26 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 69 of the trial, June 26, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
8100 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 26, 2001 9:50 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 8101 1 APPEARANCES 2 MARY JO WHITE United States Attorney for the 3 Southern District of New York BY: PATRICK FITZGERALD 4 MICHAEL GARCIA 5 DAVID RUHNKE 6 DAVID STERN Attorneys for defendant Khalfan Khamis Mohamed 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8102 1 (Trial resumed; jury not present) 2 THE COURT: We were engaged in some colloquy 3 concerning the testimony of Dr. Cunningham when we realized 4 that the court reporter had not yet arrived. We had agreed 5 that Dr. Cunningham was not to testify as to his belief as to 6 what sentence would be appropriate and that Mr. Ruhnke was to 7 caution him not to volunteer that during the course of the 8 testimony. And we had begun to address the question of fees. 9 I think Mr. Ruhnke was making the point that with respect to 10 his fees they are subject to judicial oversight in the 11 particular cases in which the fees were earned. Was it the 12 case that all of his fees were earned as court-appointed 13 counsel? 14 MR. RUHNKE: If not a hundred percent, 95 percent, 15 but the overwhelming majority of them have been earned, courts 16 approved the hourly rate as reasonable for the services 17 rendered. It is not just him setting it. If the government 18 wants to go down that road, I don't think it is fair to put 19 the brakes on the defense when balancing the picture and say 20 in every instance his services are presented to the court -- 21 THE COURT: The fees reasonable and necessary for the 22 defense -- the point is not whether the fees were earned or 23 not but whether he has a regular source of income and the 24 extent of it which is dependent upon his appearing for 25 defense. What is the government's view on this? 8103 1 MR. FITZGERALD: That is exactly right, your Honor. 2 The issue is his motive to keep testifying for the defense. 3 The court does not pass upon someone's testimony in retaining 4 him, and to give the jury the implication that you have 5 endorsed his testimony would be wrong. The issue is not 6 keeping track of his hours but what his financial incentives 7 are. 8 THE COURT: Yes, but, on the other hand, assume it is 9 a very large amount from the perspective of the jurors. They 10 might think poorly of him if his fees were unreasonable or not 11 in accordance with professional standards. 12 Suppose you asked him whether his fees were charged 13 at rates which were found to be professionally acceptable, 14 without indicating who it was who found them professionally 15 acceptable. 16 MR. RUHNKE: Does that make the question exactly 17 that, who found them to be professionally acceptable? The 18 truth is that Dr. Cunningham has to have his fees approved by 19 the courts, that the rate is approved by the courts. As a 20 matter of fact, the rate that he charges is significantly less 21 than the government pays when it employs private psychologists 22 in a forensic context, and that may be a function that courts 23 are reluctant to approve higher rates. The government doesn't 24 have to come to a court to seek the rate it pays. 25 THE COURT: Why don't you ask him what percentage of 8104 1 his annual income is derived from appearing as a witness on 2 behalf of defendants. That's a formula that is regularly used 3 in personal injury litigation and so on. Wouldn't that make 4 the point and eliminate the problem? 5 MR. FITZGERALD: Your Honor, since I have asked that 6 the information not be given, I don't think I should be, 7 because I haven't given the information, be limited at this 8 point in time. I think I should have a latitude to follow up. 9 He had the opportunity to provide it in advance and maybe we 10 could have worked something out, but he chose not to. 11 THE COURT: Proceed as you wish, but I will not 12 preclude, if it is elicited for the jury that he has a very 13 generous income from testifying on behalf of defendants in 14 criminal cases, that the rates that he charges are those which 15 are acceptable and approved in the profession. I wouldn't go 16 into who it is that approves. 17 MR. RUHNKE: Yes, your Honor. 18 THE COURT: Let's bring in the jury. Have you agreed 19 on stipulations? 20 MR. GARCIA: Yes, Judge. 21 THE COURT: You have some stipulations and the 22 government is going to rest? 23 MR. GARCIA: Yes. 24 THE COURT: Very well. 25 MR. RUHNKE: Your Honor, a couple of matters before 8105 1 we bring the jury in. I don't see Dr. Cunningham physically 2 in the courtroom. He is upstairs or -- we will locate him. I 3 am going to need a moment to speak with him before we start. 4 I don't want to do that with the jury staring at us. Rementer 5 should be our first witness. Mr. Rementer will probably not 6 be on the witness stand very long, probably 15 or 20 minutes. 7 THE COURT: We will give you a moment or two to talk 8 to him. 9 MR. RUHNKE: Thanks. 10 THE COURT: I know you asked for some additional 11 time. When are the defendant's requests to charge due? Can I 12 have them by noon tomorrow? 13 MR. RUHNKE: I will try to have them by then, your 14 Honor. Frankly, your Honor, given what we are doing, would it 15 be all right if I submit them Friday morning, or is that too 16 late? 17 THE COURT: I would like to have them before Friday. 18 How about Thursday afternoon? 19 MR. RUHNKE: Fine. 20 THE COURT: It is not going to be a momentous task. 21 MR. RUHNKE: Yes, sir. 22 THE COURT: Let's schedule a charging conference for 23 Monday at 4:30. 24 Your first witness will be? 25 MR. RUHNKE: It will be Mr. Stern calling the witness 8106 1 Mr. Rementer. Before we do that, your Honor, we will read a 2 stipulation. 3 MR. FITZGERALD: Your Honor, one scheduling matter. 4 We have no idea how long Mr. Ruhnke's case will take, nor how 5 long our rebuttal case will take. But there is some 6 possibility that we may be able to sum up on Monday. 7 THE COURT: Do you know how much time you will want 8 for closing? 9 MR. FITZGERALD: I will ask for three hours but it 10 will be less. 11 THE COURT: Mr. Ruhnke, do you have any idea? 12 MR. STERN: I think three hours. 13 THE COURT: Who will make the closing? 14 MR. STERN: I will. 15 (Jury present) 16 THE COURT: Good morning. 17 JURORS: Good morning. 18 THE COURT: Mr. Garcia. 19 MR. GARCIA: Thank you, Judge. The government would 20 read several stipulations, your Honor. The first one, 21 Government's Exhibit 4316, reads as follows: It is hereby 22 agreed and stipulated between the parties as follows: 23 Government's Exhibit 4030 is a fair and accurate 24 photograph of the inside of cell number 6 on the 10 South unit 25 of the Metropolitan Correctional Center, taken on November 1, 8107 1 2000. 2 Government's Exhibit 4095, labeled as Q76 by the FBI 3 laboratory, was recovered by agents of the Federal Bureau of 4 Investigation from the floor of cell number 6 on the 10 South 5 unit of the MCC on November 1, 2000. 6 It is further agreed that this stipulation may be 7 received in evidence as a government exhibit at trial. 8 The government would offer 4316, 4030 and 4095, and 9 display 4030. 10 THE COURT: Yes, received. 11 (Government Exhibits 4316, 4030, and 4095 received in 12 evidence. 13 MR. GARCIA: Second stipulation, 4317. It is hereby 14 stipulated and agreed between the parties as follows: 15 Government's Exhibit 4034 is the shirt worn by Bureau of 16 Prisons employee Roderick Jenkins on November 1, 2000, during 17 the time when he responded to the alarm on the 10 South unit 18 of the Metropolitan Correctional Center. 19 The government would offer 4317, the stipulation, and 20 4304, the underlying exhibit. 21 THE COURT: Received. 22 (Government Exhibits 4317 and 4304 received in 23 evidence) 24 MR. GARCIA: The final stipulation, 4318. It is 25 hereby stipulated and agreed between the parties as follows: 8108 1 In November 1998, defendants Mohamed Sadeek Odeh, El 2 Wadih el Hage, and Mohamed Rashed Daoud Al-'Owhali were housed 3 on the 10 South high security housing unit in the Metropolitan 4 Correctional Center. Defendants Mamdouh Salim and Khalfan 5 Mohamed were not yet in American custody. Because of concerns 6 expressed by counsel for the defendants on 10 South that their 7 conversations with their clients might be overheard by the 8 staff at the MCC, the warden of the MCC agreed to place a 9 removable sheet of plexiglass on 10 South to be used to cover 10 the recreation room bars when the defendants met with their 11 attorneys in that room so as to muffle the sound and make it 12 less likely that any conversation would be overheard. The 13 shield depicted in GX4012 is such a plexiglass sheet which had 14 handles on both sides to aid in its placement over the bars 15 and its removal. A removable sheet was chosen so as to allow 16 for greater ventilation when the sheet was not in use, as 17 during recreation. 18 In the fall of 1999, after challenges were made by 19 defendant Wadih El Hage to the conditions of his confinement 20 prior to trial on the high security wing of the MCC, agreement 21 was reached between all parties that the conditions of 22 confinement would be changed so that El Hage and Mamdouh Salim 23 could share a cell. Thereafter, the other defendants asked 24 for the same modification of conditions and it was agreed by 25 all parties that defendants El Hage, Salim, Mohamed Odeh, 8109 1 Mohamed Rashed Daoud Al-'Owhali and Khalfan Mohamed would 2 share cells on a rotating basis. 3 The government offers that stipulation, 4318, and if 4 we could display 4012 also at this time. 5 THE COURT: Received. 6 (Government Exhibit 4318 received in evidence) 7 MR. GARCIA: Your Honor, the government rests. 8 THE COURT: The government rests. 9 MR. RUHNKE: We would like to begin our presentation 10 by reading to the jury a with stipulation marked KKM stip 4. 11 It is hereby stipulated and agreed by and between the 12 United States of America, by Mary Jo White, United States 13 Attorney for the Southern District of New York, by Patrick 14 Fitzgerald and Michael Garcia, of counsel, and the defendant 15 Khalfan Khamis Mohamed, with the consent of his attorneys, as 16 follows. 17 1. On November 1 and 2, 2000, the Federal Bureau of 18 Investigation sought search warrants in the investigation of 19 the assault on corrections officer Louis Pepe that occurred on 20 the 10 South unit of the Metropolitan Correctional Center. 21 2. In order to secure the requested search warrants, 22 it was necessary for a special agent of the FBI to submit an 23 affidavit to a magistrate judge of the United States District 24 Court for the Southern District of New York, establishing 25 probable cause to justify the search. On November 1 and 8110 1 November 2, affidavits were submitted to Magistrate Judge 2 James C. Francis IV. Each of the affidavits contained the 3 following paragraphs as sworn to by the FBI agent who signed 4 the affidavit. "I have personally participated in this 5 investigation and am familiar with the information contained 6 in this affidavit either through personal observations or 7 through discussions with other law enforcement officers. 8 Because this affidavit is made for the limited purpose of 9 obtaining a search warrant, I have not set forth every fact 10 that I have learned during the course of this investigation." 11 Right outside of cell 6 on unit 10 South of the 12 Metropolitan Correctional Center, law enforcement officers 13 recovered two bottles containing what appeared to be hot sauce 14 (Such as Tobasco). The liquid inside the bottles had been 15 sprayed at the responding correctional officers by Salim when 16 they arrived at the cell and may have been sprayed at the CO 17 before he was stabbed. In addition, the responding 18 corrections officers observed that liquid from the bottles had 19 been sprayed all over the walls inside and outside the cell. 20 4. In an affidavit in support of a request for a 21 warrant seeking blood samples from Mr. Salim and Mr. Mohamed, 22 the following paragraph was sworn to by the FBI agent who 23 signed the affidavit: "After a struggle, Salim and Mohamed 24 were subdued by the responding corrections officers. When 25 Salim was subdued by the corrections officers, a key belonging 8111 1 to the CO was found at Salim's feet. The CO was taken to a 2 hospital and has undergone surgery. The following text is 3 handwritten. During the struggle Salim and Mohamed sustained 4 injuries and both men bled." 5 It is further stipulated and agreed that the 6 stipulation may be read to the jury and received in evidence 7 as a defense exhibit. I so offer the exhibit, your Honor. 8 THE COURT: Yes, received. 9 (Defense Exhibit KKM stip 4 received in evidence) 10 MR. STERN: We call Joseph Rementer. 11 JOSEPH REMENTER, 12 called as a witness by the defense, 13 having been duly sworn, testified as follows: 14 DIRECT EXAMINATION 15 BY MR. STERN: 16 Q. Good morning, Mr. Rementer. 17 A. Good morning. 18 Q. Mr. Rementer, where are you employed? 19 A. The Metropolitan Correctional Center. 20 Q. What is your job there? 21 A. Special investigative agent. 22 Q. How long have you worked at the Metropolitan Correctional 23 Center? 24 A. Since December '89. 25 Q. Do you hold any particular rank there? 8112 1 A. GS12. 2 Q. When you say you are a special investigative agent, tell 3 this jury what that means. 4 A. I conduct investigations on inmate cases, staff cases, 5 monitor security threat groups, gangs, within the institution. 6 Q. Let me take you back to November 1, 2001, around 10:15 in 7 the morning. Tell me what happened around that time. 8 A. The control center announced a body alarm on 10 South. 9 Q. What is a body alarm? 10 A. It is a device that is connected to a radio. Either it's 11 pushed or when it is tilted to the side it activates. 12 Q. What happened? 13 A. They made an announcement for a body alarm 10 South. 14 Normal procedure is to respond. I was on the third floor at 15 the time. I went to the elevator, got on the elevator, went 16 up to 9 South in order to get through to 10 South. Once in 17 the sally port of 10 South, that's where we were held because 18 the officer wasn't there to open the door. 19 Q. When you say that's where we were held, were other 20 officers there with you? 21 A. Yes, sir. 22 Q. Who was there? 23 A. The only one I can remember is Jenkins. There were other 24 people there but he is the one that I remember, because I was 25 directly behind Robert Jenkins. 8113 1 Q. Go ahead. What happened next? 2 A. After sometime went by, emergency keys were brought up to 3 open the door of 10 South. Once the door was opened, we 4 entered the unit. Myself -- Jenkins saw an inmate through the 5 window before the door was opened. I remember Jenkins saying 6 I see one, he's out of the cell, he has keys. So when the 7 door was opened, in my mind I thought there may be other cell 8 doors open, other inmates out of their cells. So I took like 9 a crouching fast walk back to cell 6, in the meantime yelling 10 at the top of my voice to hit the deck, hit the ground, in the 11 event other inmates were out of their cells. 12 Q. Do you recall who went with you as you went back towards 13 cell 6? 14 A. No, sir, because like I said, I took a cautious fast walk 15 and a lot of staff were passing me, running. 16 Q. Go ahead. 17 A. Once I arrived back to cell 6, I was on the side of where 18 the cell door is. As soon as I walked up I saw Roderick 19 Jenkins and inmate Mohamed fighting between the plexiglass. 20 Q. When you say between the plexiglass, tell me exactly what 21 you saw. 22 A. Struggling with the plexiglass, fighting in between it, 23 looks like to get at each other. 24 Q. Were they both on the same side of the plexiglass? 25 A. No, opposite sides. 8114 1 Q. Was the plexiglass broken when you saw it? 2 A. It broke. 3 Q. When you first saw it was the plexiglass broken? 4 A. No. 5 Q. Go ahead. What happened? 6 A. I saw inmate -- this is all within seconds. Once that 7 happened, Salim, inmate Salim came out of the cell, his left 8 side first, because the door opens this way and the wall is 9 right there. Came out of the cell first and it appeared to me 10 that he had two bottles, bear bottles above his head, 11 squirting staff, along with myself. 12 Q. Squirting staff along with yourself? 13 A. Yes. 14 Q. What happened next? 15 A. Staff that were beside me automatically rushed Salim, and 16 in my mind when that door opened, in my mind I was convinced 17 that other cell doors must have been opened. So I turned to 18 staff behind me, yelling to check all cell doors, check all 19 doors. That's when I turned around and I started to check all 20 the doors all the way around the unit to the front of the 21 unit. 22 Q. To ensure that no other inmates could come out and join 23 whatever was going on? 24 A. Absolutely, sir. 25 Q. After this incident was over, did you play any further 8115 1 role in the investigation of this case? 2 A. No, not the investigation. 3 Q. Did you, for example, make a crime scene video? 4 A. Yes, sir. 5 Q. Why don't you tell me about what happened then. 6 A. Shortly after the incident was over, I was directed by 7 Captain Nelson Aponte to conduct a crime scene video. 8 Q. Who was the camera person while that video was being made? 9 A. Lance Maiden. 10 Q. In that video, did you say what it was you had seen? 11 A. Yes, sir. 12 Q. How long after the incident did you make that video? 13 A. I would say approximately within an hour. 14 Q. Did you videotape the crime scene in addition to telling 15 what you had seen? 16 A. Yes, sir. 17 Q. Is there anything else you videotaped in addition to the 18 crime scene? 19 A. Videotaped the two inmates. 20 Q. Where was Khalfan Mohamed when you videotaped him? 21 A. I believe Mohamed was on 9 South in the kitchen area. 22 Q. Where was Mamdouh Salim? 23 A. He was in the health services unit on the second floor. 24 Q. We are going to show a videotape marked KKM VT2 -- I think 25 you have it on your monitor there. When it is done, I will 8116 1 ask you some questions. 2 A. Yes, sir. 3 MR. STERN: Judge, I offer that in evidence. 4 MR. GARCIA: No objection. 5 THE COURT: Received. 6 (Defense Exhibit KKM VT2 received in evidence) 7 (Videotape played) 8 MR. RUHNKE: Your Honor, we are going to start it 9 again and play it as loudly as it can be played, and we would 10 ask the jurors to listen as carefully as they can. 11 THE COURT: Would it be better to play on a regular 12 cassette player? 13 MR. RUHNKE: The problem is volume. 14 THE COURT: We will take a 10-minute recess and take 15 care of the techniques. Mr. Ruhnke, you can use this time to 16 take care of the other matter. 17 MR. RUHNKE: Yes. 18 (Recess) 19 THE COURT: Play it again? 20 Q. Mr. Rementer, that videotape we just saw was a videotape 21 you made within an hour or so of this incident occurring, 22 right? 23 A. Yes, sir. 24 Q. You saw Salim in that videotape -- I know it was difficult 25 to see from where you were, but you have seen it before, 8117 1 correct? 2 A. Yes, sir. 3 Q. And you have described Salim in the past as having 4 devilish eyebrows? 5 A. Excuse me, sir. 6 Q. You have described Salim as having devilish eyebrows? 7 A. I believe so. 8 THE COURT: What does that mean? What do you mean by 9 that? Devilish? 10 THE WITNESS: His appearance. 11 Q. You mean by that that he has very arched eyebrows, 12 correct, sir? 13 A. Yes, sir. 14 Q. That's the way you described him? 15 A. Yes, sir. 16 Q. That distinguishes him from Khalfan Mohamed, correct? 17 A. Yes, sir. 18 Q. You also said that in running out of that cell he had a 19 crazed look on his face, did you not? 20 A. Yes, sir. 21 Q. In addition to the videotape we have just seen, you filled 22 out a Bureau of Prisons report in connection with this case, 23 didn't you? 24 A. Excuse me, sir. 25 Q. You filled out a report that was part of your job with the 8118 1 Department of Justice Bureau of Prisons. I am going to show 2 it to you. This is a document marked KKM10B. Is that a 3 report which you signed? 4 A. Yes, sir. 5 Q. That report accurately reflects what occurred on that day, 6 does it not? 7 A. To the best of my knowledge, yes. 8 MR. STERN: I would ask that be admitted into 9 evidence as KKM10B. 10 MR. GARCIA: No objection. 11 THE COURT: Received. 12 (Defense Exhibit KKH10B received in evidence) 13 MR. STERN: I have no other questions. Thank you. 14 MR. GARCIA: Nothing. Thank you. 15 THE COURT: Thank you. You may step down. 16 (Witness excused) 17 MR. RUHNKE: We call Mark Cunningham. 18 MARK DOUGLAS CUNNINGHAM, 19 called as a witness by the defense, 20 having been duly sworn, testified as follows: 21 DIRECT EXAMINATION 22 BY MR. RUHNKE: 23 Q. Dr. Cunningham, would you tell the jury what the nature of 24 your occupation is, please. 25 A. I am a clinical and forensic psychologist in private 8119 1 practice. 2 Q. In this particular case, were you asked, based on your 3 knowledge, training and experience, to provide testimony to 4 the jury identifying conditions of confinement and security 5 options that the Bureau of Prisons may resort to where an 6 inmate is deemed by the Bureau of Prisons to be a threat to 7 the lives or safety of other inmates or other Bureau of 8 Prisons staff? 9 A. Yes, I was. 10 Q. How long have you been a psychologist? 11 A. I have been a psychologist for about 23 years now. 12 Q. Could you please explain to the jury what a clinical 13 psychologist does. 14 A. Clinical psychology is the evaluation and treatment of 15 psychological disorders. 16 Q. You referred to yourself also not only as a clinical 17 psychologist but also a forensic psychologist. What does a 18 forensic psychologist do? 19 A. Forensic psychology is the application of psychological 20 research and techniques to legal issues, all the way from 21 child custody evaluations to evaluations of psychological 22 status or damages in civil cases. In criminal court it might 23 include things like evaluations of competency to stand trial 24 or mental state at time of offense or sentencing 25 determinations. 8120 1 Q. Are you primarily at the present time, would you describe 2 yourself primarily as a clinical psychologist or primarily as 3 a forensic psychologist? 4 A. In my professional activities I am primarily a forensic 5 psychologist. 6 Q. Are you licensed as a psychologist? 7 A. Yes, I am. 8 Q. Where are you licensed? 9 A. I am licensed as a psychologist in Texas, Louisiana, 10 Arkansas, Tennessee, South Carolina, Indiana, Illinois, 11 Colorado, Idaho, Oregon -- there are 11 in all. I might have 12 left one out. 13 Q. Where do you practice from? Where is your home and where 14 is your office? 