5 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 59 of the trial, June 5, 2001.
See other transcripts: usa-v-ubl-dt.htm
7130
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 June 5, 2001
9:30 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15 APPEARANCES
16 MARY JO WHITE
United States Attorney for the
17 Southern District of New York
BY: PATRICK FITZGERALD
18 MICHAEL GARCIA
Assistant United States Attorneys
19
20
FREDRICK H. COHN
21 DAVID P. BAUGH
Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
22
DAVID RUHNKE
23 Attorneys for defendant Khalfan Khamis Mohamed
24
25
7131
1 (Trial resumes; jury not present)
2 THE COURT: I have been reading the Supreme Court's
3 decision in Henry v. Johnson, which was decided yesterday, to
4 see whether it had any impact on our case, and I am not aware
5 of any alteration in the charge that is required in light of
6 Henry. If anyone is of a contrary view, I would appreciate
7 the advise promptly.
8 We left two matters open with respect to the charge
9 and the special verdict form. One relates to the extent to
10 which the government may argue, with respect to future
11 dangerousness, a lack of remorse, and the government has said
12 that it would cite for lack of remorse the photograph in which
13 Mr. al-'Owhali strikes a pose such as that usually adopted by
14 victors after a contest -- an upraised fist.
15 Is that the extent of the government's claim with
16 respect to lack of remorse, or is the government also relying
17 on the substance of what Al-'Owhali said to Agent Gaudin?
18 MR. FITZGERALD: Your Honor, putting aside any
19 statements he made in the nature of threats, which were
20 suppressed, in addition, he expressed remorse for Azzam, his
21 colleague, or sadness that he died. That was the only person
22 he expressed sadness of.
23 We did not offer, but could offer, there was a later
24 photograph similar to what we call "the champ" photograph
25 taken on the airplane, where he also smiles, coming back to
7132
1 America.
2 THE COURT: Where is the statement that he regretted
3 that the truck didn't go under the embassy so that more damage
4 could be done to the embassy rather than to Kenyans? Where
5 does that appear?
6 MR. FITZGERALD: I believe that's part of the
7 statement that was actually stipulated to by the defense; that
8 his plan had been, he had recommended that Saleh change the
9 plan to put the bomb in the embassy to attack the embassy and
10 kill more Americans.
11 THE COURT: My understanding of the law on the
12 subject, beginning with the Davis case and exemplified by
13 cases that follow, is that there has to be very careful
14 preservation of the defendant's Fifth Amendment right to
15 remain silent, and that a lack of remorse cannot be predicated
16 on silence but can be predicated on affirmative conduct,
17 including statements made by the defendant.
18 And certainly a statement of regret with respect to
19 the driver of the truck and regret that the bombing was not
20 accomplished in the manner which inflicted greater damage on
21 Americans and less damage on Kenyans, coupled with the
22 photograph, I believe satisfies the requirement that a lack of
23 remorse may be predicated on affirmative conduct by the
24 defendant. I reject the claim that the mere passage of time
25 negates that.
7133
1 The other open item related to the paragraph in the
2 special verdict form which seeks to make clear to the jurors
3 that they are not simply to count the number of aggravators
4 and mitigators and that one aggravator or one mitigator may be
5 dominant over a number of other opposing factors, and I see no
6 need in that photograph to go into the need for unanimity or
7 lack of unanimity and so we simply will strike those
8 references. We will have a revised copy of the charge and
9 special verdict form later today.
10 Are there any other matters that have to be addressed
11 before the jury comes in?
12 MR. BAUGH: Yes, your Honor. The last point that you
13 just made is the consideration that -- idea -- the idea that
14 one aggravator could outweigh all the mitigators or one
15 mitigator could outweigh all the aggravators need not be found
16 unanimously. I thought we discussed this yesterday, that
17 there has to be a finding that -- I mean, they have to find --
18 THE COURT: I deal with that requirement elsewhere.
19 The only question is whether there is a need in that paragraph
20 to deal with that.
21 MR. BAUGH: I would suggest there is, your Honor, in
22 light of the history with this jury, the fact that they
23 tracked the verdict form the way they did. I'm assuming when
24 they get to this, that portion of deliberations, that they are
25 going to need those directions so that they don't do exactly
7134
1 what the Court was concerned with when it put it in there
2 initially. And for those reasons, and to make sure the
3 government enjoys its proper burden, we would ask that the
4 language be retained.
5 THE COURT: When we have the draft in front of us
6 we'll review that again.
7 I am handed a note, it's a typed note, from one of
8 the alternates: "Dear Judge Sand: My primary care
9 physician," whom he names and gives a telephone number,
10 "diagnosed me as hypertensive and prescribed a blood pressure
11 medicine Atenolol and a low-fat, low-sodium diet. The marshal
12 is unable to provide a low-salt meal for me during the
13 sequestered lunch hour and I had no lunch yesterday and on
14 several other occasions. I request that you excuse me for
15 this and other medical reasons."
16 I am inclined to grant that request.
17 MR. COHN: Can your Honor advise us which alternate?
18 THE COURT: The third alternate.
19 MR. COHN: The third alternate. One I think unlikely
20 to be reached.
21 THE COURT: Unlikely to be reached. Well, the third
22 alternate.
23 MR. BAUGH: Your Honor, I have no problem doing it.
24 Being that we keep the same panel for another case, I thought
25 I would invite Mr. Ruhnke to make his comment.
7135
1 MR. RUHNKE: We concur with your Honor's wishes to
2 excuse this alternate.
3 THE COURT: Very well. We will do that. He is
4 excused.
5 Are there matters which require attention before the
6 jury comes in?
7 MR. FITZGERALD: No, Judge.
8 THE COURT: All right.
9 That alternate happens to be the alternate who delays
10 the start each morning.
11 With respect to the book, I take it you are just
12 going to offer those chapters.
13 MR. BAUGH: Yes, your Honor.
14 THE COURT: Next order of business is what?
15 MR. COHN: I'll be reading a stipulation, your Honor.
16 MR. RUHNKE: Your Honor, while the jury is coming in,
17 I understand --
18 THE COURT: They're right in the hall.
19 MR. RUHNKE: Just before the government presents its
20 rebuttal case, I would like to be heard on a document.
21 THE COURT: All right.
22 (Jury present)
23 THE COURT: Good morning.
24 THE JURY: Good morning.
25 THE COURT: You are aware we have excused the
7136
1 gentleman who sat in the last row, so the numbers are
2 dwindling. Everybody stay healthy, please.
3 Mr. Cohn.
4 MR. COHN: Your Honor, with the Court's permission, I
5 would like to read a stipulation.
6 "It is hereby stipulated and agreed by and between
7 the United States of America, by Mary Jo White, United States
8 Attorney for the Southern District of New York, Patrick J.
9 Fitzgerald and Michael J. Garcia, of counsel, and defendant
10 Mohamed Rashed Daoud Al-'Owhali, by and with the consent of
11 his attorneys, that:
12 (i) Mamdouh Mahmud Salim, a/k/a Abu Hajer al Iraqui,
13 was charged in indictment (S4) 98 CR 1023 (LBS) with
14 conspiracy to kill United States nationals, but not with the
15 bombings of the United States embassies in Kenya and Tanzania.
16 Salim had been arrested on September 16, 1998, in Germany.
17 Based on the charges filed against Salim, he did not face the
18 death penalty. Nonetheless, German authorities would not
19 extradite Salim to the United States unless they were assured
20 that Salim would not face the death penalty. The United
21 States Government assured the German Government in writing
22 that it would not seek the death penalty for the offenses for
23 which Salim was extradited. Salim was extradited from Germany
24 to the United States on December 20, 1998;
25 (ii) Khalid al-Fawwaz, Ibrahim Eidarous, and Adel
7137
1 Abdel Bary were charged in indictment (S7) 98 CR 1023 (LBS).
2 Fawwaz was charged with conspiracy to kill United States
3 nationals and conspiracy to murder (Counts One and Two), but
4 not charged with the bombings of the United States embassies
5 in Kenya and Tanzania. Fawwaz had been arrested on or about
6 September 27, 1998, in the United Kingdom. Based on the
7 charges filed against Fawwaz, he does not face the death
8 penalty; and
9 (iii) Ibrahim Eidarous and Abdel Bary are charged in
10 indictment (S7) 98 CR 1023 (LBS) with various conspiracy
11 charges, including conspiracy to kill United States nationals
12 (Count One), as well as with the various substantive counts
13 arising out of the bombings of the United States embassies in
14 Kenya and Tanzania. Eidarous and Abdel Bary had been arrested
15 on July 12, 1999, in the United Kingdom. The bombing charges
16 filed against Eidarous and Abdel Bary are capital offenses,
17 but to seek the death penalty the government would have to
18 prove sufficient participation in the action to satisfy the
19 "gateway factors" for the death penalty. Without resolving
20 whether that can be done, it is assumed (for purposes of this
21 trial) based on past experience that, as part of the ongoing
22 extradition proceedings, British authorities will insist on a
23 commitment from the United States that it not seek the death
24 penalty against Eidarous and Abdel Bary (as well as Fawwaz)
25 before extraditing any of them to the United States. It is
7138
1 further assumed that at the time such a demand is made, the
2 United States will provide such assurance to the United
3 Kingdom."
4 And then it's signed by the appropriate parties, your
5 Honor. And we offer this as Al-'Owhali GG.
6 THE COURT: Received.
7 MR. COHN: Thank you.
8 (Defendant Al-'Owhali Exhibit GG received in
9 evidence)
10 MR. BAUGH: Good morning, your Honor. Another
11 stipulation offered as Al-'Owhali HH:
12 "It is hereby stipulated and agreed by and between
13 the United States of America, by Mary Jo White, United States
14 Attorney for the Southern District of New York, Patrick J.
15 Fitzgerald and Michael J. Garcia, assistant United States
16 Attorneys of counsel, and defendant Mohamed Rashed Daoud
17 Al-'Owhali, by and with the consent of his attorneys, as
18 follows:
19 "(i) During interviews with Special Agent Gaudin of
20 the Federal Bureau of Investigation during the defendant's
21 interrogation, the defendant stated that during his training
22 he was instructed that attacks on American embassies achieves
23 several objectives, to include striking the United States
24 ambassador, the military attache, the press attache, and, most
25 importantly, the intelligence officers.
7139
1 "It is further stipulated and agreed that this
2 stipulation may be received in evidence as a defense exhibit
3 at trial."
4 And again, your Honor, we would offer it as
5 Al-'Owhali's HH.
6 THE COURT: Received.
7 (Defendant Al-'Owhali Exhibit HH received in
8 evidence)
9 MR. BAUGH: I have also, pursuant to direction, taken
10 an excerpt from the Islam book, which we are offering as
11 Al-'Owhali's DD, chapter 6 called the "Pillars of Islam" from
12 pages 45 through 83, and we have copied the pages.
13 THE COURT: Received.
14 (Defendant Al-'Owhali Exhibit DD received in
15 evidence)
16 MR. BAUGH: Chapter 7 is stuck in there, too, which
17 goes up --
18 I'm sorry, chapters 6, 7, and 8. The page numbers
19 are the same.
