30 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 56 of the trial, May 30, 2001.
See other transcripts: usa-v-ubl-dt.htm
6653
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 May 30, 2001
9:30 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
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6654
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 MICHAEL GARCIA
Assistant United States Attorneys
5
6 FREDRICK H. COHN
DAVID P. BAUGH
7 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
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6660
1 (Trial resumed)
2 (Pages 6655-6659 sealed)
3 (Jury present)
4 THE COURT: Good morning, ladies and gentlemen.
5 JURORS: Good morning, your Honor.
6 THE COURT: And we welcome back the four alternates,
7 who have not been with us in the past several weeks, and we
8 express appreciation and gratitude to you. We understand it
9 is very destructive of one's life to have these periods of
10 time when you are on the jury and when you are not. I assume
11 when you are not, you adhere to all the admonitions that apply
12 to jurors.
13 Let me repeat something that I said yesterday for the
14 benefit of the alternates who were not here, and that is that
15 the verdict which the jury rendered yesterday is a final,
16 complete, definitive verdict, and it is inappropriate to
17 re-question or revisit any of the decisions that were made by
18 the jury. That is a given. As I will explain in a moment,
19 the process which we begin today is a process which follows
20 the verdict rendered by the jury, and whereas the proceedings
21 completed yesterday related solely to the question whether or
22 not guilt had been proven beyond a reasonable doubt, the
23 question which we begin to examine today is a different
24 question.
25 Because the proceedings are relatively new and
6661
1 unfamiliar, I am going to spend a moment or two explaining
2 some of the things that will happen and introduce you to some
3 of the terminology which has developed with respect to this
4 process.
5 I will furnish to you in writing before you begin
6 your deliberations a full, definitive statement of the issues
7 that you are to determine and the verdicts that you are called
8 upon to render. This is simply in the nature of a preliminary
9 introduction, which I think is appropriate because this is the
10 first time in the Southern District of New York that we will
11 engage in this process. So if it is somewhat unfamiliar to
12 you, it is unfamiliar to many of us.
13 Members of the jury, you have unanimously found the
14 defendant Mohamed Rashed Daoud Al-'Owhali guilty of the
15 following counts contained in the indictment: One count of
16 destruction of property of the United States resulting in
17 death, as charged in Count 5; one count of the use of a weapon
18 of mass destruction against a national of the United States
19 resulting in death, as charged in Count 7; 213 counts of
20 murder in the course of an attack on a federal facility
21 involving the use of a dangerous weapon, as charged in Counts
22 9 through 221; 41 counts of murder of officers and employees
23 of the United States on account of their duties, as charged in
24 Counts 233 to 273; and two counts of murder of an
25 internationally protected person; as charged in Counts 278 and
6662
1 279. These are all capital counts, by which I mean that the
2 death penalty is a possible punishment for these offenses.
3 Thus we are about to begin the penalty phase of this trial.
4 We must now consider separately, with regard to each
5 of these counts, whether imposition of a sentence of death is
6 the appropriate sentence or whether the defendant should be
7 sentenced to life imprisonment without the possibility of
8 release. The law leaves this decision exclusively to you the
9 jury. If you determine that defendant Al-'Owhali should be
10 sentenced to death or to life imprisonment without possibility
11 of release, the court is required to impose that sentence.
12 The penalty phase itself amounts to a second trial
13 and in many ways is like the trial you have just completed on
14 the issue of guilt, although now the sole issue for your
15 consideration is punishment. You should note that in making
16 all the determinations you are required to make in this phase
17 of the case, you may consider any evidence that was presented
18 during the guilt phase of the trial as well as information
19 that is presented at this penalty phase of the trial. The
20 term "information" is sometimes used to describe what is
21 presented to you in these proceedings. The statute refers to
22 these proceedings as a hearing, not a trial. But you should
23 understand that for our purposes, the terms "evidence" and
24 "information" have the same meaning, that which is presented
25 before you, and the term "information" is used because some of
6663
1 the rules of evidence applicable at the guilt phase of the
2 case don't apply now. The parties are given greater latitude
3 in what may be presented for your consideration.
4 During the penalty phase there will be opening
5 statements by both sides. There will be witnesses examined
6 and cross-examined. There will be closing arguments and
7 instructions from the court.
8 Please understand that what I am about to tell you is
9 not a substitute for my closing instructions. As I indicated,
10 it is a broad general statement of what will transpire in the
11 next several days.
12 Obviously, it is impossible for me to overstate the
13 importance of the decision before you or the careful and
14 thorough consideration you give to this matter. I remind you
15 that at the time you were selected as jurors, each of you
16 assured me that if this case required a capital punishment
17 hearing you would follow the law as I told you it would apply,
18 and it is imperative that you do that.
19 Although Congress has left to juries the decision
20 whether a defendant in Mr. Al-'Owhali's situation should be
21 sentenced to death or to life imprisonment without possibility
22 of release, it has specifically narrowed and channeled your
23 discretion by requiring with certain findings to be made
24 before the death penalty is even considered. A sentence of
25 death on a particular count may be considered if, but only if,
6664
1 you have made both of the following two findings unanimously
2 and beyond a reasonable doubt with regard to the count you are
3 considering:
4 First, for each of the capital counts you must
5 unanimously and beyond a reasonable doubt find that defendant
6 Al-'Owhali's actions and his intent satisfied one or more of
7 the following four elements, which I refer to as the gateway
8 element or factors. The term "gateway" is sort of
9 self-explanatory. It is the initial threshold which must be
10 crossed unanimously and beyond a reasonable doubt. (1) that
11 the defendant intentionally killed the victim or victims of
12 the particular capital offense charged in the respective count
13 of the indictment; or (2) that the defendant intentionally
14 inflicted serious bodily injury that resulted in the death of
15 the victim or victims of the particular capital offense
16 charged in the particular count of the indictment; or (3) that
17 the defendant intentionally participated in an act
18 contemplating that the life of a person would be taken or
19 intending that lethal force would be used in connection with a
20 person other than one of the participants in the offense and
21 the victim or victims of the particular capital offense
22 charged in the respective count of the indictment died as a
23 result of the act; or (4) that the defendant intentionally and
24 specifically engaged in an act of violence, knowing that the
25 act created a grave risk of death to a person other than one
6665
1 of the participants of the offense, such that participation in
2 the act constituted a reckless disregard for human life, and
3 the victim or victims of the particular capital offense
4 charged in the respective count of the indictment died as a
5 direct result of the act.
6 Those then are the four gateway elements or factors,
7 one of which you must find, unanimously and beyond a
8 reasonable doubt, before the process continues.
9 At this point, let me define for you two terms that
10 you will hear throughout this phase of the case: Aggravating
11 factors and mitigating factors. In general, these factors
12 relate to the circumstances of the crime or the personal
13 traits, character or background of the defendant. The word
14 "aggravate" means to make worse or more offensive, to
15 intensify. The word "mitigate" means to make less severe or
16 to moderate. An aggravating factor, then, is a fact or
17 circumstance that would tend to support imposition of the
18 death penalty. A mitigating factor is any aspect of the
19 defendant's character or background, any circumstances of the
20 offenses or any other relevant fact or circumstance that might
21 indicate that the defendant should not be sentenced to death.
22 The second finding that you must make unanimously and
23 beyond a reasonable doubt, that is, after the gateway factor
24 which we have already described, before you may consider
25 imposition of a death sentence, is that the government has
6666
1 proved the existence of at least one statutory aggravating
2 factor. That's another term. A statutory aggravating factor
3 is one which is specifically set forth in the death penalty
4 statute and which has been explicitly identified by the
5 government for consideration in this case. The government
6 alleges the following statutory aggravating factors with
7 regard to each of the capital counts, and you of course will
8 have the text of these before you during your deliberations:
9 (1) The deaths and injuries resulting in death
10 occurred during the commission of other crimes, namely,
11 certain offenses listed under a provision of the United States
12 Code which we will identify for you in the instructions you
13 will have before your deliberations. So one is that the death
14 and injuries resulting in death occurred during the commission
15 of other crimes which we will identify.
16 (2) The defendant in the commission of the offense
17 knowingly created a grave risk of death to one or more persons
18 in addition to the victims of the offense.
19 (3) The defendant committed the offense after
20 substantial planning and premeditation to cause the death of
21 one or more persons or to commit an act of terrorism.
22 (4) The defendant intentionally killed or attempted
23 to kill more than one person in a single episode.
24 If, after a fair and impartial consideration of all
25 the evidence in the case, you unanimously find that the
6667
1 government has proven beyond a reasonable doubt at least one
2 gateway factor and at least one statutory aggravating factor
3 with regard to a particular capital count, you will then
4 proceed to the balancing or weighing stage of your analysis.
5 If, however, you find with regard to a particular count that
6 no gateway factor has been proved beyond a reasonable doubt or
7 that no statutory aggravating factor has been proved beyond a
8 reasonable doubt, your deliberations will be over as to that
9 count, and as to that count the court will impose on the
10 defendant Al-'Owhali a sentence of life imprisonment without
11 possibility of release. If, but only if, you find the
12 existence of at least one gateway factor and at least one
13 statutory aggravating factor, you will proceed to the
14 balancing stage of the analysis. At that time you will
15 consider whether you unanimously find that the government has
16 proven beyond a reasonable doubt the existence of any
17 nonstatutory aggravating factor, which refers to factors which
18 are not specifically set out in the death penalty statute but
19 which have been specifically identified by the government for
20 consideration in this case.
21 The government alleges the following nonstatutory
22 aggravating factors with regard to each of the capital counts,
23 and, again, you will have the text of these before you during
24 your deliberation:
25 (1) The defendant poses a continuing and serious
6668
1 threat to the lives and safety of others with whom he will
2 come in contact.
3 (2) As demonstrated by the deceased victims' personal
4 characteristics as individual human beings and the impact of
5 the deaths upon the deceased victims' families, the defendant
6 caused injury, harm and loss to those victims and to their
7 families and the defendant caused serious physical and
8 emotional injury and grievous economic hardship to numerous
9 individuals who survived the bombing.
10 (3) The victims and intended victims included
11 high-ranking public officials of the United States serving
12 abroad and the offense was motivated by such status.
13 Again, your finding as to any nonstatutory
14 aggravating factor, that is, whether it exists, must be
15 unanimous and beyond a reasonable doubt.
16 In addition to considering the existence of any
17 nonstatutory aggravating factors, you must determine whether
18 any of you find that the defendant has established the
19 existence of any mitigating factors by a preponderance of the
20 evidence, and there are some important distinctions I want to
21 highlight for you with respect to the proof of mitigating
22 factors. The defendant has the burden of proving any
23 mitigating factors. However, there is a different standard of
24 proof as to mitigating factors. The defendant is not, not
25 required to prove beyond a reasonable doubt the existence of a
6669
1 mitigating factor. He need only establish its existence by a
2 preponderance of the evidence; that is, he need only be
3 convinced that it is more likely true than not true in order
4 to find that the mitigating factor exists.
5 Also, a unanimous finding is not required. Any one
6 of you may individually and independently find the existence
7 of a mitigating factor, regardless of the number of other
8 jurors who may agree, and any juror who so finds may weigh
9 that factor. Thus, if even a single member of the jury finds
10 that a mitigating factor has been proved, that member of the
11 jury is allowed to weigh that factor in making up his or her
12 own mind in weighing whether or not to vote for a death
13 sentence.
14 Mitigating factors. Defendant Al-'Owhali alleges the
15 following mitigating factors:
16 (1) that other members of the conspiracy previously
17 arrested or presently cooperating with the United States,
18 guilty of or charged with planning and facilitating the
19 bombings of the United States embassies and the killing of
20 United States nationals will not be punished by death;
21 (2) that the defendant is less culpable than those
22 conspirators who planned and facilitated the bombing of the
23 United States Embassy in Nairobi, Kenya, and continue to plan
24 and execute similar acts in the future.
25 (3) that the defendant does not have a prior history
6670
1 of criminal conduct.
2 (4) that although having intentionally participated
3 in an act contemplating that the lives of Americans be taken,
4 the defendant did not intend that the Kenyan victims not
5 employed by the United States Embassy be injured or killed.
6 The fifth has three components: (a) that the
7 defendant intended by the commission of the offenses of which
8 he has been convicted to save members of his Umma, that is,
9 his religious community, regardless of nationality, from
10 imminent death, injury, terrorism and genocide; (b) that the
11 defendant committed the offenses for which he has been
12 convicted based upon his sincere belief, whether or not you
13 agree with that belief, that his conduct was mandated by his
14 religion; (c) that the defendant believed that the United
15 States embassies were legitimate military targets because he
16 had the sincere belief, as proposed by Usama Bin Laden, that
17 embassies fulfilled military and intelligence surveillance
18 functions which furthered the aims of the United States
19 government and opposed the aims and objectives of Usama Bin
20 Laden;
21 (6) that the defendant committed the offenses for
22 which he has been convicted while young in age;
23 (7) that the defendant was indoctrinated in
24 conservative Muslim teachings which promoted jihad and
25 martyrdom during his early and formative years.
6671
1 As you can see, the defense is entitled to present
2 evidence in mitigation of sentence that consists of a broad
3 range of information about the defendant Al-'Owhali's
4 background, record, character and circumstances of defense
5 which may lead a juror to conclude that the defendant should
6 not receive the death penalty but instead should be punished
7 by spending the rest of his life in prison.
8 Once this process of deciding on the existence of
9 aggravating and mitigating factors has been completed, each of
10 you must individually engage in a balancing process in which
11 you will weigh the aggravating factor or factors, statutory
12 and nonstatutory, that all 12 jurors have unanimously and
13 beyond a reasonable doubt found to exist, against any
14 mitigating factor or factors which you, individually or with
15 other jurors, have by a preponderance of the evidence found to
16 exist.
17 The relevant statute then tells us that after
18 weighing the aggravating and any mitigating factors, the jury
19 must "consider whether all the aggravating factor or factors
20 found to exist sufficiently outweigh all the mitigating factor
21 or factors found to exist to justify a sentence of death, or,
22 in the absence of a mitigating factor, whether the aggravating
23 factor or factors alone are sufficient to justify a sentence
24 of death."
25 That's the end of the quotation from the statute.
6672
1 In carrying out this weighing and balancing process,
2 the members of the jury are not mere fact finders. Jurors are
3 called upon to make a unique individualized judgment about the
4 appropriateness of sentencing another human being to death.
5 This is not a mechanical process. Neither is the decision
6 determined by raw numbers. Members of a death penalty jury do
7 not simply count factors. Instead, individual jurors consider
8 such factors qualitatively, assessing the weight and value of
9 each factor. Any one factor proved, if sufficiently serious,
10 may outweigh several mitigating factors. On the other hand, a
11 single mitigating factor may outweigh several aggravating
12 factors.
13 In short, what is called for in weighing the varying
14 factors is not arithmetic but an individual's careful,
15 considered, and mature judgment. Again, whether or not the
16 circumstances in this case justify a sentence of death is a
17 decision the law leaves entirely to you, and you should not
18 take anything I may say or do during this phase of the trial
19 as indicating what I think of the evidence or what I think
20 your verdict should be. That is your responsibility.
21 As I mentioned earlier, you must deliberate and
22 determine the sentence to each of the capital counts
23 separately. You may conclude that aggravating and mitigating
24 factors should receive different weights in conducting the
25 separate weighing of the aggravating and mitigating factors
6673
1 applicable to each of the capital counts.
2 As we begin this process, two final points I wish to
3 make, or perhaps emphasize. The first, which I mentioned
4 briefly before, is that you are never required to return a
5 verdict of death. The law provides you with guidance in
6 making a decision but, as stated earlier, your decision on
7 this question of life or death is a uniquely individual
8 judgment which the law in the final analysis leaves up to each
9 of you.
10 The last thing I wish to explain, to restate, is that
11 in order to impose a sentence of death, all 12 jurors must
12 agree that death is the appropriate sentence. If the jury
13 does not vote for a sentence of death, then I will impose a
14 sentence of life imprisonment without the possibility of
15 release. I have no other sentencing option.
16 I will repeat and elaborate on these points after you
17 have heard all of the evidence and before you begin your
18 deliberations, and, again, as in the prior proceedings, you
19 will have a special verdict form to assist you. As I said
20 earlier, because these procedures are relatively new in our
21 system of justice, I thought it advisable that you have this
22 preliminary explanation. My final and definitive instructions
23 will be in writing and available to you during your
24 deliberations.
25 I thank you for your patience and attention, and we
6674
1 will turn now to the opening statement made in the first
2 instance by the government.
3 MR. FITZGERALD: Good morning.
4 JURORS: Good morning.
5 MR. FITZGERALD: It was about three weeks ago at the
6 end of my closing argument I stood before you and I talked to
7 you about a woman named Roselyn Wanjiku Mwangi, the woman who
8 was buried beneath the rubble of the Ufundi House on August 7,
9 1998, waiting and hoping to be rescued. You learned that,
10 tragically, she was not rescued in time and she died. At that
11 time I reminded you and me and all of us in this room that she
12 was not just a name, not just a count in the indictment, but a
13 person, a human being with a family and a personality, with
14 hopes and with dreams. I asked you at that time to hold the
15 defendant Mohamed Al-'Owhali accountable for her murder,
16 accountable for delivering the bomb that turned the Ufundi
17 House into a heap of rubble beneath which she was buried. By
18 your verdict, you have found the defendant Al-'Owhali guilty
19 of her murder. He brought the bomb that turned a seven-story
20 building into a tomb for Roselyn Wanjiku Mwangi and so many
21 others.
22 But justice is not done yet. You are here today to
23 decide the most serious question a jury can decide, which is,
24 what punishment should Al-'Owhali receive for the horrible
25 crimes he committed that day. I submit to you that based on
6675
1 the evidence you have seen so far at the first phase of the
2 trial and the evidence you will see over the coming days, each
3 of you will be convinced in the end that the only just
4 punishment, the only punishment that does justice for the
5 victims, the only punishment that fits the crime is the death
6 penalty.
7 Judge Sand just explained the process to you and the
8 aggravating factors. I would like to talk to you this morning
9 about just two of the aggravating factors. The first one is
10 future dangerousness. The government will prove to you beyond
11 a reasonable doubt that the defendant Al-'Owhali poses a
12 future danger to anyone he will come in contact with if he is
13 sentenced to spend the rest of his life in jail. The second
14 factor and the most important factor is the impact
15 Al-'Owhali's bombing had on the victims, the horrific impact.
16 Let's talk for a moment about future dangerousness.
17 You have seen already most of the proof of Al-'Owhali's future
18 dangerousness. You learned that he went to Afghanistan,
19 attended a basic terrorist training camp. You learned that
20 after that he went to three more terrorist training camps run
21 by Al Qaeda, was trained in how to kidnap, how to take
22 hostages, how to take over buses and planes. He was trained
23 in how to take over buildings. And you learned that after he
24 fought with the Taliban he took a mission. He took a mission
25 to leave Afghanistan, to go to Africa, to carry out a
6676
1 terrorist attack against Americans. When he got to Nairobi
2 and when he met with Saleh and Harun at 43 Runda Estates, he
3 was briefed on the plan. He knew there were two attacks, the
4 attack on the embassy in Nairobi, and he knew about the attack
5 on the embassy in Dar es Salaam, Tanzania.
6 Most importantly, Al-'Owhali went with others to the
7 scene of the crime two days before the bombing. The defendant
8 Al-'Owhali went to a building in bustling downtown Nairobi in
9 broad daylight, and he saw what it was: A building, a large
10 building with glass windows, with people working inside, with
11 people walking in and people walking out, and a building next
12 door and an even larger building next door to that, in a
13 downtown area where people passed on the street, people drove
14 by in cars, people went by on buses. And he went ahead, and
15 he came back on Friday, August 7, in that bomb truck on a
16 mission of death. And he came there and the bomb went off,
17 and he was at the scene alive. He had to see the carnage he
18 had wrought. There were people lying there dead. There were
19 people badly, badly injured and maimed. And he went to the
20 hospital himself. He went to the hospital with his cuts and
21 his bruises, and he was treated in the same hospital with his
22 victims. And yet after all he did, after killing hundreds,
23 after maiming, injuring and blinding -- and you have heard
24 that the injuries were more than 4,000 -- and seeing it at the
25 scene, and seeing it at the hospital, he posed for that
6677
1 picture, the picture for the reporter. Posed like he was some
2 sort of champion. An utter and total lack of remorse.
3 I submit to you that any person like Al-'Owhali who
4 would do when he did to human beings, who could leave that
5 carnage in a downtown street and pose for that picture poses
6 the ultimate danger to anyone he will come in contact with in
7 the jail system. Because remember, if he is in a jail, he is
8 in a jail of the United States, a sworn enemy, the enemy he
9 wants so badly to kill. To him, the guards in that jail will
10 represent the enemy forever.
11 Let me talk to you now about victim impact, which I
12 submit to you is the most important aggravating factor for you
13 to consider. Words, numbers cannot describe the horror that
14 Al-'Owhali wrought on August 7, 1998. I am going to make an
15 odd statement to you that, sadly, I think you will understand
16 in a couple of days. You as a jury have sat on a bombing
17 trial since early February 2001. After all these months you
18 have heard precious little about what that bombing did to
19 human beings. That was appropriate, because at the first part
20 of the trial your task was to decide whether or not with the
21 defendant Mohamed Al-'Owhali was guilty. This phase of the
22 trial is different. You need to understand the pain, the
23 horror and the agony that that bombing put so many people, so
24 many families through. You need to weigh that in the
25 balancing, in making your reasoned, moral judgment as to the
6678
1 appropriate penalty.
2 Let me give you some examples of what it is at the
3 first phase of the trial you heard and what it is that you
4 will hear and see and experience at this phase of the trial
5 over the course of the next few days when the government calls
6 victims before you.