15 A. My home is in Abilene, Texas. 16 Q. How long have you been licensed as a psychologist? 17 A. I was first licensed in the state of Connecticut about 20, 18 21 years ago, and then was licensed in Texas from 1981, and 19 the other licenses have been since 1995. 20 Q. Could you give the jury, please, a brief summary of your 21 educational background as relates to psychology. 22 A. Certainly. I received my undergraduate degree with high 23 honors from Abilene Christian College. I majored in 24 psychology and mass communications. I then attended graduate 25 school at Oklahoma State University in a doctoral program in 8121 1 clinical psychology that is accredited by the American 2 Psychological Association for that training. 3 Q. Were you awarded a doctorate degree in psychology by 4 Oklahoma State University? 5 A. Yes, I was. 6 Q. What year was that? 7 A. That was in 1977, December of '77. 8 Q. You mentioned that the program at OSU, Oklahoma State 9 University, is accredited by the American Psychological 10 Association. 11 A. That is correct. 12 Q. What is the significance of that? 13 A. There are a limited number of programs that are accredited 14 by the APA, the American Psychological Association, and it 15 requires extensive review of faculty and research activities 16 and library and practical activities to insure the highest 17 quality training. Because there are a limited number of those 18 programs, they are extremely competitive in their entrance 19 requirements. 20 Q. Following your graduation and the award, did you do an 21 internship? 22 A. Yes, sir, I did an internship with the National Naval 23 Medical Center in Bethesda, Maryland. That's the large naval 24 hospital on the outskirts of Washington, D.C. 25 Q. When you were doing that internship, were you a naval 8122 1 officer? 2 A. Yes, I was. Most of that internship was before the Ph.D 3 was awarded, as part of the requirements for that degree. 4 Q. After your internship, what was your first real job as a 5 clinical psychologist? 6 A. I was assigned as a staff clinical psychologist at the 7 Naval Submarine Medical Center, in Groton, Connecticut, which 8 at that time was the primary Atlantic submarine base for the 9 navy, and was an active naval officer and clinical 10 psychologist and held that billet for about three and a half 11 years. 12 Q. While you were stationed at the submarine base in 13 Connecticut, did you continue to engage in professional 14 activities outside your duties as a naval officer? 15 A. Yes, I did. I taught part-time as a college teacher in 16 both the extension program that the navy offered at a local 17 community college, and I also did two years of part-time 18 postdoctoral study at Yale University, in a program accredited 19 by the National Institute of Mental Health. 20 Q. When did you leave the navy? 21 A. I left the navy in 1981, approximately June. 22 Q. What was your rank? 23 A. I was an O3, lieutenant, corresponds to army captain. 24 Q. After you left the navy, what did you in your career? 25 A. I accepted an academic teaching position at Hardin-Simmons 8123 1 University, a small college in Abilene, Texas, and was a 2 full-time assistant professor of psychology, I think it was, 3 the lowest rank, for about two years and had a practice that I 4 began during that same time period. 5 Q. During that period of time you said that you began a 6 practice. Just tell the ladies and gentlemen what kinds of 7 things do you do as a clinical psychologist in private 8 practice? 9 A. A variety of things. Evaluation of psychological 10 disorders, most commonly depression, anxiety disorders, 11 relationship problems, psychological testing. At that time 12 only occasional consultations that were related to legal 13 issues. 14 Q. Have you published articles in the areas of clinical and 15 forensic psychology? 16 A. Yes, sir. 17 Q. Are these in what are called peer-reviewed journals? 18 A. Yes. I have some that are in nonpeer-reviewed 19 publications. The large body are in peer-reviewed 20 publications. 21 Q. What is the significance of peer-reviewed publications? 22 A. Peer-reviewed publications are the primary way that 23 scientists communicate with each other. The way it works is, 24 a scholarly paper or piece of research is written up and 25 submitted to the editor of a peer review journal. He along 8124 1 with his own review sends it out to several national experts 2 who specialize in the area of the paper and they review it to 3 evaluate its scholarly potential and whether it adds 4 significantly to available research and perspectives about 5 that research, whether it adequately accounts for the data in 6 the field, and if they identify it as meeting those criteria, 7 they may recommend it to be published in the journal. That's 8 that review. It's the peer review before it is accepted for 9 publication. 10 Q. Are a large number of the articles that scientists and 11 other professionals submit to peer review journals rejected 12 after this peer review process? 13 A. Yes. By the leading journals, in the leading psychology 14 journals about 15 percent of the papers that are submitted are 15 accepted for publication. 16 Q. How many of these peer review papers have you authored or 17 coauthored? 18 A. In the forensic psychology area in major journals, five 19 since 1978. Two more are in press, which means they have been 20 accepted but have not yet actually been published. And then 21 three edited book chapters are currently in press. 22 Q. Are you board certified in any particular area, and if 23 yes, would you explain to the jury what it means to be board 24 certified. 25 A. Yes, I am. I am board certified in forensic psychology by 8125 1 the American Board of Professional Psychology, which is the 2 only organization recognized by the American Psychological 3 Association to provide board certification in clinical 4 psychology and forensic psychology and some other specialties. 5 Unlike medicine, board certification in psychology is a 6 relatively unusual credential that rather than being pursued 7 after training and residency is more typically sought in 8 mid-career and intended to identify the highest levels of 9 professional practice. As a result, it is a very arduous 10 credentialing process. In forensic psychology that involves 11 first obtaining a sufficient amount of forensic experience and 12 continuing education or residency training specific to 13 forensic psychology, and having your license in good standing 14 and that sort of thing. If you meet those gateway criteria 15 you are allowed to submit a work sample which represents two 16 reports or two cases that you have been involved in that are 17 extensively supplemented by case law and research, so that it 18 is almost more -- in the one that I submitted almost more like 19 a master's thesis. I spent three or four months working 20 extensively on that project. I had 8 or 10 pages of 21 references. That work sample is then reviewed by two board 22 certified forensic psychologists who identify whether or not 23 that sample represents a sufficient degree of sophistication 24 and expertise in forensic psychology. If the work sample is 25 accepted, then you are allowed to sit for an oral exam that is 8126 1 submitted before three or four board certified psychologists, 2 lasts three or four hours, and they can ask anything related 3 to the field of forensic psychology. 4 Q. Did you take that exam and pass it? Are you now board 5 certified as a psychologist? 6 A. Yes, I did. 7 Q. Do you know how many board certified psychologists there 8 are in the entire United States? 9 A. Fewer than 200. 10 Q. Does the Bureau of Prisons to your knowledge employ 11 psychologists with Ph.D's on their staff? 12 A. Yes. 13 Q. Do you know approximately how many? 14 A. Approximately 350. 15 Q. Do you know how many of those happen to be board 16 certified? 17 A. Not precisely. I have met some of the ones that are. 18 There are a handful, perhaps 5 to 10 anyway. I think I have 19 met four or five of them. 20 Q. Have you taught other psychologists in various continuing 21 education programs? 22 A. Yes, I have. One of the primary aims of the organization 23 of board certified forensic psychologists is to improve the 24 standard of practice of psychology that comes into the 25 courtroom, which doesn't mean training people how to talk 8127 1 better, be persuasive, but instead equips them with the best 2 knowledge of what it is they are evaluating and the best 3 research that can be brought to bear. I have been invited to 4 participate as part of a teaching faculty for the American 5 Academy of Forensic Psychology and have provided full day 6 workshops on capital sentencing evaluations to psychologists 7 around the country. 8 Q. Have you on occasion provided continuing education to 9 prosecutors? 10 A. Yes, I have. Not in an oral form. One of my publications 11 that I coauthored was published in the Prosecutor's Brief, 12 which is the magazine that goes out to all the district 13 attorneys in California. That was offered to that publication 14 with the interest of increasing their knowledge and 15 sophistication about a particular forensic issue. 16 Q. Do you continue to attend continuing education programs as 17 a regular practice? 18 A. Yes, I do, very intensively. 19 Q. Approximately how many hours a year do you think you use 20 to supplement your education with continuing education 21 seminar-type programs? 22 A. Depending on the year of the last five years, anywhere 23 from 60 to a hundred hours a year. 24 Q. Is there a requirement by the, for example, Texas State 25 Court of Examiners as to how many hours of continuing 8128 1 education a psychologist must take in order to maintain his 2 license? 3 A. Yes, sir. 4 Q. What is this? 5 A. I believe it is 12 hours per year. 6 Q. Do you belong to numerous professional organizations? 7 A. Yes, sir. 8 Q. Have you ever testified in any military, criminal or 9 family civil court proceedings? 10 A. All those. 11 Q. How many times have you testified? 12 A. Over 150 times. 13 Q. Can you give us a rough sample of courts, locations where 14 you have testified? 15 A. Certainly. I have testified in federal district courts in 16 Texas, Louisiana, Arkansas, Alabama, North Carolina, Virginia, 17 Illinois, Colorado. 18 Q. Have you also testified in various state courts, part of 19 the state court systems? 20 A. Yes, I have. 21 Q. In what states? 22 A. Texas, Louisiana, Arkansas, South Carolina, Virginia, 23 Tennessee, Illinois, cans sass, Oregon, Idaho, Colorado, New 24 Mexico. There are some other states as well. I apologize. 25 Q. When you have been offered as an expert witnesses in 150 8129 1 prior court appearances, has there ever been an occasion where 2 the court did not qualify you as an expert in clinical and/or 3 forensic psychology? 4 A. No, sir, I have always been qualified. 5 Q. Are you paid as an expert for your time? 6 A. Yes, I am paid for my time. 7 Q. Do you from time to time get consulted by attorneys and 8 other professionals but not testify? 9 A. Yes, sir, that's retained. 10 Q. Have you ever been called to testify by a prosecutor? 11 A. Yes, sir. 12 Q. In a criminal case? 13 A. Yes, I have. 14 Q. Have you ever been called to testify by a prosecutor in a 15 capital case? 16 A. No, sir, I have not. 17 Q. Would you be willing to testify in a capital case if you 18 were called by the prosecution? 19 A. Yes, sir. 20 Q. Are you personally opposed to the death penalty? 21 A. No, sir, I have no -- 22 MR. FITZGERALD: Objection, your Honor. Relevance. 23 THE COURT: Sustained. 24 MR. RUHNKE: On the issue of perhaps bias, your 25 Honor. 8130 1 THE COURT: Sustained. 2 Q. I am going to show you a document marked our next number. 3 Showing the witness what has been marked -- if I may approach, 4 your Honor. 5 THE COURT: Yes. 6 Q. -- KKM26 for identification. What is KKM26? 7 A. This is my curriculum vitae, or my resume. 8 MR. RUHNKE: Your Honor, I offer KKM26. 9 MR. FITZGERALD: No objection. 10 THE COURT: Received. 11 (Defense Exhibit KKM26 received in evidence) 12 MR. RUHNKE: I also offer Dr. Cunningham as an expert 13 in forensic psychology. 14 MR. FITZGERALD: May I have a brief voir dire, your 15 Honor? 16 THE COURT: Voir dire. 17 VOIR-DIRE EXAMINATION 18 BY MR. FITZGERALD: 19 Q. Good morning. 20 A. Good morning. 21 Q. I am Pat Fitzgerald. I just have a few brief questions. 22 So we are clear, you did not perform a psychological 23 evaluation of the defendant Khalfan Mohamed, correct? 24 A. That is correct. 25 Q. You are not offering psychological evaluation testimony of 8131 1 him personally, correct? 2 A. That is correct. 3 Q. So we are clear, in forensic psychology there is no 4 certification in assessing the ability of prisons to handle 5 dangerous inmates, correct? 6 A. Not a subspecialty, no, sir. 7 Q. So we are also clear, you have never worked for the Bureau 8 of Prisons? 9 A. That is correct. 10 Q. And you have never worked inside a prison other than to 11 visit, correct? 12 A. Other than going in to do consultations, I have never been 13 employed by a prison. 14 Q. So your knowledge of how a prison works is based upon your 15 review of documents, a review of the documents and in some 16 cases a tour of the prison? 17 A. That is correct. 18 MR. FITZGERALD: Thank you. Nothing further. No 19 objection. 20 BY MR. RUHNKE: 21 Q. Dr. Cunningham, as part of your work as a forensic 22 psychologist, have you specifically made an effort to research 23 and learn about the kinds of conditions of confinement and the 24 kinds of security measures that can be used to control inmates 25 which a prison system such as the Bureau of Prisons itself 8132 1 believes to be somebody who presents a danger to inmates or 2 staff? 3 A. Yes, I have. 4 Q. Specifically, have you made a study of the United States 5 Bureau of Prisons system? 6 A. Yes, I have. 7 Q. Have you visited federal prisons? 8 A. I have visited ADX Florence, the super-maximum facility in 9 Colorado. 10 MR. RUHNKE: If we could have the first power film 11 slide displayed. When we are done we will print out a set of 12 these slides and offer them as a set of exhibits. 13 Q. Do you see the first slide? 14 A. Yes, sir. 15 Q. Are there various custody options and what are they in the 16 federal prison system? 17 A. There is a range of custody options, from minimum security 18 facilities, as depicted at the top of the screen, through low 19 security, medium security, up to US penitentiaries or high 20 security. As the security level increases, the intensity of 21 the perimeter around the facility increases. As you get up to 22 US penitentiary level there are gun towers. The intensity of 23 staffing inside the prison increases. There are more 24 concentric layers of security. So as you are moving up this 25 ladder toward the US penitentiaries, the security is being 8133 1 heightened and the staffing is more intense. 2 Q. What is the source of your information here? 3 A. This information comes from US Bureau of Prison 4 publications as well as from the testimony of various Bureau 5 of Prisons wardens that I have reviewed as well. 6 Q. Are you familiar with the level of custody that -- let me 7 back up a moment. 8 Have you studied the cases or are you familiar with 9 the cases of 25 federal defendants who have been charged with 10 capital offenses, death penalty offenses, who have received 11 life sentences, are you familiar with their conditions of 12 confinement and level of custody? 13 A. I am familiar with that data up through 1988, which is 14 when the U.S. Attorney's Office supplied the followup data 15 that existed at that time. 16 Q. Did you say 1988 or 1998? 17 A. 1998. 18 Q. In the case of inmates in that situation, what in every 19 case is the custody level? 20 A. They were at a US penitentiary level or higher. 21 Q. Why is level of custody important to the initial question 22 to be asked, which is the capability of forming conditions of 23 confinement that will deal with inmates who are identified by 24 Bureau of Prisons as dangerous? 25 A. Risk is always a function of context of confinement, and 8134 1 as the context of confinement becomes more intense, becomes 2 stricter, opportunities to act out in a seriously violent 3 fashion are restricted. So it is critically important in 4 identifying what the relative risk is to ask at what level of 5 confinement, at what condition of confinement will this person 6 be held. 7 Q. Are you familiar with the Bureau of Prisons' own policy 8 statements on the level of confinement for longterm inmates? 9 If I could have the next slide, please. 10 A. Yes, sir. 11 Q. Would you explain to the jury, there is a document quoted 12 there, or statement quoted there. Would you read it to the 13 jury and explain where it comes from and what it is. 14 A. A male inmate with more than 30 years remaining to serve, 15 including nonparolable life sentences, shall be housed in a 16 high security level institution unless the PSF, meaning public 17 safety factor, has been weighed. That comes from the security 18 designation and custody classification manual number 5100.07, 19 on page 4. 20 Q. Does that mean in sum and substance that someone serving a 21 life sentence will never be dropped to a custody level below 22 high security level institution? 23 A. That is correct. 24 Q. In preparation for your testimony today, were you provided 25 with information about the sentencing and current conditions 8135 1 of custody of other inmates within the Bureau of Prisons 2 system who have been identified as bombers or terrorists 3 within the United States Bureau of Prisons system? 4 A. Yes, I was. 5 MR. RUHNKE: Could we have the next slide, please. 6 Q. I am showing you on the screen a list headed after 7 sentencing commission bombers and terrorists in BOP, and there 8 is a listing of the inmates' names, months within the prison, 9 most recent facility, which is a three-letter abbreviation, 10 and conduct indicating the number of assaults committed by 11 that inmate. Is that correct? 12 A. Since their entry into BOP, after sentencing, that is 13 correct. 14 Q. Starting with an example, referring to the first inmate, 15 Ahmed Mohamed Ajaj, it says months in BOP 83. 16 A. I am sorry, that should be '98, as you look on the screen. 17 Q. I am sorry, we have a noncorrected copy. So that person 18 has been in custody for 98 months, is that correct? 19 A. That is correct, since approximately March of 1993. 20 Q. It has zero assaults, is that correct? 21 A. It has one minor assault. 22 Q. Do you have the actual write-ups for these inmates? 23 A. Yes, I do. Well, for these inmates I don't have the 24 actual write-ups that occurred. I have a summary document 25 that I see what they were charged with and what the sanction 8136 1 was, what punishment was brought to bear. 2 Q. Were those documents provided by the Bureau of Prisons, 3 the information provided by the Bureau of Prisons? 4 A. That is correct. 5 Q. Do you know that Mr. Ajaj is one of the defendants 6 involved in the World Trade Center bombing? Is that what you 7 have been informed? 8 A. That is what I am informed. 9 Q. The same is true for Mohammed Salameh, Mahmud Abouhalima, 10 Niyad Ayyad. These are inmates serving time right now in the 11 Bureau of Prisons for convictions in connection with the World 12 Trade Center bombing? 13 A. That is correct. 14 Q. Going down to the next group of inmates, stopping at the 15 name Ramzi Ahmed Yousef, are these inmates to your information 16 who were sentenced and convicted in connection with a plan to 17 blow up landmarks and bridges and tunnels in the New York City 18 area of the United States? 19 A. That is correct. 20 Q. The final two inmates. Theodore John Kaczynski, that's 21 the Una bomber? 22 A. Yes, sir. 23 Q. The final inmate on the list is Terry Lynn Nichols. Do 24 you know if Terry Lynn Nichols is still in Bureau of Prisons 25 custody or where he happens to be now? 8137 1 A. He is with the Oklahoma Department of Corrections. 2 Q. He is awaiting trial in the Oklahoma City bombing? 3 A. That is correct. I am not sure if that is Oklahoma DOC or 4 Metropolitan Correctional Center or jail. 5 Q. Terry Nichols was the codefendant to Timothy McVeigh in 6 the Oklahoma City bombing, is that correct? 7 A. That is correct. 8 Q. There is one defendant here, Victor Alvarez, who has, 9 according to your summary, 10 minor assaults and two dangerous 10 weapon assaults and one serious assault -- two possessions of 11 a dangerous weapon and one serious assault of a corrections 12 officer. Is there a reference in his file to his mental 13 condition? 14 A. Yes, there is. 15 Q. How does the Bureau of Prisons define him or classify 16 Mr. Alvarez? 17 A. He has been designated as mentally ill. 18 Q. The facility listed is SPG. 19 A. Yes, sir. 20 Q. What does SPG stand for? 21 A. It stands for Springfield. 22 Q. Had Mr. Alvarez been at the facility in a United States 23 penitentiary at some point? 24 A. Yes, he had. 25 Q. Is Springfield a hospital for federal prisoners? 8138 1 A. Yes, it is. 2 Q. The gentleman I stopped before, Ramzi Ahmed Yousef? 3 A. Yes. 4 Q. Is he to your knowledge someone who has been described as 5 the mastermind of the World Trade Center bombing? 6 A. That is correct. 7 Q. How long has he been in Bureau of Prisons custody in the 8 sense of having been sentenced and actually in a prison 9 setting as opposed to being a pretrial detainee? 10 A. Thirty-nine months since his admission up to May of this 11 year, which is how long the data was that was provided. 12 Q. FLM, is that a designation that stands for a particular 13 federal institution? 14 A. Yes, it does. 15 Q. What institution did does it stand for? 16 A. It stands for ADX or Administrative Maximum at Florence, 17 Colorado, or super-maximum. 18 Q. Is Theodore Kaczynski also at the super-maximum or 19 administrative maximum institution? 20 A. That is correct, according to the documents provided to 21 me. 22 Q. Was Terry Nichols in that institution prior to his being 23 shipped out and turned over to Oklahoma to stand trial in the 24 state of Oklahoma? 25 A. That is correct. 8139 1 Q. Are you familiar with the facility at Florence, Colorado? 2 First let's have the next slide and talk about that for a 3 moment. What does this next slide show? 4 A. This is a summary of the analysis that you saw in the 5 previous slide, a breakdown that summarizes it. There is a 6 total of 17 of these individuals whose offenses are of a 7 bombing or terrorist nature. They average from 34 to 98 8 months in prison. The average time served is about 63 months. 