20 I have also been asked to cite the Court and the jury
21 to Exhibit -- I believe it's already been introduced -- 1557E,
22 translation, the same being the Islamic Army for the
23 Liberation of the Holy Places Declaration Number 2, and an
24 Arabic version of it, which may become an issue later. Just
25 making reference to it.
7140
1 At this time, your Honor, we have a videotape.
2 THE COURT: Yes.
3 MR. BAUGH: All right.
4 (Videotape played)
5
6 (Continued on next page)
7
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16
17
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7141
1 MR. BAUGH: I move the introduction of exhibit EE,
2 the videotape.
3 THE COURT: What is the date on which it was made?
4 MR. BAUGH: It's 2000, all I know, your Honor. It's
5 from BBC. After the introduction of EE, the defense will
6 rest.
7 THE COURT: The defense rests, and we'll take a
8 recess.
9 (Jury not present)
10 THE COURT: Is there a government rebuttal case?
11 MR. FITZGERALD: Yes, your Honor. It's one
12 stipulation.
13 THE COURT: One stipulation?
14 MR. FITZGERALD: Yes.
15 THE COURT: That's the entirety of it.
16 MR. FITZGERALD: Yes.
17 THE COURT: All right. Then the government is
18 prepared to begin its closing statement.
19 MR. FITZGERALD: Yes. I believe Mr. Ruhnke.
20 MR. RUHNKE: Your Honor, I wanted to be heard on the
21 stipulation, although I'm not a party to this part of the
22 proceeding.
23 THE COURT: May I see a copy?
24 MR. FITZGERALD: Yes.
25 MR. RUHNKE: The stipulation which was shown to me
7142
1 this morning as a matter of courtesy states in pertinent part
2 that there are X number of inmates who have been subject to
3 the special administrative measures known by it's acronym SAM;
4 that 12 or 13 have been terrorists, and there is a stipulation
5 that two individuals, terrorists, accused terrorists under SAM
6 restrictions made an attack on an officer at an institution
7 while under SAM conditions. Obviously, the reference is to
8 the assault on Officer Pepe in the year 2001.
9 It never, ever made a concession on behalf of Khalfan
10 Mohamed that he participated in the attack on an officer.
11 Indeed, quite the contrary is the case. The evidence will be
12 at trial that he did not participate in it. Now the
13 stipulation is something that neither party knows to be true.
14 Certainly, al-'Owahli --
15 THE COURT: Isn't the answer to change the language,
16 two of the 12 detainees are alleged by the government to have.
17 MR. BAUGH: No objection from the defendant
18 al-'Owahli, your Honor.
19 MR. RUHNKE: I don't object to that, because that's
20 the fact.
21 MR. BAUGH: That's the fact.
22 MR. FITZGERALD: Could I have one moment, your Honor?
23 (Pause)
24 MR. FITZGERALD: Your Honor, we do contend two
25 inmates engage in the assault. We're not putting on live
7143
1 testimony to avoid those issues. That's why there is a
2 bifurcation. But why should we weaken the government's
3 contention with regard to this defendant when he says that
4 special administrative measures will insulate Mr. Al-'Owahli
5 from being a danger.
6 THE COURT: Because they are alleged to have engaged
7 in that attack, they are presumed innocent. They haven't been
8 proven guilty of that attack.
9 MR. FITZGERALD: For purpose of this trial, for
10 Mr. Al-'Owahli the fact that the assault occurred if we proved
11 in front of the jury that the officer went in a room with two
12 inmates and nearly lost his life and came out, it would be
13 clear to the jury that an assault occurred on the officer but
14 to weaken that, weakens the fact that under special
15 administrative measures an attack occurred.
16 THE COURT: Well, it is merely an attack. You are
17 saying that two of those engaged in serious assault. You're
18 saying as a fact that they did it, and it is not an
19 established fact. It is at this point a matter under
20 indictment which remains to be proven at a trial.
21 MR. FITZGERALD: This stip is the alternative for us
22 putting on witnesses. The fact that we are depriving
23 ourselves of live testimony of the assault -- what if we
24 worded it, an attack occurred in a cell shared by two
25 detainees under special administrative measures where a guard
7144
1 was -- and then wording it that way.
2 MR. RUHNKE: I will not object to that alteration of
3 stipulation.
4 MR. FITZGERALD: The way it would be worded, your
5 Honor, would be the last full sentence on the first page would
6 start with the language: A serious assault on BOP
7 correctional officer occurred in a cell where two of those 12
8 detainees were under special administrative measures.
9 THE COURT: Yes.
10 MR. FITZGERALD: I will show it to Mr. Baugh.
11 THE COURT: All right. Anything else?
12 MR. FITZGERALD: No.
13 THE COURT: Now in terms of closing statements are
14 the parties sufficiently informed as to the nature of the
15 Court's charge to make their closing argument?
16 MR. FITZGERALD: Yes, your Honor.
17 MR. BAUGH: Yes, your Honor.
18 THE COURT: Very well. We'll take a five-minute
19 recess. We'll read the stipulation. The government will
20 proceed to closing statement.
21 (Recess)
22 (In open court; jury present)
23 THE COURT: As you have heard the defendant has
24 rested. Mr. Fitzgerald.
25 MR. FITZGERALD: Yes, your Honor. The government
7145
1 offers one exhibit in rebuttal regarding Al-'Owahli Exhibit R.
2 It is Government Exhibit 2281 which I would offer now and ask
3 to read.
4 THE COURT: Received.
5 (Government's Exhibit 2281 received in evidence)
6 MR. FITZGERALD: It is hereby stipulated and agreed
7 by and between the United States of America, and defendant
8 Mohammed Rashed Daoud al-'Owahli by and with the consent of
9 his attorneys, that Title 28 Code of Federal Regulations
10 Section 501.3 which concerns special administrative measures
11 hereafter, the special administrative measures which may be
12 imposed on persons detained in Bureau of Prisons BOP
13 facilities became effective in 1996.
14 Since that time 21 detainees in the BOP system have
15 been placed under special administrative measures pursuant to
16 Title 28 Code of Federal Regulations Section 501.3. Currently
17 there are in excess of one hundred thousand detainees in the
18 BOP system. As of the present time there are 13 persons
19 detained in the BOP system subject to special administrative
20 measures pursuant to Section 501.3, 12 of them because their
21 involvement in terrorism offenses.
22 A serious assault on a BOP correctional officer
23 occurred in a cell where two of those 12 detainees were under
24 special administrative measures. As a result of that assault
25 the correctional officer was badly maimed and suffered
7146
1 permanent disability.
2 Signed by both parties. The government rests its
3 rebuttal case.
4 THE COURT: The government rests.
5 All right, ladies and gentlemen, so as you have heard
6 both sides have rested, and the next order of business then
7 are closing arguments. As was the case in the prior
8 proceeding the government goes first, followed by the
9 defendant and the government then has an opportunity for a
10 brief rebuttal.
11 Mr. Garcia.
12 MR. GARCIA: Thank you, Judge. Good morning.
13 In his opening here before you last weeks Pat
14 Fitzgerald told you that up to that point before we began this
15 penalty phase you had heard little about what the embassy
16 bombing did to human beings, and he told you that over the
17 next day or so you would learn about that, you would hear from
18 victims, and you would have a better understanding of what
19 al-'Owhali's crimes did to those victims. After hearing from
20 just 26 of those victims sadly, sadly the impact of his crimes
21 are much more real.
22 If we could call up Government Exhibit 2140. This is
23 Joyce Manguriu. You heard her father testify here in this
24 courtroom. And what do you know about her now? You know that
25 this photograph was a photo she had taken for her passport
7147
1 because she was planning on coming to the United States to
2 attend college, but you know that Joyce will never attend
3 college because this defendant murdered her. She'll never
4 attend college. She'll never get married. She'll never have
5 children.
6 If we could have Government Exhibit 2035. You know
7 after hearing Deborah Hobson testify that this is a photograph
8 of her husband, Kenneth Ray Hobson, and that's his daughter,
9 Megan. You know from Deborah Hobson that Ken liked to bake
10 bread with his daughter on the counter of their home in
11 Nairobi. And you know from when she testified that eight
12 months after the bombing, eight months after this defendant
13 killed her husband, she had another child and she named that
14 child Abigail whose name means my father rejoices.
15 Those are two of the victims you heard from. Those
16 are two of the 26 victims that took the stand, and after their
17 testimony the suffering and the pain caused by this defendant
18 can now be associated with real family, with real lives lost,
19 lives that were stolen by this defendant. And it can also be
20 associated this crime with courageous survivors who live with
21 blindness and with paralysis and the emotional scars that
22 never heal.
23 You heard not only about the bombing, but the hours
24 and the days after the bombing when wives learned they had
25 lost their husbands, when parents were told they had lost
7148
1 children, and where children had to be told that a mother or a
2 father would never be coming home.
3 You heard it, and you have seen the devastating pain,
4 you felt it, you felt it when those witnesses came in here,
5 they took the stand, and they told you their story. Those
6 witnesses were brought into the room by this defendant, by the
7 crimes he committed, and that death and the pain and the
8 suffering that he caused when he detonated, when he caused
9 that bomb to be detonated on August 7, 1998.
10 For each of the victims that the government called in
11 here, for each of the victims that testified here there are
12 dozens more that you didn't hear from. For each of the
13 injured and the maimed, remember there are hundreds more you
14 didn't hear from. Because this defendant he killed 213
15 people, injured 4,000 people, and these are only the direct,
16 the physical injuries. There are thousands more, relatives,
17 and friends of those who were killed and those who were maimed
18 who had to live through that horror, who had to see it, who
19 had to experience it and who still live with it. Those are
20 also victims. And now al-'Owahli must be held accountable for
21 his crimes. He must face the full measure of justice.
22 On August 7, 1998, Al-'Owahli jumped from the cab of
23 that truck. He threw his grenades, and he ran. He ran fast
24 and he ran hard across that parking lot and he saved himself.
25 He ran past windows where people had come to look at the
7149
1 commotion, and he made it to safety.
2 And after he had killed those 213 people and blinded
3 Ellen Bomer and blinded Sandi Patel he went to the hospital
4 and he got treated for his injuries. The largest injury he
5 had was on his back, because his back was facing the embassy
6 as he ran from it. Yes, he ran away.
7 And now it's time for Al-'Owahli to face justice.
8 He's had his trial, a thorough and a fair trial that began in
9 this courtroom in February of 2001. He was found guilty,
10 found guilty of 213 murders, unanimously, and the past week
11 he's had his penalty phase, and now it's time for Al-'Owahli
12 to be sentenced, time to be sentenced to the punishment he
13 deserves, punishment that does justice to the victims of his
14 crimes. It's time for Al-'Owahli to receive the only
15 sentence, we submit, that fits his crime, the death sentence.
16 We'll walk through the factors, the factors you must
17 weigh in your decision, and although this can never be an easy
18 decision, it's one of the hardest decisions one can make, it
19 is the right decision in this case.
20 Let's talk a little bit about the law. Now, Judge
21 Sand gave you some preliminary instructions on the law. He'll
22 talk to you again about the law. His are the instructions
23 that you must follow. He'll talk to you about aggravating and
24 about mitigating factors, and the statute provides a framework
25 for you to follow in making your decision.
