p.m.

   3            (In open court; jury present)

   4            THE COURT:  Please be seated everyone.  The

   5   government will call its next witness.

   6            MR. FITZGERALD:  Yes.  The Government calls Channa

   7   Commanday.


   9        called as a witness by the government,

  10        having been duly sworn, testified as follows:



  13   Q   Ms. Commanday, can you tell the jury what you do for a

  14   living?

  15   A   I'm a family nurse practitioner and I've got over twenty

  16   years experience in the emergency medical services.

  17            MR. COHN:  Ask you ask the witness to speak up a

  18   little.

  19   Q   Just sit a little closer to the microphone.

  20   A   I'm a family nurse practitioner with over twenty years

  21   experience in emergency medical services currently working in,

  22   living and working in Kenya, primarily teaching, coordinating

  23   and teaching courses for nurses and doctors in emergency

  24   medicine.

  25   Q   Were you working in the time period from August 7th to


   1   Aught 10th of 1998 in Nairobi?

   2   A   Yes, at Nairobi Hospital.

   3   Q   And did you have handle the response, the medical response

   4   to the bombing that occurred on August 7th?

   5   A   I was in the accident and emergency department where I had

   6   an office at the time and actually activated our disaster

   7   response.

   8   Q   And after the first three days of the response of the

   9   medical response to the bombing of the embassy did you sit

  10   down and write a two-page statement to describe to yourself

  11   and others as to what had happened in the prior three days?

  12   A   Yes, I did.

  13   Q   Let me approach you with what has been premarked as

  14   Government Exhibit 2231.

  15            MR. FITZGERALD:  Your Honor, I would offer Government

  16   Exhibit 2231 and ask Ms. Commanday to read it to the jury.

  17            MR. BAUGH:  Judge, we object to the introduction of

  18   the statement.  I think she's going to read it now and present

  19   it to the jury.

  20            THE COURT:  That's fine.

  21            (Government's Exhibit 2231 received in evidence)

  22   Q   If you can just read it to the jury.

  23   A   There is a strange flower of red leafy free clusters

  24   growing where I leaned out my office window after the bomb

  25   blast that shook the --


   1            THE COURT:  Ma'am, may I suggest, please, much

   2   slower, please.  Just read it much slower and start again.

   3   Thank you.

   4            THE WITNESS:  There is a strange flower of red leafy

   5   clusters growing where I leaned out my office window after the

   6   bomb blast that shook me from my chair three days ago.  Just

   7   over a mile away was a huge dark cloud of smoke and debris

   8   blooming over downtown Nairobi.  This was injury and death for

   9   over five thousand.  A few of the flower clusters are brown

  10   and dying, others budding and blood red bloom.

  11            Vera,Vera one of our emergency doctors was walking

  12   with friends downtown when she heard the first explosion.

  13   While running with crowds of others towards the site to offer

  14   help a second louder explosion threw her against the building

  15   and glass rained down behind her.  She turned to see a man

  16   decapitated who had been walking in her shadow.  Bending down

  17   to him she said, I'm a doctor, I can help.  And then thought,

  18   no, shall he has no head.  I can't help him.  She began

  19   running in the direction of the hospital until her legs would

  20   no longer carry her and found a woman sitting dazed in a car.

  21   She said:  I'm a doctor, take me to Nairobi Hospital.  The

  22   woman did and Vera joined us working tirelessly throughout the

  23   day and night.  It was the next day that she told her story

  24   and laughed through her tears.

  25            It was maybe three minutes from the explosion,


   1   essentially alone in that hallway after activating the

   2   disaster plan, a sudden wall of broken bodies began descending

   3   from buses and cars, charging in wide-eyed and bleeding

   4   through the doors into our accident and emergency department.

   5   My first thought this is a nightmare.  My God, how will we

   6   cope.

   7            Battalions of cleaners kept mops and buckets in full

   8   swing to stem the progressive reddening of our pale green

   9   walls and floors.  Not people but crowds, herds even, pushed

  10   endlessly through the doors into the halls and rooms of the

  11   emergency department, leaning, limping, dragging, and carried

  12   in on top of each other with no end in sight, bloody and

  13   bleeding and broken.

  14            A piece of candy fell from the pocket of a little boy

  15   whose eyes were swollen shut with eyes ruptured by flying

  16   glass.  He bravely gave me his name and telephone number while

  17   I wonders if he would try to look for his candy.

  18            A housekeeper held a man's arm while a doctor started

  19   and intravenous infusion, after inserting the intravenous

  20   catheter the doctor left quickly to attend other patients.

  21   The housekeeper saw that he had not released the tourniquet

  22   and thought it didn't look right.  The nurses were too busy to

  23   interrupt.  She felt afraid to do anything incorrectly and

  24   slid the tourniquet down his arm until there was no tension on

  25   it.  Then she thought, it should be dripping because she'd


   1   seen it that way on other patients and unclamped the tubing.

   2   Quote:  I saw the water in the bottle began to go and I

   3   thought it must be going in the right direction so I let it

   4   go.  I hope I did the right thing but there was nobody

   5   available to ask.

   6            An accounting clerk stood holding up two IV bottles

   7   and noticed a woman sitting in the hall who had a gruesome eye

   8   injury.  He asked two ward nurses to attend to the woman but

   9   when she looked at the women's face they got scared and ran

  10   away.  The clerk gave the IV battles to a cleaner to carry

  11   while he took the woman to an emergency nurse.

  12            I set out repeatedly stepping over and around bodies

  13   checking breathing, pulse and consciousness on the many

  14   patients slumped and lying and sitting all along the hallways,

  15   in an attempt to triage the most severely injured into the

  16   critical care areas.  One man lay with eyes swollen shut from

  17   corneal lacerations, amputated fingers, and clothes torn off

  18   in the blast.  As I felt his rapid pulse and spoke to him he

  19   said:  I'm okay.  You go help the others.  Most of the others

  20   said the same thing.

  21            A patient from the medical ward, still in just a

  22   hospital gown held a pressure dressing on a man's chest and

  23   stroked his head with the other.  She had wandered off her

  24   psychiatric admission to reach out with her own humanity.

  25   Other patients joined the staff to help each other.


   1            A hairdresser's maid made owned two sheets so she

   2   brought one to the hospital because she thought that maybe

   3   somebody might need it.  Mountains of donations quickly grew

   4   through the night.  I look down the pale green hallways of the

   5   accident and emergency department, although they are now

   6   completely clean and quiet I seek the cleaner scrubbing them

   7   over and over and over.  I still see these walls grossly

   8   decorated like finger paints on kindergarten easel with

   9   splashes and drips and only one color, red.

  10            The sound that returns to my ears from Friday is

  11   subdued.  As everyone of the hundreds who crowded our rooms

  12   and halls seem to believe that there must be someone hurt

  13   worse, someone who needed our attention more, trusting that we

  14   would not forget them and would attend to their needs in due

  15   time, trusting that their loved ones would find them in due

  16   time.  They were all completely right.  I did not hear anyone

  17   ask to make a phone call.  I did not hear anyone cry.  The

  18   only screaming has been in my heart.  These are the people of

  19   many tribes with are the fingers on the hand that lifted the

  20   broken back to life.

  21            MR. FITZGERALD:  Thank you.  I have nothing further.

  22            MR. BAUGH:  Nothing of this witness, your Honor.

  23            THE COURT:  Thank you.  You may step down, ma'am.

  24            (Witness excused)



   1            MR. FITZGERALD:  The government next calls Margaret

   2   Kanini Otolo.


   4        called as a witness by the government,

   5        having been duly sworn, testified as follows:



   8   Q   Ms. Otolo, if you could just keep your voice slightly

   9   louder or if you could just sit a little bit closer to the

  10   microphone so that everyone can hear what you ever to say.

  11            Ms. Otolo, can you tell us about your husband?

  12   First, can you tell us what his name was?

  13   A   My husband's name was Roger Toka Otolo.

  14   Q   And can you tell us how long you were married to Roger

  15   Toka Otolo as of August 1998?

  16   A   I met Roger in 1978 when I just joined the university.  He

  17   was a student like me.  And we got married two years later.

  18   So at the time of death I had known Roger for around twenty

  19   years.

  20   Q   And did the two of you have children?

  21   A   Yes, we had three children.

  22   Q   Can you tell us their names and then their ages as of

  23   August 1998?

  24   A   As at August 1998, Peter who is our first born was 17

  25   years old, and Richard the second one was 13 years old, and


   1   Abraham, third one, was six years old.

   2   Q   In 1998 were you going to school?  Were you going to

   3   school in 1998?  Were you taking classes?

   4   A   The children?

   5   Q   No, yourself.

   6   A   Yes, at 1998 I was attending two kinds of courses.  I was

   7   attending a computer classes and I was also being part-time

   8   MBA classes.

   9   Q   And what did Roger do for work?

  10   A   Roger was a project engineer with a World Bank funded

  11   project, project engineer.

  12   Q   And where did he work, what location?

  13   A   He worked was working at the Corporate building, second

  14   floor.

  15            MR. FITZGERALD:  Your Honor, the government offers at

  16   this time Government Exhibit 2192, a photograph.  If there is

  17   no objection, we would display it at this time.

  18            (Government's Exhibit 2192 received in evidence)

  19   Q   Is that a picture of your husband Roger?

  20   A   Yes.

  21   Q   Can you tell us what he was like as a person?

  22   A   Roger was a very loving husband.  He was always there for

  23   me and the children.  He provided for us.  Everyday that I

  24   went to work and I used to leave very early to go to my place

  25   of work which was quite far from where we were staying, I


   1   would leave him asleep so that he would take the children to

   2   school, and also pick them from school.

   3            And when they would get home he would assist them

   4   with their homework, because I would get home late since I had

   5   to attend evening classes for my MBA, so he would be there for

   6   them and assist them with their homework.  And he was there,

   7   he in every way, in every way that we needed him he would be

   8   there.  When it comes to weekends he would take us out.  When

   9   I have to attend a class he would be with the children.

  10   Birthday parties for the children he would organize.

  11   Q   Thank you.  Can you tell us what happened on August 7,

  12   1998?

  13   A   As usual I left early in the morning around 8:15 to go to

  14   work.  He was sleeping that morning when I left.  But I

  15   remember telling him, Roger, I have left.  Only because that

  16   evening were meant to have dinner, because most of the time we

  17   were not able to get together as a family since I was always

  18   leaving early and coming late.  So we used to have Fridays for

  19   ourselves and the kids so that we were meant to have dinner in

  20   the evening.  So I told him I was leaving hoping that he'd

  21   wake up so that I could remind him, but he didn't wake up, but

  22   I didn't get worried because I thought I could call him at

  23   work.  So I left and went to work.