9 The total time at risk, in other words, the total number of 10 years that these individuals have now served in prison is 11 approximately 89 years. Of the 17, 9 have no write-ups after 12 their sentencing and formal admission into BOP. Eleven of the 13 17 have three or fewer write-ups. Fourteen of the 17 have no 14 assaults. Sixteen of 17 have no serious assaults. The single 15 inmate with a serious assault was Mr. Alvarez, who was 16 designated as mentally ill and transferred to the Springfield 17 hospital facility. 18 Q. If we could have the next slide, I am going to ask you, 19 would you describe to the jury what a US penitentiary cell 20 looks like at the US penitentiary at Florence, Colorado. 21 A. Yes, sir. In the Florence complex, it is an FCI, a 22 Federal Correctional Institution, and a US penitentiary. 23 Q. Stop a moment. What is an FCI and how does it differ from 24 a penitentiary? 25 A. FCI is a level of security down from a US penitentiary. 8140 1 There is one of those facilities there. There is a US 2 penitentiary there. There are nine US penitentiaries in the 3 Bureau of Prisons. Then there is a third facility of the ADX 4 Florence, the maximum security. 5 This depicts a cell in the US penitentiary in 6 Florence, a typical cell. You will notice it is a double 7 cell. There are two inmates who would live in this cell. 8 There are the bunk beds, a storage cabinet in the foreground, 9 a toilet in the background, a sink, a stainless mirror. There 10 is a small table against the back wall. Then at the top of 11 the cell you see an entranceway that will take you back behind 12 the sink and toilet, a pipe chase that allows work to be done 13 on the plumbing without physically having to go into the cell. 14 So it is an access point. 15 Q. The area depicted by the toilet, that is the outer 16 boundary of the cell; is that correct? 17 A. That is correct. The cell door would be just in front of 18 the toilet. 19 Q. How would the cell door open and close? 20 A. That would be a sliding door. 21 Q. With bars or solid? 22 A. I don't recall. 23 Q. Have you seen cells like this in person? 24 A. I have seen cells like this. I have not been in the USP 25 in Florence. 8141 1 Q. Have you been at the administrative maximum unit at 2 Florence? 3 A. Yes, I have. 4 Q. Are inmates, to your knowledge, locked down for most of 5 the day in US penitentiaries? 6 A. No, sir. 7 Q. What do they do in US penitentiaries most of the day? 8 A. During the day they may have a job that they go to. There 9 is educational services and other kinds of rehabilitation 10 programming. There is a recreation time. They go to a mess 11 hall, a central area to eat. So a good part of the day they 12 are being programmed in one fashion or another. 13 Q. Go to the next slide. You made reference to ADX Florence 14 and super-maximum custody. First of all, where is the 15 institution that is referred to as Florence or Florence ADMAX? 16 Where is it located in the United States? 17 A. Florence, Colorado, is southwest of Colorado Springs. 18 Q. About how far from Colorado Springs? 19 A. About 60 miles. It is 20, 30 miles west before Pueblo, 20 Colorado. So you have Pueblo, Florence, and Colorado Springs 21 is here, another 60 miles up the road. 22 Q. What kind of area is it? How would you describe the area 23 surrounding this prison? Is it a populated area? Is it 24 urban? How would you describe it? 25 A. It is very sparsely populated. It is arid, high desert, 8142 1 rolling area of the foothills of the Rocky Mountains. 2 MR. RUHNKE: Your Honor, if we could switch to the 3 Elmo for a moment and display a document called Elmo 23. Your 4 Honor, I would offer 23 in evidence. 5 MR. FITZGERALD: No objection. 6 THE COURT: Received. 7 (Defense Exhibit KKM23 received in evidence) 8 Q. If we could zoom in on the schematic portion of the 9 document, Dr. Cunningham, what does KKM23 depict? 10 A. This is a schematic of ADX Florence, that super-maximum 11 facility, as seen from above in a schematic drawing. 12 Q. Going around the document are various cylindrical shaped 13 objects. What are throws? 14 A. Those are six gun towers. 15 Q. Where the outer perimeter or gun towers are situated, what 16 is that? Is that a wall? 17 A. Yes, it is a double perimeter wall around the facility. 18 Q. The wall is concrete or stone of some kind? 19 A. To my recollection. 20 Q. Is there also an interior fence? 21 A. Yes, sir. 22 Q. What is that fence made of, if you recall? 23 A. It is a razor wire fence. It may be that the body is 24 chain link but there are razor wire rolls at the bottom and 25 tops. 8143 1 Q. So in order to get to the inner fence, you would have to 2 go through rolls and rolls of razor wire, is that correct? 3 A. That is correct. 4 Q. Just in case it is not obvious in New York City, what is 5 razor wire? 6 A. It is wire that rather than being round it is like a band. 7 It has an edge on it, and periodically spaced on that are 8 places in which it comes out at a point and goes up and comes 9 back down at a point. It is sharpened. So you have both the 10 sharp points and the sharp edges. It is called razor wire 11 because it will lacerate you if you grab onto it. 12 Q. Looking at area 5 on the diagram, described as the 13 administration building, is that how an outsider like yourself 14 would enter the facility at Florence? 15 A. That is correct. 16 Q. Have you been through that entry system? 17 A. Yes, I have. It is outside the perimeter, and after they 18 take you through security and you walk through a metal 19 detector, you go through a ramp so they can get a full picture 20 of your feet. When you actually enter, you go underground, so 21 there is no break in the perimeter wall. 22 MR. RUHNKE: Next I will ask that we display on the 23 Elmo KKM24, which I would offer. One moment with counsel. 24 MR. FITZGERALD: No objection. 25 THE COURT: Received. 8144 1 (Defense Exhibit KKM24 received in evidence) 2 Q. What is shown in KKM24, if we could zoom in on the top 3 portion of that exhibit? 4 A. This is a schematic that depicts one of the units in ADX 5 Florence. The central zone is the control center for -- 6 Q. The area designated 5 is the central control center? 7 A. That is correct. Then the spokes radiating off of that 8 have the various rooms and cells that are associated with that 9 particular unit. Those are two-storied units that have solid 10 hallways, but as you begin to enter one of those wings there 11 is a stairway up and stairway down. 12 Q. Sort of like five or six stairsteps up to one range and 13 five or six steps down to another range, is that correct? 14 A. That is correct. 15 Q. Let's take the upper left-hand spoke here. I see each of 16 the cells seems to have a boat-like shape. Is that the area 17 that you described earlier for getting into service pipes and 18 other fixtures without ever actually having to enter the cell? 19 A. So they can change the light fixture because the light is 20 recessed and protected. So somebody doesn't have to enter the 21 cell to service the light or plumbing. 22 Q. The large rooms across from the range of cells, what are 23 those rooms? 24 A. Those would be interior recreation rooms, interior 25 exercise spaces. 8145 1 Q. So an inmate going to exercise would go to one of those 2 rooms if they were indoors; is that correct? 3 A. That is correct. 4 Q. The large room that appears to show a basketball court on 5 it, is that inside or supervised? 6 A. It is an outside recreation area for exercise. 7 Q. It is an area that is open where you can see the hills 8 around it? 9 A. I don't recall exactly what that is made out of. 10 Q. Is there, for example, security measures in place there 11 that take precautions against any kind of helicopter landing? 12 A. Yes, there is a netting or screen over the top and cables 13 to prevent a helicopter extraction. 14 Q. Can we go back to the laptop exposition. 15 Doctor, what is portrayed on this screen? 16 A. This is a drawing of a typical cell at ADX Florence, as if 17 you are standing up sort of the hallway. What you are looking 18 at first is a solid front door that is a slider. It is 19 electrically operated and moves from side to side. You then 20 step into the cell, if that is open, and there is a vestibule 21 that is about 3 feet deep by 5 feet wide. Then there is 22 another wall that is made up of prison bars, a grate, and it 23 also has a sliding door on it as well. 24 Q. In other words, to enter one of these cells or to exit one 25 of these cells, first the door that appears to be solid gray 8146 1 in the diagram has to be opened; is that correct? 2 A. That is correct. 3 Q. Are these done with keys or are these done in some other 4 way? 5 A. They are typically opened electronically. The officer 6 typically calls for them to be opened and they slide open. 7 There is a provision for them to be opened manually in case of 8 emergency but the typical feature is that they are operated 9 electronically. 10 Q. Then you have a vestibule area that is to enter or exit 11 from the cell? 12 A. Yes. That is the cell bars that go all the way across the 13 cell, which is about 7 feet wide. About half of that is a 14 sliding bar or grate door, standard sliding cell door. 15 Q. Looking towards the rear of the cell, the diagram shows a 16 single slit-type window. 17 A. That is correct. 18 Q. Where does that window look out into? 19 A. It looks into an interior courtyard of some kind. None of 20 the windows allow you to see a full view. It may even be 21 difficult to know what direction you are facing, but you never 22 get a notion of how the security is operating around the 23 facility. Typically if you crane your head, you can see just 24 a little bit of sky. 25 Q. Going clockwise around the cell, the first item you find 8147 1 after the grated door is what? 2 A. That is a shower. There are showers in the cell, a 3 stainless steel shower that operates by push button controls. 4 You push the button and the water comes on for a set period of 5 time and then stops. 6 Q. You are talking about the upper right-hand portion of the 7 diagram; is that correct? 8 A. Yes, sir. 9 Q. Tell us again how the shower unit operates. 10 A. It is a one-piece stainless steel unit. There is nothing 11 to rip off. Instead you push a button that operates a timer 12 to reduce the chance of flooding. That way you don't have to 13 move the inmate in order for him to shower because he can 14 shower right there in the cell. 15 Q. We discussed the window. Come to the bed. What is the 16 bed made of and how does it relate to the cell itself? 17 A. The cell itself is made from poured rebar, reinforced 18 concrete. It is not cinderblock or anything. The bed is also 19 poured concrete and it is poured into the wall and the floor. 20 So it is a continuous poured seamless feature, so there is no 21 crevice to hide something down. You will notice that on the 22 lower edge -- you've got the top of the bed and then there is 23 an indentation, and that is all the storage area that an 24 inmate has, which is in that, just that slit that is there. 25 Q. Over the bed is there a specially designed low voltage 8148 1 television unit? 2 A. Again, there is a shelf there that is poured into the wall 3 of the cell, and sitting on that is a low voltage black and 4 white television, which is how much of the programming is 5 delivered to the inmates, is over their own closed-circuit 6 television network, as well as receiving some standard 7 channels. 8 Q. Is there somewhere in this next -- I don't know if 9 Florence has become a smoke-free facility, but somewhere an 10 inmate can smoke a cigarette? 11 A. Yes, sir. You push a button and there is a recessed hole 12 in the cell that will stay hot for five or six seconds and you 13 can light a cigarette, but it is recessed and again, you can't 14 get access to it. 15 Q. Next appears to be some sort of desk or shelf. What is 16 that made of? 17 A. The desk area is poured into the wall of the cell. That 18 is again reinforced concrete. Sitting in front of that, that 19 round cylinder is a stool but it is poured into the floor. It 20 is just a cylindrical, round, concrete stool. 21 Q. Stay with the stool for a moment just in case it is not 22 obvious. The stool does not move in any way? It is poured 23 directly into the cell? 24 A. That is correct. 25 Q. Continuing around? 8149 1 A. Then as you come forward there is a single unit toilet, 2 sink, water fountain, that is all one stainless steel unit. 3 You will notice, you will see kind of a cavity on the front of 4 that stainless steel unit just forward of the toilet. That is 5 where the roll of toilet paper goes. There is not a roll but 6 instead of the toilet paper fits into the cavity. The toilet 7 seat has no lid on it. It is simply a stainless receptacle. 8 That way there is nothing to tear off. The sink is also 9 operated by a timer and waits for several seconds before the 10 timer is pushed again. 11 Q. What is the significance of having two doors between 12 inmate and management? 13 A. There are a number of protections. One is that it is an 14 additional barrier that an inmate would have to get through in 15 order to get access to the hallway. It substantially reduces 16 the ability of inmates to communicate from one cell to another 17 because you have put another barrier there at the front of the 18 cell. As these cells are typically on one side of the hall. 19 There is not another cell that you can look into across the 20 hall. As staff are walking up and down the hall, it is not 21 possible for an inmate to throw fluids or projectiles over 22 them. It is also possible, as the tray comes through the 23 cell, the tray is handed through a wicket, a slot through the 24 bar door. So that you don't have to open the door to the cell 25 as the inmate is passed the hot tray and cold tray, as he eats 8150 1 there in the cell. It allows interaction, conversation, or 2 even some degree of medical evaluation while the inmate is 3 still on the other side of the bars. 4 The other advantage as compared to a solid front 5 single door that has a wicket that just opens that you would 6 pass the tray through, in this setting the inmate is under 7 continuous observation. It is not as if some portion of his 8 body is blocked by the solid door that is there. 9 Additionally, as the inmates are restrained when they bring 10 them out of the cell, for example, to go to exercise one or 11 two hours a day, the inmate would back up to that wicket and 12 be behind his back. The staff member -- he will be either 13 double or triple escorted. The staff member backs up to his 14 hands and waits for the door to be wicked. The wicket comes 15 open and he still has hold of the inmate at all times. If you 16 have that solid front door, you can have the inmate back up to 17 get cuffed up but you have to turn loose of them when you open 18 the door. So this has that advantage as well. So there are a 19 number of security features that are an aspect of this 20 vestibule or double-celling that you would not have in a solid 21 front. 22 Q. You made reference earlier to when an inmate, for example, 23 is taken out to one of those recreation areas directly across 24 from the cell or in the immediate vicinity, that are either 25 double or triple-escorted with handcuffs from behind. Does 8151 1 one or more of the officers doing the escorting also carry 2 some sort of weapon with them? 3 A. Yes, he does. He carries a wooden baton. It's about 3 4 feet long and it is metal tipped, and that is used as a 5 thrusting instrument into the inmate's rib cage if they 6 attempt to turn or head or offers resistence. 7 Q. In terms of social contact with the outside world, are you 8 aware generally speaking how many phone calls an inmate is 9 allowed to make on a monthly basis in this super-maximum 10 setting? 11 A. Yes, sir. Depending on which one of the units he is on, 12 he will get one or two 15-minute phone calls a month. The 13 phone is brought to the cell front so that there is complete 14 control over what number is being dialed and who is being 15 accessed, and those phone calls are both tape recorded and 16 monitored. 17 Q. Are the people to whom the inmate is placing calls, do 18 they have to be preapproved by the Bureau of Prisons? 19 A. Yes, they do. 20 Q. In terms of visits, social visits with family members and 21 other people, first, are there limitations on who can visit? 22 A. Yes, there are. 23 Q. Do visits have to be approved in the sense that a person 24 before they can visit an institution like this has to be 25 investigated by the Bureau of Prisons? 8152 1 A. That is correct. 2 Q. Are these visits conducted in a contact sense, that the 3 inmate can hold or touch or hug a loved one during the visit? 4 A. No, sir. 5 Q. How are they conducted? 6 A. The inmate is escorted to the visitation area and his 7 handcuffs are moved from the back to the front or he may be 8 locked in a block box that covers up the keyhole. As he is 9 speaking, he is only speaking into a microphone. Then on the 10 other side of a very thick piece of reinforced glass that has 11 a high hammer rate -- 12 Q. Explain that. 13 A. That means you can beat on a hammer for a good while 14 before you can produce even a little hole. The visitor is 15 talking on a telephone. So on their side they have a 16 telephone but the inmate on his side just has an open 17 microphone and a speaker. 18 Q. Are the conversations themselves monitored and overheard 19 by Bureau of Prisons personnel? 20 A. Yes, they are. 21 Q. Do you have photographs that depict these kind of cells? 22 A. Yes, I do. 23 Q. Let's see the next slide, please. What are we looking at? 24 A. This is as if you are standing at the back of the cell by 25 the slit window and you are looking to the front of the cell 8153 1 and you see just the edge -- you see the sink/toilet 2 arrangement, then the sliding grate wall, the bar wall, the 3 vestibule, and then the solid wall, and in this case that 4 outer solid door that has a smaller window in it has been slit 5 open. 6 Q. What are the dimensions? How many square feet does one of 7 these units comprise? 8 A. Approximately 80 square feet. The cells are roughly 7 by 9 12. Of course you are losing close to 3 feet of it with the 10 bed that is poured in there. Wall to wall it is about 7 feet 11 wide, about 11 to 12 feet long. The vestibule is 3 feet deep 12 and 5 feet wide. It is a little narrower because the pipe 13 chase is taking up some of that room back behind the sink and 14 toilet. 15 Q. We are talking about an area that is substantially smaller 16 than this jury box; is that correct? 17 A. Yes, sir. 18 Q. Have you been in these cells? 19 A. Yes, I have. I have stood right where we are looking now 20 and seen this view. 21 Q. Can I see the next slide, please. What are we looking at 22 now? First of all, has that sliding door now been closed in 23 this photograph? 24 A. No, sir. It is still pulled over -- 25 Q. I am sorry, I mean the grate. 8154 1 A. No, it is still open because you can see to the left of 2 that grate door that it is open on out into the hallway. All 3 we have done here is just shift our view a little bit. We are 4 still standing to the back of our cell and we have turned a 5 little to the right and you see the surface of the concrete 6 desk that is poured into the wall, and the unit that would 7 allow you to light your cigarette and also an emergency call 8 button, and then above that is the concrete shelf that is 9 poured into the wall that is holding the small black and white 10 TV. Then above that, it is not easy to make out, it is the 11 light receptacle, where the light is recessed back into it and 12 shielded to make it quite difficult for the inmate to access 13 that. 14 Q. Can we see the next slide, please. 15 A. Here we are standing at that solid front door looking into 16 the cell past the grate wall, the bar doors that slide. You 17 see on the right-hand side the stainless steel shower. You 18 have a view of the concrete poured-in bed here and the shelf 19 area below it. The mattress is, I think, 3 inches thick by 20 about 7 feet long. It is made out of flame retardant 21 material. 22 Q. Next slide. This is a photograph showing a little further 23 up towards the window and the shower unit, correct? 24 A. That is correct, and you get just a little edge of the 25 desk and the TV shelf. 8155 1 Q. Under the bed, that storage area that we have discussed, 2 are we seeing basically as far deep as it goes? 3 A. Yes, it is about this deep, being 6 or 8 inches deep, 4 which again makes it much more efficient to search the cell 5 because there are no seams to hide things in, and there are 6 limited areas where things can be out. 7 Q. If we could have the next slide. At least as of 1998 when 8 these figures were last provided to you, were you able to get 9 a general profile of the inmates who are housed at the 10 administrative maximum penitentiary in Florence, Colorado -- 11 first of all, what was the general, the rated capacity of this 12 institution, meaning the number of inmates it can take? 13 A. The rated capacity is 490. In June of 1998, it had 417, 14 which is about 15 percent under capacity. The most recent 15 figure as of the 15th of this month shows a census of 379. 16 Q. Do you know that the United States Bureau of Prisons has a 17 public Web site on the Internet? 18 A. Yes, sir. 19 Q. Is it possible to go to that Web site, for example, on a 20 weekly basis tell the number of inmates in any particular 21 institution? 22 A. That is correct. 23 Q. Is that where that figure 379 comes from? 24 A. That is correct. 25 Q. Do you happen to know how many prisoners there are in the 8156 1 entire federal system, approximately? 2 A. Approximately 129,000. That does not include contract 3 facilities. 4 Q. By contract facilities, what do you mean? 5 A. That means private prisons that are being paid to house 6 inmates either on an ongoing basis for or a temporary basis. 7 Q. As of 1998 you have a category for sentences imposed on 8 the inmates who are serving time in the administrative maximum 9 penitentiary in Florence, Colorado. Can you break those down 10 for us. 11 A. Yes, sir. 46 percent of them were serving 24 years to 12 life. 25 percent had life sentences. The average sentence 13 was 36 years. 14 Q. These are long, long term prisoners? 15 A. That is correct. 16 Q. Did the Bureau of Prisons make available to you their 17 breakdown of why it is that these inmates were being housed in 18 this super-maximum facility? 19 A. Yes, they did. 22.3 percent had either murdered another 20 inmate or attempted to murder another inmate. 20 percent had 21 been involved in serious assaults on inmates. 17 percent 22 assaults on staff. 12.9 percent because they required greater 23 security or increased monitoring. 9.2 percent for escape 24 behavior from other facilities in the bureau. 