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
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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
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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