7150
1 What I'd like to do now is look at these factors,
2 these preliminary factors. I think Judge Sand referred to
3 them as gateway factors. And he said that you must find at
4 least one of them as to each count. You must find unanimously
5 and agree on at least one that the government has proved one
6 beyond a reasonable doubt. And these deals with al-'Owhali's
7 intention and his conduct. And the government submits that it
8 has proven all four beyond a reasonable doubt.
9 Looking at them quickly. 1. That the defendant
10 intentionally killed the victim or victims. 2. That the
11 defendant intentionally inflicted serious bodily injury that
12 resulted in death. 3. Defendant intentionally participated
13 in an act contemplating that the life of a person would be
14 taken or that lethal force would be used, and the victim or
15 victims of a particular count died as a result of the act, or
16 the defendant engaged in violent conduct, knowing that the
17 acts created grave risks of death to a person such that the
18 act constituted a reckless disregard for human life, and the
19 victims died as a result of the act.
20 Defendant's conduct satisfies all four of these
21 elements. You've already found him guilty that he himself
22 killed 213 people, the people that died in the bombing. He
23 took a truck full of explosives, he drove it into a downtown
24 area, and he inflicted death and destruction. He knowingly
25 and intentionally participated in this crime, a plot to bomb,
7151
1 a plan to kill. He created a grave risk of death to all these
2 in the vicinity of the embassy that day. He wanted to kill.
3 He intended to kill and he did kill.
4 The government submits that the proof overwhelmingly
5 establishes each and every one of those four gateway factors,
6 and, again, you need find only one in order to continue with
7 the process.
8 Once that is done for each count that it is done, you
9 can move on to what are call the statutory aggravating
10 factors, and, again, as to each capital count you must all
11 agree unanimously that the government has proved at least one
12 statutory aggravating factor beyond a reasonable doubt. Then
13 you can go on to the nonstatutory aggravating factors and the
14 weighing process. Before we get to that, I'd like to just say
15 a word about the process, the weighing process.
16 In the beginning of this case you took an oath as
17 jurors that if you found Al-'Owahli guilty of the murder
18 charge, the capital counts, you could fairly and carefully
19 deliberate in a penalty phase. You were told that the law
20 provides in certain circumstances that murders can be punished
21 by death, that in some cases that is the appropriate
22 punishment. This is one of those rare cases.
23 These aggravating factors narrow the pool of those
24 eligible for the death penalty. They narrow the scope of
25 those who have already been found guilty of the worst crime of
7152
1 murder. They narrow that group so you get to the worst of
2 that group and in this case as we go through the aggravating
3 factors and we look at any mitigating factors you will see
4 that Al-'Owahli is the rare exception, the criminal, the
5 murderer, who deserves the ultimate penalty that is authorized
6 by our law.
7 Now, let's look at the first aggravating factor.
8 That the deaths and injuries resulting in death of the victim
9 or victims of the particular count you are considering,
10 occurred during the commission or attempted commission of
11 another offense, namely, the list of offenses under Title 18,
12 bombing of property leased to the United States government,
13 killing or attempted killing of internationally protected
14 persons, terrorists acts abroad against US nationals and use
15 of a weapon of mass destruction.
16 Judge Sand will explain as to each count you must
17 determine if the victims were killed during the commission of
18 certain other crimes, depending on the count you are
19 considering. The government has proved these crimes beyond a
20 reasonable doubt. It's proved this factor beyond a reasonable
21 doubt, and you can give it as much weight as you see fit.
22 The second factor involves substantial planning, and
23 premeditation, that the defendant committed the offense listed
24 in the particular count you are considering after substantial
25 planning and premeditation to cause the death of one or more
7153
1 persons or to commit an act of terrorism.
2 Well, you know from the evidence at the guilt phase
3 that Al-'Owahli engaged in long-term substantial planning for
4 the embassy bombing. First, when he gets a call from Azzam
5 and he's told that he's going to go on a mission and he agrees
6 and he accepts that mission, he gets more training. He's
7 already been trained, but he gets more training now for this
8 mission, training in how to operate and manage the terrorist
9 cell.
10 And when he's finished with that training, he gets a
11 false passport, one of many aliases he used, takes that
12 passport and he travels to Yemen and in Yemen he gets another
13 fake identity, a Yemenis passport, this one in the name of
14 Khalid Bin Rashed, the name Al-'Owahli would use to go on his
15 mission to go on the bombing in Nairobi. And when he gets the
16 Yemenis passport he goes back to Pakistan and in Pakistan he's
17 given a further briefing on his mission. He's told what his
18 role will be, to assist the driver, the driver of a bomb-laden
19 truck, the truck that will be driven into an American target.
20 And on July 31, Al-'Owahli take his fake Yemenis
21 passport. He gets on a plane and he travels to Nairobi. And
22 by the 4th of August he's down at the center of Nairobi,
23 center of the city, scouting out the embassy, scouting out his
24 target. And he's shown photographs, and he's shown sketches
25 of the target. He's preparing himself for August 7, 1998.
7154
1 And that day he takes his stun grenades and he takes
2 his pistol, goes down to that area that he's familiar with,
3 familiar with because he saw it, familiar with it because he
4 saw sketches of it, and he goes down there and he helps Azzam
5 bring the bomb truck. Oh, yes, there was substantial planning
6 and training; fake names, documentation, passports, and
7 premeditation. He intended to kill as many people as
8 possible. His stated goal was terror to further the terrorist
9 goals of his organization. This wasn't a crime committed on a
10 sudden impulse. It wasn't done in the heat of any argument.
11 It was a long and it was a complex and detailed plan. It was
12 mass murder committed in cold blood. He prepared for it, he
13 studied for it, he trained for it, and he carried it out.
14 If we could go to the third factor. The defendant in
15 the commission of the offense in the particular capital count
16 knowingly created a grave risk of death to one or more persons
17 in addition to the victim or victims in that count.
18 Yes, he did. You heard the evidence of that during
19 both phases, in the guilt phase and in the penalty phase. You
20 saw how many people he placed in immediate threat of death in
21 that downtown Nairobi area on the morning of August 7. In the
22 guilt phase you heard from a witness called Frank Pressley
23 took the stand and told you that morning he was chatting with
24 a few of his colleagues in the office. Frank Pressley
25 survived, other people in that office like Jay Bartley, like
7155
1 Michelle O'Connor, died. And Frank Pressley had part of his
2 jaw ripped off but he survived.
3 Lydia Sparks came at the penalty phase. She told you
4 she saw her colleagues Joe Kionga and Lydia Mayaka up by the
5 window. The bomb went off, they disappeared. They were
6 killed. Lydia Sparks she survived, but she was cut from head
7 to toe by flying glass.
8 Flying glass maimed Pinoma Muhuhu and Tobias Otenyo
9 who came and testified at the guilt phase, Moses Kanui who
10 testified had part of his head blown off in the blast. But
11 perhaps the story that most exemplifies the risk of death to
12 everyone in that area came from Sami Ingaga, who testified
13 here in the guilt phase. He told you that he was in the
14 Ufundi House and when the bomb went off and these floors
15 collapsed like a house of cards he was trapped in a small
16 space, four foot by four feet for two days, for two days while
17 he could see the bones sticking out of his pants leg and he
18 waited and he talked to his rescuers and he talked to somebody
19 else, he talked to a woman name Roslyn Huruwang, and he tried
20 to comfort Roslyn. He tried to steer rescuers towards her.
21 Sami was pull out of the rubble. Roslyn died. Some were
22 rescued, some were not.
23 There was a grave risk of death to all the people
24 that were in the vicinity of the downtown Nairobi area on the
25 morning of August 7th when al-'Owhali's massive bomb went off.
7156
1 And you heard some of the witnesses who came in here and they
2 testified at the guilt, penalty phase, and they told you they
3 were far away from the downtown area, far away and the window
4 rattled or they heard a thud, they heard a bang, they heard
5 that massive bomb go off so far away from the site. And at
6 10:30 a.m. on August 7th the difference between standing two
7 feet this way or two feet that way could mean the difference
8 between life and death.
9 And the further factor that the defendant
10 intentionally killed or attempted to kill more than one person
11 in a single episode.
12 Well, you know he did that. You found him guilty of
13 213 murders, 212 murdered and look at the evidence, look at
14 that stipulation. They ranged in age from 16, 16 to 66, and
15 pretty much every age in between. 213 killed in one act.
16 It's a number that's difficult to comprehend. One way you got
17 an idea of the number of the carnage was when you heard from
18 the victim's relatives who testified here, and they talked to
19 you about trying to find the people that were killed, trying
20 to find their loved ones and finally they had to go to the
21 morgues, and they went to the morgue and they went down row
22 after row of bodies looking at socks, looking at clothes,
23 trying to look at faces. And many of those bodies were
24 mangled, many of them were burned beyond recognition.
25 Al-'Owahli killed multiple victims. He killed 213
7157
1 and he attempted to kill many more. And these are the
2 statutory aggravating factors: Death during the commission of
3 another crime, substantial planning and premeditation, grave
4 risk of death to other persons, and multiple killings and
5 attempted killings, and the government submits that it has
6 proven all four beyond a reasonable doubt.
7 Now let's look at the nonstatutory aggravating
8 factors. The victims and intended victims of the particular
9 count included high-ranking public officials of the United
10 States serving abroad and the offense was motivated by such
11 status.
12 Well, you know from al-'Owhali's own statement that
13 he was targeting the ambassador, Ambassador Bushnell. You
14 know why. He said he targeted her because she was a woman and
15 because if she died it would bring more attention to the
16 story, bring more attention to his terrorist cause. He tried
17 to kill Ambassador Bushnell. He came close. He did kill
18 high-ranking public officials, and he killed Julian Bartley
19 the counsul general.
20 And the government is not suggesting in this factor
21 that one life is more valuable than another life. It's not
22 saying because some person holds a position that should count
23 more. We are saying that people like Julian Bartley, people
24 who you heard Sue Bartley testify was interested in building
25 bridges, and using his position to help people, that people
7158
1 like that should be able to do that job in safety so that
2 others will follow, that others will follow his example of
3 service and dedication. And that should be a factor, it
4 should be an aggravating factor, that this defendant
5 Al-'Owahli would murder people like Ambassador Bushnell and
6 Julian Bartley just because their deaths would better serve
7 his terrorist mission, and he would hope to scare off the
8 Julian Bartleys, scare them from building bridges. In a world
9 as complicated and as dangerous as the one we live in we need
10 more Julian Bartleys, not less.
11 I'd like now to look at the second factor,
12 nonstatutory factor. That the defendant poses a continuing
13 and serious threat to the lives an safety of others with whom
14 he will come in contact.
15 Let's look at that. Let's look at it in two parts.
16 First, this defendant, his training, his intentions, and his
17 mind set, and next who it is he will come in contact with, who
18 it is that will be at risk. First al'-Owhali's own training.
19 What make him dangerous? Well, he had three rounds of
20 training. First when he went up to Afghanistan when he heard
21 about Bin Laden and answered the call the call for violence
22 against America, and he was such a good student in that first
23 round of training that he got to meet Bin Laden himself, and
24 then he went and he got more advanced training, more
25 specialized training in terrorist operations, in hijackings,
7159
1 highjackings of every buses and planes, in kidnapping, in
2 taking hostages, in taking and holding buildings.