4.6 percent for 25 rioting. Then 4.1 percent were direct court commitments. 8157 1 Q. Meaning what? 2 A. That means that they did not first go into the Bureau of 3 Prisons and misbehave, but instead went directly into that 4 facility at the time of their sentencing. 5 Q. Have you heard that the inmate population of Florence is 6 described as the federal prison system's worst of the worst? 7 A. That is correct. 8 Q. Is there a step-down or way of working one's way out of 9 places like Florence? 10 A. Yes, sir. 11 Q. Can we have the next slide, please. 12 A. There are three general population units, and those 13 individuals are in cells like you have seen the pictures of 14 and the diagrams. Briefly, the inmate is in restraints, 15 handcuffed behind his back and escorted by two officers 16 whenever he is moved from the cell. He has 12 hours weekly 17 out of cell exercise, weekly in groups. He takes his exercise 18 and stays at that cell and stays in that status at least 12 19 months, at the end of which a decision is made whether or not 20 it is appropriate to move him up to the next level. The 21 overall philosophy at ADX is not that most of these 22 individuals will be kept there permanently but instead it will 23 be tried to move them back into the general population at some 24 point, although there are inmates there have been there a long 25 time. The general philosophy for most of the population is to 8158 1 try to move them back out into a US penitentiary. 2 Q. When you say move them back out into a US penitentiary, 3 what type of custody and security is generally in place in 4 United States penitentiaries? 5 A. It is a high security institution and someone may be 6 handled with varying degrees of custody within that facility. 7 So they may go back into a maximum custody setting. 8 Q. We have been discussing the security in place at the 9 administrative maximum facility in Florence. Were you 10 provided with figures detailing assaults that have taken place 11 at this facility in Florence from 1996 through approximately 12 April of the year 2000? 13 A. Yes, I was. 14 Q. Have you done an analysis of those reports? 15 A. Yes, sir, I have. 16 Q. Can we have that next slide, please. 17 A. Across the top you see the first column of the offense 18 that we are describing. Then followed by each year. The 19 figures for 2000 are only the first four months. The first 20 category is assaults on inmates with a weapon. Next category, 21 assaults on inmates. Next category, assaults on staff with a 22 weapon. The next category, assaults on staff. There has 23 never been the homicide of an inmate in ADX Florence, nor the 24 homicide of a staff member. Nor have there been any escapes. 25 Q. The average daily census, that is the figure across the 8159 1 bottom for that particular year? 2 A. That is correct. 3 Q. So an institution that is rated for, I think you said 490 4 people -- is that correct? 5 A. That is correct. 6 Q. In 1996, the average 342 inmates; 1997, 377; 1998 up to 7 410; 1999, 711; 2000,344. 8 A. That is correct. 9 Q. Let's talk about the assaults on staff with a weapon. In 10 all of 1996, there was one such assault; is that correct? 11 A. That is correct. 12 Q. There were none in 1997, 2 in 1998, 2 in 1999, one in the 13 year 2000; is that correct? 14 A. Yes, sir. I might add that this includes attempted. They 15 call it an assault when an attempt is made. It doesn't have 16 to be that the officer was wounded with a weapon but that an 17 attempt was made to injure the officer with a weapon. 18 Q. To your knowledge, based on figures by the Bureau of 19 Prisons, has there ever been an assault on a staff member at 20 ADX Florence that resulted in a staff member being 21 hospitalized, to your knowledge? 22 A. Not to my knowledge. 23 Q. Have you reviewed the underlying incident reports 24 involving assaults on staff? For example, if, for example, an 25 inmate threw a cup of water at a staff member, how would that 8160 1 be categorized? 2 A. It would be categorized as an assault, a minor assault. 3 Q. Minor assault? 4 A. Yes, sir. 5 Q. Without going through all these assaults that are on the 6 bottom, typically, if there is such a method of describing it, 7 what are these kinds of assaults that are listed on this? 8 A. The most common assaults involve throwing a liquid on the 9 officer, spitting on the officer, those kinds of things. The 10 more serious assaults involve attempting to headbutt, when 11 they are being escorted, to throw their head back in some 12 fashion, to push a tray back on an officer. One officer's 13 hands were cut. He was holding onto the handcuffs and cut his 14 handsome with that. 15 I reviewed the individual disciplinary reports of all 16 the more serious assaults on staff members since 1994, with 17 the exception of 1999. That data was not provided to me. I 18 had a couple big boxes of disciplinary reports. None for '99 19 but I have the other years. I don't have all of 2000. There 20 were two incidents that were of greater concern. There was 21 one incident, '96 or '97, an inmate had taken the rod from the 22 typewriter in the legal library, had gotten that back to his 23 cell. When a staff member stepped into the vestibule, the 24 inmate lunged at him with this, and the officer deflected it. 25 Then there was another incident, I believe in 2000, where an 8161 1 inmate also made a lunge at an officer through the grate, and 2 again the officer stepped back and the lunge was unsuccessful 3 and the inmate then flushed it down the toilet. Those are the 4 two most serious assaults that I recall going through. Again, 5 there were some other head butts and cutting with the 6 handcuffs and a lot of throwing liquid and insolence and that 7 kind of thing. 8 MR. RUHNKE: Your Honor, this would be a good time to 9 take a morning break, if that is acceptable. 10 THE COURT: All right. 11 (Recess) 12 THE COURT: Mr. Ruhnke, you may continue. 13 MR. RUHNKE: Thank you. 14 Q. Dr. Cunningham, you had made reference earlier to 15 something called the Security Designation Custody 16 Classification Manual of the United States Department of 17 Justice Federal Bureau of Prisons, and I am asking you to look 18 at a document in front of you marked KKM19. 19 A. I have that. 20 Q. Is that excerpted pages from that much larger manual? 21 A. Yes, it is. 22 Q. Do those excerpted pages include the particular security 23 designation sections that you referred to earlier in your 24 testimony? 25 A. Yes, they do. 8162 1 MR. RUHNKE: Your Honor, I offer Defense Exhibit 19. 2 MR. FITZGERALD: No objection. 3 THE COURT: Received. 4 (Defense Exhibit KKM19 received in evidence) 5 Q. Does the Bureau of Prisons to your knowledge have policy 6 or program statements regarding when inmates and housing units 7 and work areas may be searched? 8 A. Yes, it does. 9 Q. Does that program statement and policies involve every 10 level of the search including body cavity searches of inmates 11 using simple medical instruments? 12 A. That is correct, all the way from pat searches to visual 13 strip searches to digital searches to x-rays. 14 Q. Are those policies set forth in the documents in front of 15 you marked Defense Exhibit KKM20? 16 A. Yes, it is. 17 MR. RUHNKE: Your Honor, I offer KKM20. 18 MR. FITZGERALD: No objection. 19 THE COURT: Received. 20 (Defense Exhibit KKM20 received in evidence) 21 Q. Does the United States Bureau of Prisons have a program 22 statement -- incidentally, are all these statements available 23 on the Internet to anyone who wants to download? 24 A. Yes. 25 THE COURT: Except not the jury. I want to caution 8163 1 the jurors that it would be inappropriate for them to try to 2 access any of this on the Internet. 3 Q. Does the United States Bureau of Prisons also have a 4 program statement involving the use of stun guns within 5 federal institutions, particularly something described as a 6 federal 302A gas gun with MK ballistics adaptor? 7 A. Yes, it does. 8 Q. Is that program statement contained in Defense Exhibit 9 KKM21? 10 A. Yes, it is. 11 MR. RUHNKE: I offer 21. 12 MR. FITZGERALD: No objection. 13 THE COURT: Received. 14 (Defense Exhibit KKM21 received in evidence) 15 Q. Does the United States Bureau of Prisons have a statement 16 regarding when firearms may be used against an inmate or 17 others within Bureau of Prisons facilities or property? 18 A. Yes, it does. 19 Q. Is that policy described in Defense Exhibit KKM22? 20 A. That is correct. 21 MR. RUHNKE: I offer 22, your Honor. 22 MR. FITZGERALD: No objection. 23 THE COURT: Received. 24 (Defense Exhibit KKM22 received in evidence) 25 Q. Does the United States Bureau of Prisons have available to 8164 1 it something called special administrative measures? 2 A. Yes, they do. 3 Q. To your knowledge is a special administrative measure 4 currently in effect with regard to Khalfan Khamis Mohamed? 5 A. Yes, it is. 6 Q. Is that current special administrative measure set forth 7 in Defense Exhibit KKM15? 8 A. That is correct. 9 MR. RUHNKE: Your Honor, I offer KKM15. 10 MR. FITZGERALD: No objection. 11 THE COURT: Received. 12 (Defense Exhibit KKM15 received in evidence) 13 Q. Have you had an opportunity to examine the disciplinary 14 file of Khalfan Mohamed since his incarceration in the 15 Metropolitan Correctional Center beginning in October of 1999 16 through up until the current time? 17 A. Yes, sir. To the best of my knowledge, there are no 18 disciplinary reports in the file. 19 Q. No report of disciplinary infractions, is that correct? 20 A. That is correct. 21 Q. Dr. Cunningham, we have been talking about these units at 22 ADX, the administrative max, the super max facility of the 23 United States Bureau of Prisons. Is there a level of security 24 available at ADX that is higher even than what you have 25 described? 8165 1 A. Yes, there is. 2 Q. Could we have the next slide, please. Is there something 3 within the United States Bureau of Prisons called a control 4 unit? 5 A. Yes, it is there is. 6 Q. Does the United States Bureau of Prisons publish 7 regulations that govern what inmates are placed in what is 8 called a control unit? 9 A. Yes, it does. 10 Q. Do you have in front of you a document identified as 11 KKM17? 12 A. Yes, I do. 13 Q. Is that a copy of the section of the Code of Federal 14 Regulations dealing with the control unit within the United 15 States Bureau of Prisons? 16 A. Yes, it is. 17 MR. RUHNKE: Your Honor, I offer KKM17. 18 MR. FITZGERALD: No objection. 19 THE COURT: Received. 20 (Defense Exhibit KKM17 received in evidence) 21 Q. Would you tell the ladies and gentlemen of the jury what a 22 control unit is. 23 A. The control unit is a prison within the super max prison 24 at ADX, where the conditions of confinement are even more 25 rigorous in their security than they are in the general 8166 1 population unit that we were describing earlier. It is 2 intended to bring the highest degree of supervision security 3 to bear. On the control unit, the inmate is in his cell 23 4 hours a day. He is in that same vestibule cell arrangement 5 that we were looking at earlier. The control unit inmates 6 have their legs shackled as well as their hands cuffed behind 7 their back before they are removed from the cell, and instead 8 of being double escorted, they are triple escorted. 9 Q. The escorts carry the batons that you described earlier 10 with the steel tips on them? 11 A. That is correct. One officer is holding the handcuffs in 12 the back and the other two are carrying batons. The exercise 13 that the inmate takes is solitary, so that when he goes for 14 his hour a day of exercise he is alone during that time, as 15 well as being alone 23 hours a day in his cell and taking his 16 meals in his cell. The duration of that confinement is until 17 he is deemed able to function in a less restrictive 18 environment without posing a threat to others or to the 19 orderly operation of the institution. 20 Q. Is there any end date to how long an inmate may be 21 confined within a control unit at ADX Florence? 22 A. There is not a maximum on that. The inmate may be given a 23 tentative period of time that he is going to be confined at 24 entrance. There are regular reviews of individuals on the 25 control unit in their status by the director of the north 8167 1 central region of the Bureau of Prisons, and also the 2 assistant director of correctional programs form an executive 3 panel that approximately every 90 days or so review the 4 control of inmates, so that there is a due process review of 5 whether or not this particular inmate continues to require 6 this degree of custody. 7 Q. Dr. Cunningham, would you pick up Defense Exhibit 17 in 8 evidence and turn to the second page of the exhibit. 9 A. Yes, sir. 10 Q. Under section 541.41, is there a list of criteria which 11 are to be considered in whether recommending a person to 12 control unit placement? 13 A. Yes, there is. 14 Q. Would you just read to the jury the seven different 15 criteria that may be considered for placement in a control 16 unit. 17 A. 1. Any incident during confinement in which the inmate 18 has caused injury to others to other persons. 19 2. Any incident in which the inmate has expressed 20 threats to the life or well being of other persons. 21 3. Any incident involving possession by the inmate 22 of deadly weapons or dangerous drugs. 23 4. Any incident in which the inmate is involved in a 24 disruption of the orderly operation of a prison, jail or other 25 correctional institution. 8168 1 5. An escape from a correctional institution. 2 6. An escape attempt. Depending on the 3 circumstances, an escape attempt considered alone or together 4 with an inmate's prior history may warrant consideration for a 5 control unit placement. 6 7. The nature of the offense for which committed. 7 An inmate may not be considered solely on the nature of the 8 crime which resulted in that inmate's incarceration. However, 9 the nature of the crime may be considered in combination with 10 other factors as described in paragraph B -- which is the ones 11 I have just listed -- of this section. 12 Q. Can I see the next slide, please. 13 What we are looking at, Doctor, is exactly what? 14 A. This is a schematic of a particular area of ADX, a 15 particular range. This is C unit, D range detail. That's 16 what is indicated in the upper right-hand corner. What we are 17 looking at here along the upper right side are the standard 18 vestibule cells. Across the bottom of this schematic are 19 special cells that have adjacent interior, inside and outside 20 recreation, and also adjacent visitation. 21 MR. RUHNKE: I am going to ask that we switch over to 22 the Elmo and see if we can zoom in on that area. Your Honor, 23 the slides themselves have been marked as one group Exhibit 24 25, and that is a part of Exhibit 25. If we could zoom in on 25 the lower corner or center of that diagram and shift it to 8169 1 your left. Stop it right there. 2 Q. What are we looking at here, Dr. Cunningham? 3 A. If you look at the large center room with the X over it, 4 that's an outside exercise area. Just next to that on either 5 side are vestibule cells, and these are arranged a little bit 6 differently. Notice that the access for the pipe chase is 7 through the wall at the back of the cell rather than being at 8 the front of the cell where the hallway is. Then you notice 9 as you come just up from that area to the left of it that 10 small box with the X in it is the shower. Coming forward from 11 that is the sink/toilet arrangement. Then the stool and shelf 12 area. And across from that the bed. Then there is a grate 13 door. 14 So in this cell configuration, this side pocket or 15 super cells provide the potential that an inmate could have 16 his grate door open, come out into that area, then have the 17 door open, the slider open to the outside recreation area and 18 go through that room, have it closed behind him, and they 19 could go in and search his cell. At the end of the recreation 20 he could come back out of that cell and in sequence into his 21 interior cell. 22 For visitation, if you look at 132, which is an 23 inside exercise area, which can also be utilized, notice what 24 looks like a walk-in closet -- I think the number is 138 -- 25 that comes off that lateral hallway. It is a visitation booth 8170 1 that a visitor can go into. The inmate would come out of his 2 cell, the slider would open through to that area, sit down at 3 the stool and also have access to visitation there, where the 4 visitor is sealed in, locked into that walk-in closet, and the 5 inmate is on the other side. This reduces the demand for the 6 staff to have to handle the inmate quite as much as they would 7 even on the control unit, because you could just open the 8 doors to have the inmate move from place to place. Some staff 9 would be involved but this much reduces that, if they 10 determine to place someone in this kind of setting. 11 Q. What you are describing then is within the control unit, 12 which is more secure than the administrative maximum unit or 13 even cells within the control unit that are more secure than 14 the general control unit, is that it? 15 A. I am not sure this is geographically located in the 16 control unit per se, but these cells represent a higher degree 17 of security and reduced inmate contact than in the control 18 unit. 19 Q. Are you aware within the Bureau of Prisons system of 20 inmates who have been locked down under control unit 21 conditions for a substantial number of years? 22 A. Yes, I am. 23 Q. Are you familiar with an inmate named Thomas Silverstein 24 and an inmate named Clayton Fountain? When I say familiar, I 25 don't mean do you know them. Are you familiar with their 8171 1 cases and their situations? 2 A. Yes, I am. 3 Q. Did each of these inmates murder a correctional officer on 4 the same day in 1983 at the facility in Marion, Illinois? 5 A. Yes, sir, tragically, two separate incidents to correction 6 officers that were killed on the same day. 7 Q. For the past 18 years, what conditions of confinement -- 8 first of all, do you know where each inmate is presently 9 located and housed? 10 A. Clayton Fountain is in a special cell unit at Springfield. 11 Silverstein, as I recall, is in a special cell unit at 12 Leavenworth. 13 Q. Without detailing at great length their conditions of 14 confinement, can you just generally sketch for the jury what 15 kind of conditions of confinement have these two men lived in 16 separately for the last 18 years? 17 A. They are in extraordinarily secure confinement. They are 18 in a single cell. My understanding is that there is an 19 adjacent cell that has had the fixtures removed for an 20 exercise area, with the slider in between. Any sort of -- 21 there is very limited staff contact. They are continuously 22 monitored by closed circuit television and microphones, 23 including see-in-the-dark kind of equipment. So they are 24 continuously monitored. Any movement is with extraordinary 25 security, closed staffing, closed off doors, very intense 8172 1 supervision and restriction. 2 Q. We have been talking about Florence and the super max 3 facility. How many United States penitentiaries are there 4 meeting the highest level of security around the United 5 States, to your knowledge? 6 A. There are nine. There are eight that are standard US 7 penitentiaries. Then there is Marion, which functions at a 8 level kind of midway between a regular US penitentiary and ADX 9 Florence. So if you include Marion, there are nine plus ADX. 10 Q. To your knowledge, do all these units have something 11 called a special housing unit, i.e., a high security winning 12 or set of cells within what is already a high security prison? 13 A. Yes, sir. 14 Q. Does the administration of those institutions, no matter 15 who the prison is, have available to it very high security 16 measures even within something that is not super max? 17 A. Yes, they do. 18 Q. Have you reviewed a videotape that I played for you? 19 A. Yes, I have. 20 MR. RUHNKE: Your Honor, I would like to read a 21 stipulation at this time. 22 THE COURT: Yes. 23 MR. RUHNKE: The stipulation is marked KKM stip 5. 24 It is hereby stipulated and agreed by and between the United 25 States of America by Mary Jo White, United States Attorney for 8173 1 the Southern District of New York, Patrick J. Fitzgerald and 2 Michael J. Garcia, of counsel, and the defendant Khalfan 3 Khamis Mohamed, with the consent of his attorneys, as follows: 4 1. On November 8, 2000, Mr. Mohamed was transported 5 to the Federal Correctional Institution in Otisville, New 6 York, and housed there until just before the commencement of 7 this trial on January 3, 2001. While at Otisville, videotapes 8 were made of Mr. Mohamed's movements within the institution, 9 utilizing what is called a 3-man hold. The videotape marked 10 KKMVT1 depicts one of those movements. Although the tape is 11 undated, it has been agreed that the tape was made in 12 mid-to-late December 2000. 13 It is further agreed that this stipulation may be 14 read to the jury and received in evidence as a defense 15 exhibit, as KKMVT1. 16 I offer the exhibit and the stipulation, your Honor. 17 THE COURT: Yes, received. 18 (Defense Exhibits KKM stip 5 and KKMVT3 received in 19 evidence) 20 MR. RUHNKE: I am sorry, it is marked VT3, not 1. 21 We perceived the source of the sound problem and are 22 using the microphone. 23 (Videotape played) 24 Q. Dr. Cunningham, having viewed that video, as an initial 25 matter, although it is not shown on the videotape itself, 8174 1 given the kind of security conditions that are in place is it 2 highly likely that Mr. Mohamed would have been subject to at 3 least a visual strip search before being allowed to dress to 4 come out of the cell? 5 A. I would assume so. 6 Q. And the same is true when he returned to his cell? 7 A. That is typically what occurs when somebody has any degree 8 of contact out of their cell, is, there is a strip search 9 before they are put back in their cell. 10 Q. The situation you saw did not have -- let me back up. 11 How would the situation, for example, at a three-man 12 hold at ADX Florence have differed from what you just saw? 13 A. The escorting staff members would have been carrying 14 batons; these officers were not. 15 Q. In terms of the distance that Mr. Mohamed was moved in 16 this video, what would be the situation in a unit, either the 17 control unit or the administrative maximum noncontrol units at 18 Florence? 19 A. The recreation areas, the exercise areas are much closer. 