  24            And I got to work and that particular morning I was

  25   doing a final examination in the computer classes I was


   1   taking, down to the examination room around 9 a.m., did the

   2   exam, came out, and on my way to the office I met a colleague

   3   who told me and the person I worked with, that there was

   4   Nairobi had been bombed, and we thought he was joking.  So we

   5   just told him, don't joke about that matter.  But he said it

   6   was true.

   7            So I got a bit worried but I thought it was a joke

   8   nevertheless.  But when I got to my office, I actually found

   9   people talking about it on the corridor, so I went to my boss'

  10   office and asked the secretary if she had heard anything like

  11   that.  She said, yes, but she didn't have the details.  So we

  12   called another office where we were informed that, yes, it is

  13   true.  So I wanted to know more about it.  So I went to

  14   another office specifically we actually had been taking the

  15   examination, that's there was a television so that I could see

  16   if they could turn it on because in my place of work

  17   televisions are not on during the day.

  18            So I requested the person there to turn it on so that

  19   you could see what you were hearing is true.  And it was

  20   turned on and the first thing I remember seeing and hearing

  21   was the announcer saying that the Corporate building had been

  22   flattened.  That of course was shocking considering that that

  23   is where my husband worked, and the scene also on the screen

  24   was very scary.  So I remember looking for a seat and I sat

  25   down, and I could see no blood before people doing this and


   1   that and it was just horrifying.

   2            I remember going back to my office after a while.

   3   Then I called my husband's office.  The first call I thought

   4   went through, but nobody answered.  So I kept calling.  After

   5   sometime nothing was happening.  So I decided to call my

   6   parents in law's house and when I called there I talked to my

   7   sister-in-law who happened to be there who said that Roger had

   8   not called but I should not get worried about that because

   9   he's always busy helping people who are in need.  So he can't

  10   be hurt.  He must be okay.

  11            But I wasn't satisfied.  So I remember after sometime

  12   I decided to go to town to find out for myself.  But someone

  13   said that there was no transport that is going to Nairobi.  So

  14   I decided to walk believing that halfway around the way I

  15   would get transport.  So I walked for quite, 'cause my place

  16   of work is around 17 kilometers from town, so I walked like

  17   three quarter way, and I met someone now who was willing to

  18   take us to Nairobi but not directly.

  19            So I get into Nairobi around 4-ish, and I couldn't

  20   get close enough because by that time the place had been

  21   surrounded but I could see the place was really something

  22   else.  But I didn't see anyone I knew, because everyone was in

  23   shock.

  24            Then after that I went to check where Roger park the

  25   family car to see if the car would be there.  I didn't find


   1   the car there, and I thought he must have driven home but I

   2   decided to go home and there was still no transport for some

   3   time.  So we walk most of the way but we finally got home.  So

   4   getting home around 8-ish.

   5            So I found the children and Abraham told me he had

   6   seen on TV about the building where and he had not arrived so

   7   I asked, I told them let me go and call because at that time

   8   our phone was not working.  Let me go and call and find out if

   9   Roger has called his brother.  So I went and called and talk

  10   to my sister-in-law who told me he had not called, but my

  11   mother-in-law said he had.  She had met the person who shared

  12   the office with Roger, and their colleague had assured them

  13   that Roger was just leaving for the bank before the bomb, so

  14   he must be involved assisting people.  So we kept hoping that

  15   that was true.

  16            But then we kept thinking Roger is very responsible.

  17   There is no way he couldn't have called one of us.  So we kept

  18   hoping that that was so.  Then after some time I went back

  19   home to find out after I called from the public pay phone I

  20   went back home to find out if he had arrived, and of course he

  21   had not arrived.  So I decided to go to the hospital, because

  22   at that time they are saying on news is that if your person

  23   had not arrived you could go to the hospital and find out if

  24   he be one of them, or if you could see the name on the notice

  25   board.


   1            So I walked to the hospital.  Along there someone

   2   gave me a lift and got there, and of course there it was just

   3   bodies, and people screaming, and blood everywhere, so that

   4   even if you wanted to check, you wouldn't have been able to

   5   because of the what was happening there.  So I check the

   6   bodies that I could of the people that were laying on the

   7   beds, and he was not one of them.  I didn't see him.

   8            So I decided to walk to Kenyata Hospital but before I

   9   did I said maybe he now come home, and in any case I don't

  10   have transport.  Let me go home and find out if he has come.

  11   So I went back home and he had not come.  That was around

  12   11-ish there, and the children were still waiting.

  13            But meanwhile, his sister had arrived to find out if

  14   Roger had come, and of course he had not come.  So I asked the

  15   children to eat and go to sleep.  So I waited.  I waited up to

  16   around 3 a.m.  That is when I was in the darkened sitting room

  17   when I heard some cars come and stop at our gate, and when I

  18   peeped through the window I saw it was my parents in law, my

  19   brother-in-law, and I thought whatever they've come to do at

  20   this time, it can't be good.

  21            So I went and opened the gate, but I was not about to

  22   open because my hand is shaking, so I remember releasing the

  23   keys, and someone opening the gate, and then my mother-in-law

  24   started screaming exactly the way people at home cry when

  25   someone has died so she didn't need to tell me what happened.


   1            After that we just went to the house, and after some

   2   time they left and it was me and the children.  I kept

   3   wondering what I was going to tell the children in the

   4   morning.  And the children woke up, they asked me whether he

   5   had died.  I told them no.  I remember hugging them because

   6   they looked so shaken.  I didn't know how to tell them he had

   7   died.  I didn't know how.  I told them.  Finally I told them

   8   he had died, and everything will be okay, as all right, I am

   9   there.  Of course I didn't know what that meant.  My salary is

  10   so small, the house we were paying then, but I told them what

  11   I assumed that everything would be okay.

  12            MR. FITZGERALD:  Thank you, ma'am.  I have nothing

  13   further, Judge.

  14            THE COURT:  Thank you, ma'am.  You may step down.

  15            (Witness excused)

  16            MR. GARCIA:  The government calls Deborah Hobson.


  18        called as a witness by the government,

  19        having been duly sworn, testified as follows:


  21   BY MR. GARCIA:

  22   Q   Good afternoon.

  23   A   Hello.

  24   Q   In August of 1998 where were you living?

  25   A   In Nairobi Kenya.


   1   Q   And were you married at that time?

   2   A   Yes.

   3   Q   And who was your husband?

   4   A   Kenneth Ray Hobson II.

   5            MR. BAUGH:  Can I ask the witness to speak up.

   6            THE WITNESS:  Sorry.

   7   Q   Thank you.  Kenneth Ray Hobson?

   8   A   Yes.

   9   Q   And was he in the Army at that time?

  10   A   Yes, he was.

  11   Q   And was Ken killed in the bombing of the embassy on August

  12   7th?

  13   A   Yes, he was.

  14   Q   And how old was he?

  15   A   He was 27 years old.

  16            MR. GARCIA:  At this time, your Honor, the government

  17   would offer Government Exhibit 2035.  And if we could have

  18   that displayed.

  19            (Government's Exhibit 2035 received in evidence)

  20   Q   Is that a photo of your husband?

  21   A   Yes.

  22   Q   Is that your daughter, Megan with him?

  23   A   Yes.

  24   Q   Ma'am, could you just describe your husband, Ken, for us?

  25   A   He was 27 years old.  He was a young rising star in his


   1   job.  He's athletic and energetic, and he was always bringing

   2   people home for dinner.  And he would say, oh, well, so and

   3   so's coming in from the field.  A Peace Corp person, and

   4   they're staying the weekend, or they're staying the week or

   5   something.  He just had this heart for people, and was so

   6   kind, and considerate.  And I always called him a knight.  He

   7   reminded me of like the old code of knighthood.

   8   Q   And when did you and Ken arrive in Nairobi?

   9   A   In April of '98.

  10   Q   And were you also working at the embassy in Nairobi?

  11   A   Yes, I was.

  12   Q   And were you working on that Friday, August 7th?

  13   A   No, I wasn't.

  14   Q   Was Ken working?

  15   A   Yes, he was.

  16   Q   And can you tell us what happened on August 7th?

  17   A   August 7th Ken left for work, and I didn't have to go in

  18   that day.  And I groggily said goodbye to him.  I vaguely

  19   remember what he was wearing, I was so tired.  And he just

  20   kissed me and said goodbye, and I didn't even remember if I

  21   said, I love you.

  22            He went off to work and he called me earlier in the

  23   morning, and we had some friends staying, some Peace Corp

  24   folks staying with us, and we were trying to arrange a visit

  25   in town with Ken, and also he wanted to know what wine to


   1   bring home from the embassy for a meal we were going to have

   2   with Shari Olds that evening, and so we decided we weren't

   3   coming right away, that we'd meet him after lunch, and then it

   4   wasn't about thirty minutes after that, that we heard a big

   5   bang.

   6            And I thought somebody knocked on my door, and then I

   7   couldn't decide which door it was that was knocked on and then

   8   I looked out the window, and I saw a big embassy truck out

   9   there and I thought maybe that he blew a tire, and by the time

  10   I got out there they had got word that there had been a bomb

  11   at the embassy, and they were jumping around and upset.

  12            And I could -- and so I went inside, and I just

  13   started thinking, like, okay, I have to get there, and help

  14   them.  So without any regard for my daughter was being cared

  15   for by our nanny, so I just, I didn't even think, I just

  16   gathered up supplies blankets and rubber gloves, and Ken's

  17   combat medic bag, and our hand held radio for communication

  18   and one of the Peace Corp folk, Christian, he went with me,

  19   and we raced into the embassy pace as best we could.  I'd only

  20   ever driven in Nairobi one time so it was rather difficult.

  21   Riding, and we got through all of the barricades, and I was

  22   walking up to the embassy.  Actually before I got to the

  23   embassy I picked up Louise Martin's husband had who was

  24   running on the way there, and we both got there and got out,

  25   and moved quickly toward the embassy.  Then kind of lost track


   1   of where everybody else went, but I was just walking looking

   2   around me at total amazement at the twisted black cars and my

   3   focus really was on where Ken's office was because I was

   4   approaching the American embassy from the side where his

   5   office was.  I could see it and I could see that it was

   6   collapsed most of the way in, and if he had been in there I

   7   knew that he would be dead.

   8            And then I saw Steve Knowland who is the admin

   9   officer and he, I asked him if he seen Ken and he said no,

  10   he's probably dead.  And I gave him my radio and then moved on

  11   to where the people were gathering outside and watched them

  12   bring bodies out, or I guess maybe it was injured people, I'm

  13   not sure.

  14            I saw them coming out with blankets over them.  I

  15   handed all of my supplies I brought and just waited, and just

  16   I was dumbfounded, and I asked people as they were coming out

  17   have you seen, Ken, have you seen Ken.  I know if he was alive

  18   he'd be helping people.  And I guess some people knew but they

  19   couldn't tell me.  And Ken's boss came out of the embassy and

  20   told me that he had died, and then I was escorted home and I

  21   handed over the keys to my Jeep so they could use it for

  22   transportation for people.

