11 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 62 of the trial, June 11, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
7293 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNITED STATES OF AMERICA 4 v. S(7) 98 Cr. 1023 5 USAMA BIN LADEN, et al., 6 Defendants. 7 ------------------------------x 8 New York, N.Y. 9 June 11, 2001 9:15 a.m. 10 11 12 Before: 13 HON. LEONARD B. SAND, 14 District Judge 15 16 17 18 19 20 21 22 23 24 25 7294 1 APPEARANCES 2 MARY JO WHITE United States Attorney for the 3 Southern District of New York BY: PATRICK FITZGERALD 4 MICHAEL GARCIA Assistant United States Attorneys 5 6 FREDRICK H. COHN DAVID P. BAUGH 7 LAURA GASIOROWSKI Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 8 DAVID RUHNKE 9 Attorney for defendant Khalfan Khamis Mohamed 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7301 1 (Deliberations resumed) 2 (Pages 7295-7300 sealed) 3 (In open court; time noted, 12:45 p.m.; defendant 4 present) 5 THE COURT: The note from the jury reads: "The jury 6 has a question regarding whether the jurors' personal 7 knowledge of such subjects as developmental psychology, social 8 learning and abnormal personality can be used in the weighing 9 of mitigating factors or whether we are to weigh such factors 10 based solely on the evidence." 11 I would propose as an answer the following: That the 12 jurors bring to their deliberations all of their general 13 background, training, and experience, on which they may rely, 14 but are not free to speculate or reach any conclusions not 15 based on the evidence presented to them. Any comments? 16 MR. FITZGERALD: Your Honor, the one concern I have 17 is whether we address the issue of one juror basically 18 providing expertise to the other jurors, such as if there was 19 a legal question a juror who was a lawyer could not explain 20 the law to other jurors, other than based upon the charge. 21 THE COURT: Lawyers is another matter. What they are 22 talking about here are developmental psychology, social 23 learning and abnormal personality, and we know that we have at 24 least one person on the jury who has training in such matters. 25 MR. COHN: Your Honor, I would note that it is the 7302 1 jurors in the plural, S apostrophe, not apostrophe S. So you 2 can't limit this to one juror. 3 THE COURT: No, no. 4 MR. COHN: All I am suggesting is that you are not 5 talking about one runaway juror who is becoming an expert in 6 the jury room. 7 MR. BAUGH: May I suggest an answer? 8 THE COURT: Yes. 9 MR. BAUGH: You are to base your decisions solely on 10 the evidence as presented. You may use your collective 11 knowledge or training to interpret that evidence. 12 THE COURT: That sounds all right. 13 MR. FITZGERALD: Your Honor, I thought yours sounded 14 more balanced, but my concern is whether or not one or more 15 jurors can testify as to expertise to other jurors. 16 THE COURT: I don't know about testify. Can a juror 17 say, I know based on my training as a therapist that persons 18 who at a very young age undergo certain experiences are 19 affected in certain ways by those experiences? Isn't that 20 something which is perfectly proper? 21 MR. FITZGERALD: I think there is a difference 22 between someone who describes a personal experience and expert 23 training. The risk in someone relaying a personal experience 24 and saying -- 25 THE COURT: What language would you suggest? 7303 1 MR. FITZGERALD: Your Honor, might I suggest this? 2 Since we are 10 minutes before, I think, lunch begins, if we 3 could have a short break to think this over, because I 4 recognize this is a novel issue and I prefer to make sure we 5 don't suggest something inappropriate. 6 THE COURT: Make it five minutes. I would like to 7 respond. 8 Do you have yours in writing? 9 MR. BAUGH: Yes, your Honor. I will hand it up. 10 (Pause) 11 THE COURT: I would suggest the following. I have 12 taken some language from Mr. Baugh's suggestion and I have 13 added to that, to put it in context, and I have quoted from 14 the charge. I have some concern that collective judgment is 15 inconsistent with some other things we have said. What I 16 propose is the following: 17 Ladies and gentlemen. As jurors, you bring to your 18 deliberations all of the knowledge, training, education and 19 experience you have acquired during your lifetimes. You are 20 to base your decision solely upon the evidence as presented, 21 using your collective knowledge and experience to evaluate 22 that evidence. Your ultimate "decision on the question of 23 punishment is a uniquely personal judgment which the law in 24 the final analysis leaves up to each of you." Charge page 2. 