3 And then he had a third round of training in the
4 operation and management of terrorist cells, which even by his
5 own account was the most advanced training he had ever had.
6 Al-'Owahli was highly trained, highly motivated, and
7 at some level willing to give his life to achieve his goals to
8 strike at the United States. When he went to Nairobi and he
9 met Saleh and Harun, he heard about the Tanzania bombing, he
10 scouted his target in a busy downtown area and he bombed it.
11 And then after he bombed that embassy. After he
12 threw the grenade and saved himself, he went to get treatment
13 for his cuts and bruises, he went to get himself fixed up.
14 And where did he go? He went to M.P. Sha Hospital. He walked
15 into the MP Sha Hospital and he saw the carnage that he had
16 created and you heard Dr. Patel testify that this is a sample
17 of the types of injuries that he saw that day. And Dr. Patel
18 worked at M.P. Sha Hospital. This isn't a photograph of M.P.
19 Sha Hospital, but it's injuries, injuries like the ones he
20 saw, injuries that were so common that day.
21 In the middle of all that, in the middle of that
22 scene were Sandi Patel and M.P. Sha Hospital, was where Sandi
23 Patel is having his eye operated, where Sandi Patel's eight
24 year old brother sits on the floor and cries because as Sandi
25 Patel told you he had too much pain, too much pain from the
7160
1 glass, and the gashes caused by al-'Owhali's bomb.
2 In the middle of that, in the middle of the scene at
3 M.P. Sha Hospital, and this is a photograph of a boy being
4 treated at M.P. Sha Hospital, and this is the intensive care
5 unit at that hospital, in the middle of all this, Al-'Owahli
6 walked in, walked into that hospital, and got himself patched
7 up. This is a very dangerous and a very cold blooded killer.
8 And even if you credit his later statement, the
9 statement that he only meant to kill Americans and the Kenyans
10 inside the embassy base, only those 200 people, he showed no
11 remorse, no remorse for the 213 that he did kill. And how do
12 you know that? Well, you've seen the photograph, the champ
13 photograph posing for the media, posing with that smile after
14 he's just killed 213 people, more than 200 Kenyans.
15 He showed no remorse for his victims, but he did shed
16 some tears after the bombing and you heard about that. When
17 he was being interviewed by Agent Gaudin he was shown a
18 picture of the bomber Azzam, the guy who blew himself up while
19 he killed 200 innocent people and Al-'Owahli cried for Azzam.
20 Al-'Owhali cried for him and Al-'Owhali kissed his photograph,
21 and he sang a little chant about maybe, maybe some day I'll
22 meet Azzam in Paradise, my friend. That's the emotion
23 Al-'Owahli showed after the bombing. He's fully committed,
24 he's fully trained.
25 And now let's talk about who al-'Owahli will come in
7161
1 contact with. Now, the government's not here to say that
2 Al-'Owahli if he doesn't receive the death sentence will be
3 walking around on the street. No. Mr. Baugh told you that
4 he'll spend forty or fifty years in prison, forty or fifty
5 years in American prison with American guards, guards that he
6 views in his twisted way as the enemy, the representative of
7 his enemy the United States. Guards that are a way for him to
8 achieve the thing that Azzam achieved, and what does he have
9 to lose, he's already killed 200 people? He's trained in
10 hostage taking, he's trained in taking over buildings and
11 everyday, everyday for 50 years those guards are going to be
12 on the alert for Mr. Al-'Owahli. Those guards are going to
13 have to watch him because he's trained, and he's looking at
14 them, he's looking at them as the enemy.
15 Now, you heard some evidence about the special
16 administrative measures and let's take a second to talk about
17 those. They're good for 120 days, four months. Then they can
18 be renewed. They are subject to challenge. But most
19 important of all, as you just heard, they are not fool proof.
20 You've just heard a stipulation that of the few prisoners in
21 the Federal Bureau of Prisons system, the few prisoners under
22 those measures under that tight security that a guard was
23 badly maimed and permanently disabled in a cell shared by two
24 of those prisoners under those tight special administrative
25 measures. So much for the SAMs.
7162
1 Al-'Owahli poses a serious and continuing threat in
2 prison, make no mistake about that, and that should carry
3 great, great weight in your deliberations, but there is more.
4 The final, and the government submits the most weighty and
5 compelling of all the aggravating factors in this case. As
6 demonstrated by the deceased victims' personal characteristics
7 as individual human beings and the impact of the deaths upon
8 the deceased victims' families, the defendant caused injury,
9 harm and loss to those victims and their families and the
10 defendant caused serious physical and emotional injury and
11 grievous economic hardship to numerous individuals who
12 survived the bombing.
13 That's an understatement, an understatement. Pain
14 and loss cased by Al'-Owahli to the victims and their
15 families, impact that continues to this day, impact that will
16 never end. I'm not going to summarize the testimony you heard
17 over that one day, over that afternoon and that morning. I
18 could never speak with the same eloquence as those witnesses,
19 I could never adequately express to you their feelings, their
20 pain, their suffering, their emotions. No one who heard that
21 testimony could ever forget it. The pain and the suffering
22 and the loss that you heard here almost three years later,
23 your impression of what those witnesses said, how they said it
24 should guide your deliberations.
25 You are asked to determine how much weight to give it
7163
1 and as you do consider the importance of that factor.
2 Remember, remember that Fahat Sheikh should be raising his
3 sons today. His sons shouldn't be drawing pictures of the
4 embassy where their father was killed. Remember that Teresia
5 Karanja shouldn't have to come in here in a wheelchair to tell
6 her story, a wheelchair where this defendant put her, and
7 where she will spend the rest of her life, everyday, and Ellen
8 Bomer, Ellen Bomer shouldn't have to be afraid of the darkness
9 afraid of the darkness because she was blinded by this
10 defendant, and Deborah Hobson's daughter Abigail should see
11 her father rejoice. And Mordecai Onuno, he should be spending
12 Sunday afternoons in the family pew at church. He shouldn't
13 be carrying around his anniversary card and reading the last
14 message he wrote to his wife, and Nathan Aligana he should
15 still be carrying his country's flag, he should not have been
16 carried out of that embassy wrapped in one.
17 Remember those stories, remember the lives that were
18 shattered by this man, what he took away from each and every
19 one of these and of 200 others from communities, from friends,
20 from loved ones, because Al-'Owahli chose to kill them.
21 You heard testimony about other victims, other
22 victims who survived and who were blinded and who were maimed.
23 These are examples of the injuries he caused. You heard about
24 carnage in the hospitals people lying on floors, wards
25 overflowing. You heard about searches being done for loved
7164
1 ones, searches through hospitals and later searches through
2 morgues. You heard about people going up to boards and trying
3 to find names. You heard one witness tell you unknown African
4 male. I'm looking for him. All I see is list after list of
5 unknown African male. It's not right. It's not right. These
6 families looking at a board trying to find the name of someone
7 they loved among the missing or among the dead. And you heard
8 about the identifications, the identifications that in some
9 cases had to be made through clothing, through a T-shirt that
10 said Thank God Jesus Loves Me, through DNA testing in one
11 case.
12 And these were hard-working people who came here,
13 working hard to get by under difficult conditions, and you
14 heard family members, they are asked tell us something about
15 your loved one and a lot of time they said, well, they were
16 good provider, they took care of us, the took care of the
17 family, and now we're lost, now we're lost, because of the
18 pain, because of the pain that Al-'Owahli brought into their
19 lives.
20 In an instant in the morning of August 7th the
21 defendant changed those lives forever. They came face to face
22 with the horror and with the terror that's difficult to
23 understand, even after you heard it told. That's impact.
24 That is victim impact. Impact that began that day with the
25 defendant's bomb and impact that continues to this day. And
7165
1 there is no more weighty factor than that one measured by the
2 pain of 213 victims and their families. There must be justice
3 for the victims of this crime.
4 And when you are weighing those aggravating factors
5 you are also to consider any mitigating factors this defendant
6 has proved by a preponderance of the evidence and let's look
7 briefly at some of the mitigators that Al-'Owahli has
8 proposed.
9 He says that other members of the conspiracy who were
10 arrested are cooperating with the government who are guilty or
11 charged with planning, bombing embassies, and killing of US
12 nationals will not be punished by death. Cooperating.
13 Cooperating witness Al Fadl he walked into the Americans. He
14 hadn't been charged with the crime. He pled guilty. He came
15 in here and he testified. He doesn't face the death penalty.
16 Is that an injustice? Moma du Salim who is not charged in any
17 case with any capital counties in the getting the death
18 penalty. Usama Bin Laden, he's not here to face justice
19 neither his lieutenant Mohamed Atef. They may be some day.
20 That's not the issue.
21 The issue is responsibility for this defendant's
22 crimes and punishment for this defendant's crimes. In a
23 similar way Al-'Owahli says, well, he's less culpable, less
24 culpable than others that planned the bombing. That's an odd
25 argument to make. Less culpable in the murder of 213 people,
7166
1 less culpable although he trained for it, he planned for it,
2 he wanted the mission, he asked for a mission to kill, he
3 scouted the target, he knew the entire plan, including the
4 Tanzania bombing. He helped deliver the bomb to the target.
5 Focus on his actions, on his crimes, on his active and central
6 role in this atrocity.
7 Next, al-'Owahli claims as mitigation that he has no
8 criminal record and that he was young in age when he bombed
9 the embassy. Well, we concede he has no criminal record.
10 Factually, that's not the issue here. The issue is how much
11 weight do you give that factor? He has no criminal record.
12 Well, the Judge will tell you it's not numbers, you
13 don't add up the numbers of the factors. It's the weight of
14 the factors and how much weight do these mitigating factors
15 get. Well, Al-'Owahli never been arrested before, never been
16 arrested before he bombed the embassy and killed 213 people
17 and injured 4,000 more.
18 But take a look what he was doing while he compiled
19 this exemplary record. He was in Afghanistan. He was going
20 to terrorist training and terrorist camps. He was getting
21 false documentation, false passport so he could travel and
22 bomb the US embassy.
23 And keep in mind when you think about this that
24 Al'-Owahli said he came from a privileged background in Saudi
25 Arabia. He said it was a very prominent and a very wealthy
7167
1 family, and that he attended university in Rhiad. He was
2 young, he was wealthy, he was educated, young in age, he was
3 21. There is a stipulation to that. He was 21 when he
4 committed this act of mass murder. Not a sheltered 21, but an
5 educated and a hardened 21. And at some point you have to
6 take responsibility for your actions.
7 Sandi Patel was 12 when Al-'Owahli blinded him when
8 he stole his youth. His brother was eight when he was cut and
9 bleeding because of the bomb. Joyce Manguriu was 17 when she
10 was planning on going to the embassy, when she was planning on
11 going to the United States to study. She was young. She had
12 no choice about dying. Al-'Owahli was twenty-one and he had a
13 choice and he chose to kill. He chose to kill Joyce and he
14 chose to kill 212 others.