7 You may remember there was brief testimony at the
8 first part of the trial from a man named Frank Pressley. He
9 probably testified for 10 or 15 minutes. He worked at the
10 embassy, and he had part of his jaw ripped out by the force of
11 the explosion. He was an information management officer. He
12 worked in communications. He told you that on the morning of
13 August 7, shortly before 10:30 in the morning, he went
14 downstairs in the embassy to meet with a woman named Michelle
15 O'Connor. Michelle O'Connor was a colleague in the embassy
16 but she was also a neighbor of Mr. Pressley and a close
17 friend. Frank Pressley had children, Michelle O'Connor had
18 three daughters. The Pressley children and the O'Connor
19 daughters played together. Frank Pressley told you that
20 shortly before 10:30 in the morning he and Michelle O'Connor
21 were talking about a fax machine that Michelle O'Connor could
22 not get to work properly. Obviously, as Frank Pressley and
23 Michelle O'Connor focused on the fax machine as the issue of
24 the day, they had no idea what the defendant Al-'Owhali had in
25 store for them just seconds away, because as they spoke about
6679
1 the fax machine, Al-'Owhali and Azzam were coming in a truck,
2 a truck loaded with a bomb hurtling down Haile Selassie
3 Avenue.
4 Pressley told you something else. As he turned and
5 walked away from his conversation with Michelle O'Connor, he
6 saw some other people in the area. One was Lydia Sparks, whom
7 you will hear from. The other was Jay Bartley, the young,
8 college-aged son of Julian Bartley, the consul general.
9 Frank Pressley heard a noise, a small explosion, an
10 explosion you now know was one of Al-'Owhali's stun grenades.
11 He didn't go to the window, which is probably why he is alive
12 and able to come before you and testify.
13 But thereafter, a huge explosion went off. It threw
14 Frank Pressley into the air. He picked himself up with part
15 of his jaw missing, and through the darkness and the dust he
16 started walking down the embassy hall. He walked past with
17 Michelle O'Connor, that friend, that colleague, the mother he
18 had just been speaking with. And you heard from Dr. Gretchen
19 McCall. Michelle O'Connor had basically been decapitated.
20 Frank Pressley also told you that when he walked down
21 the hall he walked past the legs of an unidentified man.
22 Gretchen McCall also told you that young Jay Bartley, his legs
23 were thrown off by the force of the blast, the blast of
24 Al-'Owhali's bomb.
25 At that moment, when young Jay Bartley had his life
6680
1 stolen from him by the defendant Al-'Owhali, elsewhere in the
2 same building his father Julian Bartley was also killed by
3 that same blast. Later today, the government's first witness
4 from that witness stand will be Susan Bartley. She will tell
5 you what Julian Bartley was like as a man, as a human being,
6 as a husband, as a father. She will tell you about her son
7 Jay Bartley, what he was like. She will tell you the pain she
8 has suffered with her daughter Edith, to have both of them
9 stolen from her in the same instant. You need to know that.
10 Frank Pressley told you something else. He told you
11 that after he walked past Michelle O'Connor and Jay Bartley,
12 he walked out of the embassy building and he went to look for
13 his own wife, because Frank Pressley's wife worked at the
14 embassy that day. She was fortunate enough to live through
15 the bombing, but when he went outside he didn't know that.
16 And he saw a man by the name of Howard Kavaler. Kavaler was
17 his wife's boss. He went to Howard Kavaler and he said do you
18 know where my wife is? Mr. Kavaler didn't know. Frank
19 Pressley told you one thing. He said Kavaler was standing
20 there, nervous and crying. You will learn from Howard Kavaler
21 when he takes the witness stand what happened to him that day,
22 because Howard Kavaler's wife also worked in the embassy, and
23 on August 7, 1998, his worst nightmare came true. He lived
24 through that bombing but his wife was killed. Howard Kavaler
25 will tell you what a hole that left in his life and the void
6681
1 it left in the lives of the two young daughters, Tara and
2 Maia, that lost their mother that day.
3 The first phase of the trial you heard from Staff
4 Sergeant Daniel Briehl, a United States marine who was off
5 duty. Yet he came by the embassy that morning to drop off
6 someone whose name you saw in the indictment. It was Jessie
7 Nathaniel Aliganga. Sergeant Aliganga went in to cash a
8 check. When he went in to cash a check, that's the last time
9 he ever cashed a check, because he was killed. But you heard
10 nothing about Jessie Nathaniel Aliganga as a person. In fact,
11 you learned that he liked to be called Nathan. He was a good
12 marine. He was a great man. You will hear about him as a
13 person, as a human being, as a person with a great smile, a
14 wonderful personality, hopes, dreams and accomplishment, when
15 his mother Clara comes to tell you about her loss.
16 You need to know about the loss not only of the
17 people in the embassy building but the people next door.
18 Remember that Ufundi House, that many-storied structure just
19 flattened. And think about the pain and suffering of the
20 people who had loved ones, spouses, daughters, friends,
21 relatives who worked in that building and showed up on the day
22 of the bombing and just saw that it was gone. You will learn
23 that there were a hundred bodies of human beings buried in the
24 rubble of the Ufundi House. You heard at the first phase from
25 Sammy Nganga who told you about his two days buried beneath
6682
1 the rubble. But he lived. And he told you about his pain,
2 and how he was talking to Rosie Wanjiku during those two days,
3 hoping that she would survive. You heard that she did not.
4 But her husband has come to testify, to tell you what Rosie
5 was like as a human being, as a person, as a mother.
6 The pain didn't stop at those buildings, because you
7 saw that tall structure, the Kenyan Cooperative Bank Building.
8 Think about the force of the blast in this way. Ambassador
9 Bushnell was on the top floor, some 23 stories up. The bomb
10 was in the parking lot down at the basement level. When the
11 bomb went off, the ceiling of the top floor of that giant
12 structure collapsed. Ambassador Bushnell was lucky enough to
13 escape without permanent serious physical injury, but many
14 others were not.
15 You will hear from a woman named Teresia Karanja, who
16 will come here and testify. For her, August 7, 1998 began
17 like any other day. She went to work, she walked in the
18 building, she went up to her office, and she began her day.
19 But by the end of the day she could not walk. She was carried
20 out of the building as a paraplegic. She will come before
21 you. She will testify and she will tell you about her pain.
22 She will testify from a wheelchair she did not need before
23 that day. When she walks in, the first thing that may strike
24 you is that she was reduced to a wheelchair by Al-'Owhali's
25 bomb. But when she leaves, you will be overwhelmed by her
6683
1 dignity and her strength. She is a profile in courage that
2 you need to hear from.
3 And the buses. You heard at the first phase of the
4 trial about the people you ever unfortunate enough to be
5 traveling in the buses down Haile Salassie Avenue. You may
6 hear about Minna Hopje, who when she looked out the bus with
7 the stun grenades and the blast came threw she lost her
8 eyesight. Al-'Owhali, one of the few people who knew about
9 the bomb that was about to go off, turned and ran to save his
10 own life. He ran south to Haile Salassie Avenue, south to
11 where the buses were going by.
12 (Continued on next page)
13
14
15
16
17
18
19
20
21
22
23
24
25
6684
1 You're going to hear from someone else who was on one
2 of those buses that day. You'll hear from Sandeep Patel
3 Jadava, a 12 year old boy that day coming home from his last
4 day of school, and he played at school having gotten his
5 grades, and was on the bus with his two brothers and when the
6 bomb went off the glass ripped through one of Sandeep's eyes
7 and stole from him his sight in his right eye and badly
8 damaged his left eye.
9 When you see him testifying, you will now see a 15
10 year old boy forced to become a man way ahead of his time.
11 You will learn that the defendant 'Owhali stole the sight from
12 one of his eyes and stole his youth.
13 You will learn something else. August 7, 1998 when
14 Sandeep was taken to the hospital and they saw what had
15 happened to one of his eyes, they had to take him to another
16 hospital to operate on. Sandeep Patel does not know this, but
17 when he was taken to MP Sha Hospital to be operated on that
18 was the same hospital that Al-'Owhali went to for his cuts and
19 bruises. Sandeep Patel was being treated in the same hospital
20 as his bomber.
21 A word about people being blinded. We have to
22 understand that you're gong to hear a lot about flying glass
23 in the course of the next few days, and what happens in a
24 downtown bustling area with buildings with windows, surrounded
25 by buildings with more windows, and cars and buses with glass
6685
1 is that when a bomb goes off all those windows turn into
2 thousands and tens of thousands of little swords, fly through
3 the air and cut and rip, and tear and maim and blind and kill.
4 You will have to know what that pain caused. You'll
5 hear from a woman named Ellen Bomer who was working at the
6 American Embassy. She heard Al-'Owhali's stun grenades. She
7 made the mistake of going to the window to see what happened.
8 Now she's completely and totally blind.
9 Let's talk for a minute about photographs. You will
10 see a limited number of photographs during this part of the
11 trial. Some of the photographs will show you the victims who
12 were killed while they were alive so you have a sense that
13 it's not just a name, but a person and a personality, so you
14 can know that it was a human being that was stolen from all of
15 us.
16 You will see some photographs of injuries, and when
17 you see that recognize that as painful as it is to look at
18 some of those photographs for the people that were there on
19 August 7, 1998 they had to live through that pain or die
20 through that pain, and for those that survived, they did not
21 see a photograph, they saw a running unending horror, a
22 picture that they could not stop and for some it may have been
23 the last thing this saw.
24 For others it's a nightmare that does not end. And
25 remember when you see the witnesses that you're seeing them
6686
1 almost three years later, and you can still feel their pain.
2 A word about the witnesses. You will not hear from a relative
3 of every victim who was killed. You cannot. It's so great
4 the atrocity that al'Owhali committed that we can't bring
5 before you a relative of each 213 people who were murdered.
6 We are going to bring before you a cross section, but remember
7 when you see someone testify before you and tell you how they
8 lost their wife, their husband, their daughter, or their son,
9 that there are a dozen more or dozens more behind them that
10 suffered a similar fate.
11 A word about the injuries. The frightening thing in
12 this case is to think about how many people were killed, 213,
13 and how to get a sense that all those people are human beings
14 that for everyone killed there is a family torn asunder. You
15 can also forget that there are injuries.
16 You heard at the first part of the trial by
17 stipulation that there were more than four thousand injuries.
18 There are no counts for specific injuries. If we read the
19 individual count for each person injured you'd still be here
20 today, if we if we had a count for every person who is harmed,
21 injured or maimed in that blast. Remember when you see
22 Teresia Karanja, reduced to being a paraplegic, when you see
23 Ellen Bomer who can see no more, that they are just one and
24 two out of more than four thousand injuries.
25 Let me talk to you a moment about the pain, about the
6687
1 emotion. It will not be easy to call before you the people
2 who suffered through this grievous atrocity. It will not be
3 easy to ask questions. It certainly will not be easy for them
4 to answer questions.
5 It's not going to be easy for you to sit there and
6 listen and hear and feel that pain. That's only natural that
7 you may sit there and say to yourself at some point, do I
8 really need to hear this? Did I really need to see this? Do
9 I need to see one who has lost their sight? Do I need to hear
10 from a woman who lost her husband and her son in the same
11 instance.
12 Make no mistake about it, you do. You are sitting
13 here to make the most serious moral judgment. You're entitled
14 to the most serious information and you must weigh the pain of
15 that horror that the defendant Al'-Owhali caused by his bomb
16 in making your decision, and remember when you see a
17 crosssection, a glimpse of the pain and suffering that it is
18 the defendant who brought that horror into this world. It's
19 the defendant Al-'Owhali who is responsible for that snapshot
20 of horror and pain that you will see.
21 You will have your emotions affected. We are not
22 asking you to make any decision based upon emotion. We're
23 asking you to make decisions based upon hard horrible facts
24 that you need to be aware of. I will close by reminding you
25 of your oath. Each of you at the beginning of the trial took
6688
1 an oath that said if you found the defendant Al'-Owhali guilty
2 of the murders he was charged with you would fairly, honestly
3 and carefully deliberate at the penalty phase. And we know
4 you will.
5 You knew at the beginning that the law provides that
6 for murder a person can be punished by death, that there are
7 some cases for which the death penalty is the appropriate
8 punishment.
9 I submit to you based upon the evidence you have
10 heard to date from the first part of the trial, and based upon
11 what you will see of the horrible indescribable pain and
12 suffering the defendant caused, at the end of this proceeding
13 each of you will be convinced that the only just punishment
14 for this crime, the only punishment that does justice for the
15 victims is the death penalty.
16 Thank you.
17 THE COURT: Thank you, Mr. Fitzgerald. Mr. Baugh.
18 MR. BAUGH: Good morning. It's been weeks since I
19 spoke with you. Your Honor. You've already heard now, this
20 is your third opening. You heard openings during the guilt
21 phase and now you're hearing an opening during the punishment
22 phase.
23 And you've heard from Mr. Fitzgerald. Just like with
24 the first part of the trial, the purpose of an opening
25 statement is to give you an idea of where we plan to go with
6689
1 the information we're going to present so you'll know to
2 analyze it as it comes in.
3 When I used to teach law students I would tell them
4 that a trial is like a puzzle, and the purpose of the opening
5 statement is to show you the puzzle box, show you the top so
6 you know what the picture is going to look like so you can
7 understand where these pieces go.
8 During this phase of the case the government will be
9 putting on evidence of its aggravators and the Court has
10 defined those for you. The defense will be putting on
11 evidence of its mitigators and the defense has defined that
12 for you. But I want you to understand is that mitigators are
13 not an excuse, and I don't think that anyone can make an
14 excuse for what happened in this case.
15 The purpose of mitigators is not to offer you a
16 justification for what the defendant has done because there
17 can be no justification. However, there can be for whatever
18 purpose it should be used, an explanation because you see
19 first, as we go through this part of the trial there are
20 certain issues that are no longer in controversy. The
21 defendant has been convicted beyond a reasonable doubt by you
22 of doing certain things. He is guilty of this charge under
23 the law. You have found that he did the acts that were
24 alleged. You found that the statement he gave to Special
25 Agent Gaudin by your verdict you have found that that
6690
1 statement was voluntary, and that you can consider it in
2 determining what should be the appropriate sentence.
3 Additionally, something that has been resolved is
4 that no matter what happens from this point forward in this
5 case, that young man right there will either be killed by you
6 or he will spend the rest of his life in prison in a country
7 that is not his own, and that is it. Those are the only two
8 options available. So to a certain extent many options are
9 gone, and that is the only thing that remains.
10 If all 12 of you vote that he will die, he will die,
11 and no one can stop it, not that judge, and not any of us.
12 I'm serious. The Judge has a duty to, if you vote it, he has
13 to sign the order.
14 Now, the mitigators that we're going to offer, and
15 the Judge has told you what they are, they can be
16 circumstances of the defendant's life or they can
17 circumstances of the offense, the purpose of the defense in
18 this portion of the case is for the past four months you've
19 heard a lot of evidence about who was killed, and who did the
20 killing. You've heard about where it happened. You've
21 learned about how it happened. And you know when it happened.
22 August 7, 1998 will never be the same.
23 But you've heard precious little of why, and to
24 understand the importance of this some day if you vote for
25 death, you'll pick up the paper, and you'll see that that
6691
1 young man over there is going to be killed. And when you read
2 that, you should know as much about the circumstances of this
3 case so that when you read it you will say: I know today just
4 like I knew the day that I said that he should die, I know
5 that was the only appropriate sentence.
6 You are going to sign a piece of paper saying that if
7 you give him death that you would have given him death even if
8 he were not Muslim, if he were not Arab, if he were a
9 American, if he lived in Indiana, the decision would have been
10 the same. And you are going to be, by understanding the
11 circumstances, you will be confident of the decision.
12 Why does a young man agree to die? Why does Usama
13 Bin Laden hate America so? Why is it that so many young
14 people, people who should be worried about, am I going to meet
15 a girl? Am I going to grow up? Am I going to have children?
16 Am I going to find a job? Why is it these people are willing
17 to kill themselves to strike at America? Why is it, as
18 al-Fadl testified, why is it that Mr. Bin Laden and al Qaeda
19 have more people, more young people who are willing to die
20 than they have projects for them to do? Why is that?
21 Now, there has been some testimony that Mr. Bin Laden
22 hates America, calls it the great Satan. Is that the
23 explanation? No.
24 To understand the circumstances of this you have to
25 understand all of what went on and what has gone on that led
6692
1 up to this, because then and only then can you determine, only
2 by understanding as much as possible can you determine is
3 death the only appropriate sentence. Appropriate to what?
4 And that's the key, and you're going to have to define what
5 that is.
6 Now, I will tell you, and I will agree with the
7 United States, you should not forget about the victims in this
8 case. I want you when you're deliberating in this case to
9 remember the human beings that were killed, the human beings
10 that have been maimed and injured, not just the Americans who
11 there has been testimony about, in fact, because it's going to
12 be hard and it should be hard.
13 It should be hard. You should work with this, with
14 the same dedication and intensity you worked for your
15 deliberations on the guilty phase, because each of you is
16 going to have to be convinced beyond a reasonable doubt, each
17 of you as individuals, that death is the only appropriate
18 sentence.
19 You'll be seeing these pictures at the close of the
20 government's case and you'll be reading these names. These
21 are the people that died that day. And I'm going to try and
22 pronounce their names to you. Never forget them, and I don't
23 forget them. Bonita Achola is dead. Samson Odour Ahomo,
24 Margaret Akinyi, Jessie Nathaniel Aliganga, Emma Anulo,
25 Elizabeth Anyango, Monicah Apondi, Rosetta Barasa, Julian
6693
1 Leotis Bartley, Julian Leotis Bartley Sr..
2 Chrispine Bonyo, Daniel Cheruiyot, Jean Rose Dalizu,
3 Eva Gacheru, Alice Nduta Gachiri, Jame Wangui Gakuru, Ralph
4 Johnstone Gathumbi, Justus Njeru Geoffrey, Agne Wanjiku Gitau,
5 Lawrence Ambrose Gitau, Benard Mugambi Gitonga, Susan Gitu,
6 Rosemary Njery Gituma, Hassan Guracha, Burhan Aden Hanshi.
7 Molly Hardy, Kenneth Hobson, HIndu Omar Iddi.
8 Tony Irungu, George Irungu, Jane Wangari Itutia,
9 Dorine Aluoch Jow, Gilbert Mugo Kahindi, John Kahuthu,
10 Geoffrey Mulu Kalio, Joel Kamau, Francis Kamiti, Margaret
11 Kangi, Rachel Kraba, Charles Karanja, Lucy Karigi, Beatyrice
12 Kariuki, Moses Kariuki, Kristein Karumba, Prabhi Kavaler,
13 Thomas Khahenzi, Francis Kibathi;
14 Jackline Kibera, Rael Biiri Kimami, Felistas Njeri
15 Kimani, Stephen Kimani, Philip Kioko, Joseph Kiongo, Teresa
16 Kiongo, Arlene Bradley Kirk, David Koimburi, Naftali Kuria,
17 Juliana Kwali, Peter Kyalo, Moses Kyule, Tirus Macharia.
18 Dennis Evans Radcliffe Madegwa, Francis Maina, Linda
19 Maingi, Fred Maloba, Cecilia Mamboleo, Mary Martin, James
20 Masea, Anne Mathenge, James Mathenge, Pity Mathenge, Simon
21 Peter Matu, Daniel Maundu, June Mary Maweu, Lydia Mayaka.
22 Allan Mbandu, Doreen Mbayaki, Pamela Mobya, Rachael
23 Mobya, Francis Mboya, Lucy Mbunja, Stephen Mburu, Catherine
24 Mibere, Elizabeth NMito, Ahmed Mohammed, Edward Mokaya, Lucian
25 Mugambi, Sharon Mugo, Josephat Muia.
6694
1 Emmanuel Mujyambere, Samuel Mulalya, Francis Mulehi,
2 Edward Mungai, John Mugai, Domi Munzala, Tommy Munzala,
3 Caroline Muraguir, Fiddes Muritu, Alice Muriuki, Mary Muriuki,
4 Frobert Murijuki, Dominic Musyoka, Ruth Musyoka;
5 Wilson Mutahi, Florence Muthama, Josephine Mutinda,
6 Emmanuel Mutiira, Catherine Mutua, Patrick Mutui, Caroline
7 Mutuiri, Gloria Mutuiri, Gabriel Mwadime, Harrison Mwangi,
8 Roselyn Mwangi, Samuel Githua Mwangi, Moses Aston Mwani, Anna
9 Mwaniki;
10 Isaac Mwaria, Abdalla Mwilu, Eliabeth Nakhale,
11 Geoffrey Namai, Moses Namayi, Mary Ndirangu, Simon Ndirangu,
12 Caroline Ndolo, Martin Nduati, Julius Ndulu, Edwin Ndumbi,
13 Peter Ndungu, Ephraim Ndunu, Joyce Ng'ang'a.
14 Loice Nganga, John Ngaragari, Peter Ngugi, Jacinta
15 Njau, Siomon Njiima, Abel Njiru, Agatha Njoki, Catherine
16 Njoroge, Francis Njoroge, Grace Njoroge, William Njoroge,
17 Francis Njuguna, Godfrey Njuguna, Patrick Njuguna.
18 Francis Njuige, Michael Nyademba, Vincent Nyoike,
19 Janet Nzioka, Johnson Nzioka, Magdaline Nzoka, Joseph Nzwili,
20 Aineah Obonyo, Frederick Ochieng, Francis Ochito, Lawrence
21 Ochola, Ann O'Connor, Duncan Odhiambo, John Odhiambo.
22 Patricia Ogol, Maurice Ogola, Michael Okieyo, Simon
23 Olang, Dominic Olango, Sherry Olds, Lepeine Olotono, Hanson
24 Omar, Margaret Ombunya, Edwin Omori, Enoch Omweno, Lucy Onono,
25 Evans Onsongo, Eric Onyango.
6695
1 John Onyango, Caroline Opati, Sylvia Oriedo, Godfrey
2 Orono, Elizabeth Orwa, Joseph Osamba, Elias Osir, Julius
3 Otieno, Mathews Otieno, Rogers Otolo, Elijah Owino, Josiah
4 Iowuor, Margaret Rading.
5 Peter Evans Rungu, Ruth Rungu, Timothy Sande, Uttamal
6 Shah, Fahat Sheikh, Hassan Soka, Shadrack Thitu, Samuel Thuo,
7 Maedra Vrontamis, Gloria Wachia, Shadrack Wagaiyu, James
8 Wainaina, Adams Wami, Anne Wambugu.
9 John Wamutwe, Margaret Wangethi, Gladys Wangui, Mercy
10 Wanjiku, John Wanyoike, Margaret Wasike, Sabina Wateri, Benson
11 Wathigo, Margaret Waweru, Ann Zakayo.
12 Everyone one of these people died as an innocent, and
13 that is conceded. By an innocent I mean that they died for
14 reasons totally unrelated to who they were as human beings.