  23   Q   And did you leave Kenya shortly after that?

  24   A   I did, yes.  I was escorted home two days after it

  25   happened, and after I got home I was wishing I could be there


   1   just to be in a place where he was, to see where he made bread

   2   with Megan on the counter cover with flour, or see where he

   3   got his chair to the computer, or where he played with our

   4   dogs.  If I could just have been there to just remember him,

   5   but we went home rather quickly.  I guess it was for the boast

   6   all the way around.

   7   Q   Ms. Hobson, did you learn that you were pregnant after you

   8   returned from Kenya?

   9   A   I didn't know when I left Kenya.  I found out when I got

  10   back home that I was just a few weeks pregnant.  Eight months

  11   later I gave birth to a little girl and I called her Abigail

  12   which means, my father rejoices.

  13            MR. GARCIA:  Your Honor, I have nothing further.

  14            MR. BAUGH:  No questions.

  15            (Witness excused)

  16            MR. GARCIA:  Government calls Dr. Surendra Patel.


  18        called as a witness by the government,

  19        having been duly sworn, testified as follows:


  21   BY MR. GARCIA:

  22   Q   Doctor, if I could ask to keep your voice up as much as

  23   possible and if you would sit maybe a little closer to the

  24   microphone.  You don't have to speak right into it.

  25            Doctor, where do you work?


   1   A   What?

   2   Q   Where do you work?

   3   A   I work at the M.P. Sha Hospital, Nairobi.

   4   Q   What's your specialty there?

   5   A   Trauma.

   6   Q   And how long have you been at M.P. Sha Hospital?

   7   A   Last twelve years.

   8   Q   And were you working at M.P. Sha on August 7, 1998?

   9   A   Yes, I was.

  10   Q   And can you tell us what happened at the time of the

  11   bombing that day?

  12   A   Around 10:57 on August 7th 1997, we got a phone call --

  13   Q   1998?

  14   A   1998.  We got a phone call with a panic in there was a

  15   bomb, bomb blast in town.  About a few minutes prior to that

  16   we heard windows and doors shake, and we thought it was a

  17   tower and we never realized it was a bomb.  And then I alerted

  18   the matron, our administrator, and called, informed that we

  19   are having, we might be having possible disaster on our hands.

  20            As we were arranging this we had the first casualty

  21   arrive.  It was a young boy about 8 years old, brought in,

  22   somebody carrying him in arms, and he's all bloodshot.  He had

  23   multiple injuries, and there was the first casualty we saw,

  24   and the comments made was said, what's this?  And said, you've

  25   seen nothing, and I went to triage.  We organized everything,


   1   mobilized the nurses, got all the doctors.  Unfortunately

   2   there telephone lines went dead and were dead for the next

   3   three hours we tried to get people on the mobile.  We got

   4   ourself we got as many people as possible, and we started.

   5            Initially the flow was slow, and then about an hour

   6   later people just flocked in.  They were brought in in

   7   minivans, by scooter, by everybody, everybody, and our triage

   8   area was overran.  We had all the doctors were working, get

   9   handful on your hand.

  10            While I was there visit my senior nurse getting

  11   everybody organized, and then we had a bus load of school

  12   children brought in, and this is where those child brought in

  13   with the ruptured eye, and I got him down, give it to doctor,

  14   and said, take him to the OR straight because this child has

  15   no place here.  That day we had to discharge all of our

  16   regular normal patients to make way for these casualties, and

  17   that was the first time in the sixty odd years of the hospital

  18   that maternity wing was cleared out for these casualties.  It

  19   has never been done before.

  20            And brought in the children.  Now I come back to the

  21   bus, the school children were brought in, and I got one in my

  22   hand and I look around for some help but there is nobody.  So

  23   I took him in.  And this is the photograph of a child which

  24   the electronic media splashed throughout the world with a

  25   child with multiple injuries on the face.  Fortunately, the


   1   eyes and you know were not affected.  He has multiple scars

   2   now.  Four years down the line, he still has got difficulty

   3   moving his neck, and I don't think I see anything like that.

   4   Q   Doctor, one of the patients that was brought in from the

   5   school bus, did you later learn his name was Sandi Patel?

   6   A   Yes, please.

   7   Q   Doctor, did there come a time that you went to the bombing

   8   site?

   9   A   After I finished with the main hospital or, rather, around

  10   ten o'clock at night we went to the site of disaster, and the

  11   site was cordoned off.  There were all sorts of organizations

  12   there.  There was Red Cross, there was St. John ambulance.

  13   There were lots of doctors.  The doctors from Medivac and

  14   other organizations, so we said, we held back, we said we

  15   wouldn't try to go and start helping them, because that will

  16   bring in chaos.

  17            The bodies steady, people were trying to dig in by

  18   their bear hands.  There was blood all over.  There's some

  19   screams, there are some screams, and we just came back.

  20   Q   Doctor, prior to coming to court today did you review some

  21   photos that looked, that showed scenes such as the one you saw

  22   at the site that day?

  23   A   Yes.

  24            MR. GARCIA:  Your Honor, at this time I'd like to

  25   offer and display Government Exhibits 2252, 2253, and 2257.


   1            (Government's Exhibits 2252, 2253 and 2257 received

   2   in evidence)

   3            THE COURT:  You may.

   4            MR. GARCIA:  If we could have 2252 shown.

   5   A   At the site of disaster the bomb blast.

   6   Q   Is this similar to the scene that you saw when you

   7   arrived?

   8   A   That's right, yes.

   9   Q   If we could have Government Exhibit 2253?

  10   A   Again, these are similar faces we saw.

  11   Q   And 2257?

  12   A   That's again at the site, and same kind of injuries which

  13   were brought into the hospital, and in the same fashion.

  14   Q   Doctor, did you also have the opportunity to review a

  15   number of photographs prior to coming to court that showed

  16   injuries similar to the ones that you treated that day August

  17   7th?

  18   A   Yes.

  19            MR. GARCIA:  Your Honor, at this time we would offer

  20   and display Government Exhibits 2258, 259, 2260, 2261, 62, 63,

  21   64, 65, 66, 68, 22 -- 2266.

  22            THE COURT:  You may.

  23            (Government's Exhibits 2258, 259, 2260, 2261, 62, 63,

  24   64, 65, 66, 68 received in evidence)

  25   Q   If we could have Government Exhibit 2258 displayed,


   1   please.

   2   A   It's similar of the first casualty which was brought in, I

   3   will say that.

   4   Q   Similar types of injuries to the first casualty treated?

   5   A   Yes.

   6   Q   2259?

   7   A   Again, the same sort of injuries.

   8   Q   Did you treat many lacerations that day, Doctor?

   9   A   A lot of them.  In fact, we lost count.

  10   Q   2260?

  11   A   Again, the same.

  12   Q   2261?

  13   A   This is a distinctive caption again.  There were lots of

  14   casualties of this fashion we treated that day.

  15   Q   And 2262?  Now, Doctor, this is not your hospital, is it?

  16   A   Similar injuries were treated at our hospital.

  17   Q   And 2263?

  18   A   Again, similar injuries.

  19   Q   2264?

  20   A   Again, similar injuries were treated.

  21   Q   I believe this photo shows somebody being sutured; is that

  22   right?

  23   A   That's right, yes.

  24   Q   Was a lot of that work done that day?

  25   A   A lot of work done that day.  In fact we ran out of


   1   sutures that day.  All hospitals practically ran out of

   2   sutures.

   3   Q   And 2265.  Doctor, were you using all the available space

   4   in your hospital that day?

   5   A   That's right.

   6   Q   And 2268?

   7   Q   Did you see many eye injuries that day, Doctor?

   8   A   That's right, many.

   9   Q   And finally, 2266.  Doctor, do you recognize the scene in

  10   this photograph?

  11   A   This is a photograph of our ICU.

  12   Q   Your intensive care unit?

  13   A   Right.

  14   Q   And, Doctor, approximately how many patients did you treat

  15   at M.P. Sha Hospital that day?

  16   A   300 people.

  17   Q   When patients were discharged were they given any type of

  18   documentation?

  19   A   Yes.  They were given cards for return visits for follow

  20   up.

  21            MR. GARCIA:  Your Honor, if we could display now

  22   Government Exhibit 550 which is already in evidence.  If we

  23   could enlarge the bottom one.  Is that a copy of a card that

  24   was issued to a patient at your hospital on August 7, 1998?

  25   A   Yes.


   1            MR. GARCIA:  I have nothing further, Judge.

   2            MR. BAUGH:  No questions, your Honor.

   3            THE COURT:  Thank you, doctor.  You may step down.

   4            (Witness excused)

   5            MR. FITZGERALD:  The government calls Sandeep Patel.

   6            MR. BAUGH:  Before that witness is brought out may we

   7   approach the bench?

   8            THE COURT:  Yes.

   9            (Continued on next page)


















   1            (At the sidebar)

   2            MR. BAUGH:  The last witness had nothing to do with

   3   victim impact and we would object to it and we could bring the

   4   Tennessee issue, the nature and quantity of evidence.

   5            MR. GARCIA:  I think we'll be finished tomorrow.

   6            MR. FITZGERALD:  We're ahead of that.

   7            MR. GARCIA:  We've cut five witnesses from our group

   8   and we'll be finish tomorrow.

   9            MR. COHN:  Your Honor, with respect I don't think --

  10            THE COURT:  One issue, one objection, made.  Are you

  11   going to do anything other than reinforce what Mr. Baugh has

  12   said?

  13            MR. COHN:  No.  I must say, your Honor, that this is

  14   a rule that seems to appear from time to time.

  15            THE COURT:  The application is denied.

  16            (Continued on next page)











   1            (In open court)

   2            MR. FITZGERALD:  Your Honor, I believe for

   3   Mr. Patel's testimony we have the services of a Gujarati

   4   interpreter who I think needs to be sworn and can stand by if

   5   needed.

   6            (Interpreter, Dhiri Trivedi, duly sworn)


   8        called as a witness by the government,

   9        having been duly sworn, testified as follows:



  12   Q   Good afternoon.  If you could just keep your voice up and

  13   it's easier if you move the seat up closer to the microphone

  14   and that will help project your voice.

  15            Can you tell the jury your name and how old you are?

  16   A   My name is Sandeep.  I am 15 years old.

  17   Q   Can you tell the jury what languages you speak?

  18            What languages do you speak?

  19   A   I speak English, Gujarati and Swahili.

  20   Q   The last one was Swahili?

  21   A   Yeah.

  22   Q   And the second language was Gujarati?

  23   A   Gujarati.

  24   Q   And Swahili is a language spoken in coastal Kenya?

  25   A   Yes, Kenya.


   1   Q   Where is Gujarati spoken?

   2   A   In India.

   3   Q   Now, is English your second language?

   4   A   Yeah.

   5   Q   If you need help when you testify you can use the

   6   interpreter to your left, but if I try it in English, why

   7   don't we do that.  Can you tell us how many brothers you have?