20 They are across the hall or just down the hall. So the 21 distance of movement is typically reduced. There is a 22 capability of delivering some degree of medical services close 23 at hand on the units. As a larger medical problem developed, 24 then you would need to take the person further. But for the 25 most part their typical movements are within a pretty confined 8175 1 area. 2 Q. Are there advantages other than simple numbers in having 3 something like two or three officers in charge of moving an 4 inmate and in enforcing security procedures? 5 A. It has several advantages, I guess, that are related to 6 numbers. One of them is that you easily overpower the inmate. 7 Secondly, the presence of multiple officers discourages an 8 attack in the first place simply by the intimidation effect. 9 There is also a higher likelihood of complying with security 10 procedures if there is an additional person who is there and 11 who also knows what the rules are and who is also going to get 12 in trouble if you don't follow those. It reduces complacency 13 and cutting corners if there is more than one person present, 14 particularly if one of those is an officer. 15 Q. Did you notice at the start of the video when Mr. Mohamed 16 was about to be handcuffed, he started to put his hands out 17 frontwards? 18 A. That is correct. 19 Q. And one of the officers started to place the handcuffs on 20 it. Did you notice what the superior officer did? 21 A. He told him to have Mr. Mohamed turn around so that he 22 could be handcuffed from the back. 23 Q. Do you know in terms of complacency or familiarity what 24 the Bureau of Prisons' policy is with staff rotations within 25 the control units of super max penitentiaries such as 8176 1 Florence? 2 A. To my knowledge there is some staff rotation and some 3 inmate rotation as well. 4 Q. What does that mean? 5 A. You are rotating the inmate so they don't have an 6 indefinite period of time in one cell where they might begin 7 to work on that. Also, when you rotate the staff and 8 officers, it reduces that sense of familiarity and 9 complacency. 10 Q. Are you familiar with the type of food served in these 11 institutions? Is it basically American-type food? 12 A. That is my understanding. There is a hot tray and a cold 13 tray that is delivered. 14 Q. Based on your experience and the research you have done 15 and the things you have tried to find out about, given the 16 abilities of the Bureau of Prisons, once the Bureau of Prisons 17 identifies an inmate as somebody who in the view of the Bureau 18 of Prisons is potentially a danger to staff and inmates, what 19 sort of job do they perform overall in protecting other people 20 from that inmate? 21 A. They can bring extraordinary levels of supervision to bear 22 to match the perception of the degree of threat they identify 23 this person as presenting to them. 24 MR. RUHNKE: I have no further questions, your Honor. 25 THE COURT: Mr. Fitzgerald. 8177 1 MR. FITZGERALD: Thank you, your Honor. 2 CROSS-EXAMINATION 3 BY MR. FITZGERALD: 4 Q. This time it is good afternoon. 5 A. Good afternoon. 6 Q. Why don't we start where you just ended, and you indicated 7 that once the Bureau of Prisons identifies in their mind or 8 the collective mind of the Bureau of Prisons that a person 9 poses a danger, you said they can bring an extraordinary 10 amount of security to bear, correct? 11 A. That is correct. 12 Q. That would be true in theory, correct? 13 A. And in practice, based on the supervision of the general 14 population at ADX and the control unit as well as the side 15 pocket cells. 16 Q. Sir, you mentioned the cases of two men, one named 17 Silverstein and one named Fountain, correct? 18 A. That is correct. 19 Q. Are you aware that both Silverstein and Fountain had 20 originally been sent to jail or prison for murder; correct? 21 A. That is correct. 22 Q. Are you aware that once in prison Silverstein had an 23 inmate killed in a penitentiary; correct? 24 A. My understanding is that each of them had been guilty of 25 violence and homicides in prison before this one. I don't 8178 1 remember the dates when this occurred. 2 Q. If you read their cases, Silverstein, are you aware that 3 after he was sent to prison for murder had an inmate killed in 4 a prison facility? Do you doubt that? 5 A. No, not at all. I have not directly reviewed those 6 documents. I know that he was charged with a prior homicide 7 and I don't doubt that. I simply don't have those specifics. 8 Q. Are you aware that Fountain, once he went to prison for 9 murder, also murdered another inmate in prison? 10 A. I would accept that representation again. I don't know 11 the specifics of the case now. 12 Q. Are you aware that at the time in 1981, the most secure 13 state of the art prison facility in the United States was then 14 the Marion control unit; correct? 15 A. As security existed at that time, which is well below what 16 is brought to bear now. 17 Q. State of the art security in May of 1981 was the control 18 unit at Marion, correct? 19 A. That unit did not operate according to the same way the 20 control unit does currently. That was the state of the art in 21 1983. 22 Q. Would the answer to my question be yes? Was it the state 23 of the art as of May 1981? 24 A. As of that time, absolutely. 25 Q. Let's focus on the people the Bureau of Prisons identified 8179 1 as dangerous. They had two inmates, both convicted of murder, 2 who each carried out murders or ordered murders in prison and 3 sent them to the state of the art Marion control unit. Focus 4 on that period of time. 5 A. Yes, sir. 6 Q. Are you aware that Fountain and Silverstein then strangled 7 another inmate while in the control unit at Marion? 8 A. I accept that is the case. 9 Q. Assume at that point Silverstein and Fountain, both being 10 guilty of murder, both having ordered or carried out murders 11 in prison before getting to the control unit, both jointly 12 participating in murder while at the control unit, that the 13 Bureau of Prisons would then focus on trying to be as secure 14 as possible on those inmates. 15 A. With the facilities available at the time, yes. 16 Q. Are you aware that in October 1983 Silverstein, when he 17 killed an officer, was in a 3-man hold. With two officers 18 behind, he jumped, ran away, managed to get to another cell, 19 grabbed a shank, and stabbed that officer to death. 20 A. That is correct. 21 Q. Are you aware that same day in the same institution, the 22 person who committed a prior murder in a control unit was also 23 taken out of the cell that day in a 3-man hold, also escaped 24 from a 3-man hold, he killed a guard, maimed another and 25 injured the third? 8180 1 A. That is correct. 2 Q. So we have to focus on the real world to theory of the 3 Bureau of Prisons as displayed in the Internet and in manuals? 4 A. The real world as exists today is quite a bit different 5 than the architecture and staff procedures as existed in the 6 control unit in Marion in 1983. Silverstein ran to an open 7 cell front that allowed him to be taken out of his cuffs and 8 handed an instrument. Those are now closed. That is what the 9 vestibule celling is about. Staff members now carry batons. 10 There are a number of things that are different in what is 11 brought to bear. 12 Q. My question, we have to factor in the real world when we 13 consider Bureau of Prisons policy. Is the answer yes? 14 A. Yes, sir. The real world is different now than it was in 15 1983. 16 Q. Let me back up a moment. You testified that you have been 17 a psychologist since what year? 18 A. 1978 is when I first arrived at the submarine base as a 19 clinical psychologist with the navy, in March of '78. 20 Q. You began testifying as a forensic psychologist in 1975, 21 is that correct? 22 A. No, sir, that is not correct. I first began to testify on 23 forensic matters when I was in the navy, and periodically 24 across my clinical practice, in fact with increasing frequency 25 across the 1980's in my clinical practice, I participated in 8181 1 clinical cases. I did not identify myself as a forensic 2 psychologist until I became board certified because I didn't 3 think that was an appropriate designation to carry until I had 4 that special designation. Up until that time I identified 5 myself as a clinical psychologist doing forensic work. 6 Q. Is it fair to say that prior to 1985 your testimony as a 7 psychologist did not include testimony about assessment of 8 future dangerousness, risk assessment and conditions of 9 confinement? 10 A. That is correct. 11 Q. Since 1995, can you tell us over the years how much of 12 your income has been derived from providing expert testimony 13 as a forensic psychologist concerning future dangerousness, 14 risk assessment and the conditions of confinement. 15 MR. RUHNKE: Judge, object to the form of the 16 question. 17 THE COURT: Overruled. 18 MR. RUHNKE: Do we start with testimony, 19 consultation -- 20 Q. Testimony, consultation, work as a retained expert. 21 A. I can give you some estimates of the amount of my income 22 that is associated with doing capital consultations of one 23 sort or another. Those may be involved with mitigation, 24 violence risk assessment, conditions of confinement, 25 competency to be executed, post-conviction or evaluations 8182 1 associated with appeals processes. I can give you a very 2 rough notion of what portion of my income comes from all of 3 that work. I don't have it broken out by risk assessment 4 prison conditions specifically. 5 Q. Can you tell us how much you made last year in the risk 6 assessment, future dangerousness prison conditions line of 7 work? 8 A. No, sir, I don't know that. I can tell you about what 9 percentage of my income derived in capital cases broadly, but 10 not risk assessment violence specifically. 11 Q. Did you receive a letter prior to testifying asking you to 12 be able to tell the jury how you earned your income over the 13 years? 14 A. Yes, sir. You faxed me a letter yesterday while I was 15 already in New Jersey and the question was what percent of 16 your income earned as an expert witness in capital cases 17 versus the amount earned in clinical psychology since 1995. I 18 am attempting to respond very generally in terms of the 19 question you posed in the letter. 20 MR. RUHNKE: May the witness finish his answer, 21 please. 22 Q. I am sorry if I am jumping, sir. Prior to yesterday, did 23 you receive advice notification from counsel for Mr. Khalfan 24 Mohamed that the government wished to know this information? 25 A. I don't believe so. I recall that Mr. Ruhnke indicated 8183 1 that my fees in capital cases may be of interest to you but 2 there was no formal request for me to generate that sort of 3 information. 4 Q. So why don't you tell us last year how much of a 5 percentage of your income was earned working on capital cases 6 as a forensic psychologist. 7 A. Let me qualify before I respond to that that I called my 8 secretary to ask her to see what she could retrieve in terms 9 of my income and I have not gone back over those things to 10 validate with my attorney and that sort of thing. As she 11 described to me, my net this last year was about $250,000. 12 Approximately, my best guess, 70 to 80 percent of my work is 13 associated with capital cases of one sort or another. 14 Q. Is it fair to say, sir, in the prior times you have 15 testified in capital cases concerning dangerousness, risk 16 assessment and prison conditions, is it fair to say that in 17 all those cases you have never testified that any defendant 18 posed a future danger while confined? Yes or no. 19 A. No, sir, that is not correct. 20 Q. In how many cases have you testified concerning future 21 dangerousness? 22 A. I can tell you how many capital cases I have testified in. 23 I don't have it broken out in terms of how many are violence 24 risk assessment versus capital cases broadly. 25 Q. Can you name the number of defendants that you recall 8184 1 would be danger? 2 A. All the defendants I have testified in terms of violence 3 risk assessment, I have indicated the relative probability 4 that inmate would commit violent acts in prison. In no case 5 have I said that someone had a zero risk of violence in 6 prison. Instead I identified based on groups of risk data 7 based on past periods of confinement what the likelihood was 8 of carrying out violent acts in prison. On occasion I have 9 identified individuals that I felt were above the group rate 10 for that, other individuals who were at about that group rate, 11 and some who were somewhat below the rate. As the severity of 12 violence increases, the likelihood of it goes down. So it 13 also depends on what type of violence you are talking about as 14 you look at the likelihood of it. For example, assaults on 15 staff members occur pretty regularly in federal prison. Those 16 that result in serious or major injuries are pretty rare. 17 There have only been two homicides of corrections officers in 18 the past 13 years. So depending what sort of violence we are 19 talking about, the likelihood changes. It becomes less likely 20 with higher intensity violence. 21 Q. Can you answer my question. Can you name a defendant you 22 testified would pose a danger beyond a low base rate while 23 confined in Bureau of Prisons custody. 24 A. I apologize because I don't recall all the cases. I have 25 testified that individuals were at the base rate. I am trying 8185 1 to recall whether or not in a federal case I have identified 2 someone as above the base rate. If you would give me just a 3 moment to kind of review those cases. 4 Q. Is it fair to say that even in those cases the base rate 5 you have set you have always described as low? Correct? Yes 6 or no. 7 A. That's what I am trying to remember, what cases I have 8 testified in. 9 THE COURT: Suppose we break for lunch and you will 10 have an opportunity to review your notes. We are adjourned 11 until 2:15. 12 (Luncheon recess) 13 14 15 16 17 18 19 20 21 22 23 24 25 8186 1 A F T E R N O O N S E S S I O N 2 2:15 p.m. 3 (Jury present) 4 MARK CUNNINGHAM, resumes. 5 THE COURT: Good afternoon. 6 BY MR. FITZGERALD: 7 Q. Good afternoon. 8 A. Good afternoon. 9 Q. Over lunch did you have an opportunity to recall if there 10 was any defendant for whom you testified there would be a high 11 risk of danger while confined in the Bureau of Prisons? 12 A. Yes, sir. I apologize for making that question perhaps 13 more difficult than it was. 14 I have never testified that somebody is a substantial 15 likelihood of committing serious violence in prison among 16 capital offenders. Any case that I had that opinion, I was 17 not called to testify and the state has not asked me to 18 evaluate anyone, so that left the ones where the defense in 19 fact called me. 20 Q. So you have never testified that anyone posed a high risk 21 of danger? 22 A. Not more likely than not. I have testified some were 23 above the base rate or at the base rate or somewhat below, but 24 never that somebody was more likely than not to commit serious 25 violence in prison. 8187 1 Q. Isn't it fair to say you only testified once that a person 2 was above the base rate? 3 A. No, sir, that is not a fair characterization. 4 Q. When you testified, did you testify about a person by the 5 name of Bobbit who was above the base rate? 6 A. I don't recall my testimony specifically in that case. I 7 apologize. 8 Q. But in testifying that someone was above the base rate, 9 did you also conclude in that case that he was still a low 10 risk of violence, do you recall? 11 A. My general recollection is that I still thought that he 12 was less likely than 50 percent, still on the lower side of 13 that, and by some distance. 14 Q. Sir, are you saying that you testified that it was less 15 than 50 percent that he would be violent, or did you testify 16 he was a low risk of violence? 17 A. I don't recall specifically. I testified about a lot of 18 statistics and there may ultimately have been a final 19 conclusion that that put him into a lower range of violence 20 risk, but I don't recall specifically my testimony. 21 Q. Haven't you consistently testified in all the cases that 22 you have testified in capital sentencing that you do not make 23 a prediction, you do not assign a statistical number of how 24 likely someone is to commit violence, that you simply make a 25 risk assessment and not a prediction; isn't that correct? 8188 1 A. No, sir, that's a mischaracterization. I have testified 2 that I don't make a prediction in terms of saying, yes, this 3 person will be violent or, no, they will not be violent, 4 because that's speculative and unscientific. 5 What I do do is engage in a risk assessment where I 6 establish the relative probability or statistical likelihood 7 that this individual will commit an act of serious violence in 8 prison, and that is what I offer. Ultimately, it is the 9 jury's consideration whether that risk is an acceptable risk 10 or how high or low it is. 11 Q. Isn't it fair to say that you have never put a statistical 12 number on the risk assessment? 13 A. Oh, no, sir, that is certainly incorrect. In every case 14 that I have testified I have described the base rate of 15 violence among capital offenders. In other words, a risk 16 assessment of capital sentencing undertaken much like the 17 automobile insurance industry, identifies the risk of an 18 accident, that you take a group of similar individuals and you 19 track your experience with them over time, and on the basis of 20 that you identify a relative risk rate or statistical 21 likelihood. 22 That base rate is the most reliable anchor for a 23 violence risk assessment in the absence of a clear pattern of 24 behavior in prison or in confinement. So, as I have done, as 25 I have testified about violence risk assessment, I have 8189 1 described those statistics, and if I in fact evaluated the 2 defendant, will typically anchor or attach those statistics to 3 him with some raising or lowering of that base rate depending 4 on individual factors. 5 Q. Isn't it fair to say that in the end you have testified 6 for a person even above the base rate that they were a low 7 risk, yes or no, without qualifying it as being less than 50 8 percent? Have you testified that a person who was above the 9 base rate constituted a low risk of violence in the Bobbit 10 case, yes or no? 11 A. I don't recall my testimony specifically in the Bobbit 12 case. I apologize. 13 Q. Sir, how much do you expect to earn in this case? 14 A. You know, I don't know. I know my billable rate, but I 15 don't know what hours I have generated in this so far. My 16 secretary tracks that. 17 Q. How much do you charge per hour? 18 A. My fee is $210 per hour. 19 Q. And do you estimate how many hours have you spent on this 20 case to date? 21 A. Gee, I don't know. I made a trip out here several weeks 22 ago and I have spent a good deal of time working on the ADX 23 Florence disciplinaries and the terrorist and bomber 24 disciplinaries. I apologize. I would expect that I have 25 spent at least 50 hours in this case, and I think it could 8190 1 well be more than that. 2 Q. In most cases in which you have testified in a capital 3 proceeding, have you received between 25 and $35,000 when you 4 have testified as the payment for all your work in the case? 5 A. Oh, no, sir. No, sir. Some of the cases that I have 6 testified in I have simply been a teaching witness in violence 7 risk assessment, simply presented the studies and statistics 8 to the jury. In those cases, the total billings may be 5 or 9 $6,000. More typically, the fees have perhaps been, for all 10 the work involved, 10 to $20,000. There are some cases that 11 have gone higher than that, but they are more the exception. 12 Q. Did you submit an affidavit in another case that described 13 the fees in seven cases, as in the Hardy case in 1996 as 14 $34,763, the Rodriguez case in 1997 as $26,045, the Spidey 15 case in 1993 as $21,986, the Ingle case in 1997 as $21,949, 16 the Beckford case in 1997 as $34,581, the Johnson case in 17 Chicago in 1998 as $23,825, and the Holly case in 1998 in 18 Alabama as $31,357; do those sound correct? 19 A. I don't recall the numbers specifically, but that sounds 20 broadly correct. That's right there, those are all federal 21 cases, and accordingly have been more complex and required 22 many more hours. I was talking about all the capital work 23 that I am involved in. 24 Q. Now, sir, you did not prepare a report in this case; is 25 that correct? 8191 1 A. No, sir, the exhibits are the report. 2 Q. And in many other cases you prepare a report in advance of 3 your testimony; isn't that correct? 4 A. If requested to, yes. 5 Q. And you have been asked in some cases whether you prepared 6 a report, correct? 7 A. Yes, sir. 8 Q. And isn't it true that under the specialty guidelines for 9 forensic pathologists, that it cites that that is a 10 responsibility, to create and maintain documentation? 11 A. Oh, yes, sir. That's not describing a report, that's 12 talking about your notes and your interview materials. 13 MR. RUHNKE: I believe Mr. Fitzgerald said forensic 14 pathology. 15 Q. Psychology, sorry. 16 A. Those specialty guidelines, they are talking there about 17 the necessity when you interview someone to keep careful notes 18 of the interviews that you do with family members or with the 19 defendant so that those can be subjected to reasonable 20 scrutiny. The report that may or may not be prepared depends 21 on whether one is requested. 22 Q. And you know that when you prepare a report people get the 23 report in advance to review, correct? 24 A. On occasion. Certainly the person you are submitting it 25 to has it in advance. It may or may not be turned over in 8192 1 discovery, depending on the rules in a given jurisdiction. 2 Q. Can you answer my question? Do you understand in federal 3 court the rules are if you prepare a report in advance, it is 4 turned over to the other side to review and study, yes or no? 5 A. I'm not familiar with what those rules are in federal 6 court. 7 Q. You are not familiar with the federal discovery rules? 8 A. No, sir. 9 Q. Now, you mentioned when you prepare a report or interview 10 a defendant, is it fair to say that in prior cases you have 11 not only reviewed the disciplinary records at the place where 12 the person is held but done interviews or sought to do 13 interviews of the people who work at the correctional centers 14 where a defendant is held, yes or no? 15 A. No, sir, that's not correct. Sometimes I have interviewed 16 the individual and sometimes I have not. 17 Q. Did you testify in a case involve Trinity Ingle in federal 18 court in Arkansas in June of 1997? 