15 They didn't die because they were bad. They didn't die
16 because they were good. They didn't die because of their
17 political affiliation. They died because they were Americans
18 or they worked for Americans, or they happened to be standing
19 close to Americans when this attack took place.
20 Do not forget this because this is part of the sorrow
21 and this is part of the circumstance and the question is what
22 must be done. You're also going to hear me use words like
23 terrorism and genocide. They'll be defined.
24 There will be no evidence presented in this case that
25 anyone who lost a loved one or a father or a mother or a child
6696
1 or a sister is not suffering. I will not offer any
2 information, nor does any exist that will lessen that degree
3 of suffering.
4 People who have suffered can tell you that sometimes
5 you think you're doing fine, and then you come to a holiday,
6 or a birthday or an outing, or you hear a certain song, and
7 you start to hurt all over again, and that suffering
8 continues, even though the loss was three years ago, and no
9 one is going to tell you that there is anything you can do to
10 make that loss go away because it's going to have to run its
11 course.
12 I can tell you something else you're not going to
13 hear. You're not going to hear the usual stuff in a death
14 case about the defendant's life other what you've heard. I
15 can tell that you no family members are going to come from
16 Saudi Arabia and testify as to what he was like when he was
17 growing up. No family members are going to tell you about his
18 schooling or his nurturing. I mean you've heard that he was
19 raised and he learned the fundamental Islamic issues when he
20 was young. You heard that from the statement he made to Agent
21 Gaudin. I believe he talked about his influences. But other
22 than that, you're not going to hear anything.
23 You know that he was present when Usama Bin Laden
24 made some of his statements according to the indictment. And
25 Amnesty International provided a brochure of the Saudi
6697
1 government and Saudi life. Perhaps we ought to offer that and
2 perhaps explain why the family is not here.
3 We're also going to introduce some correspondence
4 from my co-counsel just trying to get authorization for
5 letters to go back and forth between my client and jail and
6 his family in Saudi Arabia.
7 You are not going to hear about the defendant's
8 childhood where he was subjected to abuse or did anybody beat
9 him or that his parents were uncaring or unloving. No, none
10 of that.
11 No one is going to come in here and say he's not
12 responsible for what he did, or that he had a choice to make
13 and his actions were a consequence of that choice. No. The
14 reason surrounding this case are very, very complex and
15 literally grow back hundreds of years. The atmosphere over in
16 that part of the world is amazing.
17 I can tell that you in the past few months we, and I
18 say "we" because Ms. Davis from my office in Virginia is
19 working, soon to be Mrs. Robert Harmon; Mrs. Brown from my
20 office in Virginia, and Mrs. Donna Moralez, had been reading,
21 we have spent hours talking to professors, talking to clerics,
22 talking to historians, talking to economists, trying to figure
23 out what is going on over there so we can explain it to you,
24 so that you can understand all the circumstances of this
25 offense.
6698
1 I don't want to bore you, but I can tell you that to
2 avoid weeks of academic testimony and I mean literally weeks
3 if we were to put those people on the stand, even those who
4 would come, because no one wants to be associated with
5 terrorists, to put those people on the stand it would be like
6 you're going back to school. You'd have to sit there and take
7 notes like you're having an exam.
8 So what we've decided to do so that you can
9 understand this there will be some live testimony about the
10 Middle East and Islam and Usama Bin Laden and believe me those
11 are going to show them here in court will save you many, many
12 hours of testimony if you want to understand the circumstances
13 surrounding why this happened. And now of course if you were
14 to put the witnesses on the stand you could listen to them and
15 decide whether or not you wish to believe them, and you could
16 decide what part of the testimony you wanted to keep and what
17 part you wanted to disregard.
18 Well, the same thing with the tape. You can listen
19 to the tape and if you believe it's accurate you can keep that
20 part, and if you believe it's inaccurate, you can leave it
21 out. We're not offering the tapes to lessen the importance of
22 what must be taught. We're actually trying to increase the
23 likelihood that you can understand all the circumstances.
24 I'm also going to ask you to read some information.
25 Remember Mr. Al Fadl said you can't understand al Qaeda unless
6699
1 you really understand Islam. You have to understand what
2 their motivation is, and when I crossed and I pulled out my
3 little pinch yourself Islam book I tell you this is not the
4 Koran, and it's not the definitive statement on Islam, but it
5 is a resource type and during the deliberations I believe if
6 you just read a few pages you might understand the perspective
7 of these people who hate America so.
8 Now I can tell you some of these things in here.
9 There is a section here that I've tabbed about what jihad is
10 and what it can be used for. And I can tell you this is in
11 disagreement with many of the things you've heard, many
12 assertions that have been made. It can only be used in the
13 sense of Allah, not for armed conquest. Use it for the
14 freedom of, only when led by spiritual leaders. You can hear
15 it and I'm thinking why would I want to give them things in
16 there with which I will disagree, but then I'm reminded that
17 my Bible with its peace has also been used in the past to
18 justify colonialism, and slavery, and the crusades and the
19 inquisition. So this will be offered as a resource so you can
20 use it as you wish.
21 I'm also telling you and I've learned this in
22 understanding this philosophy I have been told by some really
23 smart professors that you really can't understand Islam unless
24 you read the Koran, which I've not read, and you can't really
25 understand the Koran unless you can read it in Arabic. Yes,
6700
1 because you heard Bin Laden on the interview talking. This is
2 The World's Religious by Huston Smith. You don't have to read
3 this. I did. And the quote is: "The language in which it
4 was proclaimed, Arabic, provides an initial clue. No people
5 in the world, writes Philip Hitti, are so moved by the word,
6 spoken or written as the Arabs. Hardly any language seems
7 capable of exercising over the minds of its users such
8 irresistible influence as Arabic. Crowds in Cairo, Damascus,
9 or Baghdad can be stirred to the highest emotional pitch by
10 statements that, when translated, seem banal. The rhythm,
11 melodic cadence, the rhyme produce a powerful hypnotic effect.
12 Thus the power of the Koranic revelation lies not only in the
13 literal meaning of its words but also in the language in which
14 this meaning incorporated, including its sound.
15 I want you to think about that when you think about
16 Bin Laden up here on these tapes talking, the things you've
17 seen already, how he sat there, how he communicated. I will
18 tell you that's the first time I've ever heard him speak. I
19 expected some great orator, somebody like attorney Rico,
20 somebody who speaks forcefully, a Louis Farakhan, a Malcolm X,
21 a Martin Luther King, and I didn't. I heard somebody who was
22 very calmly speaking. And when you first listen, listen to
23 the English translation, but then listen to what he is saying
24 in his tone of voi8ce, and you could see how some young people
25 might be stirred by that.
6701
1 I want you to remember what Mr. Bin Laden said.
2 You've heard inumerable fatwas. You heard him say that he is
3 an enemy of the United States. You've heard him say he's
4 mentioned why, you've heard him, and some of you will remember
5 this and some of you won't, Q-A-N-A he mentioned Satila, he
6 mentioned Palestine, he mentioned the death of the children in
7 Iraq, he mentioned Israel, the occupation of the land of the
8 two shrines, all of these are political and religious issues
9 as to why this animosity exists.
10 I know what Qana is. I know what Satila is. They
11 are very complicated issues. So we're going to zero in on
12 then Iraq, and we're going to talk about that because it is
13 important, because that is one of the motivations.
14 Briefly I will tell you this. That since 1991
15 because, and you'd be amazed the number of Arab people who
16 know this, because of the sanctions and the bombings between
17 one million and one and a half million Iraqis have died
18 directly as a consequence of the sanction. In fact, they die
19 at the rate of 250 a day, most of them under the age of 5
20 because we destroyed their water purification system and we've
21 not allowed them to rebuild it and other things.
22 As to the aggravators, during this case there is
23 going to be very little factual disagreement. When the United
24 States says as their statutory aggravator number that the
25 deaths and injuries resulting in death occurred during the
6702
1 commission or attempted commission of an offense under Title
2 18 United States Code and then there are other offenses like
3 two offenses that occurred at the same time, by your verdict
4 you found that to be true. Now, perhaps to lessen the weight
5 of that aggravator we plan to offer evidence that we have done
6 that to other countries as well, and that's why they hate us,
7 and they do.
8 Where it says defendant in the commission of his
9 offense knowingly created a grave risk of death to one or more
10 persons, let me tell you we issued subpoenas to the military
11 trying to find out how bombs what kind of bombings they used
12 and they said they can't tell us, so we don't know, we don't
13 keep track of them.
14 And we will hold up some pictures.
15 MR. FITZGERALD: Objection, your Honor. None of this
16 has been shown. I think it's improper.
17 MR. BAUGH: I'll withdraw.
18 I'll show you a picture of a six year old girl that
19 died January 23, 1999 when a two thousand pound American bomb
20 antiaircraft site was one mile on target,. because I can pull
21 out the Associated Press for that day and the military
22 acknowledge the bomb missed by a mile.
23 We create grave risk to others also and that has to
24 stop. On the mitigators I don't believe there is going to
25 be -- oh, on the continuing and serious threat the future
6703
1 dangerousness of Mr. Al-'Owhali the only evidence we plan to
2 introduce is the law and the law contained in the Code of
3 Federal Regulations is that if the Bureau of Prisons, and he's
4 either going to die or he's going to go to prison for the rest
5 of his life, if the Bureau of Prisons the day you sentence him
6 think that he poses a threat to others, they have the power to
7 put him in a room by himself and leave him there for 120 days.
8 However, at the end of 120 days if the Bureau of
9 Prisons or the Attorney General of United States or the head
10 of any federal law enforcement agency, or the head of any
11 government intelligence agency feels that he poses a threat
12 they can write a letter and they can keep him there 120 days
13 and at the end of 120 days they can do it again. That's
14 right. That's the law and no one is going to say that's not
15 the law. And that's true.
16 The victim impact, I'll tell you why, we'll come back
17 to that. They say that Mr. Al-'Owhali in his attack wasn't
18 concerned about the people who died and you know he went away
19 and had the exact opposite effect. You know that testimony
20 was that they suggested the bomb the place closer so they can
21 kill more people, but I will tell you that when the United
22 States flew to Panama to arrest Mr. Noriega we killed between
23 two and four thousand Panamanians. Imagine what would happen
24 in your city if the police went to arrest somebody in Brooklyn
25 and killed four thousand people doing it?
6704
1 So you're going to here all the aggravators and all
2 the mitigators. I want you to understand this information so
3 you can figure out what weight to be given to the case, and
4 where do we want to go what, do I want you to learn.
5 I trust at the conclusion of this penalty phase you
6 will find the killings never fixes anything. It just makes
7 more people more angry and this gives more reason for killing.
8 Mr. Bin Laden says that we should, his people should kill
9 people because our people killed their people. The government
10 says you people can kill him because he killed us.
11 Everybody's got a reason for killing.
12 I hope you will find at the conclusion of this
13 penalty phase too many people have died, too many mothers, not
14 just American mothers, not just Tanzanian mothers, not just
15 Iraqui mothers, too many people have suffered and are
16 suffering. And I will tell you this, if in the discharge of
17 your duties you find beyond a reasonable doubt that killing
18 him will stop then, that's the appropriate sentence and I will
19 concede that point.
20 That young man over there if he's lucky will spend
21 the rest of his life and that's going to be forty to fifty
22 years in prison in a country where people think an Arab first
23 word in the common liar where people think of Muslims the
24 first word that comes to mind is fundamentalists or
25 extremists.
6705
1 Read these books, look at this information because
2 you're going to have to sign an oath when you finished that
3 you would have given the same verdict regardless of his race,
4 regardless of his ethnicity. I will submit to you that you
5 will have enough information to rely on your faith, your faith
6 that doing what is right, even if it's hard, even if it
7 resists or it goes against your emotion, is the appropriate
8 thing to do.
9 Thank you.
10 THE COURT: Thank you. We'll take our mid-morning
11 recess.
12 (Recess)
13 (Continued on next page)
14
15
16
17
18
19
20
21
22
23
24
25
6706
1 THE COURT: Mr. Fitzgerald?
2 MR. FITZGERALD: Yes. I have a number of objections
3 from things that transpired at Mr. Baugh's opening. I feel
4 very strongly about them but I also don't want to waste the
5 jurors' time. Perhaps we can proceed and put them on the
6 record after the jurors' lunch.
7 THE COURT: Mr. Baugh, did you say that you were
8 going to give the jurors copies of the book?
9 MR. BAUGH: Yes, sir, 12 copies.
10 THE COURT: How many pages are in the book?
11 MR. BAUGH: Total is, reading from Teach Yourself
12 Islam, the total number of pages of the book is 211. However,
13 the pages that we will probably argue from are pages 44
14 through 87, which are the Pillars of Islam.
15 THE COURT: Do you anticipate the jury reading the
16 book in its entirety?
17 MR. BAUGH: No, your Honor. I offer it to them to
18 use -- I am sorry. I offer it to them as a resource. It has
19 an excellent index in the back. If there are issues about
20 Islam that they feel they need to look up -- because remember,
21 they can also insert mitigators that we have not drafted on
22 the mitigation side.
23 THE COURT: Obviously the rules of evidence that
24 apply to what will be permissible.
25 MR. BAUGH: Obviously.
6707
1 THE COURT: My concern is that this already very
2 burdened jury not be told that they have to read a 211-page
3 book, which may, depending on the rate that one reads, prolong
4 deliberations unnecessarily and inappropriately. But you are
5 going to flag for them particular portions?
6 MR. BAUGH: Yes, your Honor.
7 THE COURT: Very well. Let's bring the jury back
8 then.
9 MR. FITZGERALD: For the record, your Honor, although
10 the jury was advised that the government would be getting a
11 copy we have never received a copy, as I understand it. We
12 did not receive discovery of the many items offered by Mr.
13 Baugh including what was displayed to the jury. I think it is
14 a blatant violation of discovery rules. There are other
15 things that Mr. Baugh said --
16 THE COURT: If it happens again, ask for a sidebar
17 and ask in the sidebar that they be excluded.
18 MR. FITZGERALD: I am asking that all of them be
19 excluded now from the trial. We haven't been provided them.
20 There was reference to an Amnesty International report that we
21 were never provided.
22 Mr. Baugh's response to Rule 16 is to stand up and
23 tell us in opening and display photographs. It is blatantly
24 improper. Obviously the government -- I think it is
25 outrageous, for him to tell the jury and testify to them about
6708
1 conversations that he had with the Defense Department. I
2 think Mr. Baugh needs to understand that the rules apply here
3 and that he has to follow them.
4 MR. BAUGH: Your Honor, first, we were given 3500
5 material last night. We are dependent on Kinko's to run off
6 the materials. We had extra copies made. Concerning the
7 military, you know the changes we have gone through trying to
8 get through to the military. Last night I was able to find
9 some of the information that the military says they were not
10 able to give us. Now we find it last night on the Internet.
11 THE COURT: You know, that is a non sequitur. The
12 fact that it is available on the Internet doesn't mean that it
13 is available from the military. There is a great deal of
14 difference. On the Internet furnished by the military?
15 I think Mr. Fitzgerald's point about not wasting jury
16 time is appropriate and we will take this all up at 4:30.
17 MR. BAUGH: All right.
18 THE COURT: Who is the government's first witness?
19 MR. GARCIA: Susan Bartley, Judge.
20 MR. FITZGERALD: Mr. Brady has her available. Do you
21 want her in before the jury?
22 MR. COHN: Your Honor, just as a technical matter,
23 perhaps because some of these witnesses are going to be
24 emotional, rather than send for water and tissues they ought
25 to be readily available during their testimony, and in place.
6709
1 (Jury present)
2 COURTROOM ARTIST: Is there any problem with any
3 witnesses, in terms of who I draw?
4 MR. FITZGERALD: Not with regard to Ms. Bartley, and
5 we will check witness by witness. Thank you for asking.
6 (Jury present)
7 THE COURT: The government may call its first
8 witness.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6710
1 MR. GARCIA: Your Honor, the government calls Susan
2 Bartley.
3 SUSAN BARTLEY,
4 called as a witness by the government,
5 having been duly sworn, testified as follows:
6 MR. GARCIA: May I proceed, Judge?
7 THE COURT: Yes.
8 DIRECT EXAMINATION
9 BY MR. GARCIA:
10 Q Good morning, Miss Bartley.
11 A Good morning.
12 Q In August of 1998, were you living in Nairobi?
13 A Yes, I was.
14 Q Was your husband Julian and your son Jay living with you
15 at that time?
16 A Yes, they were.
17 Q What was your husband Julian's position with the embassy?
18 A He was the consul general.
19 Q And your son Jay, was he working in Nairobi at that time?
20 A Yes, he was.
21 Q What was he doing?
22 A He was a summer intern.
23 Q Ms. Bartley, did you lose both your husband and Julian and
24 your son Jay in the August 7, 1998 bombing?
25 A Yes, I did.
6711
1 Q Miss Bartley, have you provided us with some photographs
2 of your family?
3 A Yes, I have.
4 MR. GARCIA: Your Honor, may I approach?
5 THE COURT: Yes.
6 Q I am showing the witness what has been marked Government's
7 Exhibits 2018A through G.
8 Are those the photographs you provided, Miss Bartley?
9 A Yes, they are.
10 MR. GARCIA: Your Honor, at this time I would offer
11 Government's Exhibits 2018A through G.
12 MR. BAUGH: No objection.
13 THE COURT: Received.
14 (Government Exhibits 2018A through G received in
15 evidence)
16 MR. GARCIA: If we could have displayed for everyone
17 Government's Exhibit 2018A.
18 Q Is that a photograph of your family, Ms. Bartley?
19 A Yes, it is.
20 Q Could you show us who everyone is in the photo.
21 JUROR: It is not on our screens.
22 (Pause)
23 MR. FITZGERALD: Your Honor, the machine would
24 indicate they are on. Something must have happened and we
25 will check it at the break. Perhaps we can substitute for the
6712
1 moment.
2 THE COURT: Perhaps somebody could lift this from
3 there -- not me. It's heavy.
4 Q I apologize, Miss Bartley. If you could explain to us who
5 the people are in that photograph, 2018A.
6 A Jay is sitting with the navy blue T-shirt on. His sister
7 Edith is across the table in the dark navy blue. My husband
8 is sitting at the head of the table. You can see the top of
9 my head in back of Jay.
10 Q Ms. Bartley, did you prepare a statement about the impact
11 of the loss of that your son and husband has had on your
12 family?
13 A Yes, I did.
14 Q For the record that is marked Government's Exhibit
15 35118-C. Ms. Bartley, if you would read us that statement.
16 A On August 7, 1998, is a day that I will never forget. I
17 lost my husband and my son that tragic day. That was half of
18 my family.
19 I wish all of you had had an opportunity to know them
20 personally, but since that is not possible, I would like to
21 take a few minutes to tell you about them.
22 Julian was an only child, born in Jacksonville,
23 Florida. He spent his formative years in Queens, New York.
24 We met while we were attending Tennessee State University.
25 After completing his undergraduate studies, Julian entered the
6713
1 Peace Corps. We corresponded weekly through letters and
2 cards, which I still possess. We knew each other six years
3 before marrying, and we were married for almost 28 years,
4 which is more than half of my life. And we were blessed with
5 one daughter and one son.
6 Our experiences with living and traveling in foreign
7 countries can be measured by the friends that we have made,
8 the cross-cultural exchanges that we made, and our commitment
9 to being the best representatives of the United States that we
10 could be.
11 To lose a spouse in the manner that I did has been
12 excruciatingly painful. There was no time to prepare, and in
13 the aftermath what remains is a lingering unsettling feeling
14 that is compounded with deep sadness and anger. This pain is
15 with me every day. Oftentimes it is unthinkable. There is no
16 written formula for me to use to begin a life without my
17 husband. When you know someone, when you have known someone
18 as long as I knew my husband and then they are no longer
19 there, what is left is raw emptiness. A part of me is
20 missing. The love we had for each other was unconditional and
21 the life we shared together was solid.
22 About a year ago a friend asked, what do you miss the
23 most about them? I found the question to be odd, because I
24 miss everything about them. With my husband, some of my
25 fondest memories that come to mind would include his snoring
6714
1 while sleeping. I miss hearing the sound of his snoring each
2 night and the teasing about who snored the loudest. I miss
3 his laughter. Julian had a hardy laugh. I miss hearing his
4 latest joke. He wanted people around him to feel comfortable
5 and at ease, so he would often warm the setting by telling a
6 joke. I miss his good-bye kiss in the morning and the hello
7 kiss when he returned each evening. I miss the hugs. Just
8 because. And the winks and special looks that we passed back
9 and forth to each other. And the phone calls during the day.
10 Julian was sometimes spontaneous. It was not unusual for us
11 to have dinner guests with very little advance notice. It was
12 not unusual for him to awake at 5 a.m. and suddenly decide for
13 us to take a trip to the Nairobi game park. It was not out of
14 the ordinary for Julian to stop at our neighbor's house across
15 the street for a drink and dinner, and then come home and eat
16 dinner.
17 Whenever either of us read something we thought would
18 be of interest to the other, we would make a point to share it
19 with one another. I miss those quiet times when we would go
20 for a walk and sit in the evenings, Julian with one of his
21 favorite cigars and a cognac and me with a glass of wine, just
22 talking and reflecting upon the day.