15 And remember although Al-'Owahli was twenty-one, he
16 had a will and he showed it. He wasn't brain washed. Yes, he
17 had training. Yes, he listened to lectures. He listened to
18 tapes. And after he had done with that training and after he
19 had listened to those tapes, what did he do? He said, no, and
20 who did he say no to? He said no to Bin Laden. He said no
21 I'm not going to pledge bayat. No, I'm not going to take an
22 oath. Why not? Because all he wanted was a mission. He
23 wanted a terrorist mission. He didn't want to get stuck out
24 of the action. He wanted control. He wanted to kill. And he
25 got what he wanted and 213 people died as a result terrible
7168
1 and horrible deaths. Al-'Owahli made a choice and he should
2 be held responsible for that choice.
3 Al-'Owahli also points as mitigation that although he
4 intentionally committed this act contemplating that he would
5 kill Americans, he did not intend to kill or injure Kenyan
6 victims not employed in the embassy. Well, this is totally
7 uncompelling for three reasons. One, that's what he claimed
8 after he got caught after he learned he had killed 200
9 Kenyans. He claimed he didn't mean it.
10 (Continued on next page)
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18
19
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21
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7169
1 He claimed he didn't mean it.
2 Two, assume there's some truth to it. Assume that he
3 just wanted to kill Americans, that's okay. He just meant to
4 kill Tom Shah. He just meant to kill Jay Bartley. He just
5 meant to kill the other people that you saw on that CD-ROM we
6 played during Mrs. Bartley's testimony. He just meant to kill
7 Lydia Sparks and Allen Bomer.
8 And finally, as Ambassador Bushnell told you, on any
9 given day in Nairobi there were 200 people in the embassy, 200
10 people, and most of them, most of them were Kenyans. So
11 Al-'Owhali only intended to murder those 200 people, those
12 Kenyans and those Americans who were inside the building.
13 He only intended to murder Americans and Fahat
14 Sheikh, Nathan Aliganga, Ken Hobson, Prabhi Kavaler, and if
15 Titus Wamai, who happened to be a foreign service national,
16 was working as a commercial specialist in the embassies, well,
17 if he was in there, he intended to kill him, too.
18 You know his concern for the Kenyans came after he
19 was caught, after he surveilled that embassy. He knew exactly
20 what the target was like. And, yes, he said to Saleh, well,
21 can we get the bomb closer to the embassy? Can we get it
22 underneath the embassy and kill more Americans? And Saleh
23 said no. He didn't change the plan.
24 And three days later, Al-'Owhali brought that bomb
25 back to the embassy, brought it down to the downtown area, and
7170
1 watched Azzam position it outside the embassy. And then he
2 ran. And when he ran, he gave no warning to the Kenyans
3 outside. He didn't yell. He didn't shout. He just ran and
4 he saved himself.
5 And the stun grenades to warn, he threw those stun
6 grenades at the guards to get them out of the way. You know
7 what the effect was? They brought people to the windows,
8 people to the windows of the embassy and the buses, where they
9 were maimed and they were massacred.
10 What weight should you give this factor? Even seen
11 in the best light that he intended to kill only the 200 people
12 inside the embassy, the Americans and the Kenyans, and he made
13 a mistake and killed a hundred people outside the embassy, the
14 government submits this is no mitigation at all, zero.
15 Let's look at another proposed mitigator.
16 Al-'Owhali's motivation. He said he committed these murders
17 to save his religious community from genocide and from terror.
18 Well, on August 1998 he told Agent Gaudin what the conditions
19 would be to stop the acts of terror, and he never mentioned
20 protecting his community, his ummah. He said the U.S. had to
21 get out of Saudi Arabia, the land of the two holy places. He
22 said the U.S. had to stop supporting the enemies of Islam,
23 like Serbia and Israel, and he they should stop using its
24 influence to stop the spread of Islamic law around the world.
25 He didn't mention Iraqi children, he didn't mention
7171
1 the oil embargo. That wasn't on his mind in August of 1998.
2 It isn't prominent in the fatwahs because of Bin Laden, the
3 Iraqi embargo. It's not a burning issue. It's to get people
4 out of Saudi Arabia, the holy place. Look at the claims of
5 responsibility. That's the primary goal.
6 But coming in here and showing you photos of American
7 troops stationed in the Arabian Peninsula would not have the
8 same effect as coming in here and showing Iraqi children. And
9 we heard a lot about Iraq and the Iraqi people and the U.N.
10 sanctions. And there's no doubt that those are very complex
11 issues and painful issues.
12 The issue of sanctions the United Nations and the
13 delegates and the leaders and the U.S. government is to
14 consider. They have to consider those issues, and Saddam
15 Hussein and biological and chemical weapons and the impact of
16 an embargo on the civilian population and why the U.S.
17 implemented no fly zones in the first place.
18 But this is not that forum. The government did not
19 join these issues. The government does not concede the
20 defendant's position on the history of these issues, of what
21 they mean, the position of Ramsey Clark, who came in here and
22 testified. No, those issues are important and they are
23 complicated, but they have no place here, not in this penalty
24 proceeding, where the focus and the purpose must be on the
25 appropriate penalty for this defendant and for the crimes that
7172
1 he committed.
2 Al-'Owhali claims his crimes were mandated by his
3 religion. Don't believe that for a minute. One of his
4 victims, Fahat Sheikh, who was buried in the embassy, was one
5 of over 1 billion Muslims who peacefully practice their
6 religion in this world, a highly respected religion, defamed
7 by this defendant, who would use it as an explanation for
8 killing 200 people.
9 When you think about Islam, think about Fahat
10 Sheikh's son on the morning of August 8th, 5:00 a.m. He wants
11 to go to the mosque and he wants to sing the call to prayer
12 because he thinks it will call his father home. That's an
13 example of a boy using his religion to show love for his
14 father.
15 And later you heard that the religion teachers, that
16 boy's religion teacher said, why does he hate religion? He
17 hates religion because this defendant would twist it, because
18 this defendant would use it as an excuse to kill, would use it
19 as an explanation for killing.
20 And when you look at the pages of that book that was
21 put in by Mr. Baugh, the pages of the book on Islam, you won't
22 find a call to violence, you won't find a call to bomb
23 embassies or murder innocents. No. You will find the
24 religion of Fahat Sheikh and his sons, not the murderous and
25 cowardly conduct of this defendant.
7173
1 And lastly, Al-'Owhali claims that he attacked the
2 embassy in a belief it was an intelligence and military
3 target. Al-'Owhali did say if you hit the embassy, you hit
4 the ambassador, you hit the military attache, the press
5 attache, and, yes, you hit intelligence officers. He said
6 that. This isn't a military goal. He didn't strike at a
7 military target. Yes, he killed a marine. He killed Nathan
8 Aliganga, who was going in to cash a check to go shopping. He
9 killed Ken Hobson, who was in the Army.
10 He didn't kill them on a battlefield. Al-'Owhali is
11 too much of a coward. He attacked them with a huge bomb in
12 the middle of the day, without warning, in downtown Nairobi,
13 where civilians -- men, women and children -- were. This is
14 not a military operation, as he would say, it's murder. It's
15 a crime and he's responsible.
16 In the end, the penalty phase is about Al-'Owhali,
17 about his actions, about the defendant and about his bomb --
18 what that bomb did to flesh and bone and what that bomb did to
19 the lives of the survivors. They have to keep going. They
20 have to keep going even if they are maimed by that bombing and
21 even if they lost a loved one. Whatever mitigation he has
22 proven has little weight.
23 This is the rare case of a death penalty. Here,
24 beyond any reasonable doubt, the aggravating factors outweigh
25 the mitigating factors, overwhelmingly outweigh and justify a
7174
1 sentence of death.
2 Think for a moment of the morning of August 7th,
3 1998, the moment before the bombing, when Howard Kavaler said
4 good-bye to his wife for the last time, when Surendra Patel
5 was riding on his school bus after his last day of school,
6 when Teresia Rungu walked into her office in the co-op
7 building, when Ruth and Peter Rungu went to the Ufundi House
8 so she could register for her first day of secretarial school
9 and when Nathan Aliganga ran into the embassy to cash his
10 check, where Fahat Sheikh was a cashier on duty that day.
11 Freeze that moment and the lives of all those people,
12 and then there's a noise, a noise, a popping sound. That's
13 probably the last sound those 213 people will hear. It's the
14 sound of this defendant's grenades going off and it's the
15 first sign that something is wrong.
16 And people come to the windows at the embassy, at the
17 Ufundi House, at the bank and the buses, and the bomb goes
18 off. And the bomb brings death and blindness and paralysis,
19 and in that violent moment, the lives of 213 people end.
20 Al-'Owhali ended their lives without warning, without giving
21 them time to say good-bye to their loved ones, without giving
22 them time, like he had time, like he made his good-bye video.
23 He didn't give them that same time. They never got a chance
24 to say their last good-bye.
25 You heard from a small number of relatives of those
7175
1 killed in the bombing, 20 witnesses about one day. Twenty
2 witnesses. And for each one of those witnesses you heard
3 from, there are ten more behind them that you didn't -- ten
4 more victims that were killed, ten more families.
5 Now that you have heard those victims, those
6 representative victims, you have heard the pain in their
7 voices, now you should see, really see the list of names, the
8 names and, where there is one available, a photo. Three
9 seconds. Three seconds for each one. Some you will
10 recognize.
11 Mary Khahenzi told you about her identifying her
12 husband, Thomas, from the t-shirt; Doreen Ruto's husband,
13 Wilson, and she said he was a handsome man, a courageous man;
14 Joyce Ng'ang'a's passport photo; Amos Karimi's wife, who was
15 killed in the Ufundi Building.
16 But the photo and a name is all you are going to know
17 for some. Three seconds. Three seconds to capture those
18 lives, to honor those victims. And when you see those
19 photographs and when you see those names, think about the
20 families behind those names and those photos, the lives, the
21 children, the parents. And they were killed only because they
22 were near this defendant's bomb when it went off on August
23 7th. Think of the lives lost when the defendant killed each
24 and every one of them.
25 (The name and/or photograph of each victim is
7176
1 displayed on the monitor)
2 MR. GARCIA: Those are Al-'Owhali's victims, and he
3 didn't know a single thing about any one of them. He didn't
4 know a single thing about the 213 people that he murdered.
5 On that day, on August 7th, 1998, Al-'Owhali ran
6 away. He escaped with cuts on his back, and now it's time,
7 it's time for him to face justice. He must now be sentenced,
8 as justice cries out he be sentenced, a punishment he deserves
9 for the pain he has inflicted and for the suffering by those
10 whose lives have been scarred by his murderous act.
11 The crime, Al-'Owhali's crime, is mass murder, murder
12 of 213 individuals with families, with lives, with hopes, with
13 dreams, and the penalty, the penalty that does justice for the
14 victims of those crimes, the only penalty that fits those
15 crimes is the death penalty.
16 Thank you.
17 THE COURT: We'll take a very brief recess.
18 (Jury not present)
19 MR. BAUGH: Your Honor, before you bring the jury
20 back, however, Mr. Cohn has -- when we come back, Mr. Cohn has
21 some motions.
22 MR. COHN: I just have some things I want to preserve
23 for the record.
24 THE COURT: Go ahead.
25 MR. COHN: I would just like the government to give
7177
1 us a list at some time of the photos and exhibits that they
2 showed so we can preserve that for the appellate record. And
3 if this was on a disk, the pictures of the victims, we would
4 like a copy of the disk.
5 THE COURT: Yes.
6 MR. COHN: I just want to make sure that the record
7 is clear later on as to what was shown.