19 A. Yes, I did. 20 Q. And did you testify in that case that in terms of 21 interviews with Trinity on April 16, "I interviewed him for 22 314 minutes and I also interviewed, more briefly, a couple of 23 the correction officers there at the jail in Eldorado where he 24 was being confined." And then continue, "I like to interview 25 the jail personnel so I have some description of what this 8193 1 person is like when they are confined, particularly, in this 2 case, his future dangerousness within the confines of jail or 3 prison. And so his behavior within the jail was something 4 that I was interested in getting a verbal description of as 5 well as reviewing the records." 6 Does that sound like your testimony in Ingle. 7 A. I don't recall my testimony specifically in Ingle, but 8 that's broadly consistent with what I believe. 9 Q. So, in that case, you reviewed the records and then you 10 went and interviewed the personnel as to the interaction 11 between the defendant and the personnel? 12 A. That's correct. 13 Q. In this case you just reviewed the records, correct? 14 A. Yes, sir, my function in this case was -- 15 THE COURT: Try to answer the question. 16 THE WITNESS: Yes, sir. 17 THE COURT: Your counsel will have an opportunity, if 18 he wishes, to bring out any elaboration on redirect. But if 19 the question is capable of a yes or no answer, attempt to 20 answer it yes or no. 21 THE WITNESS: Yes, sir. 22 Q. In that same case, in Trinity Ingle, was the defendant in 23 that case found to have what was described as a bat made out 24 of newspaper and a ball that was viewed as a weapon and did 25 you bring it in to court to show the jury? 8194 1 A. The bat was viewed as a weapon. The little ball that was 2 made out of a roll-on deodorant was not considered to be a 3 weapon. 4 Q. And did you then bring in and show -- or, strike that. 5 Did you then interview the defendant in that case about a 6 watercolor brush that he was found possessing that had a 7 sharpened pointed and a dismantled track razor attached to the 8 sharpened point of the water brush, and did you then describe 9 to the jury in that case that: "He was using this in, I 10 guess, an arts and crafts way. What he would do is he would 11 take a sock and use the point of the watercolor brush to pull 12 the elastic up, and then he would cut it with his little blade 13 until he got all the elastic out of the sock. Then he would 14 completely unravel the sock, and with the string that he had, 15 he would knot it to form a shape of letters. 16 "He was making a knotted letter necklace for himself 17 that had his nickname on it, which is Tweety for Tweety Bird, 18 and he used the point of his water color brush to work the 19 knots so that he could keep them straight. So these two items 20 that he had that were described as shanks, he was using to 21 construct this intricately knotted necklace for himself." 22 Do you recall giving that testimony and bringing the 23 necklace into court? 24 A. Yes, sir. Not the bat or the watercolor brush, but the 25 necklace he had, yes. 8195 1 Q. The pointed brush and the track razor that he had, you 2 didn't bring to court, but the brush; is that correct? 3 A. I never had those other instruments. Those were never in 4 my possession. They were confiscated by the staff. But I did 5 bring in the intricate necklace that he had knotted from sock 6 yarn to try to place in context the items that had been found 7 with the defendant in jail, correct, to display what they had 8 been utilized for at least in part, yes. 9 Q. And to give your opinion that in fact they were used as 10 arts and crafts supplies, correct? 11 A. In the construction of the necklace, yes. 12 Q. Now, you testified about the designation process, how 13 someone is designated to different facilities within the 14 Bureau of Prisons, which could be from a prison camp, to a 15 medium security, to a penitentiary, to Marion, which is a 16 little bit above the average penitentiary, to Florence 17 Administrative Maximum, correct? 18 A. That's correct. 19 Q. And it's a fact, is it not, that you yourself have never 20 actually participated in the designation process, since you 21 are not a Bureau of Prisons employee? 22 A. That's correct. 23 Q. And you have testified in a number of cases about the 24 control -- about Florence Administrative Maximum, which is the 25 most secure prison, and about the control unit within that 8196 1 prison, correct? 2 A. That's correct. 3 Q. And you have testified in a number of cases about the risk 4 of violence posed by a given defendant, and making reference 5 to the security facilities at Florence Administrative Maximum 6 and the control unit, correct? 7 A. Yes, sir. 8 Q. And you testified in the case of Carroll Lamont Johnson in 9 Chicago that your belief was that Carroll Lamont Johnson would 10 go to the facility at Florence ADX, correct? 11 A. No, sir, I don't recall expressing a belief that someone 12 was going to go to a given facility. What I describe is that 13 that facility is available, should the Bureau of Prisons 14 believe that this person is a disproportionate risk. 15 Q. But you testified about the security mechanisms at 16 Florence Administrative Maximum in a number of different 17 cases. 18 Are you aware that only one of the defendants you 19 have testified about has ever gone to the Florence 20 Administrative Maximum? 21 A. Let me try to mentally review the testimony. The 22 defendants, I do know of one who was gone and that may well be 23 the only defendant whose case I testified in. 24 Q. And his name, sir? 25 A. I think that that is Anthony Jones. 8197 1 Q. I just wanted to make sure there wasn't a second one. 2 Are you aware Anthony Jones never went to the control 3 unit? 4 A. I was not aware of what unit he was on in ADX. 5 Q. And have you ever heard of any inmate assigned to the 6 control unit permanently, yes or no? 7 A. Not in terms of the formal control unit. Silverstein and 8 Fountain are in control-unit-like settings, but they are not 9 in a formal control unit. 10 Q. So that would be a "no"? 11 A. That's correct. 12 Q. And are you aware that the persons you referred to as the 13 Oklahoma City bomber McVeigh when he was confined was not in 14 the control unit? 15 A. I'm not familiar with where he was confined in ADX. 16 Q. Are you aware that Ramzi Yousef, the World Trade Center 17 bomber, and Kaczynski, the Unabomber, were not in the control 18 unit? 19 A. I'm not familiar with what unit of ADX they were confined 20 in. 21 Q. And in going about making a designation, the Bureau of 22 Prisons has to also take into account, does it not, who else 23 might be at the same facility, correct? 24 A. Yes, sir. 25 Q. And are you familiar with a person by the name of Mohamed 8198 1 Rashed Dauod Al-'Owhali, who is a defendant in this case? 2 A. Only by the vaguest name. 3 Q. And do you understand that he could be a candidate for the 4 Florence ADX? 5 A. I would expect that. 6 Q. And do you know a defendant by the name of, heard of a 7 defendant by the name of Mohamed Odeh? 8 A. No, sir. 9 Q. So you obviously wouldn't have an opinion whether he could 10 be a candidate for ADX. 11 Are you familiar with a defendant by the name of 12 Mamdouh Salim? 13 A. Only by name. 14 Q. Are you familiar with whether he will be a candidate for 15 Florence ADX? 16 A. I would expect that he would. 17 MR. RUHNKE: Object to the question. 18 THE COURT: Overruled. 19 Q. Are you familiar with an inmate known as Wali Kahn Amin 20 Shah? 21 A. No, sir. 22 Q. Are you aware that that person was convicted of trying to 23 blow up 12 airplanes at one time in the Philippines? 24 A. I'm not familiar with his case. 25 Q. And do you know if he committed escape after he was being 8199 1 housed in the Bureau of Prisons facility? 2 A. I'm not familiar with his case. 3 Q. Would you understand him to be a candidate for the 4 Florence ADX when he is designated? 5 A. I would expect so. If he has escaped, that would be one 6 of the criteria, as well as the terrorist activity. 7 Q. Are you aware that Ramzi Yousef is in Florence ADX as we 8 speak, correct? 9 A. That's correct. 10 Q. Would you assume that if Usama Bin Laden was caught that, 11 he would be a candidate for the ADX facility? 12 A. I assume so. 13 Q. And are you aware that the Bureau of Prisons has to 14 factor, in determining who can go to the Florence ADX 15 facility, how many different people who may be related in a 16 group can be in the same facility at one time? 17 A. I would expect that would be a consideration. 18 Q. And you talked earlier today, you displayed a chart 19 showing the perimeter security of the Florence ADX facility 20 with an outside wall and an inside wall and the inside fence 21 had razor wire, correct? 22 A. That's my recollection. 23 Q. And it had six control towers where guards presumably 24 could be stationed, correct? 25 A. That's my understanding. 8200 1 Q. Are you aware that back before ADX existed, when the 2 Marion control unit was the most secure facility, that there 3 was an armed assault on the Marion control unit in 1982 where 4 shots were fired on the control towers, where people climbed 5 over the fence, using boards to depress the sharp razor wire, 6 would get into the second fence, and where the warden and 7 other staff responded and came under gunfire? 8 A. I'm not familiar with that incident, no. 9 Q. So certainly one of the things that the Bureau of Prisons 10 would have to factor in as to where people could be housed 11 obviously would be how many other inmates they may be related 12 to or know could be housed there, correct? 13 A. I would assume that's a consideration, yes. 14 Q. You talked about the conditions of confinement within the 15 Florence ADX, and we will talk about other penitentiaries 16 later, but assuming for the moment that someone is confined, 17 at least for a time, at the Florence Administrative Maximum 18 facility, are you aware that the concrete in the cells has 19 been broken apart by inmates and in fact thrown through that 20 window that you showed us in the photographs earlier today? 21 A. I'm aware of a single disciplinary incident that had a 22 write-up where an inmate had destroyed the inside of a cell 23 and used a portion of the desk or shelf to break the thin slit 24 window. 25 Q. And you are aware that those television sets that you saw 8201 1 in the photograph that are on the concrete slab sticking out 2 of the wall are not secured, correct? 3 A. That's correct. 4 Q. And you are aware that some of the incident reports have 5 involved inmates picking up the television set when the 6 officers are in that sallyport at the grill, throwing the 7 television set at the grill, the television set breaking, and 8 part of the television set striking an officer in the eye? 9 A. There is a disciplinary report that describes a television 10 hitting the floor at the base of the grate and a piece of the 11 glass from it striking the officer in the eye, that's correct. 12 Q. And you are aware, also, that from what you have read 13 about Florence and the tour you took, are you aware that a 14 number of different items in the various cells have been 15 broken apart to be used as weapons, and at times been replaced 16 with arts and crafts supplies? 17 A. I'm not familiar with those. I don't recall those 18 disciplinary write-ups. That may well have happened. I'm 19 simply unfamiliar with it. 20 Q. The disciplinary write-ups often just say "possession of a 21 weapon," correct? 22 A. Yes, sir. Typically there is a description then that goes 23 along with that. 24 Q. But they don't always indicate what items in the cell were 25 fashioned into weapons and then used, correct? 8202 1 A. The disciplinary reports are relatively specific about 2 what it is that was found. 3 Q. But you haven't spoken to a person who works within 4 Florence ADX to ask them what type of materials have actually 5 been broken apart in a cell and fashioned into weapons, have 6 you? 7 A. No, sir. I have requested additional information from 8 ADX, but I have not gotten that. 9 Q. Are you aware that toothbrushes, combs, brushes have been 10 filed down against the concrete in the wall and made into 11 weapons? 12 A. I recall a toothbrush, there was an attempt that was made 13 to bury it outside and the individual was caught. I don't 14 recall the combs being filed down. 15 There is an inmate that had an assault with a comb 16 before he came to ADX, and that disciplinary record ended up 17 in his ADX file as if it had happened there, but in fact it 18 happened in another facility. I don't recall reading about a 19 comb being filed down in ADX. 20 Q. And you are basing your understanding of what you have 21 read and reports that were produced to you, not from your own 22 experience or from -- 23 A. That's correct. That's from the couple of boxes of 24 disciplinary reports that were presented to me as containing 25 all of the assaults. Although that was missing 1999. 8203 1 Q. And containing the reports of all the assaults, correct? 2 A. That's correct. 3 Q. And are you aware that spears could be made from within 4 ADX by rolling up a newspaper, hardening it, making it tight, 5 and fashioning plastic glass or another item at the end of the 6 spear to use as a spear to throw at officers when they come 7 through the grill? 8 A. I don't recall reading those disciplinaries. I have read 9 of that happening in other facilities. I don't recall reading 10 disciplinaries of that happening at ADX. 11 Q. Do you recall reading about an inmate named Silver Fox who 12 took such a spear and threw it at an officer and missed when 13 the officer came through the grill, and then later admitted 14 that the spear was made out of something from a stapler 15 fashioned to the end of a newspaper? 16 A. I would have to look at Silver. I remember Silver Fox as 17 the same inmate that used part of a typewriter. I would need 18 to look at his disciplinary again. I don't recall the spear 19 issue specifically. He was involved in this other incident 20 with a typewriter. 21 Q. Have you heard of spears being used at other high-security 22 prisons to assault officers made from newspaper? 23 A. Not at ADX, but in USPs, other similar high-security 24 prisons, yes, there are paper polls that have been used. 25 Q. Have you heard of an incident in San Quentin where an 8204 1 inmate used a spear with a newspaper, who threw it at one 2 officer and into a second officer and killed both? 3 A. No sir, I'm not familiar with that. 4 Q. Are you familiar with the fact that inmates can hide 5 weapons even in the Florence ADX and other penitentiaries? 6 A. That they would attempt to. The staff at ADX seems to be 7 pretty vigilant about finding those, but there certainly are 8 attempts to secrete weapons. 9 Q. And are you aware that inmates can hide razor blades 10 between their cheek and the upper part of their mouth that 11 will not be detected by x-rays? 12 A. No, sir, I am not familiar with that. I don't recall 13 reading that in any of the disciplinaries from ADX. 14 Q. Forgetting the box of reports. Have you learned from 15 anyone, from your experience with the prison system, that 16 inmates can secrete razor blades in the roof of their mouths, 17 safely, retrieve them easily, and not be detected by an x-ray? 18 A. No, sir, I'm not familiar with that. 19 Q. Have you heard of inmates being found to have weapons in 20 their rectum when x-rayed at Florence ADX? 21 A. I'm not certain. I recall their being x-rayed and weapons 22 being found of varying sorts and some of receiving materials 23 and that sort of thing. I'm familiar with weapons being 24 secreted in someone's rectum. I don't recall a specific 25 instance at ADX. 8205 1 Q. Are you aware that inmates can make homemade handcuff 2 keys? 3 A. Yes, sir. 4 Q. And have you learned from your experience with the Bureau 5 of Prisons and from your readings that an inmate going from 6 the Marion facility to the ADX facility was found to have a 7 handcuff key secreted on him? 8 A. I'm not surprised at all. There was a good amount of 9 contraband that was confiscated from inmates as they came into 10 that facility. As all their belongings were x-rayed and as 11 they were x-rayed, there were a number of different types of 12 contraband that were identified. 13 Q. Do you know who handles the laundry at the Florence ADX 14 facility? 15 A. The staff initially as it's gathered from the inmates. In 16 terms of who performs the laundry, that I don't know. 17 Q. Are you aware that it is the federal prison camp inmates 18 who do the laundry, and are you aware that five guys in the 19 federal prison camp doing the laundry were found to be sewing 20 handcuff keys in the laundry going to the Florence ADX 21 facility? 22 A. No, sir, I'm not familiar with that. 23 Q. Are you aware that prisoners can make what are called 24 shims, what are not keys, but can break open the cuffs where 25 the teeth meet? 8206 1 A. I'm not familiar with that. 2 Q. So you have never heard of a shim? 3 A. I've heard of shims. I don't recall specific knowledge of 4 how those were applied to handcuff keys. 5 Q. Have you heard of inmates able to break cuffs open with 6 their own hands, by the force of their hands? 7 A. No, sir. I have heard of inmates who could slip the 8 handcuffs by kind of compressing or dislocating their bones, 9 their fingers. I don't recall reading of an inmate who by 10 just super-strength broke the wrist connection. 11 Q. And forgetting whether you read it from any source, have 12 you learned of inmates being able to break open multiple 13 handcuffs on them at once? 14 A. I'm not familiar with that. 15 Q. Now, you're aware that even in Florence, if we assume for 16 the moment Florence Administrative Maximum, not even a regular 17 penitentiary, that in that sallyport area where a person steps 18 through the solid door and is by the grill, they are now 19 exposed through the wicket if the inmate seeks to grab it, 20 correct? 21 A. Well, they are out of arm's length in terms of an inmate 22 attempting to grab them, unless they step up closer to the 23 grate. 24 Q. Well, they are going to put their hands through and 25 handcuff the inmate, so wouldn't they be, by definition, 8207 1 within arm's length if they are touching the inmate's hands? 2 A. As the inmate backs up to them, he is putting his hands 3 through the wicket. Now, if he attempted to spin on them, 4 then potentially he could try to access them, but that 5 requires both a spin and then some kind of a jab before the 6 person who is there can step back out of arm's length. 7 Q. Well, let me ask this in two questions. From your review 8 of the reports, did you read two reports where inmates stabbed 9 correction officers with pens while the officers were in the 10 grill; yes or no? 11 A. No, sir. I recall an instance where an inmate struck an 12 officer in the face. I don't recall officers being stabbed, 13 although that may have been -- if it was 1999, I don't have 14 those reports. 15 Q. So you will agree with me that when the officer was struck 16 in the face, he clearly was in arm's length of the inmate, 17 correct? 18 A. In that instance, certainly. 19 Q. And you told us earlier that when inmates step into the 20 grill between the solid door and the grill in that sallyport 21 area, sometimes liquids are thrown, correct? 22 A. When a staff member steps into the sallyport? 23 Q. Yes. I'm sorry. 24 A. Then sometimes an inmate throws liquids from the interior 25 of the cell or spits on them, yes. 8208 1 Q. And the liquids most often thrown are urine and feces, 2 correct? 3 A. There's a lot of spitting. Sometimes the liquid is 4 unknown, sometimes food. But there is urine and feces, yes. 5 Q. Would it be fair to say that in those disciplinary reports 6 there is a fair amount of reports showing urine and feces 7 being saved up by an inmate and thrown on the officer when he 8 steps into that area between the door and the grill, correct? 9 A. There are a number of those reports, that's correct. 10 Q. And if an officer loses his cool or her cool at that time, 11 they are within arm's length of the inmate, correct? 12 A. I'm not sure I understand "losing their cool." If they 13 should approach the front of the grate in response to that? 14 Q. Yes. When urine or feces is thrown in their face, if they 15 should approach the grate, they would be within arm's length 16 of an inmate, correct? 17 A. Assuming that the inmate was right up at the grate, 18 certainly. 19 Q. And on a typical day in the Florence ADX facility, in 20 addition to the time when the inmate is allowed out of the 21 cell for an hour or two hours, or whatever the prescribed 22 period of recreation is, he also is checked up on by staff, 23 other staff, at least once a day, correct? 24 A. Oh, yes, sir. 25 Q. And if a person needs medical attention, there's usually a 8209 1 medical staff who makes a daily round to each cell regardless 2 whether they have asked for medical attention, correct? 3 A. That's correct. There are a number of staff members who 4 make rounds to these cells each day. 5 Q. So a medical staff person goes into that sallyport between 6 a solid door and the grill each day, correct? 7 A. Escorted with another staff member, yes. 8 Q. And if a prisoner is on medication, then up to four times 9 a day a physician's assistant may step into that sallyport 10 between the solid door and the grill, correct? 11 A. Certainly possible, yes. 12 Q. And then if a person needs psychological counseling or 13 evaluation, a person would step into that area between the 14 grill and the solid door, correct? 15 A. That's correct. Again, escorted by a corrections officer. 16 Q. And the person, the department head, a department head is 17 required once a week to visit each inmate, correct? 18 A. I don't recall the exact frequency that department heads 19 have to go through. 20 Q. But they would then come to that sallyport area between 21 the grill and the door, correct? 22 A. Yes, sir. 23 Q. And also there are unit team meetings for people in 24 Florence ADX where the inmates are brought out to talk to a 25 unit team on a weekly basis, correct? 8210 1 A. I don't recall how often they come out to talk to the unit 2 team, but they would come out for that or for disciplinary 3 hearings. 4 Q. And inmates are also taken out of the cell to go to the 5 law library, correct? 6 A. That's correct. 7 Q. And they are also taken out of the cell to get hair cuts, 8 correct? 9 A. I don't recall how hair cuts are performed. I would 10 assume that they are because of the hygiene issue in the cell. 11 Q. And then the officers have to go take the inmate out of 12 the cell when they do a cell rotation, correct? 13 A. Yes, sir. 14 Q. If an inmate refuses to leave his cell, the officers have 15 to go into the cell, correct? 