25 Any comments? 7304 1 MR. FITZGERALD: Your Honor, I would object to the 2 last portion of the charge. I don't think that is the right 3 response to the question. What I would suggest is that the 4 language say something to the effect of each juror should 5 apply his or her common sense and experience and discuss these 6 views and experience with others. However, no juror should be 7 viewed by the other jurors as an expert in particular areas. 8 I think the notion is that they can share their common 9 experiences and they should discuss them, but no one person 10 should dwarf the other's views. 11 MR. COHN: Judge, I oppose that. I mean, everybody 12 makes a value judgment in discussions about things and about 13 whose experience is more compelling. I don't think that an 14 instruction that we are all equals and that nobody has 15 compelling knowledge is a proper standard. 16 THE COURT: I will strike collective. I have trouble 17 with collective. I will substitute weigh for evaluate, 18 because that's the term that they use. So that I propose 19 this: As jurors you bring to your deliberations all of the 20 knowledge, training, education and experience you have 21 acquired during your lifetimes. You are to base your decision 22 solely upon the evidence as presented, using your knowledge 23 and experience to weigh that evidence. You should discuss and 24 consider the issues presented, sharing with each other your 25 views. Ultimately, each juror must determine for himself or 7305 1 herself the weight to be given to the evidence. 2 Everybody is nodding their head in the affirmative. 3 All right, I will send that note in to the jury. 4 The jurors are going home at 3:00 today. That was to 5 enable a juror to attend a closing. The closing has been 6 postponed till Friday afternoon but the other jurors in 7 reliance made conflicting engagements. So we will sit today 8 until 3:00, and let's defer the issue of Friday until we get 9 further along in the week. 10 (Luncheon recess) 11 AFTERNOON SESSION 12 2:15 p.m. 13 THE COURT: We have reached a point in light of the 14 jury's most recent note, which I take it you have all seen, 15 which is a matter that we discussed at some length earlier, 16 and that is the consequence if the jury should not be 17 unanimously in favor of the death penalty, and we very 18 consciously, after considerable discussion, drafted the charge 19 and the special verdict form as we did, and did not 20 specifically advise the jury what the consequence of a lack of 21 unanimity would be, although there was a consensus that the 22 consequence of a lack of unanimity is that the sentence 23 becomes a sentence of life imprisonment. 24 I propose the following answer to the jury's 25 question: Ladies and gentlemen of the jury. The charge 7306 1 correctly informs you, page 28, line 1, that if you do not 2 unanimously find beyond a reasonable doubt that the death 3 sentence should be imposed, you should indicate this in 4 section V of the special verdict form. Let me elaborate on 5 how this is done. If the jury has not unanimously found that 6 death is the appropriate sentence, then the government has 7 failed to prove that death is appropriate to your unanimous 8 satisfaction. If this is the case, then your verdict is that 9 Al-'Owhali should be sentenced to life imprisonment, and you 10 should check the first box on page 15. Before you reach any 11 conclusion based on a lack of unanimity in favor of a death 12 sentence, you should continue your discussions until you are 13 fully satisfied that further discussion will not yield a 14 unanimous verdict in favor of death. 15 I put the last sentence in in anticipation of a 16 government request for an Allen charge, which I think is not 17 appropriate, the classic Allen charge is not appropriate in a 18 situation such as this, where there is no such thing as a hung 19 jury. 20 Mr. Cohn. 21 MR. COHN: Your Honor, while I agree if an answer 22 were to be given this would be an appropriate one, in my view 23 this is a deadlock notice and a verdict, and that giving any 24 further charge other than inquiring whether or not they are 25 not unanimous -- sorry about the double negative -- is 7307 1 inappropriate. 2 THE COURT: But they haven't said that. They have 3 said there is no room to indicate if the jury is not 4 unanimous. They have not said and in fact we are not 5 unanimous. They are raising a question as to the structure of 6 the charge. The incredibly perceptive way they have focused 7 on the deliberate -- 8 MR. COHN: Omission. 