8 THE COURT: Mr. Garcia is nodding his head.
9 MR. GARCIA: Yes, Judge, we will.
10 MR. COHN: Thank you.
11 (Recess)
12 (Jury present)
13 MR. COHN: Your Honor, just for the record, the
14 government has already given us Exhibit 2002-2, which is, with
15 one substitution, the pictures of all the victims that were on
16 the screen. So that part has been satisfied, the record
17 should reflect.
18 THE COURT: Mr. Baugh, I will leave it to you when
19 you get past 1:30 when you want to break for lunch. I am
20 assuming you will be finished before.
21 MR. BAUGH: I would rather start after lunch so that
22 my opponent doesn't have a --
23 THE COURT: Have a what? A surprise? Is there a
24 single surprise in this case?
25 MR. COHN: Your Honor, I hope that question was
7178
1 rhetorical. Otherwise, there's a long answer for it.
2 (Jury present)
3 THE COURT: Mr. Baugh.
4 MR. BAUGH: Thank you, your Honor.
5 May it please the Court, counsel.
6 This is a really scary case. It's really scary
7 because its implications go beyond any case I have ever done
8 in my life. Twelve of you, who will determine what happens in
9 the next few days, are literally going to make a statement, an
10 individual statement, to the entire world.
11 In all probability, your decision will be in the
12 headlines of every newspaper in the world. To a certain
13 extent, I guess you should feel lucky that you had this thrust
14 upon you, but I assure you, from the seriousness I have seen
15 and we have seen for the last few days, I know you appreciate
16 the seriousness of what's going on here.
17 Also, to a certain extent it's kind of scary. It's
18 also scary, because, one, as I got into this case and as the
19 evidence developed, I realized how ignorant I was about an
20 entire portion of the world, and to divorce what has happened
21 in this case from what goes on in that portion of the world is
22 hypocrisy.
23 You have heard fatwahs. I know you have had them
24 read to you. We have introduced some again. In every one of
25 those fatwahs, from every organization, there is a list of
7179
1 things about which the Middle Eastern population, Middle
2 Eastern people, Bin Laden, specifically, is opposed. They
3 mention Qana, you have heard that enough times, Shattila, they
4 mentioned Libya. I know in the defendant's statement he
5 mentioned Libya. They mentioned Iraq. They mention the
6 occupation of the land of the two shrines. They mention the
7 United States control of oil and oil prices and puppet
8 governments. It's throughout all of those statements. And
9 that is the canvas upon which this is painted and you have to
10 look at it.
11 Also, you have to look at it because, unlike every
12 death case I have ever done before, most death cases, a person
13 is motivated to commit the crime for passion, greed, crazy,
14 somebody is in love with somebody, somebody is making money,
15 something like that. This is the first crime I have ever been
16 involved in where the purpose given is to stop killing.
17 Killing to stop killing. It's just a living example that
18 killing always makes more killing. It always does, and you
19 can't get around it.
20 Why did we choose Iraq versus Libya or Chechnya or
21 anything else? Iraq, I tell you, is the one that you can find
22 the most information on. When you go in the U.N. websites,
23 you go to UNICEF, you can find evidence. You can't get over
24 there to investigate, so therefore you are dependent upon what
25 information you can get. So, we chose that one.
7180
1 I will concede by your verdict that the defendant
2 voluntarily chose to do that which he did. He voluntarily
3 gave up his life in Saudi Arabia and went to Afghanistan to
4 fight that government as a member of the mujahadeen. He
5 risked his life to defend his religion and his community and
6 to fight the influences in Afghanistan.
7 While he was there, he obviously met people who
8 impressed him. He listened. He had been reading since he
9 was -- at a young age -- we stipulated to that -- writings and
10 books and listening to tapes about conservative fundamental
11 Muslim teachings. The sacrifice of martyrs, dying in Jihad,
12 the attainment of paradise, and -- you ready for this?
13 According to Mr. Al-Fadl, there are hundreds, even thousands
14 like him. He is one of thousands. He is one of thousands of
15 young men, and sometimes women, who are so offended by what
16 they perceive is happening in that part of the world that they
17 are willing to kill themselves.
18 Now, again, as I did during my opening, when we
19 mention Iraq, it is not offered as a justification. And I
20 don't want anyone to think for a moment that that evidence
21 means that what happened in Kenya on August the 7th, 1998 was
22 excusable. And it wasn't. Every one of those people who died
23 in Kenya, as I said during my opening, died as an innocent.
24 They died as an innocent because, no matter what personal
25 traits or attributes they might have had, they did not die
7181
1 because of them. They did nothing personally that led to
2 their deaths.
3 However, I do want you to understand, and I want you
4 to appreciate, that there is a lot of sorrow over there and
5 there are a lot of deaths, and how anyone can stand up here
6 and look at the suffering of these people, that these victims,
7 realizing the suffering they are going to go through from this
8 day forward, and not appreciate the children we are killing is
9 a hypocrite.
10 It doesn't make sense to pour any more blood on all
11 that which has already been spilled, and that's what I'm
12 trying to show. When I talk about these victims, I want you
13 to know, and believe me, how anyone cannot understand their
14 pain, how anyone who's ever raised a child, anyone whoever
15 loved a spouse, anyone whoever missed a loved one cannot
16 appreciate what they are going through, they're a very shallow
17 person. It hurts, and it will hurt in the future.
18 One thing you should learn from this case, from
19 listening to argument of counsel, Madeleine Albright on
20 television, everybody has a good, logical reason why they
21 should be allowed to kill people. Everybody always has a good
22 reason why they, why when they kill people, it's not bad.
23 Everybody does. Oh, no, you killed one of us. We can kill
24 one of you. You killed ten of us. We can kill a hundred of
25 you. You killed eight of us. We can kill 200 of you.
7182
1 Everybody has always got a good reason to kill, but it only
2 makes more killing, period.
3 In fact, each of you individually today is going to
4 be asked to kill. That's right, to kill. Now, I will tell
5 you this. You will debate it amongst yourselves, as you have
6 with every other issue. You will discuss it. I pray you will
7 show respect for each other, because my client is entitled to
8 12 individual jurors debating his life, not six real strong
9 ones and overpowering six real quiet ones, not one real big
10 muscle-bound person who makes everybody else do what they want
11 to do, each person in this box. No place else in the world is
12 there more equality than this box.
13 And the reason it is, is that unless each one of you
14 vote to kill, individually, it can't happen. The judge can't
15 make it happen. These gentlemen can't make it happen. No one
16 can. In fact, if 11 of you -- well, only you can do that.
17 We've not been able to offer you any direct evidence
18 about the defendant's life. However, you do understand some
19 things. One, he's deeply religious, and that is a given.
20 Now, there are people in his own religion who disagree with
21 his interpretation of his religion. Well, there are people in
22 my religion who disagree with my interpretation of my
23 religion. That's not a big thing.
24 You know he's concerned with his nation. You know
25 he's concerned with the plight of his community. You know
7183
1 that because of when he was 14, he was reading this. When
2 he's 18, he's on his way to Afghanistan to fight and get shot
3 at.
4 You know that his motive for killing doesn't involve
5 greed or amorous or any of those things. Perhaps the
6 attainment of paradise, but there's no lust for blood. In
7 fact, when the government says, well, after he was caught he
8 said he didn't want to kill the Kenyans. No, we know when
9 this plan was hatched, he suggested the bomb be placed
10 differently.
11 And also, remember that when he threw the grenades,
12 not one lab person came in and said they found fragmentation
13 parts from the grenades. There are two different types of
14 grenades. There are grenades with fragmentation that blows
15 out and kills people, and then there are things that are just
16 explosives that make noise. That's what he had.
17 Also, it's strange in a death case because of this:
18 If I am able to convince you to think about those issues and
19 help you to vote not to kill, not to make the individual
20 decision to kill, my client will spend the rest of his life in
21 prison. He's going to miss things that he doesn't even know
22 he's going to miss.
23 I know that and you know that because he's 25, and I
24 used to be, he's not going to smell that new baby. He's not
25 going to be there to see his children walk, just like those
7184
1 victims are not going to be able to see it. Everything that
2 makes life worth living will be gone. There will be no
3 difference from day-to-day.
4 When you get a chance, do the math. Do 60 years
5 times 365 and realize how many sunrises and sunsets it is.
6 And that's if I'm able to convince you not to kill him.
7 I'm not going to use Power Point. I'm not going to
8 show you any pictures of any dead children. I'm not going to
9 show you any videotapes. And I know you got tired of
10 videotapes, but believe me, those videotapes saved you weeks
11 of extremely boring lectures by some very boring people and I
12 think it's important that you do understand the background of
13 the case.
14 For instance, for the government to stand up and say
15 that one of the reasons for Mr. al-'Owhali to die is that he's
16 been trained in terrorist techniques, remember the last tape
17 when you saw people like Stansfield Turner talking about how
18 did Bin Laden's people get terrorist training; we taught them.
19 We sent CIA people there to teach them, and then they in turn
20 taught others. The reason he knows those tactics is because
21 we opened the bottle and gave them to them. So, yes, he knows
22 it. He knows as much as probably the people in the CIA do
23 because they were his teachers.
24 Another reason I'm not going to show you any pictures
25 is, on a situation like this, it's very easy to get involved
7185
1 in emotion and I'm making a conscious effort not to. When you
2 talk about victims and you talk about children, even as old
3 and grizzled and experienced as I am, you do sometimes kind of
4 mist up, you do want to cry. But understanding the sorrow of
5 the victims does not mean that that emotion that you have is
6 license to make your decision based on emotion, and I don't
7 plan to ask you to base a decision on emotion.
8 One of the advantages you have in this case is that,
9 as I told you in opening, there are very few factual
10 disagreements on the aggravators and the mitigators, the
11 gateways. For instance, as Mr. Garcia pointed out, the
12 gateway that the defendant intentionally killed the victim or
13 victims of the particular capital offense charged in the
14 respective count of the indictment. Well, by finding him
15 guilty, you've sort of proven that. You sort of found that
16 and there's nothing I can say about it.
17 That the defendant intentionally inflicted serious
18 bodily injury that resulted in the death of the victim or
19 victims of particular capital charges or offense charged in
20 the respective count of the indictment.
21 Number three, that the defendant intentionally
22 participated in an act contemplating the life of a person
23 would be taken or intending that lethal force would be used in
24 connection with a person other than one of the participants in
25 the offense, and the victim or victims of the particular
7186
1 capital offense charged in the respective count of the
2 indictment died as a direct result.
3 And four, that the defendant intentionally and
4 specifically engaged in an act of violence, knowing that the
5 act created a grave risk of death to a person other than one
6 of the participants in the offense, and it reads on.
7 By finding the defendant guilty of these charges, you
8 found that he did those, and I don't even plan to try to tell
9 you that didn't happen. However, in weighing the impact of
10 this, and you're going to have to -- once you decide this
11 exists, you are going to have to go to the next step.
12 The next step, and I'll come back, are the
13 aggravators. Now, first are the statutory aggravators. First
14 one: That the deaths and injuries resulting in death occurred
15 during the commission or attempted commission of another
16 offense. And they're spelled out.
17 Two, that the defendant, in the commission of the
18 offense, knowingly created a grave risk of death to one or
19 more persons in addition to his victims.