23 Beyond the fact that Julian was successful
24 professionally, his devotion to family was paramount. While
25 Julian walked with dignitaries and heads of state, throughout
6715
1 his brief tenure on this earth he held fast to the belief that
2 regardless of your economic status, job title or position,
3 everyone should be treated with respect and dignity.
4 As the first African American consul general to
5 Nairobi, Julian brought a new sensitivity to consular work
6 that had been missing. He loved his work and always commented
7 on how some people spend a lifetime in search of the perfect
8 position while going through the motions of unsatisfying jobs.
9 Be assured that my husband loved his work and knew that his
10 was a special calling. He always said there was not a day
11 that he didn't enjoy getting up and going to work.
12 He left us with a challenge, to always look for the
13 good in everyone. There is where our true blessings lie.
14 My son Jay was 20 years old. He was a student at the
15 United States International University in Nairobi, Kenya. I
16 will never understand the reason for Jay's death. As a
17 parent -- as parents Julian and I knew how important building
18 self-esteem in our children was. We constantly encouraged Jay
19 to participate in extracurricular activities.
20 Jay was an adventurous young man. He learned to
21 horseback ride at an early age in very well. As a teenager he
22 taught horseback riding at the YMCA.
23 Jay's interests were varied and his intellect
24 reflected signs of a person who was mature beyond his age.
25 During his first year at the United States International
6716
1 University, Jay coached junior high basketball at his former
2 high school. He earned the respect of other coaches. On game
3 days he always wore a white shirt and tie, while the coaches
4 from the opposing teams wore T-shirts and shorts. His team
5 finished the season as number one in their division.
6 Jay blossomed at the university. Any parent would
7 have been proud. Jay had an uncanny sense of humor. He was a
8 good friend and he had good friends. Jay had a positive,
9 determined mindset, cheerful disposition, and he was a
10 terrific young man. He was respectful and had a deep respect
11 for his peers, and an abiding belief in the goodness of
12 people.
13 There isn't a day that goes by that I don't think
14 about my losses and the losses of others. Our lives have been
15 catalogued in photo albums. Julian loved to take photographs.
16 He used to photograph each of our moves to the next country.
17 He used to photograph everything, from our parties to holidays
18 and trips. Our entire lives in the foreign service, including
19 when our children were infants, are documented. Last week our
20 daughter graduated from law school. Although it was a joyous
21 occasion, it was also sad. Julian was not there to photograph
22 and document the moment. It is in moments such as
23 graduations, holidays and birthdays when I am reminded not
24 only of my loss but that of my daughter. More importantly, I
25 am reminded of what those who were killed were robbed of. My
6717
1 son will never have the opportunity to complete college,
2 pursue a career or raise a family of his own. As a mother, I
3 was looking forward to witnessing what was in store for Jay's
4 future. Now he has no future. My husband will never have the
5 opportunity to retire, walk his daughter down the aisle on her
6 wedding day or enjoy the laughter of his grandchildren.
7 People's lives have been changed forever, but what makes it
8 possible for me to continue to live each day to the fullest,
9 to do what I have to do, is knowing that Julian and Jay left
10 rich legacies of commitment, dedication and service. Our
11 daughter is left with a challenge to do more than just
12 succeed. She is left with the challenge to carry on and excel
13 in the spirit of both her father and her brother.
14 Finally, I would like to share with you an African
15 proverb which I believe represents a portion of the essence
16 that is Julian and Jay: I am because you are. Therefore, you
17 are because of me.
18 Q Thank you, Miss Bartley. In addition, before coming to
19 court, did you also review a videotape that was made of
20 statements of other families of victims, American victims who
21 were killed at the American Embassy?
22 A Yes, I did.
23 MR. GARCIA: For the record, that is Government's
24 Exhibit 2001, and, your Honor, with the court's permission and
25 no objection, the government would like to play it at this
6718
1 time.
2 THE COURT: Yes.
3 (Videotape played)
4 MR. GARCIA: Your Honor, I have nothing further.
5 MR. BAUGH: No questions of this lady.
6 THE COURT: Thank you. You may step down.
7 (Witness excused)
8 MR. FITZGERALD: The government calls Teresia
9 Karanja.
10 THE COURT: You were sworn earlier in these
11 proceedings, were you not?
12 THE INTERPRETER: Yes, I was.
13 TERESIA KARANJA,
14 called as a witness by the government,
15 having been duly sworn, testified as follows:
16 (Witness testifies in English)
17 DIRECT EXAMINATION
18 BY MR. FITZGERALD:
19 Q Good morning, Miss Karanja. Good afternoon. If you wish,
20 you can speak in English. I will try to talk slowly. Slow me
21 down if I talk too fast.
22 If you could just tell the jury what you did for a
23 living in the Cooperative Bank Building.
24 A My name is Teresia Karanja. The last name is
25 K-A-R-A-N-J-A.
6719
1 Before the bomb I was working with Teachers Service
2 Commission in Kenya. On that fateful August 7, 1989, I was in
3 the office in the Cooperative Building just next to the
4 American Embassy. I was in the office, busy working. It was
5 around exactly 10:30 when I heard a blast from outside. I was
6 just near the window. I just looked through the window. I
7 didn't know what it was because we are not used with those
8 blasts. I thought it was a tire burst or a gunshot. So I
9 just looked through the window. I saw people coming to the
10 building and others going away from the building. I just saw
11 the coworkers. I said I don't know what is happening now, can
12 we just go down and check what is going on. So everybody
13 started walking towards the door. I hesitated because I
14 didn't know what it was, and now everybody was walking down.
15 I had the thought when we reach down, what I am going to tell
16 them. So I hesitated, and the second blast went up, which was
17 the loudest, and I just saw glasses landing, a lot of dust,
18 and I was just near the door, and something hit me at the
19 back. Something hurt. I didn't know what it was. There was
20 a lot of dust. I couldn't see properly. I just walked steps
21 and then I fell down. I tried to stand and I couldn't. I had
22 a severe pain at the back, so what I could do is just to lie
23 down because I was helpless.
24 Within no time I saw people landing. Some were
25 seriously hurt. And there was another lady who just came
6720
1 where I was. She had a broken leg and she was unable to walk.
2 We just lied there with no hope of life because everybody was
3 asking after his or her life. There was no one to help you.
4 So all what we could do was just to pray our last prayer.
5 After four and a half hours, that's when we saw some
6 ambulance came in. They had no rescue equipments. They had
7 only a sheet. They couldn't lift me because it was -- I had a
8 lot of pain. So what they did, they lifted the other lady.
9 They told me to stay there, they will try all their best to
10 come back for me. So immediately later another group came in
11 with a straight chair. They took me out of the building.
12 They took me in an ambulance where I also met another man, who
13 had a very deep cut at her neck. So they rescued all to take
14 us to the hospital in Nairobi.
15 We met the hospital team, and they first took the man
16 out and I heard them saying that the man is already dead, and
17 they took me out, and I heard a sister saying that this one is
18 already paralyzed but I didn't take much consideration of that
19 because I had severe pains. And I had deep cuts in my legs.
20 They took me to emergency room where they tried to control my
21 temperature because it was very low. They had a hard time but
22 by the grace of God it was stable. And then I was taken to
23 theater where they stitched the legs. They didn't have time
24 to take much consideration on my back because there were so
25 many people who needed emergency attention.
6721
1 So the doctor ordered them to take me to the ward
2 where he requested for surgery. The doctor found that I have
3 a spinal injury, T12 and L1, and because the T12 was
4 completely broken, he said that he must do a surgery. He did
5 a surgery after one week. I can't say it was successful,
6 though I didn't regain my consciousness after surgery. They
7 had to take me to ICU in life-supporting machine, where I
8 stayed for three days. After three days they took me back to
9 ward.
10 I stayed in hospital for four months Nairobi, and
11 there was nothing better coming. So the doctor decided we
12 seek for medication outside the country, and since we didn't
13 have enough, the cheapest country to get medication is South
14 Africa. I went in South Africa in December 7. I stayed there
15 up to April. I got medication, I got rehabilitation.
16 Then I went back to my own country, where I had to
17 start from zero because we had only a small rented house. We
18 couldn't accommodate the wheelchair. We didn't have a car.
19 So everything was from zero. We started from zero. But when
20 we got grace, we did what we could.
21 After 10 months, because my husband had a hard time
22 to keep me and the children, I decided to go back to work. I
23 went back to work, but till now I can't be able to work for
24 long hours. I can't go a full week. So it has affected our
25 lives financially, and even now our kids. Up to today we are
6722
1 struggling to live day and day life. I have to reduce my
2 hours of working because of health. My husband has to reduce
3 working hours because he has to take care of me. It has
4 affected our live up to today. But thank Lord I am alive. I
5 thank you.
6 MR. FITZGERALD: Nothing further.
7 MR. BAUGH: No questions.
8 THE COURT: Thank you very much.
9 (Witness excused)
10 MR. GARCIA: The government calls Mary Khahenzi.
11 MARY KHAHENZI,
12 called as a witness by the government,
13 having been duly sworn, testified as follows:
14 MR. GARCIA: May I proceed, Judge?
15 THE COURT: Yes.
16 DIRECT EXAMINATION
17 BY MR. GARCIA:
18 Q Miss Khahenzi, were you born in Kenya?
19 A Yes.
20 Q Was your husband killed in the August 7, 1998 bomb?
21 A Yes.
22 Q What was his name?
23 A His names were Thomas Mudanyi Khahenzi.
24 Q When did you get married to Thomas?
25 A I was married by custom in 1989 and by judge in 1995.
6723
1 Q Did you and Thomas have children?
2 A Yes.
3 Q How many?
4 A We had five children of my own and he had six children
5 from his previous marriage.
6 Q Did you have a child with Thomas?
7 A Yes.
8 Q How many?
9 A One.
10 Q Did you provide a photo of your husband?
11 A Yes, I did.
12 MR. GARCIA: The government would offer at this time
13 Government's Exhibit 2055.
14 THE COURT: Yes, received.
15 (Government Exhibit 2055 received in evidence)
16 Q Is that the photograph of your husband?
17 A Yes.
18 Q Where did your husband work in Kenya?
19 A My husband worked at -- he was the general manager of a
20 restaurant in town, 800 kilometers from.
21 Q From town?
22 A Yes.
23 Q Where were you working?
24 A I was working Cooperative House next to the U.S. Embassy.
25 Q Could you just describe your husband for us.
6724
1 A Thomas was a very loving, kind husband. He was the best
2 thing that happened to me. He gave me a lot of happiness. He
3 was very good with children. We had 11 children between us,
4 and there were never problems, because he knew how to handle
5 each of them. He was the sole breadwinner, and he toiled very
6 much for us, to see that we were very comfortable. He kept in
7 touch with me the best part of the day, and any time he had
8 time off he would come to my office just to be with me, and to
9 help me around the office.
10 Q Do you recall seeing Thomas the morning of August 7?
11 A Yes.
12 Q Do you recall what he was wearing that morning?
13 A Pardon?
14 Q Do you recall what he was wearing that morning?
15 A Yes.
16 Q What was that?
17 A We woke up in the morning and my husband made a rather
18 unusual request. There is a T-shirt I bought for him as a
19 present, one of Moez memorable occasions. It was a white
20 T-shirt and it had a message across, "I'm a Catholic, and
21 Jesus loves me." He requested that I give that shirt to him
22 to wear that morning. The T-shirt had been washed the
23 previous night. It was not dry, and he insisted he wanted to
24 wear it. I did not argue with him because I never wanted to
25 enter into arguments. I gave him the T-shirt and I left him
6725
1 dressing up. I went to church, as was our practice. I went
2 to church for the morning service and I went to my place of
3 work.
4 Q Could you tell us what happened when the bomb went off
5 that day.
6 A When the bomb went off, I was in my office reading the
7 morning daily. My son who was with me in the building had
8 just gone off to driving school. When I heard the first blast
9 I got out of the building, out of my office, and as I opened
10 the door to leave the office I heard people coming -- my
11 office was the ninth floor, and they were praying, Hail Mary
12 full of grace, the Lord be with you. And I joined them in
13 prayer. I did not know what they were praying about. I just
14 thought that a tire burst, and I was waiting out of curiosity.
15 Before I went far I heard the second blast. There was
16 darkness, fumes, and falling objects from upper floors. I
17 remember what I said. I said God, whatever it is, cover us
18 with the blood of Jesus, and for those who will not be able to
19 make it, forgive them their sins and give them eternal rest.
20 Through the darkness I made my way out of the
21 building. I knew which way to go. As I got out of the
22 building I saw people running from the direction of the
23 embassy in the opposite way. They were bleeding and crying.
24 Nobody was able to explain what had happened. I went down on
25 my knees and prayed again. I thanked God for saving my life.
6726
1 I did not know that I was praying for my husband. I did not
2 know that moment in time that he was dead.
3 Q How did you learn that your husband had died that day?
4 A It took me more than four days to know that my husband was
5 dead because we expected him to be there at that moment in
6 time, because he had gone to his place of duty and by the time
7 I was leaving the scene he had not shown up. So I went home,
8 hoping to hear from him or find him at home, or even get a
9 telephone call. Thomas was not at home. That was not like
10 him. He always checked on us. He always got in touch with
11 anybody, a member of the family, to let them know that all was
12 well. We sat up the whole night, expecting him to come home,
13 and he did not come home.
14 That was the beginning of the search. We went to all
15 hospitals. We did the city of Nairobi. We went to the city
16 mortuary and the mortuaries of the neighborhood, four, five
17 times a day, finding bodies and checking and checking, for
18 five days, with no success. My husband's body was found among
19 the last people to be retrieved in front of the Ufundi
20 building, which had collapsed. I got the message that the
21 body has been found when I was in church, and I went down to
22 the mortuary, not knowing what to expect. I found him laying
23 on the mortuary floor. The T-shirt he had insisted on wearing
24 was my means of identifying him. Yes, he was wearing, "I am a
25 Catholic and Jesus loves me." He was very broken, but we
6727
1 identified him by the T-shirt he was wearing.
2 MR. GARCIA: Your Honor, I have nothing further.
3 MR. BAUGH: No questions of this witness, your Honor.
4 THE COURT: Thank you. You may step down.
5 (Witness excused)
6 MR. FITZGERALD: The government now calls Amos
7 Murithi Karimi.
8 AMOS MURITHI KARIMI,
9 called as a witness by the government,
10 having been duly sworn, testified as follows:
11 DIRECT EXAMINATION
12 BY MR. FITZGERALD:
13 Q Sir, did you lose your wife in the bombing of August 7,
14 1998?
15 A Yes, I did.
16 Q Can you tell the jury her name.
17 A Mary Nyaguthi Ndirangu.
18 Q Is that spelled Mary and N-Y-A-G-U-T-H-I?
19 A Mary is M-A-R-Y. Ndirangu is N-D-I-R-A-N-G-U.
20 Q Can you tell us how long you were married to Mary as of
21 August 7, 1998.
22 A I was married to her for about 10 years.
23 Q Did you have any children?
24 A Yes. I have two boys.
25 Q Can you tell the jury how old the boys were in 1998.
6728
1 A The first one was five years old. The second one was two
2 years old.
3 Q What did your wife Mary do for work?
4 A She was working at Cooperative, Ufundi House.
5 Q Was she a secretary, Mr. Karimi?
6 A Yes, she was.
7 MR. FITZGERALD: Your Honor, I would offer at this
8 time a photograph, Government's Exhibit 2132.
9 THE COURT: Yes, received.
10 (Government Exhibit 2132 received in evidence)
11 Q Mr. Karimi, I am going to display a photograph to your
12 left on the TV screen. Is your wife one of the ladies
13 depicted in that photograph?
14 A Yes. From the left she is second, wearing spotted red
15 skirt and red shoes.
16 Q Can you tell us where and when that photograph was taken?
17 A This photograph was taken near Silver Spoons Hotel.
18 Q In what year?
19 A Yes.
20 Q Do you know what year that was taken?
21 A Yes, it was taken around 1997.
22 Q Can you tell us who the other ladies in the photograph
23 are?
24 A These were her working colleagues.
25 Q Do you know how many of those five women survived the
6729
1 bombing?
2 A Is only the one to the very left.
3 Q And the other four were killed?
4 A Yes, they were killed.
5 Q Can you tell us what happened on August 7, 1998, what you
6 and your wife did that day.
7 A I remember that Friday, it was about some five days since
8 I had arrived from South Africa. I had come with a car which
9 I had deposited at Lombaga border post. It is border post
10 between Kenya and Tanzania. So for this particular day it was
11 in the morning. We woke up in the morning like usual, and we
12 proceeded to work. We had some assignment. I was clearing
13 the car through customs and I did not have enough money. I
14 had asked my wife to fetch some money for me from a friend, to
15 enable me to clear the car.
16 So this Friday morning in our country, by that time
17 there was bank strike, and only clerical staff were working at
18 the bank. So I wanted to go and withdraw some money from the
19 bank and I had to do it very early. This bank was near her
20 place of work, where she was working. By about 8:30 I was
21 waiting up near the bank so I could be among the first people
22 who attended at 9:00. So we went with my wife and I left her.
23 We just parted ways just near there. I went and I lined up
24 and she was supposed to collect the money by 9:30, from a
25 friend who was staying about seven kilometers away from town.
6730
1 So after lining up, I collected the money from the
2 bank by about 9:15, and I proceeded to customs offices, which
3 are situated some kilometers from the city. The offices are
4 situated in a heightened part from the city, overlooking the
5 city. You could see the city from that position.
6 So I went about processing the documents for clearing
7 the vehicle, but I had a problem with the documents which
8 occurred on the third floor of the building, and I was
9 referred to a senior officer who was situated at the ninth
10 floor of that building. It was when he was attending me that
11 we heard a very loud explosion, and he said maybe that could
12 be a transformer down here. And everybody was running out.
13 That was about, it was, about some minutes passed, about
14 10-ish. So we went and when we viewed from the windows --
15 which were a bridge, a small bridge which was connecting two
16 buildings. We viewed the town. We could not see the
17 transformer, but we saw a very huge black smoke enveloping the
18 Cooperative Building or nearby buildings. So people started
19 suggesting that could have been a bomb, and people started
20 climbing down, and I joined them. We did not continue
21 processing the papers. Everybody was running out of the
22 building. We headed to town. It is a distance that we
23 walked, or literally we ran.
24 On our way to town, we could hear sirens of
25 ambulances. We could see people running here and there. Most
6731
1 of them are on the way. There were a lot of broken panes.
2 When we were about near where the incident had taken place, we
3 saw several people who are bleeding, and there was a lot of
4 confusion.
5 It was when I went near where she was working, past
6 the bank building where I had gone that morning to withdraw
7 the cash, I saw the building that used to be the building, the
8 offices, it was leaning. What came to my mind, I remembered
9 immediately that my wife had gone to get money for me and she
10 was supposed to maybe have brought the money back there,
11 because we had agreed that I was to collect the money from
12 her. So I went nearest the coin booth, that is phone booth.
13 I made a phone, inquiring about my wife, and I was told by the
14 gentleman who had given her the money that your wife was here
15 and she left, I give her the money, and we are just as worried
16 because of what has happened in town.
17 Now from there I -- you know, there was a lot of
18 confusion, and for about maybe some 30 minutes or one hour, I
19 did not know exactly what I was doing. It was then that we
20 decided with some other people to start looking for these
21 people from the hospital. So we started going throughout the
22 hospitals which were near the city. We went searching,
23 searching, searching, until it was very late. It was about 4
24 in the night -- I mean, sorry, it was about 10, 10:00 in the
25 night. Then we had to retire. I went home, hoping that my
6732
1 wife could have just gone home. Very unfortunately I did not
2 find her. What I found were some people who had brought to
3 our place because they had already learned that that bomb had
4 taken place at the place of work and that the building had
5 collapsed.
6 And then the next morning I woke up. With some
7 friends, some of my neighbors, we joined those who had
8 survived, who were not hurt, and we searched alongside. We
9 searched for the whole day without getting anywhere, until
10 also about 10-ish. Then we had to retire.
11 Now the following day of that day we woke up. We had
12 to now look where we dared. We had to start with the
13 mortuary. It was about 9:30 in the morning that we went to a
14 mortuary which is known as City Mortuary, and first I stayed
15 outside the mortuary. My parents were there. My relatives
16 and her colleagues. They went inside, but after viewing the
17 bodies they could not identify her body. So they came out,
18 and I asked whether they have seen anything. They told me no.
19 So I decided I had to go inside. When I passed through the
20 mortuary, there was a passage in between. It was two-sided.
21 On one side there were those bodies which you would be able to
22 identify. On the other side there were parts of bodies --
23 heads, other body parts which were not together, some which
24 were beyond recognition, you could not identify. So me, I
25 started with the bodies which I could identify, and it was a
6733
1 long line where they were. We were scrutinizing one by one.
2 When I was just about to go out, I met my wife. That is where
3 I met my wife.
4 Q What did you do then?
5 A After meeting my wife, the body of my wife, that is, I
6 went out, and I went and got my father, and I told him to send
7 two or three people to go and confirm whether what I see,
8 whether I had seen it correctly.
9 Q Did there come a time when you went home to your house, to
10 your children?
11 A When I gone to my house? No, by that time I had not
12 called my house. It was after a while that I went home. I
13 was not able to tell my children. I heard my sister take them
14 to their places and after a while they came to learn about it.