9 THE COURT: Deliberate omission is a little 10 oxymoronic -- the deliberate structuring of the charge. 11 MR. COHN: Your Honor, I must say that I don't think 12 you need to be Delphic to determine what they are saying. 13 They are saying that there is no place on this jury verdict -- 14 THE COURT: That's right, because -- 15 MR. COHN: I believe they are saying there is no 16 place for us to give the answer we want to give and it is 17 clear to me what the answer is, which is we are not unanimous, 18 particularly in light of the last note and your Honor's answer 19 to it. I believe even something as modified of an Allen 20 charge as you can get, and you have made it not an Allen 21 charge -- I concur that this is not an Allen charge. I don't 22 believe once they have indicated a deadlock that there is any 23 choice but to determine -- 24 THE COURT: They haven't said that. They have said, 25 in other words, there is no room to indicate if the jury is 7308 1 not unanimous. So they may be saying, just as a matter of 2 logic, we don't know what happens if we are not unanimous. 3 They are not saying we are and in fact that is where we are. 4 And if you are right, if this is in fact where they are, it 5 won't take very long to tell us that they have reached a 6 verdict. 7 MR. COHN: It's not a question of how long it takes. 8 It is a question of what is appropriate. It seems to me that 9 although it is not a traditional deadlock note, given the way 10 this charge is constructed and the strictures of Jones, it 11 seems quite clear that they are not unanimous and it should 12 not go further once they have informed us. 13 THE COURT: I understand your position. I don't 14 agree with it. 15 MR. FITZGERALD: Your Honor, I would object to the 16 proposed answer on the following grounds. The second 17 paragraph first. If the jury ends up being split, I don't 18 think that the answer is that they unanimously found that the 19 government failed to prove beyond a reasonable doubt. I think 20 we know what the result is. I would suggest the following and 21 I will explain. 22 THE COURT: Yes. 23 MR. FITZGERALD: Ladies and gentlemen. If you come 24 to a unanimous decision as to the appropriate sentence to be 25 imposed, either life imprisonment or the death penalty, you 7309 1 are to so indicate on pages 15 and 16. If you cannot come to 2 a unanimous decision as to a particular count or all counts, 3 then you should so indicate by a note, without telling the 4 court how you are divided. Then we would know where we are. 5 If the jury sends a note saying we are divided and cannot um 6 come to a conclusion, we can discuss whether an Allen charge 7 is appropriate, but they should not check a box indicating a 8 unanimous decision not to impose the death penalty when in 9 fact they appear deadlocked. 10 THE COURT: I debated that, and the problem with that 11 is, it doesn't tell them a consequence, right? 12 MR. FITZGERALD: Right. 13 THE COURT: If it just says you should tell us 14 that -- in your language, then it seems to me we withhold from 15 them the consequences of that, and it seems to me it makes the 16 process fairer and more informed if they know that the 17 consequence of that is not that it goes to another jury, which 18 is what classically happens, but rather that it is 19 dispositive. 20 I debated including, in other words, putting in after 21 you check the first box, in other words, the law on this 22 subject is that if the jury is not unanimously in favor of 23 death, then the jury is unanimous in favor of life 24 imprisonment. There is no such thing as a hung jury in a 25 death penalty proceeding. 7310 1 MR. FITZGERALD: Your Honor, I understand the concept 2 but I don't think that is accurate. If the jurors, whatever 3 number there might be, are divided -- 4 THE COURT: Well, could we say, this is because -- 5 you should check the first box on page 15. This is because 6 the consequence of a lack of unanimity in favoring death is a 7 verdict in favor of life imprisonment. 8 MR. FITZGERALD: Your Honor, it is not a verdict. 9 The holding in Jones is that the deliberative process has 10 broken down. 11 THE COURT: We have agreed that the substance is that 12 the verdict is life imprisonment, and I don't know whether the 13 difference that you make is a public relations difference, a 14 difference with respect to the next jury phase, what -- 15 MR. FITZGERALD: Two points, Judge. 