20 Three, that the defendant committed the offense after
21 substantial planning and premeditation; and, four, the
22 defendant intentionally killed or attempted to kill more than
23 one person in a single episode.
24 Now, according to Mr. Garcia, these factors determine
25 whether or not this case is a rare exception and qualifies for
7187
1 that narrow range of cases that are so egregious and so evil
2 that death -- that citizens should be asked to kill someone,
3 12 ordinary citizens.
4 Once, if you find that these aggravators did occur,
5 you must weigh them, and the only thing I will say on weighing
6 is this: In understanding this offense and understanding the
7 background of it, and that's why we put on that evidence,
8 "that the deaths and injuries resulting in death occurred
9 during the commission and attempted commission of another
10 offense," the death of many of those children in Iraq occurred
11 during the commission of violations of the Geneva Convention.
12 So if it's that important, why haven't these people indicted?
13 That the defendant in the commission of the offense
14 knowingly created a grave risk of death to one or more
15 persons: Somewhere in this world there is a man in the
16 military in the basement of the Pentagon who wrote a memo in
17 1991 stating that if we do what I suggest we do, we can start
18 epidemics in a country. That later turned out to kill over a
19 million people out of a population of 22 million. That's
20 about five percent of every man, woman and child in that
21 nation. Somewhere there's a man sitting in a room who came up
22 with this plan.
23 The defendant committed the offense after substantial
24 planning and premeditation: That same man started a plan
25 that's lasted ten years.
7188
1 The defendant intentionally killed or attempted to
2 kill more than one person: Anytime you sit down and talk
3 about epidemics starting, to say nothing of the fact --
4 remember this. We've also embargoed insulin, medicine.
5 Mr. Clark talked about, during the Gulf War, watching an
6 11-year-old have her leg amputated without benefit of
7 anesthesia because we had embargoed the anesthesia back in
8 August of 1990. And our tax dollars knew this was going on
9 and our press didn't tell us about it.
10 Now, I don't believe that justifies what happened,
11 but does it make it a little more understandable? Imagine
12 having to look at a loved one die over the course because of
13 diabetes or cancer because you can't have medicine. And by
14 the way, affording medicine. Among the documents we filed was
15 a document that says Iraq. It's from the Central Command. It
16 talks about the effect on the economy of that country so
17 people can't buy medicine.
18 In 1990, the rate of exchange was one dinar equals
19 $3, which means that -- say you are getting ready to retire,
20 like Dr. Dalizu. He testified he lost his wife. They were
21 going to buy a piece of property in California. If you had
22 been good and you saved up a million dinars, that's worth 3
23 million U.S. dollars. That's a nice little nest egg.
24 THE COURT: No. Did you say, I think you transposed.
25 If you save -- say it again.
7189
1 MR. BAUGH: One million dinars is worth $3 million in
2 1990. That's the rate of exchange.
3 THE COURT: It's the other way around.
4 MR. BAUGH: No, it's not. I did that, too. Trust
5 me. But you can check my math. If I had better math grades,
6 I would have been a doctor instead of a lawyer. But they can
7 check. 1 dinar equals $3. That means if you had a million
8 dinars, you had $3 million tucked away. The rate of exchange
9 now, according to that document, is 150 dinars to the dollar;
10 which meant that if you had a million dinars tucked away, it's
11 now worth a little more than 650 bucks. That's how you
12 destroy an economy.
13 When weighing these aggravators, weigh them in
14 relation to the world that exists in this offense and
15 determine whether or not these actions in this case require
16 you to make a personal decision to kill someone, because when
17 you put Juror No. 1 or Juror No. 2 on that form, it's going to
18 be like firing the bullet. Because if one signature doesn't
19 go on there, there's no death penalty.
20 By the way, I also want to tell you this. If --
21 well, I'll come back to that point. Forgive me.
22 Then, after we go through the statutory aggravators,
23 we go to the non-statutory aggravators: The defendant poses a
24 continuing and serious threat to the lives and safety of
25 others with whom he shall come in contact.
7190
1 This young man has been in prison since August of
2 1998. Did anybody come in here and say that he yelled at a
3 guard? Did anyone -- I mean, you have seen him sit here in
4 court all this time next to his lawyers. Does anyone look
5 scared to be in his presence? He's small.
6 As demonstrated by the deceased victims' personal
7 characteristics as individual human beings and the impact of
8 the deaths upon the deceased victims' families, the defendant
9 caused injury, harm and loss. I will concede that one. He
10 has and there's nothing we can do. And if I could, I would.
11 The victims and intended victims included
12 high-ranking public officials of the United States serving
13 abroad: Yep.
14 So I concede all of these except future
15 dangerousness. So you don't even have to decide the rest of
16 them really. You have to vote on them. You have to debate
17 them. Just because I said it doesn't make it true.
18 However, again, if you're going to think about -- I
19 mean, no offense, it is the epitome of bigotry to come in here
20 and say that the suffering of Americans or the suffering of
21 American allies is any different from the suffering of someone
22 we don't like.
23 A mother who loses her child anywhere has the --
24 remember Mr. Clark talking about walking through a ward and
25 hearing a mother's wail because the child just died? You saw
7191
1 the pictures in the 60 Minutes tape. We're going to get off
2 of that. You heard Mr. Clark talk about the amputation.
3 Imagine if you are a parent what the parent of that child is
4 going through while their daughter was being held down and her
5 limb, her leg, was being amputated. That is suffering. That
6 is suffering, just like these people.
7 And it's all wrong. It's not comparative. It's all
8 wrong. It is all wrong. When you see these victims and you
9 understand what they are going through, you must understand
10 what all victims are going through, and what is happening to
11 them shouldn't happen and what is happening to the others
12 shouldn't happen. We must stop it.
13 The aggravators, as I said, must be proven beyond a
14 reasonable doubt. Now, in determining whether or not the
15 defendant should die, whether or not you should kill him, as
16 far as the aggravators, you are limited to the statutory and
17 non-statutory aggravators that are alleged in the
18 instructions.
19 You can't sit back and say, well, boy, Mr. Garcia
20 should have said this one. I mean, we ought to think -- you
21 can't do that. That's cheating. You are limited to those
22 which are -- if he didn't say what's going to happen in the
23 Middle East by this verdict or anything, you can't consider it
24 in determining aggravators, in determining beyond a reasonable
25 doubt whether or not the aggravators exist.
7192
1 However, in determining mitigators, where the burden
2 is only by a preponderance -- more likely true than not -- you
3 are permitted under the law that if you think there are
4 reasons why he should not be executed that I didn't bring up,
5 you can bring them up, even if it's only one of you who does
6 it. All right?
7 Now, so any issue you feel is appropriate -- and
8 again, he has 12 jurors. If just one of you thinks this is a
9 factor, you should bring it up so we can know if it was
10 considered.
11 You will notice, by the way, when I say that, no one
12 has introduced you, but you know that everyone in this
13 courtroom has been trained to do what they do except you
14 all -- I'm sorry, except you. I mean, we all went to law
15 school. The judge went to law school. He's a judge. The
16 court reporter is writing down just about every word I say.
17 The bailiffs, the clerks, the deputies, they're all trained in
18 this.
19 You will notice, however, that when you go back in
20 that room to deliberate, none of them go with you. Nobody
21 knows what you do back there. We all assume that ordinary
22 citizens will follow the law and do what is required to do.
23 And that's not that amazing, because the idea of democracy is
24 the idea that ordinary people are capable of extraordinary
25 acts.
7193
1 You could go back there and arm wrestle or pitch
2 pennies and we wouldn't know, and we assume that you're not.
3 And I say that so that you understand -- I think you do, but I
4 want you to really appreciate some day how different it is to
5 live in this country and how powerful a citizen is supposed to
6 be and how there's nothing wrong with assuming that a citizen
7 is more powerful than the government, because we are.
8 Now, once you have determined the aggravators and the
9 mitigators and you have determined that the aggravators exist
10 beyond a reasonable doubt, unanimously, you have decided which
11 mitigators exist by a preponderance -- and it doesn't have to
12 be unanimously, now, first -- you then have to decide whether
13 or not the aggravators outweigh the mitigators. Yes.
14 Now, that means are you convinced that when you look
15 at these aggravators and you look at these mitigators, are you
16 convinced that this case is so unique and that these
17 aggravators are so strong that they're outweighed, they
18 outweigh their mitigators. If you say no, if you say I don't
19 think the government has alleged everything they should, I
20 think based on the facts we have in this case the impact of
21 these aggravators has been lessened, if you find that, it
22 stops. If you find that the aggravators do not outweigh the
23 mitigators, it stops.
24 Then, however, if you do, then you find that death is
25 available and then you have to determine whether or not death
7194
1 is the appropriate sentence -- whether death is the
2 appropriate sentence. That's the law. That's what the judge
3 will tell you.
4 The question is, appropriate to what? And no one
5 tells you that. Appropriate to what? Appropriate to the
6 magnitude of the suffering that has been sustained by these
7 victims? No suffering you can do to the defendant would do
8 that. It couldn't happen. You have victims who are suffering
9 a loss the defendant never even knew existed because he hadn't
10 even lived through that yet. So that can't be it.
11 Appropriate to what? Appropriate to the best
12 interests of society and to the world at large? I would
13 submit, yes.
14 Back up for a second. The government says that one
15 of reasons you should kill the defendant is that he has a lack
16 of remorse. If you think you are doing what's right or you
17 think you're doing what's necessary, even if you're wrong, you
18 don't have a lack of remorse. And I would also hesitate to
19 show you this, going back, when Madeleine Albright was on that
20 tape on 60 Minutes and she sat there and said, we know; in
21 response to the death of 500,000 children: We know. We think
22 the price is worth it. Does she think she was right? Yes.
23 Does she show remorse for the death of one-half million
24 children? No.
25 And Mr. Clark said what's going on over there is
7195
1 freely discussed every day. Not just in the Arab world, but
2 in Europe. People talk about the impact of these sanctions.
3 Do you see remorse? And the answer is no. Is he correct not
4 to be remorseful? Maybe not. And perhaps in the next 50 or
5 60 days he will come to understand what he did.
6 But based on the numbers that you have heard from the
7 tapes and from Mr. Clark, 250 children are dying every day.
8 That's one child every ten minutes since 1991, and that
9 doesn't include the old people and the diabetics and the
10 people with terminal illnesses. Since yesterday, when I saw
11 you last, 250 children have died. Now, how long should he
12 wait before he tries to do something? I don't know.
13 Appropriate to what?
14 I would suggest that you consider this in your
15 deliberations: By using my verdict to kill, if I decide I
16 want to sign that paper, if I want to have this young man put
17 to death, if I wish to become a killer -- and by the way,
18 that's what it is. People say you're not being a killer,
19 you're executing. That's different.
20 What's the difference between killing and executing?
21 Well, "executing" means it's approved by the government. It's
22 state-sanctioned. That makes it okay. Well, I will tell you
23 that if state sanctions makes killing okay, I want you to know
24 that the Holocaust was state-sanctioned.
25 So killing, because the state says it's okay, is
7196
1 still killing. But if you wish to use your verdict to take
2 another life, what is your verdict accomplishing? That
3 determines whether or not it's appropriate, what is your
4 verdict going to accomplish?