16 A. Well, there are several options they have. Going into the 17 cell is one. They may gas the inmates or use some chemical 18 agent. They may use the stun gun if they identified that the 19 inmate is armed or presents a particular hazard. There are a 20 number of ways of attempting to bring an inmate under control. 21 Q. And that's from your reading of the policy statements and 22 materials on the Internet about the stun guns and the gassing, 23 correct? 24 Have you ever heard of a staff person at Florence ADX 25 using gas or a stun gun simply because the inmate seeks to 8211 1 leave the cell for a cell rotation? 2 A. No, sir, but the stun gun was used to quell a disturbance. 3 But I have not seen it used simply to bring someone out, 4 although the regulations provide for that. 5 Q. My question was, have you ever heard of someone using a 6 stun gun or gas to remove an inmate simply because he refused 7 to leave the cell? The answer would be -- 8 A. I don't have knowledge of that one way or the other. 9 Q. And you're also aware if an inmate becomes ill, becomes 10 seriously ill in the cell, the officers have to enter, 11 correct? 12 A. That is correct. 13 Q. And are you aware of an incident, not in the Florence 14 Administrative Maximum, but involving high-security prisoners 15 at Lompoc in 1999 where two inmates apparently attached each 16 other, one kicking the other in the head, apparently knocking 17 him unconscious on the floor; when the officer, when she 18 called to the control unit to open the door, both inmates 19 popped out at the same time, slashed her through the face, 20 cutting right through her skin? 21 A. I'm not familiar with that attack, no. 22 Q. And obviously once an inmate, if they leave ADX, they can 23 then go to an open penitentiary, correct? 24 A. Typically when they leave ADX, they would go to a USP and 25 not to Marion, which is the in-between step. 8212 1 Q. When they go to a U.S. penitentiary, they are out of their 2 cells for the bulk of the daylight time, correct? 3 A. That's correct. If they were classed as general 4 population when they got to the USP, they would. If they are 5 in maximum custody, there would be some restrictions about 6 their movements and supervision and work they do. There are 7 levels of custody within a USP. 8 Q. But in a United States penitentiary, a typical inmate in a 9 penitentiary is able to walk about freely, unrestrained, no 10 three-man hold, no two-man hold, no one-man hold, they walk 11 about within the prison if they stay in their designated area, 12 correct? 13 A. That's correct. Their activities and movements are 14 programmed substantially, but they are not, they are not 15 restrained as they are moved. 16 Q. Now, you displayed during direct testimony a chart. I 17 think it was entitled "Bombers and Terrorists in Bureau of 18 Prisons Custody." 19 If I could ask Katie to display that page. Then just 20 so we're clear, this is a chart you have created from the data 21 provided by the Bureau of Prisons. This is not a peer 22 reviewed psychological study, correct? 23 A. This is data provided by the Bureau of Prisons through 24 your offices, I believe. 25 Q. And who chose the 17 names to put on the chart? 8213 1 A. I'm sorry. What? 2 Q. Who chose which 17 names to put on the chart? 3 A. These were all 17 that I had data on. 4 Q. But who chose what 17 names to ask for data concerning? 5 A. I had asked Mr. Ruhnke to gather data on anyone in the 6 Bureau of Prisons who had been convicted of a terrorist or 7 bombing sort of incident, to provide base rate data for what 8 the experience with those individuals was in federal custody. 9 Q. The answer would be, you asked Mr. Ruhnke? 10 A. That's correct. 11 Q. Okay. 12 A. He may have done it on his own, but I was interested in it 13 as well. 14 Q. But these names were not provided by the Bureau of Prisons 15 or the government as a single group, correct, except in 16 response to your request? 17 A. I don't know where the -- I don't know how those names 18 were generated. I asked for anybody who was in the system who 19 would be described in this way. 20 Q. Now if you look at the first name, Ahmad Mohammad Ajaj? 21 A. Yes, sir. 22 Q. And it indicates one minor assault? 23 A. Yes, sir. 24 Q. Did you see any other behavior that caught your attention 25 in his disciplinary file that would cause you concern about 8214 1 security besides the one minor assault? 2 A. There may have been. Let me turn to my notes on him. 3 If we go back to the beginning of -- the short answer 4 to your question is, he has other disciplinaries. Some of 5 those occurred pretrial. Some have occurred since the trial. 6 Any disciplinary I suppose has some relevance to 7 security, but there is the most concern about ones that are 8 assaultive in nature or maybe, secondarily, involve a weapons 9 contraband. 10 Q. And I'll clarify. We will agree that the data starts, the 11 raw data you worked with that you just checked, starts from 12 the day that a particular inmate such as Ajaj entered the 13 prison system even if they were a pretrial inmate, correct? 14 A. No, sir. The data that you provided starts with him being 15 a pretrial inmate. I begin to log it from the point that they 16 entered into Bureau of Prisons, so that it would be 17 post-trial. 18 Q. I think we're missing each other. 19 A. Sorry. 20 Q. I'll give you an example. If an inmate was arrested on 21 January 1st, 1990 and was put in a federal facility awaiting 22 trial? 23 A. Yes, sir. 24 Q. Was convicted on January 1st, 1995? 25 A. Yes, sir. 8215 1 Q. He would be a pretrial inmate for the first five years? 2 A. Yes, sir. 3 Q. And then a convicted inmate doing a designated Bureau of 4 Prisons time for the balance? 5 A. That's correct. 6 Q. The raw data you received was the data starting at 1990, 7 but so we are clear, in terms of after-sentencing admission, 8 which is what you designated on the chart, would start from 9 January 1, 1995 for that hypothetical? 10 A. That's correct. 11 Q. Forgetting the first however many years Mr. Ajaj was in 12 prison as a pre-sentence inmate, did you see any conduct post 13 sentencing that caused you concern about security besides the 14 assault listed? 15 A. Do you want me to report the disciplinaries that he was 16 written up for? 17 Q. No, I just want to see if there was anything that struck 18 you as a particular concern in reviewing those records that 19 would cause particular concern about security for Ahmad 20 Mohammad Ajaj other than the assault, yes or no; and if yes, 21 tell me what it is. Post sentence. 22 A. There is an assault without serious injury on March the 23 12th, 1994. His original date of sentencing was in 1993. So 24 that would have been after the original sentence. He has a 25 number of other disciplinaries, again that I think all have 8216 1 security significance but not the significance of an assault 2 or a dangerous weapon. 3 Q. Okay. 4 A. In other words, an inmate who has no write-ups whatsoever 5 has a better security profile in many ways than one that has 6 three, four, eight, ten write-ups, even if they are for 7 non-violent sorts of things, but we are most concerned with 8 tracking the violence incidents in terms of looking at base 9 rates of violence in prison. 10 Q. Are you aware that in May 1995 Ahmad Ajaj was caught 11 dialing a staff phone, and then in May 1997 he was caught 12 using the mail or phone without authorization, and that on 13 December 23rd, 1999, he was caught making a three-way call, 14 which means a call patched through to a different number, 15 which would defeat the prison phone-monitoring system? 16 A. Yes, sir. He has several write-ups for unauthorized phone 17 calls. 18 Q. Are you aware that Ahmad Mohammad Ajaj was first taken 19 into custody in late August to early September 1992, with an 20 immigration violation, was found to be in possession of bomb 21 manuals, and that thereafter, while incarcerated in a federal 22 facility, he was making telephone calls, including three-way 23 telephone calls, to try to get his then lawyer to surrender to 24 obtain a bomb manual so that he could get it to the World 25 Trade Center bombers? 8217 1 A. I'm not familiar with the specifics of his case. All the 2 information that I have about these individuals was in the 3 packet that you provided. 4 Q. So given that, when you looked at this chart, you did not 5 include in this chart the three instances where he tried to 6 use a staff phone, use a phone or mail without authorization, 7 or was caught making a three-way call; it is not reflected on 8 this chart of incidents that happened after sentencing, 9 correct? 10 A. That's correct. 11 I did, as I did that, evaluate what sort of sanctions 12 the individual may have come under in terms of trying to 13 identify how seriously did the staff regard the particular 14 incident. And so, for example, on 6/23, the consequence was a 15 loss of phone privileges for 60 days. 16 Q. My question to you simply was, you didn't reflect those 17 incidents on the chart? 18 A. The answer is yes, not on the chart. I thought about 19 them, but not on the chart. 20 Q. Now, with regard to Mr. Nidal Ayyad, the fourth person 21 listed on that chart -- I'm sorry. If we could go down, Fares 22 Khallafalla, Mohammed Saleh, Victor Alvarez, Fadil Abdelgani, 23 Amir Abdelgani, Clement Hampton-El, are you aware that all of 24 those people were convicted of the crimes of conspiring to 25 carry out a bombing that did not take place or were not 8218 1 convicted of an actual bombing? 2 A. That's my understanding. 3 Q. And are you aware that their sentences ranged generally 4 from between 25 to 35 years, correct? 5 A. I would need to go back and look at the sentencing data 6 specifically. I don't recall. I'll accept that, but I don't 7 recall their specific sentencing data. 8 Q. With regard to Mr. Victor Alvarez, which indicates 9 mentally ill, are you aware that he was not sent to 10 Springfield as a person who was mentally ill until early 2001, 11 and that all ten minor assaults and two dangerous weapons 12 listed there occurred while at the penitentiary at Marion, 13 that you described as being above a regular penitentiary and 14 below the Florence Administrative Maximum? 15 A. No, sir. I have him identified by Springfield as mentally 16 ill on 10/22/99, and there are disciplinary reports even 17 before that that describe him smearing his feces on the wall 18 and not attending to his hygiene and other sorts of things 19 that would give some indication of somebody who has some 20 significant psychological disturbance. 21 Q. Let me ask it this way. September 1997 when he possessed 22 a dangerous weapon, was that Marion? In September 1997 when 23 he assaulted with serious injury an officer, was that at the 24 Marion facility? 25 A. Wait for me to catch up. 8219 1 Q. I'll make it easier so you will look all at once. 2 Would it be fair to say that all, at least most, if 3 not all, of those incidents you listed on the chart occurred 4 at the Marion facility? 5 A. That's correct. 6 Q. Sir, if you move further down, you see the name El sayyid 7 Nosair. It indicates no write-ups. 8 Just tell me when you are ready. 9 A. That's correct. 10 Q. And are you aware that El Sayyid Nosair was convicted of 11 being part of a conspiracy to bomb landmarks, and including as 12 an overt act the World Trade Center, but was not actually 13 convicted of the World Trade Center bombing? 14 A. My understanding is that he was, that all of these 15 individuals were convicted of bombing conspiracies. I don't 16 have, again, specific knowledge of exactly what role he 17 played. 18 Q. Are you aware that El Sayyid Nosair was housed in the 19 segregated housing unit at Attica State Prison from 1991 20 forward, and that his participation in the plot to blow up 21 landmarks and his consultation with the World Trade Center 22 bombers before the bombing of the World Trade Center occurred 23 while in the segregated housing unit at Attica? 24 A. I was not provided that information, no. 25 Q. Are you aware that he plotted to bomb synagogues, kill a 8220 1 judge, and kill other officials while in the segregated 2 housing unit at Attica? 3 A. No, sir. This is, all the information I have is what was 4 provided as disciplinaries by BOP. 5 Q. And do you have any reason to doubt, if one ran a 6 statistical chart of El Sayyid Nosair's conduct while at 7 Attica, there would be no incidents reflecting what he did for 8 which he was later convicted in federal court. 9 Q. These statistics count assaults and incidents that are 10 detected and proven, correct? 11 A. That's correct. 12 Q. Now, you also have Omar Abdel Rahman listed, with the 13 notation blind, indicating there are no assaults, correct? 14 A. That's correct. 15 Q. And in reviewing his records, did you notice that in July 16 1996 he was found to have used phone or mail without 17 authorization? 18 A. I can find that one. He had many violations that were of 19 a non-assaultive nature. 20 Q. And if you could look for three. If you could see in July 21 of 1996 he was found to have used the phone or mail without 22 authorization, and October of 1996 he admitted attempting a 23 three-way call, and in December of 1998 he threatened an 24 officer? 25 A. July of '96, using the phone or mail without 8221 1 authorization, loss of privileges seven days. 2 Then when was the next one? 3 Q. October '96, admitted attempting to make a three-way call? 4 A. October of '96, admitted he made a three-way call. 5 Q. And December 1998, threatening an officer? 6 A. Threatening bodily harm, that's correct. 7 Q. Now, sir, are you aware that he was under special 8 administrative measures at the time of those three incidents? 9 A. I'm not sure if I saw a SAM on him. I looked at a couple 10 of them. 11 Q. Are you aware that, placing in context the violations 12 involving three-way calls and using the phone without 13 authorization and threatening an officer, are you aware that 14 during this time frame covered by your chart, in May 1997, 15 after he publicly complained about his prison conditions under 16 the special administrative measures, that a terrorist group 17 known as the Islamic Group threatened to kill the warden of 18 the prison and threatened to kill a judge from his trial? 19 A. I'm not familiar with that. 20 Q. So that would not show up under Omar Abdel Rahman's 21 statistics here? 22 A. No, sir. 23 Q. Are you aware that in November of 1997, that more than 60 24 tourists were killed in Egypt at a tourist site and they were 25 killed and notes were left that "this is to free Sheik Omar 8222 1 Abdel Rahman? 2 A. I recall the tourists being killed. I don't recall the 3 statement about what was the rationale for it. 4 Q. And are you aware that, following that, he issued a 5 statement through a paralegal, in violation of the special 6 administrative measures, indicating he was aware of the 7 killings and would have no comment and issued no condemnation? 8 A. I'm not aware of that. 9 Q. Are you aware that in June 2000, at a time when the 10 terrorist group had declared a cease fire, after a visit by an 11 attorney, in violation of the special administrative measures, 12 a statement was issued on behalf of Omar Abdel Rahman 13 withdrawing his support for the cease fire? 14 A. I'm not aware of that. 15 Q. Are you aware that in the spring of 2001, earlier this 16 year, 73 people were kidnapped in the Philippines, demanding 17 the release of Omar Abdel Rahman and Ramzi Yousef and several 18 killed? 19 A. I'm familiar with the kidnapping, not the ransom demand. 20 Q. So your chart simply says "Omar Abdel Rahman, no 21 assaults," correct? 22 A. That's correct. 23 Q. On this chart you list Theodore Kaczynski and Terry Lynn 24 Nichols, correct? 25 A. That's correct. 8223 1 Q. To your knowledge, none of those fellows have ever been to 2 Afghanistan, correct? 3 A. Best of my knowledge. 4 Q. And among the people on this chart, how many of these 17 5 names are people who committed a terrorist act overseas and 6 then was brought back to America to stand trial? 7 A. None of these individuals. However, where they were 8 apprehended, their terrorist acts or conspiracies were in the 9 continental United States. I don't know where they were 10 apprehended. 11 Q. Are you aware that Ramzi Amed Yousef, the third name from 12 the bottom, was not only convicted of bombing the World Trade 13 Center, but was part of a plot to blow up 12 airplanes 14 centered in the Philippines in late 1994, early 1995? 15 A. Only a vague recollection of that. 16 Q. Are you aware that two of his codefendants were convicted 17 at the same trial in this courthouse in 1996 named Wali Kahn 18 Amin Shah and Abdel Hakim Murad? 19 A. I'm not familiar with the specifics. 20 Q. And those other defendants who were arrested for 21 committing a terrorist act overseas and brought back here are 22 not reflected on that chart, correct? 23 A. Unless their names, unless those named were provided to 24 me, they wouldn't have been reflected on the chart. 25 Q. Did you ask for those names? 8224 1 A. I asked for anyone who was a terrorist or bomber who was 2 in the custody of BOP so we could do follow-up. 3 Q. Who did you ask? 4 A. I passed that on to Mr. Ruhnke. 5 Q. Are you aware that the person by the name of Abdel Hakim 6 Murad committed an assault on a corrections officer at a 7 prison? 8 A. What is the name? 9 Q. Abdel Hakim Murad. Are you aware that he has pled guilty 10 to an assault with serious injury involving striking a 11 corrections officer since the time of his conviction? 12 A. Can you orient me to which one he is? 13 Q. He's not on the chart. He is one of the people who was 14 arrested with Ramzi Yousef for committing a terrorist act 15 overseas and brought back here. 16 A. I have no knowledge of any terrorists or bombers or their 17 conduct from BOP unless they are on this chart. 18 Q. You are familiar with a person by name the Ghazi Abu Mazer 19 who was convicted of a plot to bomb a subway in Brooklyn 20 several years back? 21 A. No, sir. 22 Q. Are you aware whether he, six months ago, committed an 23 assault within the penitentiary at Florence? 24 A. I'm not aware of that. Sir, what is the name? 25 Q. Ghazi Abu Mazer. 8225 1 A. I may have seen the disciplinary of his assault in the 2 most recent materials that were provided to me. 3 Q. He was in the penitentiary, not the administrative 4 maximum? 5 A. No, I would not have seen that. 6 Q. Okay. We can put the chart down for a moment. 7 You talked about the special administrative measures 8 and you also talked about the fact that no murders or 9 homicides had occurred in the ADX facility, correct? 10 A. That's correct. 11 Q. And that would include the year 1997, correct? 12 A. That's correct. 13 Q. And that would include the month of August, 1997, correct? 14 A. Yes, sir. 15 Q. And have you learned from your study of the Bureau of 16 Prisons and the penitentiary at Florence and your review of 17 other testimony that in August 1997 a man confined at the 18 Florence ADX facility passed word to carry out murders in 19 other prisons, and within a short time after passing a coded 20 message, two inmates were killed in the Lewisburg 21 penitentiary, are you familiar with that? 22 A. I have heard the allegation. I have not seen 23 substantiation of it, but I have heard the allegation. 24 Q. Have you seen testimony in federal court in the Carroll 25 Lamont Johnson case in which you testified? 8226 1 A. That allegation was made in that case. 2 Q. And that is some of the testimony you reviewed for this 3 preparation for your testimony today, correct? 4 A. I don't remember reviewing John Vanyur's testimony. I 5 remember reviewing a number of other individuals, Warden 6 Story, Hirschberger, some others. 7 Q. But you specifically recall the name of the witness who 8 talked about that, correct? 9 A. John Vanyur. Yes, I do. 10 Q. So the statistics for that month in August of 1997 at 11 Lewisburg penitentiary would have two homicides, correct? 12 A. If those occurred in Lewisburg at that time, then those 13 would be reflected in the Lewisburg statistics, yes. 14 Q. And there would be a zero in the Florence ADX statistics, 15 correct? 16 A. Until there was a definite tie to that individual or he 17 were convicted either of a disciplinary offense involving that 18 or in a court of law. 19 Q. But the homicide was committed in Lewisburg, correct? 20 A. That's my understanding. 21 Q. And you are aware that prisoners have sent messages out by 22 writing with lemon juice on notes where they can be read later 23 by another prisoner; have you heard that in your study of the 24 prisons? 25 A. I don't think that I have. 8227 1 Q. Have you heard of inmates talking through the toilets in 2 the plumbing systems to each other on the next floor? 3 A. Yes, I have. 4 Q. And you have heard of inmates using codes to communicate 5 with each other? 6 A. Yes, I have. 7 Q. Have you heard of one of the codes being someone sending a 8 message that someone had a boy that weighed eight pounds, 9 seven ounces, and then the message was one boy, eight pounds, 10 seven ounces means one, eight, seven, which is the California 11 penal code designation for homicide, which was an order to 12 kill? 13 A. I'm not familiar with the specifics of what codes may have 14 been used at different times. 15 Q. So if codes were passed and people were killed and not 16 detected, they would not appear in those statistics, correct? 17 A. That's correct. 18 MR. FITZGERALD: If I could have one moment, your 19 Honor, your Honor. 20 Actually, if we could break to queue up an exhibit. 21 THE COURT: We can break at this point. 22 (Recess) 23 24 25 8228 1 (In open court; jury present) 2 JUROR: Is it possible to have some air conditioning? 3 THE COURT: It is possible. We will order it. 4 Whether it will actually make any difference before 4:30 or 5 not I don't know. But thank you for telling me and yes, we 6 will tell them to put it on. 7 BY MR. FITZGERALD: 8 Q. Dr. Cunningham, one other question regarding the incident 9 in Lewisburg. Are you aware that the inmate who carried out 10 the homicide in Lewisburg used to be an inmate housed at the 11 Florence ADX facility? 12 A. No, I was not. 13 Q. People do leave the Florence facility and go to some other 14 penitentiary? 15 A. Some of them do. 16 Q. You testified that the visiting room at the Florence ADX 17 facility, the maximum security visiting room, has a solid 18 glass material break between the person and the inmate and 19 they speak by telephone, correct? 20 A. The visitor has a telephone, is my understanding. The 21 inmate on the other side does not have a telephone but speaks 22 to a microphone. 23 Q. Are you aware that recently there was a lawsuit brought by 24 an attorney who wished to speak to his client, so they changed 25 the room to punch holes in the glass and eliminate the 8229 1 telephone? 