15 MR. FITZGERALD: I have nothing further.
16 MR. BAUGH: No questions of this witness.
17 THE COURT: Thank you. You may step down.
18 (Witness excused)
19 MR. GARCIA: The government calls Tabassum Butt.
20 TABASSUM BUTT,
21 called as a witness by the government,
22 having been duly sworn, testified as follows:
23 MR. GARCIA: May I, Judge?
24 DIRECT EXAMINATION
25 BY MR. GARCIA:
6734
1 Q Were you born in Kenya, ma'am?
2 A Yes, I am born in Kenya.
3 Q Was your brother Fahat Sheikh killed in the bombing in
4 Kenya on August 7, 1998?
5 A Yes, he was killed in the bomb blast.
6 Q Where did your brother work?
7 A He worked for the American Embassy in Nairobi.
8 Q What did he do, ma'am?
9 A He was the main cashier for the embassy.
10 Q How long had he been working at the embassy?
11 A He worked for about 26 years.
12 Q How old was he when he died?
13 A About 46.
14 MR. GARCIA: Your Honor, at this time the government
15 would offer Government's Exhibit 2201.
16 THE COURT: Yes, received.
17 (Government Exhibit 2201 received in evidence)
18 Q Could you tell us who is in that photograph.
19 A That's my brother Fahat. His oldest son Faraz, the
20 younger one Farin. That is his wife, Nasrin. And that is me
21 standing next to them.
22 Q Did your brother also have a daughter?
23 A Yes, he had a daughter. She wasn't with us on that day
24 because she had exams at the school.
25 Q Could you tell us something about your brother.
6735
1 A My brother was a very hard working. He was the backbone
2 of our family and he was a social worker for the neighborhood.
3 He helped the old, he helped the sick. In fact, on the day of
4 the bomb blast he had a letter to write for an old woman down
5 the road, and she was waiting for him on that Friday. He
6 never came home.
7 Q On that Friday, how did you learn that your brother had
8 been killed?
9 A I was in my office, and this was about 10:30 in the
10 morning, and we heard a big blast, although my office is about
11 two miles away from the embassy. We heard a big blast and it
12 was too loud, and I felt as if something landed on the roof of
13 our office. So I was just joking with one of my colleagues
14 and I said go outside and check, I think that airplanes landed
15 on the roof. So he said stop joking, I don't think it's an
16 airplane.
17 The next thing we heard, we got a call at the office
18 and we were told that there is a blast in the town. When we
19 tried to find out where it was, they said it's the Cooperative
20 House. We thought somebody was just trying to scare the
21 ministry for education there. So I switched on the TV in my
22 office, and I had the screen in front of me right there, and
23 the news flash started coming on, and the scene I saw was the
24 embassy, and all we could see was fire and smoke and people
25 running in all directions screaming, and blood all over.
6736
1 I knew where his office was because I had seen the
2 windows of his office many times. So I said that's it, that's
3 his office. And like a fool I started dialing his number, the
4 embassy number, and I asked my colleagues to try and phone
5 this number, and I didn't realize everything was dead. Our
6 phones went dead. I mean, there was no way we could reach the
7 embassy. There was nobody there.
8 Q Did you spend that night with your brother's family?
9 A Yes. I went home. I tried to ring home but something
10 went wrong with all the Nairobi phones and we couldn't reach
11 anyone. So I had to go out of the office and look for a
12 phone. I tried to ring home, and the daughter told me that
13 her mother wasn't at home. She was in town as well. So I
14 said do you know anything, have you had a call from your
15 father? She said no, I haven't. And I said look, if your
16 mother rings you from town, tell her to come home as fast as
17 you can because something very bad has happened. I didn't
18 tell her that it was the embassy that was bombed. And she
19 said please come home, I'm scared, I'm scared.
20 So by the time I reached home, it was like 5 in the
21 evening, and by then everybody had gathered up at the house
22 and people were going in all directions. Everybody started
23 going in all different directions to look for him. We thought
24 maybe he's in the hospital or maybe he is still stuck in the
25 embassy somewhere. But the whole night we looked for him and
6737
1 the whole night we were making calls all over the place. We
2 couldn't find him.
3 My husband went to the embassy in the morning. I
4 rang him and I said please come, there is something terrible
5 happened. So he came running to my office. The traffic was
6 at a standstill, so he had to walk. He had to walk almost
7 four miles to get to the embassy. He was there from morning
8 till evening, and there was no trace of my brother or any
9 news. So when I met him in the evening he told me look, I
10 have seen the scene, I was at the scene the whole day, and
11 things look very bad, and in fact I have been told by one of
12 the embassy workers that please go and prepare the wife, the
13 90 percent chance is that he is not going to be found. I
14 couldn't tell that to anyone. We just had to wait until we
15 had some informed information.
16 Q Did you wait with one of your brother's sons?
17 A Yes, we stayed up all night with the children. I stayed
18 up. We sent his wife away in the next room. The children
19 were very scared. We all sat on one couch holding each other,
20 and they said we are scared, we want to -- I kept on telling
21 them maybe he is trapped in the embassy somewhere. We
22 understood that some people were trapped. But I knew it --
23 not in the embassy, he couldn't be, because I had seen it on
24 the TV, his office, picture.
25 So when it came to about 5 in the morning, we have a
6738
1 mosque near us, and we are Muslims. So the son, he is very
2 good at his prayers. He can go and give the Azzan. You know
3 what is the Azzan? That's a call for the prayer. So at 5:00
4 he said let me go and pray at the mosque and my father will
5 hear me wherever he is and he will come out wherever he is
6 trapped, he will know we are looking for him. Then he didn't
7 go. He said I am scared to go out of the house. He didn't
8 go.
9 Q Ma'am, could you tell us what the longterm impact has been
10 on you and on your brother's family of his death.
11 A The children had a very tough time. The girl had her
12 exams in November, her final exams. She failed. We told her
13 look, it's all right, you can repeat them again, there is no
14 problem, everybody understands what happened. But the boys
15 had a very tough time.
16 The older one -- that's Faraz -- I had to go to his
17 school a number of times because the teacher said we don't
18 know what to do with him. We talk to him, he is not
19 listening. You tell him to write something, he is writing
20 about the bomb blast. You ask him to draw something, he keeps
21 on drawing the embassy. You ask him to do something in the
22 art class and he is just building the Cooperative House and
23 the Ufundi House there and the embassy there. He made it out
24 of clay. He was so proud of it. The teachers just looked at
25 him and they didn't know what to do. They said he draws the
6739
1 whole day and the only thing he draws is the embassy.
2 I had to go to the school and explain to them. They
3 all knew but they said something's got to be done. He would
4 go in the school playground and tell all his friends leave me
5 alone. And he would sit there and talk to his father. Every
6 evening when I went to pick him he said you know, I told him
7 this and I told him that, and my father actually answers back.
8 We knew what he was doing but there was a time when
9 we thought we might lose the boy. He went for a picnic. We
10 sent him away to some friends. This is a picnic site next to
11 a lake, Lake Nabashat. When he came back, he became worse.
12 He said in the middle of the night I almost sleep, I almost
13 drowned myself. And everybody said you made a big mistake
14 sending him way because he could have killed himself.
15 We changed his school and it was the same. I had to
16 go to the school and talk to the teachers and explain to them
17 why the boy behaves like this. The religion teacher, when
18 they heard that I am the aunt and I am in the school they said
19 look, we've got to talk to you, we've got to talk to you. Why
20 does this boy hate religion so much? Why does he hate
21 everyone so much? And that was the story.
22 With the little one he is scared, he is still scared.
23 He doesn't go out of the house alone. I doesn't sleep alone.
24 The daughter and the youngest one still sleep with the mother
25 and the younger one still feels that he cannot leave the
6740
1 mother. He goes to the school but she has to drop him inside
2 the classroom and to pick him up. She has to be there. There
3 is no way he go alone with anybody.
4 MR. GARCIA: Thank you, ma'am. I have nothing
5 further.
6 MR. BAUGH: No questions of this witness.
7 THE COURT: Thank you, you may step down.
8 (Witness excused)
9 THE COURT: We will take our luncheon break until
10 2:15.
11 (Luncheon recess)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6741
1 A F T E R N O O N S E S S I O N
2 2:15 p.m.
3 (In open court; jury present)
4 THE COURT: Please be seated everyone. The
5 government will call its next witness.
6 MR. FITZGERALD: Yes. The Government calls Channa
7 Commanday.
8 CHANNA COMMANDAY,
9 called as a witness by the government,
10 having been duly sworn, testified as follows:
11 DIRECT EXAMINATION
12 BY MR. FITZGERALD:
13 Q Ms. Commanday, can you tell the jury what you do for a
14 living?
15 A I'm a family nurse practitioner and I've got over twenty
16 years experience in the emergency medical services.
17 MR. COHN: Ask you ask the witness to speak up a
18 little.
19 Q Just sit a little closer to the microphone.
20 A I'm a family nurse practitioner with over twenty years
21 experience in emergency medical services currently working in,
22 living and working in Kenya, primarily teaching, coordinating
23 and teaching courses for nurses and doctors in emergency
24 medicine.
25 Q Were you working in the time period from August 7th to
6742
1 Aught 10th of 1998 in Nairobi?
2 A Yes, at Nairobi Hospital.
3 Q And did you have handle the response, the medical response
4 to the bombing that occurred on August 7th?
5 A I was in the accident and emergency department where I had
6 an office at the time and actually activated our disaster
7 response.
8 Q And after the first three days of the response of the
9 medical response to the bombing of the embassy did you sit
10 down and write a two-page statement to describe to yourself
11 and others as to what had happened in the prior three days?
12 A Yes, I did.
13 Q Let me approach you with what has been premarked as
14 Government Exhibit 2231.
15 MR. FITZGERALD: Your Honor, I would offer Government
16 Exhibit 2231 and ask Ms. Commanday to read it to the jury.
17 MR. BAUGH: Judge, we object to the introduction of
18 the statement. I think she's going to read it now and present
19 it to the jury.
20 THE COURT: That's fine.
21 (Government's Exhibit 2231 received in evidence)
22 Q If you can just read it to the jury.
23 A There is a strange flower of red leafy free clusters
24 growing where I leaned out my office window after the bomb
25 blast that shook the --
6743
1 THE COURT: Ma'am, may I suggest, please, much
2 slower, please. Just read it much slower and start again.
3 Thank you.
4 THE WITNESS: There is a strange flower of red leafy
5 clusters growing where I leaned out my office window after the
6 bomb blast that shook me from my chair three days ago. Just
7 over a mile away was a huge dark cloud of smoke and debris
8 blooming over downtown Nairobi. This was injury and death for
9 over five thousand. A few of the flower clusters are brown
10 and dying, others budding and blood red bloom.
11 Vera,Vera one of our emergency doctors was walking
12 with friends downtown when she heard the first explosion.
13 While running with crowds of others towards the site to offer
14 help a second louder explosion threw her against the building
15 and glass rained down behind her. She turned to see a man
16 decapitated who had been walking in her shadow. Bending down
17 to him she said, I'm a doctor, I can help. And then thought,
18 no, shall he has no head. I can't help him. She began
19 running in the direction of the hospital until her legs would
20 no longer carry her and found a woman sitting dazed in a car.
21 She said: I'm a doctor, take me to Nairobi Hospital. The
22 woman did and Vera joined us working tirelessly throughout the
23 day and night. It was the next day that she told her story
24 and laughed through her tears.
25 It was maybe three minutes from the explosion,
6744
1 essentially alone in that hallway after activating the
2 disaster plan, a sudden wall of broken bodies began descending
3 from buses and cars, charging in wide-eyed and bleeding
4 through the doors into our accident and emergency department.
5 My first thought this is a nightmare. My God, how will we
6 cope.
7 Battalions of cleaners kept mops and buckets in full
8 swing to stem the progressive reddening of our pale green
9 walls and floors. Not people but crowds, herds even, pushed
10 endlessly through the doors into the halls and rooms of the
11 emergency department, leaning, limping, dragging, and carried
12 in on top of each other with no end in sight, bloody and
13 bleeding and broken.
14 A piece of candy fell from the pocket of a little boy
15 whose eyes were swollen shut with eyes ruptured by flying
16 glass. He bravely gave me his name and telephone number while
17 I wonders if he would try to look for his candy.
18 A housekeeper held a man's arm while a doctor started
19 and intravenous infusion, after inserting the intravenous
20 catheter the doctor left quickly to attend other patients.
21 The housekeeper saw that he had not released the tourniquet
22 and thought it didn't look right. The nurses were too busy to
23 interrupt. She felt afraid to do anything incorrectly and
24 slid the tourniquet down his arm until there was no tension on
25 it. Then she thought, it should be dripping because she'd
6745
1 seen it that way on other patients and unclamped the tubing.
2 Quote: I saw the water in the bottle began to go and I
3 thought it must be going in the right direction so I let it
4 go. I hope I did the right thing but there was nobody
5 available to ask.
6 An accounting clerk stood holding up two IV bottles
7 and noticed a woman sitting in the hall who had a gruesome eye
8 injury. He asked two ward nurses to attend to the woman but
9 when she looked at the women's face they got scared and ran
10 away. The clerk gave the IV battles to a cleaner to carry
11 while he took the woman to an emergency nurse.
12 I set out repeatedly stepping over and around bodies
13 checking breathing, pulse and consciousness on the many
14 patients slumped and lying and sitting all along the hallways,
15 in an attempt to triage the most severely injured into the
16 critical care areas. One man lay with eyes swollen shut from
17 corneal lacerations, amputated fingers, and clothes torn off
18 in the blast. As I felt his rapid pulse and spoke to him he
19 said: I'm okay. You go help the others. Most of the others
20 said the same thing.
21 A patient from the medical ward, still in just a
22 hospital gown held a pressure dressing on a man's chest and
23 stroked his head with the other. She had wandered off her
24 psychiatric admission to reach out with her own humanity.
25 Other patients joined the staff to help each other.
6746
1 A hairdresser's maid made owned two sheets so she
2 brought one to the hospital because she thought that maybe
3 somebody might need it. Mountains of donations quickly grew
4 through the night. I look down the pale green hallways of the
5 accident and emergency department, although they are now
6 completely clean and quiet I seek the cleaner scrubbing them
7 over and over and over. I still see these walls grossly
8 decorated like finger paints on kindergarten easel with
9 splashes and drips and only one color, red.
10 The sound that returns to my ears from Friday is
11 subdued. As everyone of the hundreds who crowded our rooms
12 and halls seem to believe that there must be someone hurt
13 worse, someone who needed our attention more, trusting that we
14 would not forget them and would attend to their needs in due
15 time, trusting that their loved ones would find them in due
16 time. They were all completely right. I did not hear anyone
17 ask to make a phone call. I did not hear anyone cry. The
18 only screaming has been in my heart. These are the people of
19 many tribes with are the fingers on the hand that lifted the
20 broken back to life.
21 MR. FITZGERALD: Thank you. I have nothing further.
22 MR. BAUGH: Nothing of this witness, your Honor.
23 THE COURT: Thank you. You may step down, ma'am.
24 (Witness excused)
25
6747
1 MR. FITZGERALD: The government next calls Margaret
2 Kanini Otolo.
3 MARGARET KANINI OTOLO,
4 called as a witness by the government,
5 having been duly sworn, testified as follows:
6 DIRECT EXAMINATION
7 BY MR. FITZGERALD:
8 Q Ms. Otolo, if you could just keep your voice slightly
9 louder or if you could just sit a little bit closer to the
10 microphone so that everyone can hear what you ever to say.
11 Ms. Otolo, can you tell us about your husband?
12 First, can you tell us what his name was?
13 A My husband's name was Roger Toka Otolo.
14 Q And can you tell us how long you were married to Roger
15 Toka Otolo as of August 1998?
16 A I met Roger in 1978 when I just joined the university. He
17 was a student like me. And we got married two years later.
18 So at the time of death I had known Roger for around twenty
19 years.
20 Q And did the two of you have children?
21 A Yes, we had three children.
22 Q Can you tell us their names and then their ages as of
23 August 1998?
24 A As at August 1998, Peter who is our first born was 17
25 years old, and Richard the second one was 13 years old, and
6748
1 Abraham, third one, was six years old.
2 Q In 1998 were you going to school? Were you going to
3 school in 1998? Were you taking classes?
4 A The children?
5 Q No, yourself.
6 A Yes, at 1998 I was attending two kinds of courses. I was
7 attending a computer classes and I was also being part-time
8 MBA classes.
9 Q And what did Roger do for work?
10 A Roger was a project engineer with a World Bank funded
11 project, project engineer.
12 Q And where did he work, what location?
13 A He worked was working at the Corporate building, second
14 floor.
15 MR. FITZGERALD: Your Honor, the government offers at
16 this time Government Exhibit 2192, a photograph. If there is
17 no objection, we would display it at this time.
18 (Government's Exhibit 2192 received in evidence)
19 Q Is that a picture of your husband Roger?
20 A Yes.
21 Q Can you tell us what he was like as a person?
22 A Roger was a very loving husband. He was always there for
23 me and the children. He provided for us. Everyday that I
24 went to work and I used to leave very early to go to my place
25 of work which was quite far from where we were staying, I
6749
1 would leave him asleep so that he would take the children to
2 school, and also pick them from school.
3 And when they would get home he would assist them
4 with their homework, because I would get home late since I had
5 to attend evening classes for my MBA, so he would be there for
6 them and assist them with their homework. And he was there,
7 he in every way, in every way that we needed him he would be
8 there. When it comes to weekends he would take us out. When
9 I have to attend a class he would be with the children.
10 Birthday parties for the children he would organize.
11 Q Thank you. Can you tell us what happened on August 7,
12 1998?
13 A As usual I left early in the morning around 8:15 to go to
14 work. He was sleeping that morning when I left. But I
15 remember telling him, Roger, I have left. Only because that
16 evening were meant to have dinner, because most of the time we
17 were not able to get together as a family since I was always
18 leaving early and coming late. So we used to have Fridays for
19 ourselves and the kids so that we were meant to have dinner in
20 the evening. So I told him I was leaving hoping that he'd
21 wake up so that I could remind him, but he didn't wake up, but
22 I didn't get worried because I thought I could call him at
23 work. So I left and went to work.
24 And I got to work and that particular morning I was
25 doing a final examination in the computer classes I was
6750
1 taking, down to the examination room around 9 a.m., did the
2 exam, came out, and on my way to the office I met a colleague
3 who told me and the person I worked with, that there was
4 Nairobi had been bombed, and we thought he was joking. So we
5 just told him, don't joke about that matter. But he said it
6 was true.
7 So I got a bit worried but I thought it was a joke
8 nevertheless. But when I got to my office, I actually found
9 people talking about it on the corridor, so I went to my boss'
10 office and asked the secretary if she had heard anything like
11 that. She said, yes, but she didn't have the details. So we
12 called another office where we were informed that, yes, it is
13 true. So I wanted to know more about it. So I went to
14 another office specifically we actually had been taking the
15 examination, that's there was a television so that I could see
16 if they could turn it on because in my place of work
17 televisions are not on during the day.
18 So I requested the person there to turn it on so that
19 you could see what you were hearing is true. And it was
20 turned on and the first thing I remember seeing and hearing
21 was the announcer saying that the Corporate building had been
22 flattened. That of course was shocking considering that that
23 is where my husband worked, and the scene also on the screen
24 was very scary. So I remember looking for a seat and I sat
25 down, and I could see no blood before people doing this and
6751
1 that and it was just horrifying.
2 I remember going back to my office after a while.
3 Then I called my husband's office. The first call I thought
4 went through, but nobody answered. So I kept calling. After
5 sometime nothing was happening. So I decided to call my
6 parents in law's house and when I called there I talked to my
7 sister-in-law who happened to be there who said that Roger had
8 not called but I should not get worried about that because
9 he's always busy helping people who are in need. So he can't
10 be hurt. He must be okay.
11 But I wasn't satisfied. So I remember after sometime
12 I decided to go to town to find out for myself. But someone
13 said that there was no transport that is going to Nairobi. So
14 I decided to walk believing that halfway around the way I
15 would get transport. So I walked for quite, 'cause my place
16 of work is around 17 kilometers from town, so I walked like
17 three quarter way, and I met someone now who was willing to
18 take us to Nairobi but not directly.
19 So I get into Nairobi around 4-ish, and I couldn't
20 get close enough because by that time the place had been
21 surrounded but I could see the place was really something
22 else. But I didn't see anyone I knew, because everyone was in
23 shock.
24 Then after that I went to check where Roger park the
25 family car to see if the car would be there. I didn't find
6752
1 the car there, and I thought he must have driven home but I
2 decided to go home and there was still no transport for some
3 time. So we walk most of the way but we finally got home. So
4 getting home around 8-ish.
5 So I found the children and Abraham told me he had
6 seen on TV about the building where and he had not arrived so
7 I asked, I told them let me go and call because at that time
8 our phone was not working. Let me go and call and find out if
9 Roger has called his brother. So I went and called and talk
10 to my sister-in-law who told me he had not called, but my
11 mother-in-law said he had. She had met the person who shared
12 the office with Roger, and their colleague had assured them
13 that Roger was just leaving for the bank before the bomb, so
14 he must be involved assisting people. So we kept hoping that
15 that was true.
16 But then we kept thinking Roger is very responsible.
17 There is no way he couldn't have called one of us. So we kept
18 hoping that that was so. Then after some time I went back
19 home to find out after I called from the public pay phone I
20 went back home to find out if he had arrived, and of course he
21 had not arrived. So I decided to go to the hospital, because
22 at that time they are saying on news is that if your person
23 had not arrived you could go to the hospital and find out if
24 he be one of them, or if you could see the name on the notice
25 board.
6753
1 So I walked to the hospital. Along there someone
2 gave me a lift and got there, and of course there it was just
3 bodies, and people screaming, and blood everywhere, so that
4 even if you wanted to check, you wouldn't have been able to
5 because of the what was happening there. So I check the
6 bodies that I could of the people that were laying on the
7 beds, and he was not one of them. I didn't see him.
8 So I decided to walk to Kenyata Hospital but before I
9 did I said maybe he now come home, and in any case I don't
10 have transport. Let me go home and find out if he has come.
11 So I went back home and he had not come. That was around
12 11-ish there, and the children were still waiting.