16 THE COURT: Yes. 17 MR. FITZGERALD: The courts talk about an interest in 18 finality. Two things. If the jury is deadlocked, I think we 19 should have a note indicating they are deadlocked and an 20 opportunity to have an Allen charge given, trying to reach a 21 verdict in good conscience. Number one. Number two, it is 22 not good public relations for us to get a right answer. I 23 think the jury is entitled to know if it is life imprisonment, 24 but more important we need to know whether there is a 25 deadlock, which could be an intellectual question, that there 7311 1 is a problem here. 2 These three choices on the verdict form assume a 3 unanimous decision has been reached. If you cannot reach a 4 unanimous decision, you are to let us know by note and the 5 parties and the court can proceed from there. But I don't 6 think we should assume that they are deadlocked or take 7 deadlocked as being unanimously against the death penalty. I 8 think we need to qualify whatever language is used by count in 9 the unlikely event that there is a split by count. 10 (Pause) 11 THE COURT: Let me read it again: Ladies and 12 gentlemen of the jury. The charge correctly informs you, page 13 28, line 1, that if you do not unanimously find beyond a 14 reasonable doubt that the death sentence should be imposed, 15 you should indicate this in section V of the special verdict 16 form. Let me elaborate on how this is done. If the jury has 17 not unanimously found that death is the appropriate sentence, 18 then the government has failed to prove that death is 19 appropriate to your unanimous satisfaction. If this is the 20 case, then your verdict is that Al-'Owhali should be sentenced 21 to life imprisonment and you should check the first box on 22 page 15. This is because the consequence of a lack of 23 unanimity in favor of death is a verdict in favor of life 24 imprisonment. Before you reach any conclusion based on a lack 25 of unanimity in favor of a death sentence, you should continue 7312 1 your discussions until you are fully satisfied that further 2 discussion will not yield a unanimous verdict in favor of 3 death. Again, you are to consider this separately as to each 4 count listed in the special verdict form. 5 MR. COHN: I need a minute, Judge. 6 THE COURT: Yes. 7 MR. FITZGERALD: It might save time since I won't 8 need a minute to say that we object on the grounds of 3593(e). 9 It says that the jury by unanimous vote shall recommend 10 whether the defendant should be sentenced to death, to life 11 imprisonment without possibility of release, or some other 12 lesser sentence, and the latter part does not apply. A 13 deadlock is not a verdict and I think we shouldn't tell the 14 jury that it is a verdict. The jury either agrees unanimously 15 that death is appropriate, they agree unanimously that life is 16 appropriate, or they deadlock. The consequence of a deadlock 17 may be a life sentence but that is not a verdict. 18 THE COURT: When you say may be -- 19 MR. FITZGERALD: The consequence is, but it is not a 20 verdict. 21 THE COURT: We are all in agreement if this jury is 22 deadlocked it is a life sentence. Shouldn't fairness indicate 23 that they know that, so that the jurors may turn to one juror 24 and say, you know, that's what is going to happen, if you 25 don't vote in favor of death, then you understand that will 7313 1 override the 11. Not it is going to go before some other 2 jury, not that the judge is going to make some independent 3 decision. We are all in agreement that that is what happens, 4 and what we are debating now is whether the jury should be 5 told that is what will happen. 6 MR. FITZGERALD: But if they are told that, assuming 7 we should tell them that, my only point is that we should tell 8 them that a failure to agree upon on a verdict is not a 9 verdict. The consequence will be that this is not presented 10 to another jury -- 11 THE COURT: What is the difference between it not 12 being a verdict and something which definitively indicates to 13 the court what is to be in the judgment? 14 MR. FITZGERALD: I think it comes from Jones, where 15 it says the government, particularly in a capital proceeding, 16 has a very serious interest in the finality of having a 17 verdict, a consensus as the conscience of the community. 18 There is an interest in both sides to having 12 people be 19 unanimous one way or the other, and for a verdict to be 20 reached where 12 people say death versus life has a greater 21 effect for the process than some split which may result -- 22 will result in life imprisonment on a practical sense but it 23 is not the conscience of the community speaking with one 24 voice. 25 THE COURT: Let me give it another try. 7314 1 MR. COHN: Your Honor, before you do, the government 2 is just clearly wrong. Congress created a structure which 3 said no unanimity, no death. 