   8   A   I have three brothers.

   9   Q   And what are their names?

  10   A   The old one, oldest is Thadius, Hashran and myself

  11   Sandeep.

  12   Q   So there are three boys in the family?

  13   A   Yeah.

  14   Q   And let me take you back to August 7, 1998.  Did you go to

  15   school that day?

  16   A   Yes, I did go to school.

  17   Q   And will you tell us what happened at school that morning?

  18   What did you do?

  19   A   I prepared to go to school on 7th August 98.  I was just

  20   waiting at the bus stop.  I was just waiting at the bus stop.

  21   The buses arrived so I drove, the bus took off from the bus

  22   stop to school.  And it was the last day of the school, and I

  23   went and took my, I went to look at my grades to the school,

  24   and I was enjoying myself.

  25            It was about, it was 9:40 in the morning and we had


   1   and assembly for our school.  After the assembly had finished

   2   I enter the school bus, and the school bus took off at 10

   3   o'clock in the morning.

   4   Q   And who was on the bus with you?

   5   A   There were fifty student and the conductor.

   6   Q   And were any of your brothers with you on the bus?

   7   A   Yes, both of them were with me.

   8   Q   And can you tell us what happened on the bus ride?  What

   9   happened after you got on the bus at 10 o'clock?

  10   A   After I enter the bus the bus took off.  I was going home

  11   back, and as I reached the American Embassy it was traffic, so

  12   the bus stopped at the traffic.  After some few seconds I

  13   heard a, I heard some, I heard a noise.  So I went looking, I

  14   went looking out of the window, as I heard a loud noise, and

  15   the glasses of the building the tall building fell into my

  16   eyes, and I couldn't able to see.  And my friend, my friend

  17   took me out of the bus and took me to another bus which took

  18   me to a Kenyata National Hospital.

  19   Q   At the time your friend took you from the bus to the

  20   hospital did you know where your brothers were?

  21   A   No, I didn't know where my brothers were.

  22   Q   And what happened when you got to Kenyata National

  23   Hospital?

  24   A   As I reached the Kenyata National Hospital I was, I had

  25   some treatment over there.  After treatment at 5 o'clock in


   1   the evening my father came and took me to another hospital,

   2   M.P. Sha Hospital, and they treated me and I had surgery, the

   3   first surgery.

   4            The next day I was discharged, and after one day I

   5   had to go to the doctor for an eye check.  I went back home.

   6   After two weeks I had another surgery in Kenyata National

   7   Hospital by the German doctor and I stayed in the hospital two

   8   and a half weeks.  Then I was discharged.

   9            After some, after some few months I had another

  10   surgery in United States in Boston, and I left there, I had, I

  11   lived in the hospital for one day, and after one day I was

  12   discharged.  When I came back home I had my treatment was

  13   still going on.

  14   Q   And did you ever see your brothers again on August 7, 1998

  15   after you went to the hospital?

  16   A   Yeah, I saw my brother in the first hospital when I went

  17   in Kenyata National Hospital.  My smaller brother Ashrin he

  18   was with me.

  19   Q   How old was Ashrin at the time?

  20   A   He was eight years old.

  21   Q   And what did he look like at the time?  When you saw him

  22   what was his condition in the hospital, your brother?

  23   A   He had too many cuts on his face, and he was, he had too

  24   much pain and he was just crying.

  25   Q   And as of today can you see out of your right eye?


   1   A   No, nothing I couldn't see anything out of my right eye.

   2   Q   How about your left eye?

   3   A   Yeah, I can see but there's no vision.

   4   Q   And do you have a problem seeing depth?

   5   A   Yeah, far away.

   6   Q   Before August 7, 1998 what sports did you like to play?

   7   A   I like to play cricket.

   8            (Continued on next page)



















   1   Q   Can you play cricket any more?

   2   A   No.

   3   Q   What happens now when you read for school?  When you read

   4   books and papers for school --

   5   A   When I read books and papers, my head starts spinning.

   6            MR. FITZGERALD:  Thank you very much.  Nothing

   7   further.

   8            THE COURT:  Thank you.  You may step down.

   9            (Witness excused)

  10            MR. FITZGERALD:  The government calls Lydia Sparks.


  12        called as a witness by the government,

  13        having been duly sworn, testified as follows:



  16   Q   Good afternoon, Ms. Sparks.  Can you tell the jury what

  17   you did for work in August of 1998, and where you lived.

  18   A   I was warehouse manager for the U.S. Embassy in Nairobi.

  19   I worked for the General Services Office.

  20   Q   How long had you worked, you and your family worked for

  21   the United States government overseas?

  22   A   My husband has been in the foreign service for 16 years.

  23   I followed him to eight different countries and I have worked

  24   as a dependent spouse for most of those years.

  25   Q   Besides you and your husband, was any other family member


   1   living with you in Nairobi at the time?

   2   A   Two sons and my mother-in-law.

   3   Q   Let me direct your attention to August 7, 1998.  Can you

   4   tell the jury what happened that day.

   5   A   I went to work to the warehouse, which was actually not in

   6   the embassy.  While I was there at work I met Jay Bartley,

   7   Jr., who was my summer hire.  We had some things that we

   8   needed to do that morning.  I needed to check on some housing

   9   problems, and Jay was working on an auction that the embassy

  10   had had, to get rid of excess property.  We took a vehicle.  I

  11   dropped Jay off at the auction house.

  12            I went on to my destination, which was further in the

  13   city.  I checked the house that I needed to check on, came

  14   back to the auction house to pick Jay up.  We picked Jay up

  15   and proceeded to the embassy.  We went into the back entrance

  16   of the embassy.  We got out of the vehicle.  As we were

  17   walking in, one of the drivers, motor pool drivers, was in a

  18   vehicle sitting outside the back gate.  He gets out of his

  19   vehicle.  His name was Maurice.  He comes to me, and he had

  20   worked for me at the warehouse for about three months prior,

  21   and they had rotated him back into the motor pool.  He had

  22   been there for about five days.  He gets out of his vehicle

  23   and he comes to me, and he tells me he misses being out there.

  24   He calls me momma.  That was a name that was a sign of

  25   respect.  He told me he wished that they would put him back


   1   out there.  I told him that I wished he was back there.  He

   2   gets back in his vehicle, waiting for a passenger, and Jay and

   3   I proceed on into the embassy.

   4            Jay, it was the last day that summer hires were

   5   working in the embassy, but because Jay was going to one of

   6   the local colleges he didn't start school at the same time our

   7   kids did.  So my boss, the general services officer, was

   8   trying to find something else for Jay to do to give him a

   9   little more money and to give him something to do for a few

  10   more weeks.  So we proceeded to the General Services Office,

  11   and while we were there, Michelle O'Connor was there, Frank

  12   Pressley was there, Rukia Ali was a secretary in there.  We

  13   were standing around chitchatting.  Someone had brought in

  14   some cake and cookies, and we were all having a piece of cake

  15   or a cookie.  Michelle and I were talking about her

  16   stepdaughter.  She had a teenage stepdaughter who she loved

  17   dearly, and we were talking about her daughter.  And we heard

  18   the grenade go off, I guess.  I looked at Michelle and I said

  19   Michelle, that sounded like a bomb.  We didn't think a lot

  20   about it, because so many things have happened around the

  21   embassy that it really wasn't unusual to hear anything.  But

  22   she looked at me and she says, it was a bomb.  I turned around

  23   and started out of the office up the hallway to the back of

  24   the building.  As I was looking, there were two people, Lydia

  25   Mayaka and Joe Kionga, standing in the window.  When the


   1   second explosion went off, they disappeared in front of my

   2   eyes.  They were there and then they were gone.  I saw

   3   something coming towards my face.  I guess it hit me.  I don't

   4   remember being hit.  But I thought it had blinded me.  I

   5   couldn't see.

   6            In the background I could hear someone screaming, oh

   7   my God, oh my God.  I turned towards that voice, and I told --

   8   I just yelled out, I'm blind, don't leave me, I can't see.

   9   Two of the foreign service nationals that were working that

  10   day called me by name and told me, Lydia, we won't leave you.

  11            I think we started to go out a window, and we were

  12   told not to jump out the window.  So somehow we started down

  13   the hallway and got into the stairwell.  We got to the bottom

  14   of the stairs, and there was, a wall had collapsed at the

  15   bottom of the stairs.  I couldn't get over the wall.  And I

  16   was so tired.  Another one of the FSN's, he told me, he said

  17   you'll get over the wall.  I said David, I can't make it over

  18   the wall.  He said you'll get over it because I will help you

  19   over it.  He picked me up and he carried me over the wall.

  20            Sometime during the time I reached up and I wiped my

  21   eyes, and I wasn't blinded.  It was blood or whatever in my

  22   face.  We got outside.  A Kenyan gentleman, I don't recall a

  23   face, I just remember a gentleman in a very white, bright

  24   shirt, came to me, took me to a vehicle.  It was the vehicle

  25   that one of our embassy nurses was in, Barbara Mulin.  It was


   1   full.  I was the last person that could fit in the vehicle.  I

   2   was put in the vehicle and we went to the hospital.

   3            When we got to the hospital, I don't remember the

   4   ride.  We got there, we were taken inside.  There were no more

   5   beds left.  I was put in the floor, and I don't know how long

   6   I stayed in the floor, but every so often Barbara would come

   7   through, and if you ever hear Barbara speak you'll never

   8   forget the voice.  She's got a Jamaican accent.  She would

   9   come through and she would look at me and she would say Lydia,

  10   are you OK?  I'm here.  Then she would go out and she would

  11   help someone else.  But she would always come back so I would

  12   know that I wasn't being lost in the crowd.

  13            Sometime, I don't know how much time passed, they

  14   were finally able to put me on a stretcher and tend to my

  15   wounds.

  16            That's about all I remember that day.

  17   Q   Could you describe to the jury what your wounds were at

  18   that time.

  19   A   I was cut from head to toe.  I had glass protruding from

  20   all areas of my body.  Covered in blood, bruised.

  21   Q   How many times have you gone for medical procedures and

  22   operations to remove glass from your body?

  23   A   Probably about probably eight or nine times.  I have had

  24   surgery on my nose a couple of times.  The cartilage in one

  25   part of my nose collapsed.  I have had surgery on that twice


   1   but it hasn't worked.

   2   Q   Can you tell us what hospitals you were treated at in the

   3   period following August 7.