13 But meanwhile, his sister had arrived to find out if
14 Roger had come, and of course he had not come. So I asked the
15 children to eat and go to sleep. So I waited. I waited up to
16 around 3 a.m. That is when I was in the darkened sitting room
17 when I heard some cars come and stop at our gate, and when I
18 peeped through the window I saw it was my parents in law, my
19 brother-in-law, and I thought whatever they've come to do at
20 this time, it can't be good.
21 So I went and opened the gate, but I was not about to
22 open because my hand is shaking, so I remember releasing the
23 keys, and someone opening the gate, and then my mother-in-law
24 started screaming exactly the way people at home cry when
25 someone has died so she didn't need to tell me what happened.
6754
1 After that we just went to the house, and after some
2 time they left and it was me and the children. I kept
3 wondering what I was going to tell the children in the
4 morning. And the children woke up, they asked me whether he
5 had died. I told them no. I remember hugging them because
6 they looked so shaken. I didn't know how to tell them he had
7 died. I didn't know how. I told them. Finally I told them
8 he had died, and everything will be okay, as all right, I am
9 there. Of course I didn't know what that meant. My salary is
10 so small, the house we were paying then, but I told them what
11 I assumed that everything would be okay.
12 MR. FITZGERALD: Thank you, ma'am. I have nothing
13 further, Judge.
14 THE COURT: Thank you, ma'am. You may step down.
15 (Witness excused)
16 MR. GARCIA: The government calls Deborah Hobson.
17 DEBORAH HOBSON,
18 called as a witness by the government,
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. GARCIA:
22 Q Good afternoon.
23 A Hello.
24 Q In August of 1998 where were you living?
25 A In Nairobi Kenya.
6755
1 Q And were you married at that time?
2 A Yes.
3 Q And who was your husband?
4 A Kenneth Ray Hobson II.
5 MR. BAUGH: Can I ask the witness to speak up.
6 THE WITNESS: Sorry.
7 Q Thank you. Kenneth Ray Hobson?
8 A Yes.
9 Q And was he in the Army at that time?
10 A Yes, he was.
11 Q And was Ken killed in the bombing of the embassy on August
12 7th?
13 A Yes, he was.
14 Q And how old was he?
15 A He was 27 years old.
16 MR. GARCIA: At this time, your Honor, the government
17 would offer Government Exhibit 2035. And if we could have
18 that displayed.
19 (Government's Exhibit 2035 received in evidence)
20 Q Is that a photo of your husband?
21 A Yes.
22 Q Is that your daughter, Megan with him?
23 A Yes.
24 Q Ma'am, could you just describe your husband, Ken, for us?
25 A He was 27 years old. He was a young rising star in his
6756
1 job. He's athletic and energetic, and he was always bringing
2 people home for dinner. And he would say, oh, well, so and
3 so's coming in from the field. A Peace Corp person, and
4 they're staying the weekend, or they're staying the week or
5 something. He just had this heart for people, and was so
6 kind, and considerate. And I always called him a knight. He
7 reminded me of like the old code of knighthood.
8 Q And when did you and Ken arrive in Nairobi?
9 A In April of '98.
10 Q And were you also working at the embassy in Nairobi?
11 A Yes, I was.
12 Q And were you working on that Friday, August 7th?
13 A No, I wasn't.
14 Q Was Ken working?
15 A Yes, he was.
16 Q And can you tell us what happened on August 7th?
17 A August 7th Ken left for work, and I didn't have to go in
18 that day. And I groggily said goodbye to him. I vaguely
19 remember what he was wearing, I was so tired. And he just
20 kissed me and said goodbye, and I didn't even remember if I
21 said, I love you.
22 He went off to work and he called me earlier in the
23 morning, and we had some friends staying, some Peace Corp
24 folks staying with us, and we were trying to arrange a visit
25 in town with Ken, and also he wanted to know what wine to
6757
1 bring home from the embassy for a meal we were going to have
2 with Shari Olds that evening, and so we decided we weren't
3 coming right away, that we'd meet him after lunch, and then it
4 wasn't about thirty minutes after that, that we heard a big
5 bang.
6 And I thought somebody knocked on my door, and then I
7 couldn't decide which door it was that was knocked on and then
8 I looked out the window, and I saw a big embassy truck out
9 there and I thought maybe that he blew a tire, and by the time
10 I got out there they had got word that there had been a bomb
11 at the embassy, and they were jumping around and upset.
12 And I could -- and so I went inside, and I just
13 started thinking, like, okay, I have to get there, and help
14 them. So without any regard for my daughter was being cared
15 for by our nanny, so I just, I didn't even think, I just
16 gathered up supplies blankets and rubber gloves, and Ken's
17 combat medic bag, and our hand held radio for communication
18 and one of the Peace Corp folk, Christian, he went with me,
19 and we raced into the embassy pace as best we could. I'd only
20 ever driven in Nairobi one time so it was rather difficult.
21 Riding, and we got through all of the barricades, and I was
22 walking up to the embassy. Actually before I got to the
23 embassy I picked up Louise Martin's husband had who was
24 running on the way there, and we both got there and got out,
25 and moved quickly toward the embassy. Then kind of lost track
6758
1 of where everybody else went, but I was just walking looking
2 around me at total amazement at the twisted black cars and my
3 focus really was on where Ken's office was because I was
4 approaching the American embassy from the side where his
5 office was. I could see it and I could see that it was
6 collapsed most of the way in, and if he had been in there I
7 knew that he would be dead.
8 And then I saw Steve Knowland who is the admin
9 officer and he, I asked him if he seen Ken and he said no,
10 he's probably dead. And I gave him my radio and then moved on
11 to where the people were gathering outside and watched them
12 bring bodies out, or I guess maybe it was injured people, I'm
13 not sure.
14 I saw them coming out with blankets over them. I
15 handed all of my supplies I brought and just waited, and just
16 I was dumbfounded, and I asked people as they were coming out
17 have you seen, Ken, have you seen Ken. I know if he was alive
18 he'd be helping people. And I guess some people knew but they
19 couldn't tell me. And Ken's boss came out of the embassy and
20 told me that he had died, and then I was escorted home and I
21 handed over the keys to my Jeep so they could use it for
22 transportation for people.
23 Q And did you leave Kenya shortly after that?
24 A I did, yes. I was escorted home two days after it
25 happened, and after I got home I was wishing I could be there
6759
1 just to be in a place where he was, to see where he made bread
2 with Megan on the counter cover with flour, or see where he
3 got his chair to the computer, or where he played with our
4 dogs. If I could just have been there to just remember him,
5 but we went home rather quickly. I guess it was for the boast
6 all the way around.
7 Q Ms. Hobson, did you learn that you were pregnant after you
8 returned from Kenya?
9 A I didn't know when I left Kenya. I found out when I got
10 back home that I was just a few weeks pregnant. Eight months
11 later I gave birth to a little girl and I called her Abigail
12 which means, my father rejoices.
13 MR. GARCIA: Your Honor, I have nothing further.
14 MR. BAUGH: No questions.
15 (Witness excused)
16 MR. GARCIA: Government calls Dr. Surendra Patel.
17 SURENDRA PATEL,
18 called as a witness by the government,
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. GARCIA:
22 Q Doctor, if I could ask to keep your voice up as much as
23 possible and if you would sit maybe a little closer to the
24 microphone. You don't have to speak right into it.
25 Doctor, where do you work?
6760
1 A What?
2 Q Where do you work?
3 A I work at the M.P. Sha Hospital, Nairobi.
4 Q What's your specialty there?
5 A Trauma.
6 Q And how long have you been at M.P. Sha Hospital?
7 A Last twelve years.
8 Q And were you working at M.P. Sha on August 7, 1998?
9 A Yes, I was.
10 Q And can you tell us what happened at the time of the
11 bombing that day?
12 A Around 10:57 on August 7th 1997, we got a phone call --
13 Q 1998?
14 A 1998. We got a phone call with a panic in there was a
15 bomb, bomb blast in town. About a few minutes prior to that
16 we heard windows and doors shake, and we thought it was a
17 tower and we never realized it was a bomb. And then I alerted
18 the matron, our administrator, and called, informed that we
19 are having, we might be having possible disaster on our hands.
20 As we were arranging this we had the first casualty
21 arrive. It was a young boy about 8 years old, brought in,
22 somebody carrying him in arms, and he's all bloodshot. He had
23 multiple injuries, and there was the first casualty we saw,
24 and the comments made was said, what's this? And said, you've
25 seen nothing, and I went to triage. We organized everything,
6761
1 mobilized the nurses, got all the doctors. Unfortunately
2 there telephone lines went dead and were dead for the next
3 three hours we tried to get people on the mobile. We got
4 ourself we got as many people as possible, and we started.
5 Initially the flow was slow, and then about an hour
6 later people just flocked in. They were brought in in
7 minivans, by scooter, by everybody, everybody, and our triage
8 area was overran. We had all the doctors were working, get
9 handful on your hand.
10 While I was there visit my senior nurse getting
11 everybody organized, and then we had a bus load of school
12 children brought in, and this is where those child brought in
13 with the ruptured eye, and I got him down, give it to doctor,
14 and said, take him to the OR straight because this child has
15 no place here. That day we had to discharge all of our
16 regular normal patients to make way for these casualties, and
17 that was the first time in the sixty odd years of the hospital
18 that maternity wing was cleared out for these casualties. It
19 has never been done before.
20 And brought in the children. Now I come back to the
21 bus, the school children were brought in, and I got one in my
22 hand and I look around for some help but there is nobody. So
23 I took him in. And this is the photograph of a child which
24 the electronic media splashed throughout the world with a
25 child with multiple injuries on the face. Fortunately, the
6762
1 eyes and you know were not affected. He has multiple scars
2 now. Four years down the line, he still has got difficulty
3 moving his neck, and I don't think I see anything like that.
4 Q Doctor, one of the patients that was brought in from the
5 school bus, did you later learn his name was Sandi Patel?
6 A Yes, please.
7 Q Doctor, did there come a time that you went to the bombing
8 site?
9 A After I finished with the main hospital or, rather, around
10 ten o'clock at night we went to the site of disaster, and the
11 site was cordoned off. There were all sorts of organizations
12 there. There was Red Cross, there was St. John ambulance.
13 There were lots of doctors. The doctors from Medivac and
14 other organizations, so we said, we held back, we said we
15 wouldn't try to go and start helping them, because that will
16 bring in chaos.
17 The bodies steady, people were trying to dig in by
18 their bear hands. There was blood all over. There's some
19 screams, there are some screams, and we just came back.
20 Q Doctor, prior to coming to court today did you review some
21 photos that looked, that showed scenes such as the one you saw
22 at the site that day?
23 A Yes.
24 MR. GARCIA: Your Honor, at this time I'd like to
25 offer and display Government Exhibits 2252, 2253, and 2257.
6763
1 (Government's Exhibits 2252, 2253 and 2257 received
2 in evidence)
3 THE COURT: You may.
4 MR. GARCIA: If we could have 2252 shown.
5 A At the site of disaster the bomb blast.
6 Q Is this similar to the scene that you saw when you
7 arrived?
8 A That's right, yes.
9 Q If we could have Government Exhibit 2253?
10 A Again, these are similar faces we saw.
11 Q And 2257?
12 A That's again at the site, and same kind of injuries which
13 were brought into the hospital, and in the same fashion.
14 Q Doctor, did you also have the opportunity to review a
15 number of photographs prior to coming to court that showed
16 injuries similar to the ones that you treated that day August
17 7th?
18 A Yes.
19 MR. GARCIA: Your Honor, at this time we would offer
20 and display Government Exhibits 2258, 259, 2260, 2261, 62, 63,
21 64, 65, 66, 68, 22 -- 2266.
22 THE COURT: You may.
23 (Government's Exhibits 2258, 259, 2260, 2261, 62, 63,
24 64, 65, 66, 68 received in evidence)
25 Q If we could have Government Exhibit 2258 displayed,
6764
1 please.
2 A It's similar of the first casualty which was brought in, I
3 will say that.
4 Q Similar types of injuries to the first casualty treated?
5 A Yes.
6 Q 2259?
7 A Again, the same sort of injuries.
8 Q Did you treat many lacerations that day, Doctor?
9 A A lot of them. In fact, we lost count.
10 Q 2260?
11 A Again, the same.
12 Q 2261?
13 A This is a distinctive caption again. There were lots of
14 casualties of this fashion we treated that day.
15 Q And 2262? Now, Doctor, this is not your hospital, is it?
16 A Similar injuries were treated at our hospital.
17 Q And 2263?
18 A Again, similar injuries.
19 Q 2264?
20 A Again, similar injuries were treated.
21 Q I believe this photo shows somebody being sutured; is that
22 right?
23 A That's right, yes.
24 Q Was a lot of that work done that day?
25 A A lot of work done that day. In fact we ran out of
6765
1 sutures that day. All hospitals practically ran out of
2 sutures.
3 Q And 2265. Doctor, were you using all the available space
4 in your hospital that day?
5 A That's right.
6 Q And 2268?
7 Q Did you see many eye injuries that day, Doctor?
8 A That's right, many.
9 Q And finally, 2266. Doctor, do you recognize the scene in
10 this photograph?
11 A This is a photograph of our ICU.
12 Q Your intensive care unit?
13 A Right.
14 Q And, Doctor, approximately how many patients did you treat
15 at M.P. Sha Hospital that day?
16 A 300 people.
17 Q When patients were discharged were they given any type of
18 documentation?
19 A Yes. They were given cards for return visits for follow
20 up.
21 MR. GARCIA: Your Honor, if we could display now
22 Government Exhibit 550 which is already in evidence. If we
23 could enlarge the bottom one. Is that a copy of a card that
24 was issued to a patient at your hospital on August 7, 1998?
25 A Yes.
6766
1 MR. GARCIA: I have nothing further, Judge.
2 MR. BAUGH: No questions, your Honor.
3 THE COURT: Thank you, doctor. You may step down.
4 (Witness excused)
5 MR. FITZGERALD: The government calls Sandeep Patel.
6 MR. BAUGH: Before that witness is brought out may we
7 approach the bench?
8 THE COURT: Yes.
9 (Continued on next page)
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13
14
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16
17
18
19
20
21
22
23
24
25
6767
1 (At the sidebar)
2 MR. BAUGH: The last witness had nothing to do with
3 victim impact and we would object to it and we could bring the
4 Tennessee issue, the nature and quantity of evidence.
5 MR. GARCIA: I think we'll be finished tomorrow.
6 MR. FITZGERALD: We're ahead of that.
7 MR. GARCIA: We've cut five witnesses from our group
8 and we'll be finish tomorrow.
9 MR. COHN: Your Honor, with respect I don't think --
10 THE COURT: One issue, one objection, made. Are you
11 going to do anything other than reinforce what Mr. Baugh has
12 said?
13 MR. COHN: No. I must say, your Honor, that this is
14 a rule that seems to appear from time to time.
15 THE COURT: The application is denied.
16 (Continued on next page)
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6768
1 (In open court)
2 MR. FITZGERALD: Your Honor, I believe for
3 Mr. Patel's testimony we have the services of a Gujarati
4 interpreter who I think needs to be sworn and can stand by if
5 needed.
6 (Interpreter, Dhiri Trivedi, duly sworn)
7 SANDEEP JADAVA PATEL,
8 called as a witness by the government,
9 having been duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MR. FITZGERALD:
12 Q Good afternoon. If you could just keep your voice up and
13 it's easier if you move the seat up closer to the microphone
14 and that will help project your voice.
15 Can you tell the jury your name and how old you are?
16 A My name is Sandeep. I am 15 years old.
17 Q Can you tell the jury what languages you speak?
18 What languages do you speak?
19 A I speak English, Gujarati and Swahili.
20 Q The last one was Swahili?
21 A Yeah.
22 Q And the second language was Gujarati?
23 A Gujarati.
24 Q And Swahili is a language spoken in coastal Kenya?
25 A Yes, Kenya.
6769
1 Q Where is Gujarati spoken?
2 A In India.
3 Q Now, is English your second language?
4 A Yeah.
5 Q If you need help when you testify you can use the
6 interpreter to your left, but if I try it in English, why
7 don't we do that. Can you tell us how many brothers you have?
8 A I have three brothers.
9 Q And what are their names?
10 A The old one, oldest is Thadius, Hashran and myself
11 Sandeep.
12 Q So there are three boys in the family?
13 A Yeah.
14 Q And let me take you back to August 7, 1998. Did you go to
15 school that day?
16 A Yes, I did go to school.
17 Q And will you tell us what happened at school that morning?
18 What did you do?
19 A I prepared to go to school on 7th August 98. I was just
20 waiting at the bus stop. I was just waiting at the bus stop.
21 The buses arrived so I drove, the bus took off from the bus
22 stop to school. And it was the last day of the school, and I
23 went and took my, I went to look at my grades to the school,
24 and I was enjoying myself.
25 It was about, it was 9:40 in the morning and we had
6770
1 and assembly for our school. After the assembly had finished
2 I enter the school bus, and the school bus took off at 10
3 o'clock in the morning.
4 Q And who was on the bus with you?
5 A There were fifty student and the conductor.
6 Q And were any of your brothers with you on the bus?
7 A Yes, both of them were with me.
8 Q And can you tell us what happened on the bus ride? What
9 happened after you got on the bus at 10 o'clock?
10 A After I enter the bus the bus took off. I was going home
11 back, and as I reached the American Embassy it was traffic, so
12 the bus stopped at the traffic. After some few seconds I
13 heard a, I heard some, I heard a noise. So I went looking, I
14 went looking out of the window, as I heard a loud noise, and
15 the glasses of the building the tall building fell into my
16 eyes, and I couldn't able to see. And my friend, my friend
17 took me out of the bus and took me to another bus which took
18 me to a Kenyata National Hospital.
19 Q At the time your friend took you from the bus to the
20 hospital did you know where your brothers were?
21 A No, I didn't know where my brothers were.
22 Q And what happened when you got to Kenyata National
23 Hospital?
24 A As I reached the Kenyata National Hospital I was, I had
25 some treatment over there. After treatment at 5 o'clock in
6771
1 the evening my father came and took me to another hospital,
2 M.P. Sha Hospital, and they treated me and I had surgery, the
3 first surgery.
4 The next day I was discharged, and after one day I
5 had to go to the doctor for an eye check. I went back home.
6 After two weeks I had another surgery in Kenyata National
7 Hospital by the German doctor and I stayed in the hospital two
8 and a half weeks. Then I was discharged.
9 After some, after some few months I had another
10 surgery in United States in Boston, and I left there, I had, I
11 lived in the hospital for one day, and after one day I was
12 discharged. When I came back home I had my treatment was
13 still going on.
14 Q And did you ever see your brothers again on August 7, 1998
15 after you went to the hospital?
16 A Yeah, I saw my brother in the first hospital when I went
17 in Kenyata National Hospital. My smaller brother Ashrin he
18 was with me.
19 Q How old was Ashrin at the time?
20 A He was eight years old.
21 Q And what did he look like at the time? When you saw him
22 what was his condition in the hospital, your brother?
23 A He had too many cuts on his face, and he was, he had too
24 much pain and he was just crying.
25 Q And as of today can you see out of your right eye?
6772
1 A No, nothing I couldn't see anything out of my right eye.
2 Q How about your left eye?
3 A Yeah, I can see but there's no vision.
4 Q And do you have a problem seeing depth?
5 A Yeah, far away.
6 Q Before August 7, 1998 what sports did you like to play?
7 A I like to play cricket.
8 (Continued on next page)
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13
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6773
1 Q Can you play cricket any more?
2 A No.
3 Q What happens now when you read for school? When you read
4 books and papers for school --
5 A When I read books and papers, my head starts spinning.
6 MR. FITZGERALD: Thank you very much. Nothing
7 further.
8 THE COURT: Thank you. You may step down.
9 (Witness excused)
10 MR. FITZGERALD: The government calls Lydia Sparks.
11 LYDIA MOREFIELD SPARKS,
12 called as a witness by the government,
13 having been duly sworn, testified as follows:
14 DIRECT EXAMINATION
15 BY MR. FITZGERALD:
16 Q Good afternoon, Ms. Sparks. Can you tell the jury what
17 you did for work in August of 1998, and where you lived.
18 A I was warehouse manager for the U.S. Embassy in Nairobi.
19 I worked for the General Services Office.
20 Q How long had you worked, you and your family worked for
21 the United States government overseas?
22 A My husband has been in the foreign service for 16 years.
23 I followed him to eight different countries and I have worked
24 as a dependent spouse for most of those years.
25 Q Besides you and your husband, was any other family member
6774
1 living with you in Nairobi at the time?
2 A Two sons and my mother-in-law.
3 Q Let me direct your attention to August 7, 1998. Can you
4 tell the jury what happened that day.
5 A I went to work to the warehouse, which was actually not in
6 the embassy. While I was there at work I met Jay Bartley,
7 Jr., who was my summer hire. We had some things that we
8 needed to do that morning. I needed to check on some housing
9 problems, and Jay was working on an auction that the embassy
10 had had, to get rid of excess property. We took a vehicle. I
11 dropped Jay off at the auction house.
12 I went on to my destination, which was further in the
13 city. I checked the house that I needed to check on, came
14 back to the auction house to pick Jay up. We picked Jay up
15 and proceeded to the embassy. We went into the back entrance
16 of the embassy. We got out of the vehicle. As we were
17 walking in, one of the drivers, motor pool drivers, was in a
18 vehicle sitting outside the back gate. He gets out of his
19 vehicle. His name was Maurice. He comes to me, and he had
20 worked for me at the warehouse for about three months prior,
21 and they had rotated him back into the motor pool. He had
22 been there for about five days. He gets out of his vehicle
23 and he comes to me, and he tells me he misses being out there.