4 THE COURT: But the government is saying that there 5 is a difference, and in terms of the perception of what 6 occurred here between saying the jury unanimously found that 7 life was appropriate and that the jury did not unanimously 8 find death was appropriate, and I think that is -- let me -- 9 MR. COHN: Before you write it down, just hear me one 10 second. 11 THE COURT: Yes. 12 MR. COHN: I don't think the perception argument 13 holds a lot of water. While victims' rights have seemed to 14 have taken over our lives, I don't think their comfort in this 15 is at the final analysis the issue. Jones does not stand for 16 the government's interest in having a unanimous verdict. 17 Jones stands for the fact that you can't give the jury an out 18 at the very beginning by inviting one juror to be stubborn. 19 At that point it is because they didn't ask the question. 20 They have clearly asked the question, and not answering the 21 question in the way you intended to answer it seems to me to 22 be an evasion at best, which is beneath this court. 23 THE COURT: Thank you. 24 MR. FITZGERALD: I would note for the record that the 25 Supreme Court in Jones, two quotes from page 9, "It speaks to 7315 1 what happens in the event that the jury is unable to fulfill 2 its role when deliberations break down and the jury is unable 3 to produce a unanimous sentence recommendation." Continuing, 4 "We further have recognized that in a capital sentencing 5 proceeding, the government has a 'strong interest in having 6 the jury express the conscience of the community on the 7 ultimate question of life or death', citing Lowenfield v. 8 Phelps. I think it is not a perception issue. I think it is 9 the law, and the Supreme Court has recognized it that way. 10 THE COURT: I think we are all in agreement as to 11 what occurs if the jury is not unanimously in favor of the 12 death penalty. Let me take another crack at it. 13 (Pause) 14 THE COURT: The other alternative is that we ask them 15 to strike the word "unanimously." 16 MR. FITZGERALD: Your Honor, I would object to that, 17 because we don't want to have them not reach a verdict but 18 indicate that they did. 19 MR. COHN: The other alternative, your Honor, is to 20 add a fourth clause in the verdict sheet which says that we 21 are unable to find unanimously. 22 THE COURT: I may do that. 23 MR. FITZGERALD: Your Honor, in that regard we would 24 suggest that we do it as we do in the guilt phase. If the 25 jury is unable to reach a verdict, they send out a note saying 7316 1 they are deadlocked. They do not check a deadlocked box on 2 the verdict sheet. 3 (Pause) 4 THE COURT: Ladies and gentlemen. If the jury does 5 not unanimously find in favor of the death sentence on any 6 count, then the consequence is that the defendant will be 7 sentenced to life imprisonment on that count. Before you 8 reach any conclusion based on a lack of unanimity in favor of 9 death on any count, you should continue your discussions until 10 you are fully satisfied that no further discussion will lead 11 to a unanimous verdict in favor of death. If you are 12 satisfied that you cannot achieve unanimity in favor of death 13 on any count, you should write on the bottom of page 15 the 14 following: We the jury do not unanimously find that the death 15 sentence is appropriate. We understand that the consequence 16 of this is that Mr. Al-'Owhali will be sentenced to life 17 imprisonment. Indicate whether this is for all counts or as 18 to which counts this is applicable. 19 I think I have tried to accommodate -- 20 MR. COHN: Your Honor, just for accuracy sake, before 21 I say I think this is an Allen charge and therefore not 22 permissible, you should at least add the words life without 23 possibility of release. 24 THE COURT: Without the possibility of release. 25 MR. COHN: But I think it is an Allen charge and that 7317 1 they have voted and having voted that it's over. I know that 2 your Honor has overruled it but I want to make the record 3 clear. 4 THE COURT: Does the government have anything to say? 5 MR. FITZGERALD: No objection, Judge. 6 THE COURT: Very well. 7 They indicated that they want to go home at 3:00. We 8 will see whether they adhere to that or not. 9 MR. COHN: Your Honor, do you wish to ask them 10 whether or not they wish to go home at 3:00? 11 THE COURT: No. They are a very self-sufficient 12 jury. 13 (At 3:00, the jury adjourned until 9:30 a.m., 14 Tuesday, June 11, 2001) 15 16 17 18 19 20 21 22 23 24 25
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