   4   A   Nairobi Hospital, Landstuhl, and then Walter Reade.

   5   Q   Is Landstuhl a hospital in Germany?

   6   A   Yes, it is.

   7   Q   Is Walter Reade back in the States?

   8   A   Yes, it is.

   9   Q   Did there come a time after your treatment at the various

  10   hospitals when you returned to Nairobi?

  11   A   About five, six weeks after, I returned to Nairobi.

  12   Q   Can you tell the jury what happened in February of 1999.

  13   Did you come to leave Nairobi again?

  14   A   I left Nairobi in February '89 again.  I had gotten to the

  15   point where I was doing everything I could to keep myself in

  16   control.  I felt like as long as I was in control of

  17   everything that went on around me then I could deal with what

  18   had happened.  In February of '89, I realized that I couldn't.

  19   I was medicated and sent out.

  20   Q   And you came back home?

  21   A   I came back home.

  22   Q   Can you tell the jury how you're doing now.

  23   A   I have nightmares.  Sometimes I see people who I know have

  24   died.  I can be walking up a hallway and look off in the

  25   distance and think someone that I had known that died is


   1   coming towards me.  Back last fall they had a high school

   2   homecoming about two blocks from my house.  They set off

   3   fireworks.  It scared me so bad that I wound up in the hallway

   4   plastered against the wall.  My husband told me later, he said

   5   you looked like a deer who had been caught in headlights.  I

   6   couldn't move.

   7            MR. FITZGERALD:  Thank you.  I have nothing further.

   8            MR. BAUGH:  We have no questions for Mrs. Sparks.

   9            THE COURT:  Thank you, ma'am.

  10            (Witness excused)

  11            MR. FITZGERALD:  I think this might be an appropriate

  12   time for the break, Judge.

  13            THE COURT:  We will take our midafternoon break at

  14   this time.

  15            (Recess)

  16            THE COURT:  The government may call the next witness.

  17            MR. GARCIA:  The government calls Dorine Ruto,

  18   R-U-T-O.

  19    DOREEN RUTO,

  20        called as a witness by the government,

  21        having been duly sworn, testified as follows:


  23   BY MR. GARCIA:

  24   Q   Ma'am, if I could ask you to speak as loudly as you can

  25   and to lean a little bit towards the microphone, although you


   1   don't have to speak into it.

   2            Miss Ruto, was your husband killed in the Nairobi

   3   bombing on August 7, 1998?

   4   A   Yes.

   5   Q   What was his name?

   6   A   Wilson Kipkorir Mutani.

   7   Q   How old was your husband when he died?

   8   A   He was to turn 33 that week.

   9   Q   How long were you married?

  10   A   We were married for nine years.

  11   Q   Did you have children?

  12   A   Yes.

  13   Q   How many?

  14   A   Two children.  Boys.

  15   Q   How old were they?

  16   A   They are now 12 and 5.

  17            MR. GARCIA:  The government would now offer

  18   Government's Exhibit 2113 and display it, with your Honor's

  19   permission.

  20            THE COURT:  Yes.

  21            (Government Exhibit 2113 received in evidence)

  22   Q   Is that a photo of your husband there?

  23   A   Yes, it is.

  24   Q   Would you tell us something about your husband, what he

  25   was like.


   1   A   When I first met Wilson, first of all, he was a very

   2   handsome man.  He was very charismatic.  He was very

   3   intelligent.  I met him in college.  He was in his second

   4   year, doing his stadia in biology.  He was a very kind man.

   5   When we got married, he appeared to me as a very good father,

   6   a very good husband.

   7            One thing, in our tradition, most of the time men are

   8   not supposed to take part in the bringing of babies, things

   9   like changing nappies.  It wasn't a man's job.  But this was a

  10   man who would change nappies and even feed the babies.  The

  11   two children I had, I had them through Caesarian section.

  12   During that time when I would be recuperating, he would take

  13   care of the children and take care of me.  He was my nursemaid

  14   most of the time that I was sick.

  15            He was a very different kind of man.

  16   Q   Where did Wilson work?  Where did he work, your husband?

  17   A   Wilson worked for the Teachers Service Commission.

  18   Q   Where was that located?

  19   A   It was housed in the Cooperative Bank Building.

  20   Q   Could you tell us what happened on August 7, 1998.

  21   A   On that particular day I was at home.  Apparently two

  22   weeks before that we had just lost a baby, and I was still in

  23   the house recuperating.  Wilson had just resumed the Monday

  24   before that Friday.  He had resumed work from compassionate

  25   leave.  On that 7th I remember he had a meeting to attend on


   1   the 4th floor of the Cooperative Bank Building.  He was going

   2   to be the secretary.  That means he was going to take the

   3   minutes for that meeting.  He needed to leave very early to

   4   prepare the agenda for the meeting.

   5            By 6 a.m. he was up and he was full of energy, he was

   6   raring to go.  I remember I also woke up, and I watched him

   7   dress, something which ended up later on being very

   8   significant, because unlike the previous two weeks, he had

   9   left the house while I was sleep.  On this particular day I

  10   watched him as he got dressed.  I knew what tie he had put on,

  11   I knew what kind of shirt he had put on.  I remember at some

  12   stage asking him to put on some other shirt.  So instead of

  13   putting on the blue shirt he changed and put on a pink shirt.

  14   That shirt later on ended up being a real landmark, because it

  15   is the shirt I kept on looking for later on.

  16            So he left the house around 7:30.  According to me, I

  17   knew the rest of that day he would be in a meeting.  He was

  18   not to come out of the building.

  19            At around 10:30, I had just put the younger boy to

  20   sleep and I was downstairs with my elder boy.  And then I

  21   heard a thud sound.  It was not a loud sound, it was just a

  22   thud, followed by a tremor.  I didn't think much of it but I

  23   remember my son asked me what was it, Mommy.  I told him I

  24   thought it was a transformer.  I didn't think much of it until

  25   later on it was on TV and my son told me come and look at the


   1   news flashes, something about your place of work.  I used also

   2   to work for the Teachers Service Commission.  I used to work

   3   on the third floor when my husband was on the fourth floor.  I

   4   didn't see on the TV much happening then.  What I saw was the

   5   bus that had people in it.  Most of these people -- I didn't

   6   see inside the bus.  That was on the TV screen.  But I

   7   remember seeing a driver leaning out of the window and it was

   8   like his head was stuck towards the outside.  According to me,

   9   I thought the bomb was not something big, I thought it was a

  10   petrol bomb that went off in the bus.

  11            The newscaster say at that time the death toll is 10

  12   people.  At that time I say Wilson is out of danger, I don't

  13   think he is in this bomb.  But I tried to get into town to see

  14   whether he was safe.  I didn't get any further because when I

  15   get about a kilometer from town there was a roadblock and the

  16   policemen were telling people to keep off from the town

  17   center.  Then I went back to the house and I decided I would

  18   look for Wilson on the TV screen because I see so many faces

  19   that were familiar to me because I see my colleagues.  It was

  20   at that time that I decided I would start looking for him, and

  21   I thought any time he would walk through the gate and come

  22   home.  I was very hopeful that day.  I thought maybe he will

  23   come home with a scratch or something like that.  I didn't

  24   think anything bad would happen.

  25            Friday came and Saturday.  We went through all the


   1   hospitals and we did not see him.  I remember by Saturday

   2   evening, around 8 p.m., a friend of Wilson who was a cop came

   3   and told me, he called me out of the house away from the

   4   children and told me that, ma'am, I want you to be set for

   5   anything, be prepared for any eventualities.  And I remember

   6   him telling me that you have to be strong for the children in

   7   case anything has happened.  I asked him, have you found

   8   Wilson?  He told me no, we have not found him, but I just want

   9   to tell you that you have to be strong no matter what happens.

  10   At that time I kept asking myself does he know that Wilson is

  11   no more, that's why he is telling me this.  That's the time

  12   that I say tomorrow the following day we will go and look for

  13   him among the missing persons on the list at the police

  14   station.

  15            On Sunday morning we were up very early.  There were

  16   very many people coming to the house and trying to find out

  17   whether we had seen Wilson.  We kept saying no, we have not

  18   seen him.  So on that Sunday morning very early I woke up

  19   around 6.  We left for town using the public means but we

  20   could not get far because all the roads were blocked.  So we

  21   had to cover most of the distance from hospital to hospital on

  22   foot.  At that time I remember I was in so much pain.  I was

  23   not fully recuperated and I kept feeling that I would pass out

  24   any time.  We went to the police station.

  25            We looked through the names that were there, and we


   1   could not get much from the list because they kept indicating

   2   a unknown African male.  I remember I was really annoyed and

   3   angry about it because I kept thinking that someone should

   4   know where Wilson is, he is not any unknown African male, he

   5   is my husband, someone should find him.  A policeman told us

   6   that we could find him -- there was another list of people

   7   whose names were missing.  I went through that list but I

   8   didn't get much from it.  It was then that we decided to look

   9   through the morgues.  We were told those who went to the

  10   different morgues.  Those who went to the other morgue were

  11   mostly family members and those at the city mortuary were

  12   unidentified.  That's where we headed around 10 a.m. Sunday,

  13   9th of August.  I recall it was a very cold, chilly morning.

  14   It was just the three of us, me, a friend and my

  15   brother-in-law.

  16            OK.  We entered the morgue through the back door, and

  17   there was a horrific scene there.  The first three bodies were

  18   badly bent, beyond recognition.  But I kept telling myself, I

  19   have to identify him.  I was going to go through this, I was

  20   not going to spend another night without knowing where he was.

  21   We went to a big room and there were bodies all over the

  22   floor.  I was feeling some relief, he wasn't there.  Someone

  23   said no, there is more bodies outside that room.  I went to

  24   that room and the fifth person from the door was Wilson.  He

  25   was lying with his head towards the ally and the feet towards


   1   the wall.  I remember the first thing I looked at were the

   2   socks, and when I looked at his socks I followed the body

   3   downwards and right below my feet was his head.  At that time

   4   I recognized the shirt he had put on and the tie he had put

   5   on.  His face was badly damaged but it still was recognizable.

   6            Yeah, that's what happened that day.

   7   Q   Could you tell us what is the impact of your husband's

   8   death on you and your family?

   9   A   One thing, as I said, Wilson was a very charismatic man.

  10   He was just not -- he was not just a leader in the family, he

  11   was also a provider.  Besides that, Wilson, his parents looked

  12   up to him to do everything for them.  He was a first born son.

  13   He was well educated.  He was a hero to the family.  Everyone

  14   looked to him to help.  Everyone looked to him for advice.  He

  15   was a very courageous man.

  16            OK, after his death it was like we lost direction.

  17   It was not having a sense of direction.  I lost a mentor.  I

  18   lost somebody, my best friend.  His family missed him too.  Up

  19   till now my two children have not been able to cope with his

  20   death.  Every time I leave home it's like, mommy, are you

  21   going to come back or are you just going to leave and go where

  22   daddy went?  At that time my son was one and a half year old,

  23   and he has never become reconciled with the fact that this

  24   person just went and never came back.  He blames himself.  It

  25   is like he think I was a bad boy and that's why daddy left.