2 A. I am not familiar with that. 3 Q. In your review of the disciplinary reports, did you see 4 the disciplinary reports of an inmate named Jackson? Did that 5 catch your attention in reviewing those disciplinary reports 6 from Florence ADX, an inmate named Jackson, or Yendell? 7 A. Yendell has some familiarity. I don't recall Jackson 8 specifically. There were many names. 9 Q. Did you see a videotape that included a number of 10 incidents, assaults in the prison that were captured on 11 videotape? 12 A. Yes, I did. 13 Q. Do you recall the first incident caught on tape? 14 A. Can you give me a date? 15 Q. On the tape it should say April 8, 1997. 16 A. Yes, sir. 17 Q. Did you review that against the incident reports? It 18 appears that the date is wrong by a year, so I don't want to 19 confuse you. Did you review a report dated April 8, 1996, 20 which corresponds to the first videotape, which says April 8, 21 1997? 22 A. No, sir, I did not make that connection. We looked for 23 the incident report that corresponded to April 8 and couldn't 24 find one that fit with that. I didn't realize the year was 25 wrong. 8230 1 Q. Did you find any assault corresponding with April 8, 1997, 2 which was the date indicated on the first videotape? 3 A. I would have to go back to the database and look at that. 4 MR. FITZGERALD: Your Honor, what I would like to do 5 is ask Dr. Cunningham some questions about the first two 6 assaults captured in the videotape, which is Government's 7 Exhibit 4314. I would offer that exhibit. Again so that we 8 are clear, it appears that the date on the report -- I will 9 try and show you a copy. 10 THE COURT: This is an assault which took place 11 where? 12 MR. FITZGERALD: In the Florence administrative 13 maximum facility. 14 Q. If you would look at the report and feel comfortable that 15 when we play the first incident the date is April 8, 1996, at 16 sometime around 7:30. 17 THE COURT: The government is offering this as 18 Exhibit 4314? 19 MR. FITZGERALD: Yes, Judge. 20 THE COURT: Received without objection. 21 (Government Exhibit 4314 received in evidence) 22 (Videotape played) 23 MR. FITZGERALD: Hold the tape there for a moment. 24 Q. Sir, does that correspond with the reports, if you recall, 25 involving inmates Jackson, Yendell and Romero assaulting an 8231 1 inmate inside of Florence administrative maximum state prison? 2 A. Yes, it does. 3 Q. Are you aware that the inmate was then taken for emergency 4 life-saving treatment to a hospital outside, the inmate who 5 was kicked in the head repeatedly? 6 A. I don't recall that being a part of the disciplinary 7 report. I would accept that, but don't recall specifically 8 seeing that described. He was placed on a stretcher. 9 Q. You are aware, obviously, that corrections officers have 10 to respond to the incident happening in that location with 11 three inmates striking another inmate, correct? 12 A. That's correct. 13 Q. And you heard the officer scream Appleby, Appleby, get 14 down, and if you look at the report, it indicates Appleby is 15 not one of the inmates but off to the side, but you realize 16 that officers have to worry about other inmates coming to an 17 assault, correct? 18 A. That is correct. 19 Q. And bringing someone for medical care, that also presents 20 a risk. 21 A. There is additional staffing required. I don't know that 22 the risk is greater but the intensity of staff is greater. 23 Q. You don't think an incident involving an assault when it 24 happens like that and there is an issue where you have to take 25 someone to be treated for medical attention, that doesn't 8232 1 present added risk to the staff? 2 A. Certainly to deal with the disturbance. Certainly there 3 is added risk there. In terms of transporting him for medical 4 care, given the personnel that is brought to bear, I don't 5 know that that is an additional risk over other handling of 6 the inmates that they do. But certainly intervening is a 7 risk. 8 Q. Based upon your review of the records, do you know the 9 disciplinary measures that resulted to the individual inmates 10 who were committing the assault, Jackson and Yendell? 11 A. One had 41 days of good conduct time taken and 60 days of 12 disciplinary segregation. 13 Q. For 60 days he was put in a segregated cell, somewhat 14 stricter than he had before, and lost 41 days of good conduct 15 time, correct? 16 A. That is correct. 17 Q. Are you aware that after this incident, for a while no 18 action was taken against the inmate Jackson because it was 19 being considered for prosecution, and that therefore no 20 discipline was taken for a year? And let me show you and see 21 if you recognize the next videotape, which also says April 8, 22 1997, but I submit to you there is a report indicating that 23 this one did happen April 8, 1997, a year to the day exactly 24 after the first assault, involving the same inmate assaulting 25 another inmate in Florence administrative maximum. If you 8233 1 look at the time stamp, it says 7:42, so it is about five 2 minutes off, a year apart, if we could play the next video. 3 (Videotape played) 4 Q. Sir, are you aware that corrections officers have to wait 5 until there is a sufficient number of them by ratio to the 6 number of free inmates in the yard to respond; correct? 7 A. To actually enter the area, they may use gas or may use a 8 stun gun while still within the cage. But to enter the area, 9 they have to substantially outnumber the inmates. 10 Q. And staff had to enter the yard and expose themselves to 11 risk when they entered that situation; is that correct? 12 A. That is correct. 13 Q. And the inmate who was assaulted again had to be treated, 14 correct? 15 A. That is correct. 16 Q. To the extent the other inmates may have hurt themselves 17 in beating up the inmate had themselves to be treated, 18 correct? 19 A. If they were injured. 20 Q. Would that expose the staff to risk, in your view? 21 A. The restraints regarding inmates getting medical care 22 appear to successfully contain the risk to medical staff based 23 on the reports that I reviewed. 24 Q. The reports that you reviewed from Florence ADX, did you 25 see that the inmate Jackson who participated in the first 8234 1 assault April 8, 1996 at 7:42, thereafter when being treated 2 at Florence ADX for medical attention assaulted the warden by 3 lunging at him where he was being treated on April 8, 1997? 4 A. I would have to go back and review that. 5 Q. Sir, are you aware that on November 1, 2000 -- strike 6 that. 7 You testified earlier that you were familiar with the 8 special administrative measures that were in effect currently 9 with Khalfan Khamis Mohamed, and you were aware that there 10 were special administrative measures in effect for both 11 Khalfan Khamis Mohamed and Mamdouh Salim on November 1, 2000? 12 Yes or no. 13 A. I am familiar -- yes, that is correct. 14 MR. FITZGERALD: Your Honor, I would offer 15 Government's Exhibit 4320 for identification, the special 16 administrative measures, dated December 21, 1999, this one 17 directed specifically to Khalfan Khamis Mohamed. 18 MR. RUHNKE: No objection. 19 THE COURT: Received. 20 (Government Exhibit 4320 received in evidence) 21 MR. FITZGERALD: Your Honor, I would offer 22 Government's Exhibit 4319 as well, which is the specific 23 section post orders dated June 30, 2000, for the MCC 10 South 24 unit. 25 MR. RUHNKE: No objection. 8235 1 THE COURT: Received. 2 (Government Exhibit 4319 received in evidence) 3 Q. Are you aware as of November 1, 2000, the post orders as 4 written the policy required at any time of day that there be a 5 three-man hold on the MCC 10 South unit? 6 A. I am not familiar with that requirement. 7 MR. FITZGERALD: Thank you. Nothing further. 8 THE COURT: Redirect? 9 MR. RUHNKE: Yes, your Honor. 10 REDIRECT EXAMINATION 11 BY MR. RUHNKE: 12 Q. Dr. Cunningham, you were asked some questions about 13 whether certain inmates convicted in the World Trade Center 14 bombing case, in the landmarks and tunnels case, as it is 15 called, were sent to the control unit at the ADX in Florence. 16 Do you remember those questions? 17 A. Yes, sir. 18 Q. Can you review again for the jury what the criteria are 19 within the Bureau of Prisons for sending someone to a control 20 unit. 21 A. Yes, sir. 22 Q. By way of preface to that review, I am going to ask you to 23 answer this question: Whether the offense of conviction, in 24 other words, what the person has been convicted of, is 25 generally a reason for sending someone to a control unit or is 8236 1 it instead behavior in prison after incarceration that serves 2 as a criterion for admission to the control unit? 3 A. The regulation says that you can't be confined to the 4 control unit solely because of the offense of conviction, 5 although that may be considered. The other aspects primarily 6 have to do with behavior in prison. 7 Q. And assuming, assuming that the Bureau of Prisons draws 8 the conclusion that an inmate was involved on one level or 9 another in a serious assault on a corrections officer that led 10 to the maiming of the corrections officer, not Khalfan Mohamed 11 but some other hypothetical inmate, assuming the Bureau of 12 Prisons drew that conclusion, is that person in your judgment 13 based on your knowledge a prime, number one candidate for 14 admission to a control unit? 15 A. Yes, sir. 16 Q. Do you know of any of the other inmates discussed by Mr. 17 Fitzgerald that fit that criteria? 18 A. Not to my knowledge. 19 MR. RUHNKE: Could I have on the screen, if we could 20 switch back to the defense, please, if we are not on the 21 defense -- OK. 22 Q. You described ADX Florence as housing the worst of the 23 worst. Is that a fair statement? 24 A. That is correct. 25 Q. Would it be a fair description of the control unit to say 8237 1 it houses the worst of the worst of the worst? 2 A. Yes, sir. 3 Q. The figures that are displayed on the chart on the screen 4 are figures that were provided by the government, is that 5 correct? 6 A. That is correct. 7 Q. To date there has never been a homicide of an inmate at 8 ADX Florence, is that correct? 9 A. That is correct. 10 Q. To date there has not been a homicide of a staff member at 11 ADX Florence, is that correct? 12 A. That is correct. 13 Q. It is your information, subject to perhaps contradiction 14 by the Bureau of Prisons, that there has never been an injury 15 to a staff member sufficient to require outside 16 hospitalization at ADX Florence; is that your understanding? 17 A. Yes, it is. 18 Q. The assault figures we are looking at on this chart, do 19 they combine the control unit and the general ADMAX segment of 20 ADX Florence? 21 A. Yes, they do. I have asked for numbers specific to each 22 setting and have not gotten those yet. 23 Q. The situation that Mr. Fitzgerald talked about concerning 24 a modification of the visiting at ADX Florence, involving 25 drilling holes through plexiglass, apparently, do you know if 8238 1 that extends to people other than attorneys? 2 A. No, I don't. 3 Q. Did you know anything about that at all? 4 A. No, I don't. 5 Q. You were asked about your hourly rate of $210 per hour. 6 A. Yes, sir. 7 Q. Are you familiar with the hourly rates charged by other 8 board certified and not so board certified forensic 9 psychologists around the country? 10 A. Yes, I am. 11 Q. In a range of rates, where does yours fit? 12 A. On the lower side. 13 Q. Have you been in cases where the United States has hired 14 outside board certified psychologists and paid them an hourly 15 rate? 16 A. Yes, sir. 17 Q. Can you give us an example of an hourly rate paid by the 18 United States government to an outside board certified 19 psychologist? 20 A. Up to 450 an hour. 21 Q. Do you know the name of the psychologist the government 22 paid $450 an hour to consult on a capital case? 23 A. Dr. Tom Ryan. 24 Q. Are you aware of cases where the government has hired 25 outside psychiatrists to testify or consult with the 8239 1 government in capital cases, federal capital cases, and the 2 hourly rates that have been paid to outside psychiatrists? 3 A. I have knowledge of individuals who have been involved and 4 have some understanding of what their hourly rate is. 5 Q. Would an hourly rate of $650 be accurate as to one 6 particular board certified psychiatrist named Park Dietz? 7 A. Near that. My recollection is 600 an hour. 8 Q. Does the Bureau of Prisons have psychiatrists who 9 regularly consult on staff? 10 A. Yes, they do. 11 Q. I know you told us earlier about the number of 12 psychologists who work for the Bureau of Prisons, and that was 13 how many? 14 A. Three hundred fifty, approximately. 15 Q. Mr. Fitzgerald asked you a couple of times about 16 information you had gotten over the Internet as a basis for 17 some of your knowledge. The information you have gathered 18 over the Internet, are you referring to the United States 19 Bureau of Prisons Web site, which is a repository for their 20 official program statements, regulations, manuals and other 21 documents? 22 A. That is correct. The information that I have that came 23 off the Internet was those policy statements, for those policy 24 statements, and also the most up-to-date population figures 25 for the facilities. The descriptions of the violence rates, 8240 1 of the diagrams and photographs of ADX Florence, those have 2 been made available to me in this and other capital cases and 3 are regarded as being somewhat sensitive. 4 Q. You were asked about Sheik Abdel Rahman, Ramzi Yousef and 5 other individuals. Do you understand them to be heroes and 6 almost martyrs in the Arab world? 7 A. That is my understanding. 8 Q. And leaders of global conspiracies? 9 A. Yes, sir. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8241 1 Q. Are you aware that a United States Attorney very familiar 2 with the facts and circumstances of this case has -- 3 MR. FITZGERALD: Objection, your Honor. May we 4 approach for one second? 5 THE COURT: Yes. Excuse me. 6 (At the sidebar) 7 THE COURT: What is the rest of that question? 8 MR. RUHNKE: That a United States Attorney familiar 9 with the facts of this case and the roles of the actors in the 10 case has described Khalfan Khamis Mohamed as a low ranking 11 member of this overarching conspiracy who did low-level work. 12 There is a stipulation to that effect, your Honor. 13 THE COURT: What has that got to do with this 14 witness? I would have sustained an objection to the last two 15 questions about the role of these people in the Arab world. 16 MR. RUHNKE: The suggestion was made that the Arab 17 world, that people are listening to the people present in ADX 18 Florence in the Arab world. Our client is hardly Ramzi Yousef 19 or Sheik Abdel Rahman, your Honor. The government has 20 conceded that. I think it is fair in this context while the 21 witness is here -- 22 THE COURT: What is the question -- how about do you 23 know whether K.K. Mohamed is similarly regarded, rather than 24 bringing in the U.S. Attorney? 25 MR. RUHNKE: There is a stipulation that is going to 8242 1 be read into evidence to exactly those words. 2 THE COURT: You can read the stipulation but you 3 can't put it in a question to this witness. 4 MR. FITZGERALD: I have a continuing objection to 5 going way beyond whatever competence this witness has. 6 THE COURT: I think that is right. That is why I 7 made the comment with respect to the last question and answer. 8 MR. FITZGERALD: I think if Mr. Ruhnke is going to 9 read -- 10 MR. RUHNKE: Not now. 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8243 1 (In open court) 2 BY MR. RUHNKE: 3 Q. Do you know of your own knowledge, Dr. Cunningham, whether 4 Khalfan Mohamed is regarded the same way that Sheik Abdel 5 Rahman is regarded, or Ramzi Yousef? 6 A. I would not expect so. 7 Q. In this case was your level of inquiry, area of inquiry 8 limited to really one particular area of expertise that you 9 possess? 10 A. Yes, sir. 11 Q. Were you asked simply to say whether or not based on your 12 knowledge and research the Bureau of Prisons, once it 13 identifies an inmate as a dangerous person, can exercise and 14 has numerous options to control and minimize the risk of 15 danger presented by that person? 16 A. That is correct. 17 MR. FITZGERALD: Objection, leading. 18 THE COURT: No, I will allow it. 19 Q. The video we saw of the very vicious assault going on 20 among the inmates, do you know anything at all about the 21 genesis of that assault, what that was all about? 22 A. That specific assault I don't. I would have to go back 23 and review the chart. Many of these are related to gang 24 rivalries that exist, as there is a significant gang and 25 disruptive group population at ADX. 8244 1 Q. You used the term disruptive group. Is that your term? 2 A. The Bureau of Prisons describes disruptive groups and 3 security threat groups and gang members. There are various 4 ways of describing groups of individuals that would disrupt 5 the order and security of the institution. 6 Q. Do you know the names of some of the gangs and disruptive 7 groups that inhabit the Bureau of Prisons system? 8 THE COURT: Is this really pertinent? 9 MR. RUHNKE: All right, your Honor, I will move on. 10 Q. Mr. Fitzgerald asked you a number of questions about 11 whether you had ever rendered an opinion about future 12 dangerousness of a particular inmate that you had examined for 13 that purpose. Do you recall those kinds of statements? 14 A. Yes, sir. 15 Q. Have you examined inmates in connection with what is known 16 as competency to be executed? 17 A. Yes, I have. 18 Q. Tell the jury what competency to be executed means. 19 MR. FITZGERALD: Objection. Relevance, scope. 20 THE COURT: Sustained. 21 MR. RUHNKE: Your Honor, that's -- 22 THE COURT: Sustained. 23 Q. Have you ever rendered an opinion adverse to a defendant 24 that you have been asked to examine that has led to a 25 defendant's execution? 8245 1 MR. FITZGERALD: Objection. Same objection. 2 THE COURT: I will allow it. 3 A. Yes, I have. 4 Q. In what context was that tape? 5 MR. FITZGERALD: Same objection. 6 THE COURT: Sustained. 7 Q. When someone hires you or retains you to do an evaluation 8 or present the results of your research and studies to a jury 9 or in any other context, what do they get? 10 A. They get my best analysis of the data. 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8246 1 MR. RUHNKE: Thank you. No more questions. 2 THE COURT: Anything further? 3 MR. FITZGERALD: No, Judge. 4 THE COURT: Thank you. 5 (Witness excused) 6 THE COURT: Mr. Ruhnke, you may call your next 7 witness. 8 MR. RUHNKE: Your Honor, may we approach? This would 9 be a good time -- there is a stipulation I can read. 10 THE COURT: You have an application? 11 MR. RUHNKE: I would like to break now for the day. 12 The next order of business is to play the first of the videos 13 with respect to Bosnia. 14 THE COURT: We will play the first 25 minutes of it. 15 (In open court) 16 MR. RUHNKE: Your Honor, the next order of business 17 is to read a stipulation to the jury and then to play the 18 beginning portion of the video regarding Bosnia. 19 THE COURT: Very well. 20 MR. RUHNKE: I will read the stipulation. It is 21 Defense Exhibit 7. It is hereby stipulated and agreed by and 22 between the United States of attorney by Mary Jo White, United 23 States Attorney for the Southern District of New York, Patrick 24 Fitzgerald, Michael J. Garcia, of counsel, and the defendant 25 Khalfan Khamis Mohamed, with the consent of his attorneys, as 8247 1 follows: 2 On April 9, 2001, in connection with a proceeding in 3 the separate prosecution of Mamdouh Ahmed Salim, for the 4 assault on Officer Pepe, an assistant United States attorney 5 who is knowledgeable about the facts and circumstances of this 6 case described Khalfan Mohamed to another judge of this court 7 as "a low-ranking member of this overarching conspiracy" who 8 performed "low-level type work." 9 It is further agreed that the stipulation may be read 10 to the jury and received in evidence, and I offer the exhibit 11 as Khalfan Mohamed stipulate 7. 12 THE COURT: Received. 13 (Defense Exhibit KKM stip 7 received in evidence) 14 MR. RUHNKE: At this point we would like to play the 15 first 20 minutes of a documentary series on Bosnia and Bosnia 16 and Herzegovina produced by the Discovery Channel in 1995. It 17 is narrated by Christine Anapour, produced in 1995. We will 18 play parts of episode 4 and go on to episode 5 tomorrow. 19 THE COURT: Very well. 20 MR. RUHNKE: Your Honor, the video is marked KKMVT4A 21 and I offer it in evidence. I also offer 4B which is the next 22 in the series. 23 MR. FITZGERALD: With no objection. 24 THE COURT: Received. 25 (Defense Exhibit KKMVT4A and 4B received in evidence) 8248 1 (Videotape played) 2 THE COURT: Suppose we break it here. We will resume 3 tomorrow. Have a pleasant evening. We are adjourned until 4 tomorrow. 5 (Jury excused) 6 THE COURT: Mr. Ruhnke, do you have something? 7 MR. RUHNKE: I would like to see your Honor in the 8 robing room with the government. 9 THE COURT: Otherwise we are adjourned until 9:30 10 tomorrow. 11 (Pages 8249-8251 sealed) 12 (Proceedings adjourned until 9:00 a.m., Wednesday, 13 June 27, 2001) 14 15 16 17 18 19 20 21 22 23 24 25 8252 1 2 INDEX OF EXAMINATION 3 Witness D X RD RX 4 JOSEPH REMENTER......... 8111 5 MARK DOUGLAS CUNNINGHAM... 8118 8177 8235 6 GOVERNMENT EXHIBITS 7 Exhibit No. Received 8 4316, 4030, and 4095 .......................8107 9 4317 and 4304 ..............................8107 10 4318 .......................................8109 11 4314 .......................................8230 12 4320 .......................................8234 13 4319 .......................................8235 14 DEFENDANT EXHIBITS 15 Exhibit No. Received 16 KKM stip 4 .................................8111 17 KKM VT2 ....................................8116 18 KKH10B .....................................8118 19 KKM26 ......................................8130 20 KKM23 ......................................8142 21 KKM24 ......................................8144 22 KKM19 ......................................8162 23 KKM20 ......................................8162 24 KKM21 ......................................8163 25 KKM22 ......................................8163 8253 1 KKM15 ......................................8164 2 KKM17 ......................................8165 3 KKM stip 5 and KKMVT3 ......................8173 4 KKM stip 7 .................................8247 5 KKMVT4A and 4B .............................8247 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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