24 He calls me momma. That was a name that was a sign of
25 respect. He told me he wished that they would put him back
6775
1 out there. I told him that I wished he was back there. He
2 gets back in his vehicle, waiting for a passenger, and Jay and
3 I proceed on into the embassy.
4 Jay, it was the last day that summer hires were
5 working in the embassy, but because Jay was going to one of
6 the local colleges he didn't start school at the same time our
7 kids did. So my boss, the general services officer, was
8 trying to find something else for Jay to do to give him a
9 little more money and to give him something to do for a few
10 more weeks. So we proceeded to the General Services Office,
11 and while we were there, Michelle O'Connor was there, Frank
12 Pressley was there, Rukia Ali was a secretary in there. We
13 were standing around chitchatting. Someone had brought in
14 some cake and cookies, and we were all having a piece of cake
15 or a cookie. Michelle and I were talking about her
16 stepdaughter. She had a teenage stepdaughter who she loved
17 dearly, and we were talking about her daughter. And we heard
18 the grenade go off, I guess. I looked at Michelle and I said
19 Michelle, that sounded like a bomb. We didn't think a lot
20 about it, because so many things have happened around the
21 embassy that it really wasn't unusual to hear anything. But
22 she looked at me and she says, it was a bomb. I turned around
23 and started out of the office up the hallway to the back of
24 the building. As I was looking, there were two people, Lydia
25 Mayaka and Joe Kionga, standing in the window. When the
6776
1 second explosion went off, they disappeared in front of my
2 eyes. They were there and then they were gone. I saw
3 something coming towards my face. I guess it hit me. I don't
4 remember being hit. But I thought it had blinded me. I
5 couldn't see.
6 In the background I could hear someone screaming, oh
7 my God, oh my God. I turned towards that voice, and I told --
8 I just yelled out, I'm blind, don't leave me, I can't see.
9 Two of the foreign service nationals that were working that
10 day called me by name and told me, Lydia, we won't leave you.
11 I think we started to go out a window, and we were
12 told not to jump out the window. So somehow we started down
13 the hallway and got into the stairwell. We got to the bottom
14 of the stairs, and there was, a wall had collapsed at the
15 bottom of the stairs. I couldn't get over the wall. And I
16 was so tired. Another one of the FSN's, he told me, he said
17 you'll get over the wall. I said David, I can't make it over
18 the wall. He said you'll get over it because I will help you
19 over it. He picked me up and he carried me over the wall.
20 Sometime during the time I reached up and I wiped my
21 eyes, and I wasn't blinded. It was blood or whatever in my
22 face. We got outside. A Kenyan gentleman, I don't recall a
23 face, I just remember a gentleman in a very white, bright
24 shirt, came to me, took me to a vehicle. It was the vehicle
25 that one of our embassy nurses was in, Barbara Mulin. It was
6777
1 full. I was the last person that could fit in the vehicle. I
2 was put in the vehicle and we went to the hospital.
3 When we got to the hospital, I don't remember the
4 ride. We got there, we were taken inside. There were no more
5 beds left. I was put in the floor, and I don't know how long
6 I stayed in the floor, but every so often Barbara would come
7 through, and if you ever hear Barbara speak you'll never
8 forget the voice. She's got a Jamaican accent. She would
9 come through and she would look at me and she would say Lydia,
10 are you OK? I'm here. Then she would go out and she would
11 help someone else. But she would always come back so I would
12 know that I wasn't being lost in the crowd.
13 Sometime, I don't know how much time passed, they
14 were finally able to put me on a stretcher and tend to my
15 wounds.
16 That's about all I remember that day.
17 Q Could you describe to the jury what your wounds were at
18 that time.
19 A I was cut from head to toe. I had glass protruding from
20 all areas of my body. Covered in blood, bruised.
21 Q How many times have you gone for medical procedures and
22 operations to remove glass from your body?
23 A Probably about probably eight or nine times. I have had
24 surgery on my nose a couple of times. The cartilage in one
25 part of my nose collapsed. I have had surgery on that twice
6778
1 but it hasn't worked.
2 Q Can you tell us what hospitals you were treated at in the
3 period following August 7.
4 A Nairobi Hospital, Landstuhl, and then Walter Reade.
5 Q Is Landstuhl a hospital in Germany?
6 A Yes, it is.
7 Q Is Walter Reade back in the States?
8 A Yes, it is.
9 Q Did there come a time after your treatment at the various
10 hospitals when you returned to Nairobi?
11 A About five, six weeks after, I returned to Nairobi.
12 Q Can you tell the jury what happened in February of 1999.
13 Did you come to leave Nairobi again?
14 A I left Nairobi in February '89 again. I had gotten to the
15 point where I was doing everything I could to keep myself in
16 control. I felt like as long as I was in control of
17 everything that went on around me then I could deal with what
18 had happened. In February of '89, I realized that I couldn't.
19 I was medicated and sent out.
20 Q And you came back home?
21 A I came back home.
22 Q Can you tell the jury how you're doing now.
23 A I have nightmares. Sometimes I see people who I know have
24 died. I can be walking up a hallway and look off in the
25 distance and think someone that I had known that died is
6779
1 coming towards me. Back last fall they had a high school
2 homecoming about two blocks from my house. They set off
3 fireworks. It scared me so bad that I wound up in the hallway
4 plastered against the wall. My husband told me later, he said
5 you looked like a deer who had been caught in headlights. I
6 couldn't move.
7 MR. FITZGERALD: Thank you. I have nothing further.
8 MR. BAUGH: We have no questions for Mrs. Sparks.
9 THE COURT: Thank you, ma'am.
10 (Witness excused)
11 MR. FITZGERALD: I think this might be an appropriate
12 time for the break, Judge.
13 THE COURT: We will take our midafternoon break at
14 this time.
15 (Recess)
16 THE COURT: The government may call the next witness.
17 MR. GARCIA: The government calls Dorine Ruto,
18 R-U-T-O.
19 DOREEN RUTO,
20 called as a witness by the government,
21 having been duly sworn, testified as follows:
22 DIRECT EXAMINATION
23 BY MR. GARCIA:
24 Q Ma'am, if I could ask you to speak as loudly as you can
25 and to lean a little bit towards the microphone, although you
6780
1 don't have to speak into it.
2 Miss Ruto, was your husband killed in the Nairobi
3 bombing on August 7, 1998?
4 A Yes.
5 Q What was his name?
6 A Wilson Kipkorir Mutani.
7 Q How old was your husband when he died?
8 A He was to turn 33 that week.
9 Q How long were you married?
10 A We were married for nine years.
11 Q Did you have children?
12 A Yes.
13 Q How many?
14 A Two children. Boys.
15 Q How old were they?
16 A They are now 12 and 5.
17 MR. GARCIA: The government would now offer
18 Government's Exhibit 2113 and display it, with your Honor's
19 permission.
20 THE COURT: Yes.
21 (Government Exhibit 2113 received in evidence)
22 Q Is that a photo of your husband there?
23 A Yes, it is.
24 Q Would you tell us something about your husband, what he
25 was like.
6781
1 A When I first met Wilson, first of all, he was a very
2 handsome man. He was very charismatic. He was very
3 intelligent. I met him in college. He was in his second
4 year, doing his stadia in biology. He was a very kind man.
5 When we got married, he appeared to me as a very good father,
6 a very good husband.
7 One thing, in our tradition, most of the time men are
8 not supposed to take part in the bringing of babies, things
9 like changing nappies. It wasn't a man's job. But this was a
10 man who would change nappies and even feed the babies. The
11 two children I had, I had them through Caesarian section.
12 During that time when I would be recuperating, he would take
13 care of the children and take care of me. He was my nursemaid
14 most of the time that I was sick.
15 He was a very different kind of man.
16 Q Where did Wilson work? Where did he work, your husband?
17 A Wilson worked for the Teachers Service Commission.
18 Q Where was that located?
19 A It was housed in the Cooperative Bank Building.
20 Q Could you tell us what happened on August 7, 1998.
21 A On that particular day I was at home. Apparently two
22 weeks before that we had just lost a baby, and I was still in
23 the house recuperating. Wilson had just resumed the Monday
24 before that Friday. He had resumed work from compassionate
25 leave. On that 7th I remember he had a meeting to attend on
6782
1 the 4th floor of the Cooperative Bank Building. He was going
2 to be the secretary. That means he was going to take the
3 minutes for that meeting. He needed to leave very early to
4 prepare the agenda for the meeting.
5 By 6 a.m. he was up and he was full of energy, he was
6 raring to go. I remember I also woke up, and I watched him
7 dress, something which ended up later on being very
8 significant, because unlike the previous two weeks, he had
9 left the house while I was sleep. On this particular day I
10 watched him as he got dressed. I knew what tie he had put on,
11 I knew what kind of shirt he had put on. I remember at some
12 stage asking him to put on some other shirt. So instead of
13 putting on the blue shirt he changed and put on a pink shirt.
14 That shirt later on ended up being a real landmark, because it
15 is the shirt I kept on looking for later on.
16 So he left the house around 7:30. According to me, I
17 knew the rest of that day he would be in a meeting. He was
18 not to come out of the building.
19 At around 10:30, I had just put the younger boy to
20 sleep and I was downstairs with my elder boy. And then I
21 heard a thud sound. It was not a loud sound, it was just a
22 thud, followed by a tremor. I didn't think much of it but I
23 remember my son asked me what was it, Mommy. I told him I
24 thought it was a transformer. I didn't think much of it until
25 later on it was on TV and my son told me come and look at the
6783
1 news flashes, something about your place of work. I used also
2 to work for the Teachers Service Commission. I used to work
3 on the third floor when my husband was on the fourth floor. I
4 didn't see on the TV much happening then. What I saw was the
5 bus that had people in it. Most of these people -- I didn't
6 see inside the bus. That was on the TV screen. But I
7 remember seeing a driver leaning out of the window and it was
8 like his head was stuck towards the outside. According to me,
9 I thought the bomb was not something big, I thought it was a
10 petrol bomb that went off in the bus.
11 The newscaster say at that time the death toll is 10
12 people. At that time I say Wilson is out of danger, I don't
13 think he is in this bomb. But I tried to get into town to see
14 whether he was safe. I didn't get any further because when I
15 get about a kilometer from town there was a roadblock and the
16 policemen were telling people to keep off from the town
17 center. Then I went back to the house and I decided I would
18 look for Wilson on the TV screen because I see so many faces
19 that were familiar to me because I see my colleagues. It was
20 at that time that I decided I would start looking for him, and
21 I thought any time he would walk through the gate and come
22 home. I was very hopeful that day. I thought maybe he will
23 come home with a scratch or something like that. I didn't
24 think anything bad would happen.
25 Friday came and Saturday. We went through all the
6784
1 hospitals and we did not see him. I remember by Saturday
2 evening, around 8 p.m., a friend of Wilson who was a cop came
3 and told me, he called me out of the house away from the
4 children and told me that, ma'am, I want you to be set for
5 anything, be prepared for any eventualities. And I remember
6 him telling me that you have to be strong for the children in
7 case anything has happened. I asked him, have you found
8 Wilson? He told me no, we have not found him, but I just want
9 to tell you that you have to be strong no matter what happens.
10 At that time I kept asking myself does he know that Wilson is
11 no more, that's why he is telling me this. That's the time
12 that I say tomorrow the following day we will go and look for
13 him among the missing persons on the list at the police
14 station.
15 On Sunday morning we were up very early. There were
16 very many people coming to the house and trying to find out
17 whether we had seen Wilson. We kept saying no, we have not
18 seen him. So on that Sunday morning very early I woke up
19 around 6. We left for town using the public means but we
20 could not get far because all the roads were blocked. So we
21 had to cover most of the distance from hospital to hospital on
22 foot. At that time I remember I was in so much pain. I was
23 not fully recuperated and I kept feeling that I would pass out
24 any time. We went to the police station.
25 We looked through the names that were there, and we
6785
1 could not get much from the list because they kept indicating
2 a unknown African male. I remember I was really annoyed and
3 angry about it because I kept thinking that someone should
4 know where Wilson is, he is not any unknown African male, he
5 is my husband, someone should find him. A policeman told us
6 that we could find him -- there was another list of people
7 whose names were missing. I went through that list but I
8 didn't get much from it. It was then that we decided to look
9 through the morgues. We were told those who went to the
10 different morgues. Those who went to the other morgue were
11 mostly family members and those at the city mortuary were
12 unidentified. That's where we headed around 10 a.m. Sunday,
13 9th of August. I recall it was a very cold, chilly morning.
14 It was just the three of us, me, a friend and my
15 brother-in-law.
16 OK. We entered the morgue through the back door, and
17 there was a horrific scene there. The first three bodies were
18 badly bent, beyond recognition. But I kept telling myself, I
19 have to identify him. I was going to go through this, I was
20 not going to spend another night without knowing where he was.
21 We went to a big room and there were bodies all over the
22 floor. I was feeling some relief, he wasn't there. Someone
23 said no, there is more bodies outside that room. I went to
24 that room and the fifth person from the door was Wilson. He
25 was lying with his head towards the ally and the feet towards
6786
1 the wall. I remember the first thing I looked at were the
2 socks, and when I looked at his socks I followed the body
3 downwards and right below my feet was his head. At that time
4 I recognized the shirt he had put on and the tie he had put
5 on. His face was badly damaged but it still was recognizable.
6 Yeah, that's what happened that day.
7 Q Could you tell us what is the impact of your husband's
8 death on you and your family?
9 A One thing, as I said, Wilson was a very charismatic man.
10 He was just not -- he was not just a leader in the family, he
11 was also a provider. Besides that, Wilson, his parents looked
12 up to him to do everything for them. He was a first born son.
13 He was well educated. He was a hero to the family. Everyone
14 looked to him to help. Everyone looked to him for advice. He
15 was a very courageous man.
16 OK, after his death it was like we lost direction.
17 It was not having a sense of direction. I lost a mentor. I
18 lost somebody, my best friend. His family missed him too. Up
19 till now my two children have not been able to cope with his
20 death. Every time I leave home it's like, mommy, are you
21 going to come back or are you just going to leave and go where
22 daddy went? At that time my son was one and a half year old,
23 and he has never become reconciled with the fact that this
24 person just went and never came back. He blames himself. It
25 is like he think I was a bad boy and that's why daddy left.
6787
1 So when I leave, he say, mommy, don't leave, I'm going to be a
2 good boy. I say no, you're a good boy. I am not leaving
3 because you're a bad boy.
4 MR. GARCIA: No further questions.
5 MR. BAUGH: No questions of this witness.
6 THE COURT: Thank you. You may step down.
7 (Witness excused)
8 MR. FITZGERALD: The government calls Dr. Todd Hess,
9 HESS.
10 TODD HESS,
11 called as a witness by the government,
12 having been duly sworn, testified as follows:
13 DIRECT EXAMINATION
14 BY MR. FITZGERALD:
15 Q Mr. Hess, can you tell the jury what you do for a living.
16 A I am chief of ophthalmology at the Landstuhl Medical
17 Center in Germany.
18 Q Would you spell Landstuhl for us?
19 A L-A-N-D-S-T-U-H-L.
20 Q Were you working as chief of ophthalmology in August of
21 1998?
22 A Yes.
23 Q Can you tell us what happened on August 8 of 1998.
24 A I was actually coming back from a vacation in the north of
25 Germany, where I had heard about the bombing, and I had a
6788
1 feeling that I might be needed. I didn't shorten my vacation.
2 I was coming back anyway. When I got home there were messages
3 that had arrived five or six hours earlier, please come to the
4 hospital, we need you. So I did, and spent the next three
5 days with patients from Nairobi.
6 Q How many patients were airlifted from Nairobi to
7 Landstuhl?
8 A There were a total of 17 patients, eight of whom had eye
9 injuries, and four of those were extreme.
10 Q Can you tell us the names of the four persons who had
11 extreme eye injuries who were transferred to Landstuhl?
12 A Ms. Ellen Bomer, Livingston Madahana, Mr. Kimyu, Jael
13 Oyoo -- I am forgetting one.
14 Q Tobias Otieno?
15 A Tobias Otieno, right.
16 Q With one exception, did most of the people who came for
17 treatment stay with you and the staff at the hospital for
18 sometime?
19 A Yes, they were there until mid-September.
20 Q Can you tell us what happened first.
21 A When Ms. Bomer arrived we took her to the operating room
22 and did exploratory surgery to determine the extent of her
23 injuries and determined that they were beyond the scope of
24 what we could do at Landstuhl. So she was air evacuated to
25 Walter Reade the following day.
6789
1 Q From that point on, did you have any further involvement
2 in her medical treatment?
3 A No.
4 Q Let me approach you with what has been premarked
5 Government's Exhibit 2230, which I showed to counsel. I ask
6 you to look at the picture marked for identification purposes
7 as Government's Exhibit 2230 and tell me if you recognize what
8 that is a picture of?
9 A That's a picture of Mrs. Bomer.
10 Q How does the picture of Ms. Bomer look in comparison to
11 how she looked when you saw her?
12 A I think she actually looks a little bit better in the
13 photograph than when I saw her. She had more facial swelling,
14 more eschar, which is a medical term for superficial burns,
15 blackened areas.
16 Q The picture looks better than she did when you first saw
17 her?
18 A The picture looks better than she did when I saw her.
19 MR. FITZGERALD: The government offers Government
20 Exhibit 2230.
21 MR. COHN: Subject to the judge's prior ruling.
22 THE COURT: Received.
23 (Government Exhibit 2230 received in evidence)
24 MR. FITZGERALD: If we could display Government's
25 Exhibit 2230 to the court and jury.
6790
1 Q Is that the picture you were just testifying about?
2 A Yes.
3 MR. FITZGERALD: We can take the picture down now.
4 Q Could you tell us about Livingston Madahana, what
5 condition he was in when you saw him.
6 A When he arrived at Landstuhl, he had some severe
7 neurological injuries. We did not get to do any exploratory
8 surgeries on him right away. When we were able to, his right
9 eye had been completely lacerated by shards of glass and there
10 were parts of it that were missing. The left eye also had
11 been severely lacerated but had been repaired, primarily in
12 Kenya. It was filled with blood. We couldn't see what was
13 going on on the inside of it. By CAT scan we could see that
14 it had interocular foreign bodies, which require removal by a
15 vitro-retinal specialist, which we didn't offer. We sent him
16 to a German facility that we have a cooperative relationship
17 with, where they removed the blood from his eye and discovered
18 in the process of this that his optic nerve had been
19 completely severed by a piece of glass. So there was no hope
20 of any vision in that eye. He was returned to us and
21 subsequently developed a serious infection in the right eye,
22 or the remains of the right eye, so that again had to be
23 removed. So he was completely blinded.
24 Q Can you tell us what happened to Moses Kimyu.
25 A Mr. Kimyu, when he arrived the entire left upper portion
6791
1 of his head had been blown away. He had no eye tissue present
2 in that area and no recognizable bony structures of his eye
3 socket. In the right eye he also had an eye filled with blood
4 that when it cleared revealed that he had had a hole,
5 traumatic hole torn in the macula, which is the center area of
6 the retina responsible for your clear fine vision. So that
7 left him with about 2100 vision in his remaining eye, which is
8 not driving vision. It is ambulatory vision but nothing more
9 than that.
10 Q Did you come to learn that Moses Kimyu testified earlier
11 at this trial?
12 A Yes, I did.
13 Q Did you see a picture of how he looked at the time that he
14 testified?
15 A I did.
16 Q What was your reaction to seeing how he looked?
17 A I couldn't believe how good he looked in that picture from
18 the way he looked when we saw him. Obviously he still has a
19 disfigurement, but it was much less than I had predicted from
20 the extent of his injuries.
21 Q Can you tell us the condition of Tobias Otieno when you
22 saw him.
23 A Mr. Otieno also had multiple interocular glass foreign
24 bodies in both eyes and a lacerated cornea on one side which
25 required corneal transplantation, and also reattachment of the
6792
1 retinas in both sides of his eyes. He developed some problems
2 with his graft in one eye. By the time he left us, his best
3 vision was, I think, maybe 200 in one eye and hand movement in
4 the other.
5 Q Did you notice anything about his other medical
6 conditions, particularly with regard to his hand?
7 A He had an injury to the hand which was pretty remarkable.
8 His hand was basically severed at the wrist except for the
9 neurovascular bundle, which is a group of blood vessels and
10 nerves that go to the hand. It is the only thing that saved
11 his hand, period. The hand was dangling from this
12 neurovascular bundle.
13 Q Earlier you mentioned interocular foreign particles. In
14 your treatment of Livingstone Madahana and Moses Kimyu and
15 Tobias Otieno and the others, what did you remove from the
16 eyes?
17 A Glass, particles of glass, more than you could count, some
18 that were big enough to reach in with a forceps and others
19 that were so small, they just kind of came to the surface over
20 days and we removed them piece by piece. But glass, foreign
21 bodies basically.
22 MR. FITZGERALD: Thank you, Doctor. Nothing further.
23 MR. BAUGH: No questions.
24 THE COURT: Thank you, Doctor. You may step down.
25 (Witness excused)
6793
1 MR. GARCIA: The government calls he will even Bomer.
2 ELLEN BOMER,
3 called as a witness by the government,
4 having been duly sworn, testified as follows:
5 DIRECT EXAMINATION
6 BY MR. GARCIA:
7 Q Miss Bomer, are you married?
8 A Yes, I am.
9 Q Do you have any children?
10 A Yes. I have one son.
11 Q In August 1998, were you working in Kenya?
12 A Yes, I was.
13 Q What was your assignment there?
14 A I was on a special assignment, TDY. I work for the
15 Commerce Department, and I was there to relocate the foreign
16 commercial service office from the embassy to a local
17 commercial center in Nairobi.
18 Q Where was your office physically located in the Nairobi
19 embassy?
20 A My office was on the ground floor in the back of the
21 embassy, probably about 20 feet to the right of where the
22 marine station was when you came in. We were also in the
23 secure area.
24 Q Were you in that office on the morning of August 7, 1998?
25 A Yes, I was.
6794
1 Q Can you tell us what happened.
2 A Moses, my driver, and I were in the office, and about
3 10:20, 10:30, 10:25, we heard these two loud -- it was kind of
4 like -- it sounded like backfires from a truck, and it was
5 like a pop pop, and it was real loud. And Moses said what was
6 that? And I said I don't know. And he jumped up on a
7 radiator and looked out the window, because the windows in our
8 office were about five, five and a half feet from the floor.