   1   So when I leave, he say, mommy, don't leave, I'm going to be a

   2   good boy.  I say no, you're a good boy.  I am not leaving

   3   because you're a bad boy.

   4            MR. GARCIA:  No further questions.

   5            MR. BAUGH:  No questions of this witness.

   6            THE COURT:  Thank you.  You may step down.

   7            (Witness excused)

   8            MR. FITZGERALD:  The government calls Dr. Todd Hess,

   9   HESS.

  10    TODD HESS,

  11        called as a witness by the government,

  12        having been duly sworn, testified as follows:



  15   Q   Mr. Hess, can you tell the jury what you do for a living.

  16   A   I am chief of ophthalmology at the Landstuhl Medical

  17   Center in Germany.

  18   Q   Would you spell Landstuhl for us?

  19   A   L-A-N-D-S-T-U-H-L.

  20   Q   Were you working as chief of ophthalmology in August of

  21   1998?

  22   A   Yes.

  23   Q   Can you tell us what happened on August 8 of 1998.

  24   A   I was actually coming back from a vacation in the north of

  25   Germany, where I had heard about the bombing, and I had a


   1   feeling that I might be needed.  I didn't shorten my vacation.

   2   I was coming back anyway.  When I got home there were messages

   3   that had arrived five or six hours earlier, please come to the

   4   hospital, we need you.  So I did, and spent the next three

   5   days with patients from Nairobi.

   6   Q   How many patients were airlifted from Nairobi to

   7   Landstuhl?

   8   A   There were a total of 17 patients, eight of whom had eye

   9   injuries, and four of those were extreme.

  10   Q   Can you tell us the names of the four persons who had

  11   extreme eye injuries who were transferred to Landstuhl?

  12   A   Ms. Ellen Bomer, Livingston Madahana, Mr. Kimyu, Jael

  13   Oyoo -- I am forgetting one.

  14   Q   Tobias Otieno?

  15   A   Tobias Otieno, right.

  16   Q   With one exception, did most of the people who came for

  17   treatment stay with you and the staff at the hospital for

  18   sometime?

  19   A   Yes, they were there until mid-September.

  20   Q   Can you tell us what happened first.

  21   A   When Ms. Bomer arrived we took her to the operating room

  22   and did exploratory surgery to determine the extent of her

  23   injuries and determined that they were beyond the scope of

  24   what we could do at Landstuhl.  So she was air evacuated to

  25   Walter Reade the following day.


   1   Q   From that point on, did you have any further involvement

   2   in her medical treatment?

   3   A   No.

   4   Q   Let me approach you with what has been premarked

   5   Government's Exhibit 2230, which I showed to counsel.  I ask

   6   you to look at the picture marked for identification purposes

   7   as Government's Exhibit 2230 and tell me if you recognize what

   8   that is a picture of?

   9   A   That's a picture of Mrs. Bomer.

  10   Q   How does the picture of Ms. Bomer look in comparison to

  11   how she looked when you saw her?

  12   A   I think she actually looks a little bit better in the

  13   photograph than when I saw her.  She had more facial swelling,

  14   more eschar, which is a medical term for superficial burns,

  15   blackened areas.

  16   Q   The picture looks better than she did when you first saw

  17   her?

  18   A   The picture looks better than she did when I saw her.

  19            MR. FITZGERALD:  The government offers Government

  20   Exhibit 2230.

  21            MR. COHN:  Subject to the judge's prior ruling.

  22            THE COURT:  Received.

  23            (Government Exhibit 2230 received in evidence)

  24            MR. FITZGERALD:  If we could display Government's

  25   Exhibit 2230 to the court and jury.


   1   Q   Is that the picture you were just testifying about?

   2   A   Yes.

   3            MR. FITZGERALD:  We can take the picture down now.

   4   Q   Could you tell us about Livingston Madahana, what

   5   condition he was in when you saw him.

   6   A   When he arrived at Landstuhl, he had some severe

   7   neurological injuries.  We did not get to do any exploratory

   8   surgeries on him right away.  When we were able to, his right

   9   eye had been completely lacerated by shards of glass and there

  10   were parts of it that were missing.  The left eye also had

  11   been severely lacerated but had been repaired, primarily in

  12   Kenya.  It was filled with blood.  We couldn't see what was

  13   going on on the inside of it.  By CAT scan we could see that

  14   it had interocular foreign bodies, which require removal by a

  15   vitro-retinal specialist, which we didn't offer.  We sent him

  16   to a German facility that we have a cooperative relationship

  17   with, where they removed the blood from his eye and discovered

  18   in the process of this that his optic nerve had been

  19   completely severed by a piece of glass.  So there was no hope

  20   of any vision in that eye.  He was returned to us and

  21   subsequently developed a serious infection in the right eye,

  22   or the remains of the right eye, so that again had to be

  23   removed.  So he was completely blinded.

  24   Q   Can you tell us what happened to Moses Kimyu.

  25   A   Mr. Kimyu, when he arrived the entire left upper portion


   1   of his head had been blown away.  He had no eye tissue present

   2   in that area and no recognizable bony structures of his eye

   3   socket.  In the right eye he also had an eye filled with blood

   4   that when it cleared revealed that he had had a hole,

   5   traumatic hole torn in the macula, which is the center area of

   6   the retina responsible for your clear fine vision.  So that

   7   left him with about 2100 vision in his remaining eye, which is

   8   not driving vision.  It is ambulatory vision but nothing more

   9   than that.

  10   Q   Did you come to learn that Moses Kimyu testified earlier

  11   at this trial?

  12   A   Yes, I did.

  13   Q   Did you see a picture of how he looked at the time that he

  14   testified?

  15   A   I did.

  16   Q   What was your reaction to seeing how he looked?

  17   A   I couldn't believe how good he looked in that picture from

  18   the way he looked when we saw him.  Obviously he still has a

  19   disfigurement, but it was much less than I had predicted from

  20   the extent of his injuries.

  21   Q   Can you tell us the condition of Tobias Otieno when you

  22   saw him.

  23   A   Mr. Otieno also had multiple interocular glass foreign

  24   bodies in both eyes and a lacerated cornea on one side which

  25   required corneal transplantation, and also reattachment of the


   1   retinas in both sides of his eyes.  He developed some problems

   2   with his graft in one eye.  By the time he left us, his best

   3   vision was, I think, maybe 200 in one eye and hand movement in

   4   the other.

   5   Q   Did you notice anything about his other medical

   6   conditions, particularly with regard to his hand?

   7   A   He had an injury to the hand which was pretty remarkable.

   8   His hand was basically severed at the wrist except for the

   9   neurovascular bundle, which is a group of blood vessels and

  10   nerves that go to the hand.  It is the only thing that saved

  11   his hand, period.  The hand was dangling from this

  12   neurovascular bundle.

  13   Q   Earlier you mentioned interocular foreign particles.  In

  14   your treatment of Livingstone Madahana and Moses Kimyu and

  15   Tobias Otieno and the others, what did you remove from the

  16   eyes?

  17   A   Glass, particles of glass, more than you could count, some

  18   that were big enough to reach in with a forceps and others

  19   that were so small, they just kind of came to the surface over

  20   days and we removed them piece by piece.  But glass, foreign

  21   bodies basically.

  22            MR. FITZGERALD:  Thank you, Doctor.  Nothing further.

  23            MR. BAUGH:  No questions.

  24            THE COURT:  Thank you, Doctor.  You may step down.

  25            (Witness excused)


   1            MR. GARCIA:  The government calls he will even Bomer.

   2    ELLEN BOMER,

   3        called as a witness by the government,

   4        having been duly sworn, testified as follows:


   6   BY MR. GARCIA:

   7   Q   Miss Bomer, are you married?

   8   A   Yes, I am.

   9   Q   Do you have any children?

  10   A   Yes.  I have one son.

  11   Q   In August 1998, were you working in Kenya?

  12   A   Yes, I was.

  13   Q   What was your assignment there?

  14   A   I was on a special assignment, TDY.  I work for the

  15   Commerce Department, and I was there to relocate the foreign

  16   commercial service office from the embassy to a local

  17   commercial center in Nairobi.

  18   Q   Where was your office physically located in the Nairobi

  19   embassy?

  20   A   My office was on the ground floor in the back of the

  21   embassy, probably about 20 feet to the right of where the

  22   marine station was when you came in.  We were also in the

  23   secure area.

  24   Q   Were you in that office on the morning of August 7, 1998?

  25   A   Yes, I was.


   1   Q   Can you tell us what happened.

   2   A   Moses, my driver, and I were in the office, and about

   3   10:20, 10:30, 10:25, we heard these two loud -- it was kind of

   4   like -- it sounded like backfires from a truck, and it was

   5   like a pop pop, and it was real loud.  And Moses said what was

   6   that?  And I said I don't know.  And he jumped up on a

   7   radiator and looked out the window, because the windows in our

   8   office were about five, five and a half feet from the floor.

   9   That's the last thing I saw.

  10            Moments later I woke up and I was laying under a lot

  11   of debris.  I woke up, and I knew that it was a bomb.  I don't

  12   know why I knew that it was a bomb, but I knew it was a bomb.

  13   I was laying on my back and my arms were free, and I took my

  14   right arm and I took a wad of building or something, and I

  15   threw it, and I tried to get up, and I couldn't get up.  There

  16   was a big sheet of metal or something on me.  I tried to push

  17   it and it wouldn't go.  And I remember thinking am I OK, am I

  18   OK, do I hurt anywhere?  And I thought no, I don't hurt, I'm

  19   OK.  And then I thought well, I can't see.  And then I

  20   thought, well, you know, maybe it's -- I thought maybe it was

  21   just the bomb.  And then I started thinking, well, OK, if I'm

  22   blind and I don't hurt, I can live, I'm OK.  And I thought no,

  23   no, I started saying Lord give me one eye, I can do OK with

  24   one, don't take both.

  25            I heard water dripping, and when I heard this water,


   1   I thought I'm going to drown and I can't get out.  And I

   2   started thinking, OK, Ellen, if you panic, you're never going

   3   to get out of this, you've got to let people know you're here,

   4   you have to let them know you're here, you have to remain

   5   calm, you can do this, you can get out of here, you don't

   6   hurt.  So I started saying God give me strength, God give me

   7   strength, and I kept saying it over and over and over, and I

   8   raised my hand, and I started saying I'm over here, I'm over

   9   here, please, I'm over here.

