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


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


   4              v.                           S(7) 98 Cr. 1023

   5   USAMA BIN LADEN, et al.,

   6                  Defendants.

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

                                               New York, N.Y.
   9                                           June 11, 2001
                                               9:15 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

            Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
   9        Attorney for defendant Khalfan Khamis Mohamed


















   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


   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?


   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?


   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


   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


   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


   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


   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


   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.


   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


   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


   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


   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.


   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


   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


   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


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

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

   3   clear.

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

   5            MR. FITZGERALD:  No objection, Judge.

   6            THE COURT:  Very well.

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

   8   will see whether they adhere to that or not.

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

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

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

  12   jury.

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

  14   Tuesday, June 11, 2001)












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