9 That's the last thing I saw.
10 Moments later I woke up and I was laying under a lot
11 of debris. I woke up, and I knew that it was a bomb. I don't
12 know why I knew that it was a bomb, but I knew it was a bomb.
13 I was laying on my back and my arms were free, and I took my
14 right arm and I took a wad of building or something, and I
15 threw it, and I tried to get up, and I couldn't get up. There
16 was a big sheet of metal or something on me. I tried to push
17 it and it wouldn't go. And I remember thinking am I OK, am I
18 OK, do I hurt anywhere? And I thought no, I don't hurt, I'm
19 OK. And then I thought well, I can't see. And then I
20 thought, well, you know, maybe it's -- I thought maybe it was
21 just the bomb. And then I started thinking, well, OK, if I'm
22 blind and I don't hurt, I can live, I'm OK. And I thought no,
23 no, I started saying Lord give me one eye, I can do OK with
24 one, don't take both.
25 I heard water dripping, and when I heard this water,
6795
1 I thought I'm going to drown and I can't get out. And I
2 started thinking, OK, Ellen, if you panic, you're never going
3 to get out of this, you've got to let people know you're here,
4 you have to let them know you're here, you have to remain
5 calm, you can do this, you can get out of here, you don't
6 hurt. So I started saying God give me strength, God give me
7 strength, and I kept saying it over and over and over, and I
8 raised my hand, and I started saying I'm over here, I'm over
9 here, please, I'm over here.
10 It seemed like it was almost instant, people were
11 pulling things off of me. They pulled me out and they put me
12 on a stretcher. When somebody pulled my left arm, I screamed
13 because it was hurt, and so I remember somebody said don't
14 pull her arm, don't pull her arm. And they put me on a
15 stretcher and they put me in the back of a vehicle, and I
16 remember going through the streets of Nairobi, and I remember
17 thinking every time that I had hit a pothole you'd feel it,
18 and I'd think yeah, another pothole.
19 I remember they took me to the Nairobi clinic. I
20 heard them say it's the Nairobi clinic. And I heard somebody
21 say she's an American, so take her to the Nairobi hospital.
22 So they took me to the Nairobi hospital. I remember different
23 people coming to me and holding my hand. I was very afraid.
24 Different ones would come to me and that I had hold my hand
25 and I didn't want to let go. I don't know why I was afraid
6796
1 because I didn't hurt, or I don't remember hurting. But -- of
2 course I prayed.
3 I remember going on a plane and I remember hearing
4 Frank Pressley talking, getting on the plane, and I remember
5 asking him how are you, are you OK? And he said -- he sounded
6 pretty weak and I said Frank, you know, we'll get it, we'll
7 get out of here, we'll make it, just hold on to that thought,
8 we will make it.
9 So I don't remember what happened after that. I
10 remember getting off the plane and I remember going up to
11 Landstuhl hospital. I had had surgery before and it was like
12 home week. My husband was there. I remember holding his
13 hand. I don't remember much else about that. She cut my
14 wedding ring off because my hand was swollen up. I remember
15 that.
16 The next thing I remember was getting off a plane.
17 We were going through traffic in Washington, D.C., and they
18 put the siren on, and when they put the siren on I asked them,
19 I said why is the siren on? And somebody said there might be
20 traffic.
21 And I probably went to sleep again. I don't
22 remember.
23 I remember, I believe I was in ICU for several days
24 at Walter Reade hospital. They called -- we all had pseudo
25 names. We didn't put our real names in the register, so if
6797
1 people called you couldn't get through to me. My name was
2 Miss Gloria, and I thought that was kind of funny.
3 The time at Walter Reade, it was very healing, but it
4 was very hard, because I was afraid, and I don't know what I
5 was afraid of but I was afraid, and I couldn't see anything.
6 I felt very vulnerable. My husband was there, and I believe I
7 was pretty much in the hospital bed for about two weeks. I
8 remember waking up and thinking that I can't see, but maybe
9 this is just temporary, this isn't going to last. I'm
10 basically an optimistic person, so I kept thinking, it'll be
11 OK, it'll be OK, it'll be OK. But then the days pass, the
12 days come, and nothing changes.
13 My husband and I, we bought a ranch in Texas to
14 retire to, and we're coming up to the age where in four or
15 five years we want to do that. When I started coming to and
16 realizing that I'm in this hospital bed and I can't see, I
17 started thinking about all the things that I was going to do,
18 because I'm a very visual person. I like color, I like fiber,
19 I like texture. I do oil painting. I do weaving. I have my
20 own little table loom, floor loom.
21 Everything that gave me identity was ripped away, and
22 I felt like I had no identity, no worth. I wasn't going to be
23 able to go out to the ranch and walk around, because there are
24 snakes, I can't walk out there, there are snakes. You know
25 just little simple things that don't -- that if you could see
6798
1 you just take for granted. You don't stop and think.
2 I have always worked and I had 18 years as a
3 government employee. I valued that time. I liked my job. I
4 wasn't ready to give up my job. I wasn't ready to give up my
5 career. But, you know, here I am, I'm blind, what am I going
6 to do. I didn't know a blind person in my life. I've never
7 come in contact with anybody that was blind.
8 So while I'm laying in this bed trying to think how
9 can I still be valuable to my husband and how can I have some
10 importance as a person, you know, what kind of job am I going
11 to do -- there were times I thought, well, you can always go
12 work in a hospital, because nurseries always need somebody to
13 hold babies and you don't need to see to do that. And it
14 sounds kind of simplistic but it gives you a little bit of
15 something that you can do, something that you can hold on to.
16 I was at Walter Reade for a month as an in-patient in
17 that room.
18 Q Mrs. Bomer --
19 A Many times during the day my husband would wheel me from
20 this room to the next department. I had 23 doctors. They
21 took care of me from the soles of my feet to the top of my
22 head. I had teeth that were sheared off. I had holes in my
23 head. But luckily my head's pretty hard, so that was OK. I
24 had headaches. My eardrum was burst on my right ear. My left
25 ear had a hole in the eardrum. Dislocated elbow. I had
6799
1 shrapnel in my breast. I had shrapnel in my legs, in my arms.
2 Not to mention the eyes. And all the rest is kind of
3 superficial, but the eyes are really -- nobody willingly gives
4 up their eye or their sight.
5 After being in Walter Reade for a month, they told me
6 I could move out as an outpatient. There is a Malone House
7 Hotel at the Walter Reade Medical Center, and it's about a
8 six-story hotel, wonderful people in the hotel. But, you
9 know, you have to get there, and it's -- I mean up until this
10 time I had not even -- I think I had walked down the hall in
11 the hospital two or three times holding on to somebody. I
12 remember the first time they put me in the van just to go
13 those two blocks, when I went to step out of the van it was
14 like you're stepping into a big black hole because you don't
15 know up from down, you don't know sideways, you don't -- I
16 mean, it's a very frightening thing.
17 I've had training now. I've been to a blind
18 residential facility and I spent five and a half months there.
19 The hardest part of being there was having to accept the fact
20 that I'm blind. And I guess I really -- even to this day I
21 don't know that I accept the fact that I am blind. I keep
22 thinking I'm going to see, I'm going to see, I'm not going to
23 give up. My Lord is not going to take both eyes, he might
24 take one but he isn't going to take both, because I didn't do
25 any of this. I was innocent. I was doing my job, and I was
6800
1 supposed to leave Nairobi on the 6th of August, but Secretary
2 Daley was bringing a delegation of 13 businessmen to Nairobi
3 to increase trade exports, so he asked if I would stay another
4 two weeks. And I said OK, I would.
5 It was just one of those things, you're in the wrong
6 place at the wrong time.
7 MR. GARCIA: Thank you, Mrs. Bomer. Thank you very
8 much. I have nothing further.
9 MR. BAUGH: Nothing.
10 THE COURT: You may step down.
11 (Witness excused)
12 THE COURT: One more?
13 MR. FITZGERALD: We will put on one more witness,
14 Judge.
15 The government calls Mordecai Thomas Onono,
16 O-N-O-N-O.
17 MORDCAI THOMAS ONONO,
18 called as a witness by the government,
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. FITZGERALD:
22 Q Good afternoon, sir.
23 A Afternoon.
24 Q Could you just keep your voice up just slightly so the
25 jury can hear what you have to say. I would appreciate it.
6801
1 It helps if you sit close enough to the microphone, about nine
2 inches away. Thank you.
3 Sir, can you tell the jury who Lucy Grace Onono is.
4 A Lucy Grace Onono is my wife.
5 Q For how long were you married to Lucy Grace Onono as of
6 August 1998?
7 A We were married for 22 years. We are short by two days to
8 our 23rd anniversary.
9 Q Where did your wife work in August of 1998?
10 A Lucy worked at the American Embassy, in the personnel
11 section.
12 Q For how long had she worked in the personnel office of the
13 American Embassy?
14 A About 22 years.
15 Q How many children did you and Lucy have?
16 A Five.
17 Q Can you tell us their names.
18 A Laura Margaret Onono, born on 25th April 1976; Andrew
19 Thomas Onono born on 1st January 1978; Steven Jonathan Onono
20 born on the 15th February 1981; Respie Jessica Onono, born on
21 18th November 1984; and Leslie Helen Achin, born on 18 June,
22 1991.
23 MR. FITZGERALD: Your Honor, at this time I would
24 offer Government's Exhibit 2180A, a photograph.
25 THE COURT: Yes, you may.
6802
1 (Government Exhibit 2180A received in evidence)
2 Q Looking at the screen to the left, if we could display
3 that, can you tell us who the people in the photograph are.
4 A In the front line from left you have Lucy Grace Onono.
5 Then we have Leslie Helen Achin. And that's myself, Mordecai
6 Thomas Onono. From left again, the back, we have Respie
7 Jessica Onono. Then Andrew Thomas Onono. Then we have Laura
8 Margaret Onono. Then we have Steven Jonathan Mwandi. And our
9 nephew Brian Onono.
10 Q Can you tell the jury briefly what Lucy Grace Onono was
11 like as a person and as a wife.
12 A Lucy as a person and as a wife was a likeable person, very
13 compassionate. Lucy had a sparkly character. Lucy had a
14 ready smile. As a wife, we always did our things together.
15 We planned our life together. We planned how to use our
16 resources together. We supported our children and planned the
17 future of our children together. Lucy, as a wife and a member
18 of our community --
19 (Continued on next page)
20
21
22
23
24
25
6803
1 MR. COHN: Your Honor, may we approach for a second?
2 (At the sidebar)
3 MR. COHN: Your Honor, juror No. 9 seems to be
4 overcome. Her fellow jurors seem to be concerned. I just
5 call that to the court's attention. This is very difficult
6 testimony.
7 MR. BAUGH: She had her head down for about two or
8 three minutes.
9 THE COURT: I certainly didn't notice anything.
10 MR. COHN: I know you didn't or you would have done
11 something about it. I am just calling it to your attention.
12 THE COURT: You are almost finished, right?
13 MR. GARCIA: Yes.
14 (In open court)
15 THE COURT: You want to take a recess?
16 JUROR: I will be right back.
17 (Juror excused)
18 MR. FITZGERALD: Judge, perhaps we can break for the
19 day.
20 THE COURT: Why don't we break for the day. We will
21 be back at the same time tomorrow. I am not sure when that
22 was. We will start when you get here.
23 (Jury excused)
24 (Witness excused)
25 THE COURT: Another courtroom observer advised me
6804
1 that the juror apparently had a beeper that went off. She
2 seemed to be anxious to answer it.
3 In any event, do you plan to recall this witness?
4 MR. FITZGERALD: Yes, your Honor.
5 THE COURT: We have some matters that we deferred,
6 and let's do deal.
7 Let's deal with them now. The first matter that we
8 deferred was the government's objection to a lack of discovery
9 on the part of the defendant. Earlier on we announced a rule
10 that no exhibit was to be offered or shown to the jury unless
11 opposing counsel were advised the night before that that
12 particular exhibit would be offered, and if that rule has
13 fallen by the wayside, I think it would be appropriate to
14 reinstate it. Any objection?
15 MR. BAUGH: No, your Honor, no problem.
16 THE COURT: Good.
17 MR. BAUGH: I do want to note for the record, your
18 Honor, first of all, I apologize to the United States. We
19 have been working a lot with the accelerated pace that this
20 case has been taking, and believe me, we were at Kinko's last
21 night copying things. So I hope you understand that we are
22 not trying to hide the ball.
23 THE COURT: I haven't engaged in any negative
24 dialogue. I am simply suggesting that regardless of what any
25 rule says, as a matter of ordinary professional courtesy it
6805
1 would be a very good idea. In any event, I will sustain an
2 objection to any exhibit offered by either party which has not
3 been identified and shown to opposing counsel the previous
4 day.
5 MR. BAUGH: Excuse me, your Honor. May I respond to
6 your comment about my professionalism, because --
7 THE COURT: I did not make any comment about your --
8 MR. BAUGH: You said something about professional
9 courtesy and I want you to know that we were originally to
10 start this the following Monday, the government had trouble
11 with witnesses and you told us to speed things up.
12 Your Honor, I take a little exception and now I am
13 going to go out and cool off and come back to this tomorrow
14 morning.
15 THE COURT: That sounds like a good idea. Look, this
16 is a very trying experience for everyone.
17 MR. BAUGH: Yes.
18 THE COURT: I agree with the statement made by the
19 government in its opening that fairness to everyone makes it
20 appropriate that we hear from some of these witnesses who have
21 gone through this ordeal, who have come long distances, all of
22 which is by way of saying that that we should not let the
23 emotionalism of this trial cause us to vent our feelings with
24 respect to each other.
25 So that if I have offended you, I didn't intend to do
6806
1 so. What I was trying to do was, without casting blame or
2 aspersions, to institute a rule applicable to both sides,
3 which I think would make life easier for everyone.
4 MR. BAUGH: Thank you, your Honor.
5 MR. COHN: May I raise an issue?
6 THE COURT: I think Mr. Fitzgerald, it was his point
7 that we were dealing with. I will stay here as long as you
8 want.
9 MR. FITZGERALD: I will just state the nature of my
10 objection. I will not increase the temperature of the room.
11 I do think what is important to understand was, the nature of
12 the government's objection was that there were materials being
13 displayed to the jury in the opening that the government had
14 never been provided with, and nor had we been provided with
15 the pictures of the children in Iraq or the very disturbing
16 photos that Mr. Baugh was holding up to the jury, and we
17 objected.
18 THE COURT: And when you objected, they were
19 immediately withdrawn.
20 MR. FITZGERALD: Yes. I don't think I should be
21 first seeing the photographs from behind and not during
22 discovery.
23 THE COURT: Is there any problem with that?
24 MR. BAUGH: No, your Honor. Those came from Kinko's
25 late yesterday.
6807
1 MR. FITZGERALD: Judge, we heard for weeks that there
2 is a difference between a discovery standard and what is
3 admissible at the trial. We have certainly not teed up what
4 if anything from Panama or Iraq is admissible at the trial and
5 I don't want the fact that I did not want to be objecting in
6 front of the jury as if I was being defensive about something
7 to waive any objection, because I think most of the substance
8 of what Mr. Baugh said about matters other than the bombing
9 was entirely objectionable and I want my rights preserved with
10 regard to that.
11 THE COURT: Very well. In any event, from here on in
12 the remaining of these procedures we have the rule, which I
13 will strictly enforce, absent some extraordinary circumstance.
14 Mr. Cohn.
15 MR. COHN: Thank you, sir. As I indicated that I
16 would and which I do now, it seems to me to be an appropriate
17 time after the testimony of Ms. Bomer to raise the issue of
18 whether or not we haven't had enough of this kind of
19 testimony.
20 THE COURT: Let me, just so that I can focus on that,
21 I am going to hear you as long as you want. How much more do
22 we have? How many more victim impact witnesses does the
23 government plan to call?
24 MR. FITZGERALD: I can give you a precise number,
25 your Honor, in a moment.
6808
1 THE COURT: Yes.
2 MR. FITZGERALD: Your Honor, my understanding is that
3 we called, I believe, five witnesses in the morning, that
4 Mr. Onono was the 10th witness in the afternoon but the 15th
5 total.
6 MR. COHN: Sixteenth.
7 MR. FITZGERALD: We have two nonvictim witnesses
8 which we can describe separately. We had, we have already
9 excused five witnesses in shortening the case today. We had
10 17 left and we will reduce it to 15, your Honor.
11 THE COURT: So you have 15 victim witnesses you plan
12 to call.
13 MR. FITZGERALD: Yes.
14 THE COURT: Which would be --
15 MR. FITZGERALD: Tomorrow.
16 THE COURT: Which would be the same as you did today?
17 MR. FITZGERALD: Yes.
18 MR. COHN: Your Honor, there is not one of us that
19 leaves our humanity at the door when we come in here, and it
20 is hard to stand up here and play the grinch in the sense of
21 trying to minimize in a legal sense what cannot be minimized
22 in the human sense. But if the law tells us that this is not
23 to be an exercise in emotion but one of logic and one in which
24 the jury is to consider certain factors, it seems to me apt.
25 The record cannot reflect and we have not sought to stand up
6809
1 in between witnesses and say the record should reflect that
2 witness one was weeping or that witness two was on the verge
3 of weeping and that we are all upset.
4 The fact is that what we have gotten is witness after
5 witness who tells us the same thing that we all know, which is
6 that whenever you have someone who dies there is familial
7 loss, which is terrible, and that there are consequences to
8 that that are financial as well, and there is a limited amount
9 of that record that the government is entitled to present to
10 turn that into a personal experience that the jurors can
11 understand without reaching the point that it is so
12 duplicative that it becomes more prejudicial than it is
13 supposed to be. I understand it is supposed to be somewhat
14 prejudicial but we have to draw a line somewhere.
15 It seems to me, your Honor, that we are getting
16 nothing more out of any of this except more people who
17 searched for their loved ones for days, more people whose
18 financial loss is perfectly apparent, more people who think in
19 the middle of the night about how they miss their loved ones
20 and miss whatever they lost, and I sympathize and so does
21 everyone in the court. But there comes a time when it should
22 be enough.
23 When you go to another area of the law and the
24 sentencing guidelines and you say, your Honor, my client has a
25 family, you say everybody has a family and don't consider it
6810
1 because everybody has a family. I hate to be harsh, but every
2 person who is bereaved has a family and every person who dies
3 has a family, and there has to be some balance struck --
4 THE COURT: What is a fair balance? Two hundred
5 killed and 5,000 injured and what is the calculus of that?
6 MR. COHN: I don't know, but it is not a mathematical
7 analysis. But it seems that the emotion in this courtroom --
8 the fact that we had this doctor, who I have to say has
9 literary pretensions and read some poetry about her
10 experience, that we have had enough. It is your discretion
11 but we have had enough. I say as somebody who bleeds for
12 somebody and I want to weep and stop myself because I can't do
13 it in front of the jury, in front of the victims, where it is
14 no longer factual, it is a roller coaster and it is enough.
15 Seventeen more witnesses is beyond the pale. I don't care
16 whether it is another day or another hour. Ms. Bomer is
17 enough to make anybody, make a stone weak. It's enough.
18 THE COURT: I think you have made your point. Mr.
19 Fitzgerald.
20 MR. FITZGERALD: The only thing I would like to say
21 in response, your Honor, I think we have made a restrained
22 offering. The number of victims compared to the witnesses,
23 the witnesses that have spoken have carried themselves with
24 great dignity and restraint. They have made an effort not to
25 cry and I have nothing but respect for how they have conducted
6811
1 themselves. They have gone out of their way to fight back
2 emotion and restrain themselves. I think it is appropriate
3 that another 15 tell their story to the jury.
4 THE COURT: I agree with the government's
5 characterization of what has occurred here. I don't believe
6 there have been histrionics for the sake of histrionics.
7 There was a time, we all know, when the Supreme Court said
8 this type of testimony was inadmissible. The Supreme Court in
9 its infinite wisdom has recognized that that was an erroneous
10 position.
11 Nor is this a case in which appeals to emotion are
12 only going to be made at one time, by one party. This jury
13 has already heard of the number of Iraqi children who have
14 died because America tried to pollute the water supplies.
15 With respect to the number of witnesses, the number
16 of days and the photographs, this court has already ruled, and
17 nothing has happened to change the basis of that ruling.
18 The objection is overruled.
19 Anything further? We are adjourned then until
20 sometime between 9:30 and 10:00 a.m.
21 (Proceedings adjourned until 9:30 a.m., Thursday, May
22 31, 2001)
23
24
25
6812
1
2 INDEX OF EXAMINATION
3 Witness D X RD RX
4 SUSAN BARTLEY...........6710
5 TERESIA KARANJA.........6718
6 MARY KHAHENZI...........6722
7 AMOS MURITHI KARIMI.....6727
8 TABASSUM BUTT...........6733
9 CHANNA COMMANDAY........6741
10 MARGARET KANINI OTOLO...6747
11 DEBORAH HOBSON..........6754
12 SURENDRA PATEL..........6759
13 SANDEEP JADAVA PATEL....6768
14 LYDIA MOREFIELD SPARKS..6773
15 DOREEN RUTO.............6779
16 TODD HESS...............6787
17 ELLEN BOMER.............6793
18 MORDCAI THOMAS ONONO....6800
19 GOVERNMENT EXHIBITS
20 Exhibit No. Received
21 2018A through G ............................6711
22 2055 .......................................6723
23 2132 .......................................6728
24 2201 .......................................6734
25 2231 .......................................6742
6813
1 2192 .......................................6748
2 2035 .......................................6755
3 2252, 2253 and 2257 ........................6763
4 2258, 259, 2260, 2261, 62, 63,
5 64, 65, 66, 68............................. 6763
6 2113 .......................................6780
7 2230 .......................................6789
8
9
10
11
12
13
14
15
16
17
18
19
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