  10            It seemed like it was almost instant, people were

  11   pulling things off of me.  They pulled me out and they put me

  12   on a stretcher.  When somebody pulled my left arm, I screamed

  13   because it was hurt, and so I remember somebody said don't

  14   pull her arm, don't pull her arm.  And they put me on a

  15   stretcher and they put me in the back of a vehicle, and I

  16   remember going through the streets of Nairobi, and I remember

  17   thinking every time that I had hit a pothole you'd feel it,

  18   and I'd think yeah, another pothole.

  19            I remember they took me to the Nairobi clinic.  I

  20   heard them say it's the Nairobi clinic.  And I heard somebody

  21   say she's an American, so take her to the Nairobi hospital.

  22   So they took me to the Nairobi hospital.  I remember different

  23   people coming to me and holding my hand.  I was very afraid.

  24   Different ones would come to me and that I had hold my hand

  25   and I didn't want to let go.  I don't know why I was afraid


   1   because I didn't hurt, or I don't remember hurting.  But -- of

   2   course I prayed.

   3            I remember going on a plane and I remember hearing

   4   Frank Pressley talking, getting on the plane, and I remember

   5   asking him how are you, are you OK?  And he said -- he sounded

   6   pretty weak and I said Frank, you know, we'll get it, we'll

   7   get out of here, we'll make it, just hold on to that thought,

   8   we will make it.

   9            So I don't remember what happened after that.  I

  10   remember getting off the plane and I remember going up to

  11   Landstuhl hospital.  I had had surgery before and it was like

  12   home week.  My husband was there.  I remember holding his

  13   hand.  I don't remember much else about that.  She cut my

  14   wedding ring off because my hand was swollen up.  I remember

  15   that.

  16            The next thing I remember was getting off a plane.

  17   We were going through traffic in Washington, D.C., and they

  18   put the siren on, and when they put the siren on I asked them,

  19   I said why is the siren on?  And somebody said there might be

  20   traffic.

  21            And I probably went to sleep again.  I don't

  22   remember.

  23            I remember, I believe I was in ICU for several days

  24   at Walter Reade hospital.  They called -- we all had pseudo

  25   names.  We didn't put our real names in the register, so if


   1   people called you couldn't get through to me.  My name was

   2   Miss Gloria, and I thought that was kind of funny.

   3            The time at Walter Reade, it was very healing, but it

   4   was very hard, because I was afraid, and I don't know what I

   5   was afraid of but I was afraid, and I couldn't see anything.

   6   I felt very vulnerable.  My husband was there, and I believe I

   7   was pretty much in the hospital bed for about two weeks.  I

   8   remember waking up and thinking that I can't see, but maybe

   9   this is just temporary, this isn't going to last.  I'm

  10   basically an optimistic person, so I kept thinking, it'll be

  11   OK, it'll be OK, it'll be OK.  But then the days pass, the

  12   days come, and nothing changes.

  13            My husband and I, we bought a ranch in Texas to

  14   retire to, and we're coming up to the age where in four or

  15   five years we want to do that.  When I started coming to and

  16   realizing that I'm in this hospital bed and I can't see, I

  17   started thinking about all the things that I was going to do,

  18   because I'm a very visual person.  I like color, I like fiber,

  19   I like texture.  I do oil painting.  I do weaving.  I have my

  20   own little table loom, floor loom.

  21            Everything that gave me identity was ripped away, and

  22   I felt like I had no identity, no worth.  I wasn't going to be

  23   able to go out to the ranch and walk around, because there are

  24   snakes, I can't walk out there, there are snakes.  You know

  25   just little simple things that don't -- that if you could see


   1   you just take for granted.  You don't stop and think.

   2            I have always worked and I had 18 years as a

   3   government employee.  I valued that time.  I liked my job.  I

   4   wasn't ready to give up my job.  I wasn't ready to give up my

   5   career.  But, you know, here I am, I'm blind, what am I going

   6   to do.  I didn't know a blind person in my life.  I've never

   7   come in contact with anybody that was blind.

   8            So while I'm laying in this bed trying to think how

   9   can I still be valuable to my husband and how can I have some

  10   importance as a person, you know, what kind of job am I going

  11   to do -- there were times I thought, well, you can always go

  12   work in a hospital, because nurseries always need somebody to

  13   hold babies and you don't need to see to do that.  And it

  14   sounds kind of simplistic but it gives you a little bit of

  15   something that you can do, something that you can hold on to.

  16            I was at Walter Reade for a month as an in-patient in

  17   that room.

  18   Q   Mrs. Bomer --

  19   A   Many times during the day my husband would wheel me from

  20   this room to the next department.  I had 23 doctors.  They

  21   took care of me from the soles of my feet to the top of my

  22   head.  I had teeth that were sheared off.  I had holes in my

  23   head.  But luckily my head's pretty hard, so that was OK.  I

  24   had headaches.  My eardrum was burst on my right ear.  My left

  25   ear had a hole in the eardrum.  Dislocated elbow.  I had


   1   shrapnel in my breast.  I had shrapnel in my legs, in my arms.

   2   Not to mention the eyes.  And all the rest is kind of

   3   superficial, but the eyes are really -- nobody willingly gives

   4   up their eye or their sight.

   5            After being in Walter Reade for a month, they told me

   6   I could move out as an outpatient.  There is a Malone House

   7   Hotel at the Walter Reade Medical Center, and it's about a

   8   six-story hotel, wonderful people in the hotel.  But, you

   9   know, you have to get there, and it's -- I mean up until this

  10   time I had not even -- I think I had walked down the hall in

  11   the hospital two or three times holding on to somebody.  I

  12   remember the first time they put me in the van just to go

  13   those two blocks, when I went to step out of the van it was

  14   like you're stepping into a big black hole because you don't

  15   know up from down, you don't know sideways, you don't -- I

  16   mean, it's a very frightening thing.

  17            I've had training now.  I've been to a blind

  18   residential facility and I spent five and a half months there.

  19   The hardest part of being there was having to accept the fact

  20   that I'm blind.  And I guess I really -- even to this day I

  21   don't know that I accept the fact that I am blind.  I keep

  22   thinking I'm going to see, I'm going to see, I'm not going to

  23   give up.  My Lord is not going to take both eyes, he might

  24   take one but he isn't going to take both, because I didn't do

  25   any of this.  I was innocent.  I was doing my job, and I was


   1   supposed to leave Nairobi on the 6th of August, but Secretary

   2   Daley was bringing a delegation of 13 businessmen to Nairobi

   3   to increase trade exports, so he asked if I would stay another

   4   two weeks.  And I said OK, I would.

   5            It was just one of those things, you're in the wrong

   6   place at the wrong time.

   7            MR. GARCIA:  Thank you, Mrs. Bomer.  Thank you very

   8   much.  I have nothing further.

   9            MR. BAUGH:  Nothing.

  10            THE COURT:  You may step down.

  11            (Witness excused)

  12            THE COURT:  One more?

  13            MR. FITZGERALD:  We will put on one more witness,

  14   Judge.

  15            The government calls Mordecai Thomas Onono,

  16   O-N-O-N-O.


  18        called as a witness by the government,

  19        having been duly sworn, testified as follows:



  22   Q   Good afternoon, sir.

  23   A   Afternoon.

  24   Q   Could you just keep your voice up just slightly so the

  25   jury can hear what you have to say.  I would appreciate it.


   1   It helps if you sit close enough to the microphone, about nine

   2   inches away.  Thank you.

   3            Sir, can you tell the jury who Lucy Grace Onono is.

   4   A   Lucy Grace Onono is my wife.

   5   Q   For how long were you married to Lucy Grace Onono as of

   6   August 1998?

   7   A   We were married for 22 years.  We are short by two days to

   8   our 23rd anniversary.

   9   Q   Where did your wife work in August of 1998?

  10   A   Lucy worked at the American Embassy, in the personnel

  11   section.

  12   Q   For how long had she worked in the personnel office of the

  13   American Embassy?

  14   A   About 22 years.

  15   Q   How many children did you and Lucy have?

  16   A   Five.

  17   Q   Can you tell us their names.

  18   A   Laura Margaret Onono, born on 25th April 1976; Andrew

  19   Thomas Onono born on 1st January 1978; Steven Jonathan Onono

  20   born on the 15th February 1981; Respie Jessica Onono, born on

  21   18th November 1984; and Leslie Helen Achin, born on 18 June,

  22   1991.

  23            MR. FITZGERALD:  Your Honor, at this time I would

  24   offer Government's Exhibit 2180A, a photograph.

  25            THE COURT:  Yes, you may.


   1            (Government Exhibit 2180A received in evidence)

   2   Q   Looking at the screen to the left, if we could display

   3   that, can you tell us who the people in the photograph are.

   4   A   In the front line from left you have Lucy Grace Onono.

   5   Then we have Leslie Helen Achin.  And that's myself, Mordecai

   6   Thomas Onono.  From left again, the back, we have Respie

   7   Jessica Onono.  Then Andrew Thomas Onono.  Then we have Laura

   8   Margaret Onono.  Then we have Steven Jonathan Mwandi.  And our

   9   nephew Brian Onono.

  10   Q   Can you tell the jury briefly what Lucy Grace Onono was

  11   like as a person and as a wife.

  12   A   Lucy as a person and as a wife was a likeable person, very

  13   compassionate.  Lucy had a sparkly character.  Lucy had a

  14   ready smile.  As a wife, we always did our things together.

  15   We planned our life together.  We planned how to use our

  16   resources together.  We supported our children and planned the

  17   future of our children together.  Lucy, as a wife and a member

  18   of our community --

  19            (Continued on next page)








   1            MR. COHN:  Your Honor, may we approach for a second?

   2            (At the sidebar)

   3            MR. COHN:  Your Honor, juror No. 9 seems to be

   4   overcome.  Her fellow jurors seem to be concerned.  I just

   5   call that to the court's attention.  This is very difficult

   6   testimony.

   7            MR. BAUGH:  She had her head down for about two or

   8   three minutes.

   9            THE COURT:  I certainly didn't notice anything.

  10            MR. COHN:  I know you didn't or you would have done

  11   something about it.  I am just calling it to your attention.

  12            THE COURT:  You are almost finished, right?

  13            MR. GARCIA:  Yes.

  14            (In open court)

  15            THE COURT:  You want to take a recess?

  16            JUROR:  I will be right back.

  17            (Juror excused)

  18            MR. FITZGERALD:  Judge, perhaps we can break for the

  19   day.

  20            THE COURT:  Why don't we break for the day.  We will

  21   be back at the same time tomorrow.  I am not sure when that

  22   was.  We will start when you get here.

  23            (Jury excused)

  24            (Witness excused)

  25            THE COURT:  Another courtroom observer advised me


   1   that the juror apparently had a beeper that went off.  She

   2   seemed to be anxious to answer it.

   3            In any event, do you plan to recall this witness?

   4            MR. FITZGERALD:  Yes, your Honor.

   5            THE COURT:  We have some matters that we deferred,

   6   and let's do deal.

   7            Let's deal with them now.  The first matter that we

   8   deferred was the government's objection to a lack of discovery

   9   on the part of the defendant.  Earlier on we announced a rule

  10   that no exhibit was to be offered or shown to the jury unless

  11   opposing counsel were advised the night before that that

  12   particular exhibit would be offered, and if that rule has

  13   fallen by the wayside, I think it would be appropriate to

  14   reinstate it.  Any objection?

  15            MR. BAUGH:  No, your Honor, no problem.

  16            THE COURT:  Good.

  17            MR. BAUGH:  I do want to note for the record, your

  18   Honor, first of all, I apologize to the United States.  We

  19   have been working a lot with the accelerated pace that this

  20   case has been taking, and believe me, we were at Kinko's last

  21   night copying things.  So I hope you understand that we are

  22   not trying to hide the ball.

  23            THE COURT:  I haven't engaged in any negative

  24   dialogue.  I am simply suggesting that regardless of what any

  25   rule says, as a matter of ordinary professional courtesy it


   1   would be a very good idea.  In any event, I will sustain an

   2   objection to any exhibit offered by either party which has not

   3   been identified and shown to opposing counsel the previous

   4   day.

   5            MR. BAUGH:  Excuse me, your Honor.  May I respond to

   6   your comment about my professionalism, because --

   7            THE COURT:  I did not make any comment about your --

   8            MR. BAUGH:  You said something about professional

   9   courtesy and I want you to know that we were originally to

  10   start this the following Monday, the government had trouble

  11   with witnesses and you told us to speed things up.

  12            Your Honor, I take a little exception and now I am

  13   going to go out and cool off and come back to this tomorrow

  14   morning.

  15            THE COURT:  That sounds like a good idea.  Look, this

  16   is a very trying experience for everyone.

  17            MR. BAUGH:  Yes.

  18            THE COURT:  I agree with the statement made by the

  19   government in its opening that fairness to everyone makes it

  20   appropriate that we hear from some of these witnesses who have

  21   gone through this ordeal, who have come long distances, all of

  22   which is by way of saying that that we should not let the

  23   emotionalism of this trial cause us to vent our feelings with

  24   respect to each other.

  25            So that if I have offended you, I didn't intend to do


   1   so.  What I was trying to do was, without casting blame or

   2   aspersions, to institute a rule applicable to both sides,

   3   which I think would make life easier for everyone.

   4            MR. BAUGH:  Thank you, your Honor.

   5            MR. COHN:  May I raise an issue?

   6            THE COURT:  I think Mr. Fitzgerald, it was his point

   7   that we were dealing with.  I will stay here as long as you

   8   want.

   9            MR. FITZGERALD:  I will just state the nature of my

  10   objection.  I will not increase the temperature of the room.

  11   I do think what is important to understand was, the nature of

  12   the government's objection was that there were materials being

  13   displayed to the jury in the opening that the government had

  14   never been provided with, and nor had we been provided with

  15   the pictures of the children in Iraq or the very disturbing

  16   photos that Mr. Baugh was holding up to the jury, and we

  17   objected.

  18            THE COURT:  And when you objected, they were

  19   immediately withdrawn.

  20            MR. FITZGERALD:  Yes.  I don't think I should be

  21   first seeing the photographs from behind and not during

  22   discovery.

  23            THE COURT:  Is there any problem with that?

  24            MR. BAUGH:  No, your Honor.  Those came from Kinko's

  25   late yesterday.


   1            MR. FITZGERALD:  Judge, we heard for weeks that there

   2   is a difference between a discovery standard and what is

   3   admissible at the trial.  We have certainly not teed up what

   4   if anything from Panama or Iraq is admissible at the trial and

   5   I don't want the fact that I did not want to be objecting in

   6   front of the jury as if I was being defensive about something

   7   to waive any objection, because I think most of the substance

   8   of what Mr. Baugh said about matters other than the bombing

   9   was entirely objectionable and I want my rights preserved with

  10   regard to that.

  11            THE COURT:  Very well.  In any event, from here on in

  12   the remaining of these procedures we have the rule, which I

  13   will strictly enforce, absent some extraordinary circumstance.

  14            Mr. Cohn.

  15            MR. COHN:  Thank you, sir.  As I indicated that I

  16   would and which I do now, it seems to me to be an appropriate

  17   time after the testimony of Ms. Bomer to raise the issue of

  18   whether or not we haven't had enough of this kind of

  19   testimony.

  20            THE COURT:  Let me, just so that I can focus on that,

  21   I am going to hear you as long as you want.  How much more do

  22   we have?  How many more victim impact witnesses does the

  23   government plan to call?

  24            MR. FITZGERALD:  I can give you a precise number,

  25   your Honor, in a moment.


   1            THE COURT:  Yes.

   2            MR. FITZGERALD:  Your Honor, my understanding is that

   3   we called, I believe, five witnesses in the morning, that

   4   Mr. Onono was the 10th witness in the afternoon but the 15th

   5   total.

   6            MR. COHN:  Sixteenth.

   7            MR. FITZGERALD:  We have two nonvictim witnesses

   8   which we can describe separately.  We had, we have already

   9   excused five witnesses in shortening the case today.  We had

  10   17 left and we will reduce it to 15, your Honor.

  11            THE COURT:  So you have 15 victim witnesses you plan

  12   to call.

  13            MR. FITZGERALD:  Yes.

  14            THE COURT:  Which would be --

  15            MR. FITZGERALD:  Tomorrow.

  16            THE COURT:  Which would be the same as you did today?

  17            MR. FITZGERALD:  Yes.

  18            MR. COHN:  Your Honor, there is not one of us that

  19   leaves our humanity at the door when we come in here, and it

  20   is hard to stand up here and play the grinch in the sense of

  21   trying to minimize in a legal sense what cannot be minimized

  22   in the human sense.  But if the law tells us that this is not

  23   to be an exercise in emotion but one of logic and one in which

  24   the jury is to consider certain factors, it seems to me apt.

  25   The record cannot reflect and we have not sought to stand up


   1   in between witnesses and say the record should reflect that

   2   witness one was weeping or that witness two was on the verge

   3   of weeping and that we are all upset.

   4            The fact is that what we have gotten is witness after

   5   witness who tells us the same thing that we all know, which is

   6   that whenever you have someone who dies there is familial

   7   loss, which is terrible, and that there are consequences to

   8   that that are financial as well, and there is a limited amount

   9   of that record that the government is entitled to present to

  10   turn that into a personal experience that the jurors can

  11   understand without reaching the point that it is so

  12   duplicative that it becomes more prejudicial than it is

  13   supposed to be.  I understand it is supposed to be somewhat

  14   prejudicial but we have to draw a line somewhere.

  15            It seems to me, your Honor, that we are getting

  16   nothing more out of any of this except more people who

  17   searched for their loved ones for days, more people whose

  18   financial loss is perfectly apparent, more people who think in

  19   the middle of the night about how they miss their loved ones

  20   and miss whatever they lost, and I sympathize and so does

  21   everyone in the court.  But there comes a time when it should

  22   be enough.

  23            When you go to another area of the law and the

  24   sentencing guidelines and you say, your Honor, my client has a

  25   family, you say everybody has a family and don't consider it


   1   because everybody has a family.  I hate to be harsh, but every

   2   person who is bereaved has a family and every person who dies

   3   has a family, and there has to be some balance struck --

   4            THE COURT:  What is a fair balance?  Two hundred

   5   killed and 5,000 injured and what is the calculus of that?

   6            MR. COHN:  I don't know, but it is not a mathematical

   7   analysis.  But it seems that the emotion in this courtroom --

   8   the fact that we had this doctor, who I have to say has

   9   literary pretensions and read some poetry about her

  10   experience, that we have had enough.  It is your discretion

  11   but we have had enough.  I say as somebody who bleeds for

  12   somebody and I want to weep and stop myself because I can't do

  13   it in front of the jury, in front of the victims, where it is

  14   no longer factual, it is a roller coaster and it is enough.

  15   Seventeen more witnesses is beyond the pale.  I don't care

  16   whether it is another day or another hour.  Ms. Bomer is

  17   enough to make anybody, make a stone weak.  It's enough.

  18            THE COURT:  I think you have made your point.  Mr.

  19   Fitzgerald.

  20            MR. FITZGERALD:  The only thing I would like to say

  21   in response, your Honor, I think we have made a restrained

  22   offering.  The number of victims compared to the witnesses,

  23   the witnesses that have spoken have carried themselves with

  24   great dignity and restraint.  They have made an effort not to

  25   cry and I have nothing but respect for how they have conducted


   1   themselves.  They have gone out of their way to fight back

   2   emotion and restrain themselves.  I think it is appropriate

   3   that another 15 tell their story to the jury.

   4            THE COURT:  I agree with the government's

   5   characterization of what has occurred here.  I don't believe

   6   there have been histrionics for the sake of histrionics.

   7   There was a time, we all know, when the Supreme Court said

   8   this type of testimony was inadmissible.  The Supreme Court in

   9   its infinite wisdom has recognized that that was an erroneous

  10   position.

  11            Nor is this a case in which appeals to emotion are

  12   only going to be made at one time, by one party.  This jury

  13   has already heard of the number of Iraqi children who have

  14   died because America tried to pollute the water supplies.

  15            With respect to the number of witnesses, the number

  16   of days and the photographs, this court has already ruled, and

  17   nothing has happened to change the basis of that ruling.

  18            The objection is overruled.

  19            Anything further?  We are adjourned then until

  20   sometime between 9:30 and 10:00 a.m.

  21            (Proceedings adjourned until 9:30 a.m., Thursday, May

  22   31, 2001)






   2                        INDEX OF EXAMINATION

   3   Witness                    D      X      RD     RX

   4   SUSAN BARTLEY...........6710

   5   TERESIA KARANJA.........6718

   6   MARY KHAHENZI...........6722

   7   AMOS MURITHI KARIMI.....6727

   8   TABASSUM BUTT...........6733

   9   CHANNA COMMANDAY........6741


  11   DEBORAH HOBSON..........6754

  12   SURENDRA PATEL..........6759



  15   DOREEN RUTO.............6779

  16   TODD HESS...............6787

  17   ELLEN BOMER.............6793


  19                        GOVERNMENT EXHIBITS

  20   Exhibit No.                                     Received

  21    2018A through G ............................6711

  22    2055 .......................................6723

  23    2132 .......................................6728

  24    2201 .......................................6734

  25    2231 .......................................6742


   1    2192 .......................................6748

   2    2035 .......................................6755

   3    2252, 2253 and 2257 ........................6763

   4    2258, 259, 2260, 2261, 62, 63,

   5    64, 65, 66, 68............................. 6763

   6    2113 .......................................6780

   7    2230 .......................................6789



















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