5 Now, you can't consider factors that are not alleged
6 in the list of aggravators, statutory or non-statutory, by the
7 government, and they haven't listed any. What are you going
8 to pull off by becoming killers? What kind of message are we
9 going to send in?
10 And that's the question, because asking to kill
11 somebody when there is no message, or just because you're
12 angry or just because you want these people to feel better --
13 and by the way, when someone has hurt you badly, when someone
14 has hurt you, you feel that if you can hurt them back, you
15 will feel better. But when you get gray hair like I have, you
16 know that's not true. You think your pain turns into anger,
17 your anger turns into hate, and you realize if I can hurt the
18 person I hate, my sorrow will go away. And it won't. And it
19 won't.
20 And by the way, another victim, another victim that
21 no one talks about that Mr. al-'Owhali generated are all those
22 people who look at what he did and now hate; people who say,
23 look what Mohamed Al-'Owhali did. I hate them. The last tape
24 you saw, that little child holding the AK-47,
25 rat-tat-tat-tat-tat, rat-tat-tat-tat-tat, is he learning hate?
7197
1 We're making people hate more with this killing.
2 Now, I'm fortunate in this case. I'm fortunate and
3 Mr. Cohn and my co-counsel, we're fortunate, because we get to
4 come in here and argue for life. We get to argue for peace.
5 We get to argue for reconciliation. No one else does. If you
6 vote to kill, the judge has to sign the order, period. He has
7 to. So he will sign a death order. The only people who can
8 walk out of here without killing anybody is counsel. Well,
9 you could if you vote the wrong way -- if you vote the way I
10 think you should.
11 I can tell you that by arguing against violence, by
12 arguing against killing, because I'm opposed to it, I'm
13 opposed to it in this case, I'm opposed to it always, anybody
14 can kill.
15 THE COURT: Personal views of counsel are irrelevant.
16 MR. BAUGH: You're right.
17 Anybody can kill. It's easy. It's amazingly easy
18 sometimes. Sometimes it's harder to live with it afterwards,
19 but not all the time. Anybody can kill.
20 What is appropriate? Is it appropriate that we make
21 another martyr? Please notice, I'm not going through all
22 these mitigators, because I think you will concede that the
23 majority of them, I mean, he did learn this stuff at a young
24 age. And he was told by Bin Laden that, you know, those
25 places are spy shops, and you did see the model and you saw
7198
1 the photographs of the embassy and you saw antennas on top of
2 it. And so if you thought it was a spy shop, you're getting
3 evidence that it is, so both mitigators are there, no problem.
4 I'm not talking about those, though. I'm assuming you have
5 already found that.
6 What is the appropriate sentence? Remember that when
7 I sit down, by the way, Mr. Fitzgerald gets the last word. He
8 does. I don't get to say anything in rebuttal to it. But
9 what is most appropriate? Now, of course we could say, well,
10 it's appropriate to the victims that they get justice. What
11 is the difference between justice and revenge? I'm serious.
12 When you go back there ask that question, because they can't
13 be the same thing. What is the difference between justice and
14 revenge, because that's the decision you are going to have to
15 make because each of you is going to have to decide whether or
16 not to kill somebody.
17 So we make another martyr. But I will tell you this,
18 that if you believe that death is the appropriate sentence, if
19 you are convinced of that, putting emotion aside, if you are
20 convinced of that, then you have sworn an oath to consider
21 death. You haven't said you will give it, because you can
22 refuse to give death no matter what, but you have said you
23 will consider it.
24 But if you have a reasonable doubt as to the
25 appropriateness of death, if you have a only doubt, remember
7199
1 that, if you are not convinced beyond a reasonable doubt that
2 death is what must happen in this case, you cannot vote for
3 death without violating your oath.
4 I hope that each of you here appreciate the
5 opportunity you have been given. I can't overly emphasize
6 that. In determining what is appropriate, whenever your
7 verdict comes back, there could be headlines that
8 Mr. al-'Owhali got the death penalty. And there also could be
9 headlines that Americans returned a life sentence. And I
10 would trust -- and if you have a question about it, I would
11 suggest you add it in your mitigators -- that if that were
12 your verdict, it would be a prayer for peace.
13 Too many people have died. Now, can I guarantee or
14 can anyone guarantee that it will have any impact on stopping
15 this killing? Probably not. But can it hurt? Could it
16 possibly change one mind that thinks that America is
17 indifferent to the suffering of those people? Yes. Could it
18 make the mother of that child in the video with the AK-47 say:
19 Look at this, son. The Americans didn't kill. It might
20 change.
21 When you have to make difficult decisions, sometimes
22 you have to divorce yourself from the emotion, the anger, the
23 passion. And some people say, well, you can't do that, but
24 yes, you can. There are people who do. There are people who
25 make decisions based on the facts and upon the law every day.
7200
1 I know that sometimes if you don't know what to do,
2 one of the good reasons about having heroes is if you don't
3 know what to do, you think about what your hero would do. Oh,
4 there are lots of heroes. I mean, there's Martin Luther King.
5 I think he was a hero. I think Gandhi was a hero. I think
6 Jesus was a hero. I do. I think the Pope -- I'm not even
7 Catholic. I think the Pope is a hero.
8 I think "Pee Wee" Reese is a hero. "Pee Wee" Reese
9 was a man, a Southerner, who said that he wanted Jackie
10 Robinson on his team. That's bold. He stood up against his
11 friends and said this is right. That's a hero. A hero is
12 somebody who goes against their friends to do what's right.
13 That's a hero.
14 And you say, what would your hero do? Are heroes
15 capable of feeling the sorrow and suffering of the victims?
16 Yes, they are. But what would your hero do? If you did not
17 have the weakness that all of us have of sorrow, anger,
18 hatred, if you were one of those people, what would your hero
19 do? Seriously, in this situation, what would your hero do in
20 this situation, making the decision you have to make as
21 individuals?
22 It's going to be hard for you to make the decision,
23 and it should be, because just as you have the benefit of
24 being citizens and just as you have the presumption of being
25 able to fulfill those obligations as a citizen, you also have
7201
1 a duty; and the duty is to make hard decisions. And as a
2 citizen, that's a sacrifice we must all make.
3 When you go back there, if you -- now, I don't want
4 you to think that I am appealing to your sense of sympathy or
5 I'm trying -- and I'm not. I am not, because I don't think I
6 can take the situation in Iraq and overcome this. And beside
7 that, it would be wrong. You know, I'm not going to show you
8 any more pictures. None.
9 I want you to base this decision, I want you to
10 contemplate the decision with seriousness. Anytime there's a
11 death case, it's serious, but this case is probably more
12 serious. In fact, to a certain extent -- and I may pay for
13 this statement one day -- in many ways the verdict in this
14 case is more important than my client. The ramifications go
15 way beyond him and way beyond this courthouse. Literally, you
16 have the power to speak to the world, and you're not even
17 elected. You don't have to worry about getting reelected.
18 It may be hard. It will be hard. We know that. I
19 think you can do it. Why do I think you can do it? Because
20 I'm getting old. We've all been doing this a long time.
21 Jurors are remarkable people. You ask any lawyer, any lawyer,
22 criminal lawyer, they will tell you jurors are remarkable.
23 We know that you were back there deliberating. We
24 sat out here waiting for your every word. We knew that you
25 would come out of that room. You all looked whipped. You all
7202
1 did. I assume you weren't back there running; you were
2 working back there in a very orderly and logical manner. And
3 believe me, it is a appreciated. No one in this case thinks
4 for a moment that you are running slipshod over anyone's
5 rights. You have always, everything we have seen -- and I'm
6 not just talking for the defense now. I mean, even the
7 prosecution has commented. And that's wonderful. It means
8 the system works.
9 It feels funny to argue to give my client a sentence
10 of life in a room until he dies, and that's what we're asking
11 for -- not on emotion, but on good logic. What is
12 appropriate, appropriate to what? Appropriate to what? And
13 what's the answer? I don't know. I've given you some
14 suggestions, but you have to come up with it.
15 Give me just one second.
16 (Pause)
17 MR. BAUGH: To a certain extent, I envy you, your
18 role. To a certain extent, I pity you. But I have every
19 confidence, and I'm sure everyone else in this courtroom does
20 as well, that when you go back there to deliberate, each of
21 you, individually, will give these issues the consideration
22 they deserve. And no matter what your verdict is, everyone
23 will know that you really worked at it, and you should take
24 pride in that. Other than that, I can think of no better
25 group of people to make this decision.
7203
1 Thank you.
2 THE COURT: Thank you, Mr. Baugh.
3 We'll break for lunch. Remember you have not heard
4 the government's rebuttal and the Court's charge, so please
5 refrain from discussing the case.
6 (Jury not present)
7 THE COURT: We'll have the revised charge and the
8 special verdict form on your table when you return. There is
9 only one item as to which an objection was raised, and I said
10 we would deal with it when we had the text in front of us.
11 MR. BAUGH: Yes, your Honor, the issue was the --
12 Oh, you know what it is. Okay.
13 THE COURT: You will find it on page 26. The way it
14 will read is -- and you will have it before you, but things
15 are moving a little faster than I anticipated. I don't object
16 to that. It says: "The law contemplates that different
17 factors may be given different weights or values by different
18 jurors. Thus, you may find that one mitigating factor
19 outweighs all aggravating factors combined, or that the
20 aggravating factors proved do not, standing alone, justify
21 imposition of a sentence of death beyond a reasonable doubt.
22 Similarly, you may instead find that a single aggravating
23 factor sufficiently outweighs, beyond a reasonable doubt, all
24 mitigating factors combined so as to justify a sentence of
25 death."
7204
1 MR. GARCIA: No objection, Judge.
2 MR. BAUGH: That's fine.
3 THE COURT: You have another issue?
4 MR. FITZGERALD: Yes, your Honor. I just wanted to
5 note on the record the government's objection to some of the
6 things that were said during Mr. Baugh's summation.
7 Even though we inquired last week whether or not
8 Mr. Baugh would do any personal vouching, he vouched for
9 certain things, including his own view of the death penalty.
10 He repeatedly asked the jurors or called the jurors, in
11 essence, killers if they voted for the death penalty.
12 I think he played games with your Honor's ruling
13 yesterday that the Jones decision would be respected and the
14 jurors would not be told that if one juror voted the other
15 way, what would happen. And in addition, he blatantly talked
16 about safety of the courtroom after it was agreed that we
17 would not prove up the incident in the courtroom.
18 He didn't try to argue that he's been engaged in good
19 conduct since he was arrested, and yet he stood up in front of
20 jury and argued, where is the proof that he ever engaged in
21 bad conduct, and at the same time he turned around and said,
22 "Is anyone in the courtroom afraid of this man?" when we all
23 know it's been hidden from the jury; he's been chained to the
24 table. And I still would not say people were not afraid of
25 him. I think that was blatantly improper.
7205
1 MR. BAUGH: Your Honor, I have sat next to this man,
2 and I have my associate sitting next to him, and there has
3 never, ever been anything and there's not a problem. That's
4 what I'm talking about.
5 THE COURT: You know what?
6 MR. BAUGH: Yes, your Honor.
7 THE COURT: Officer Pepe probably could make the same
8 comment about Mr. Salim.
9 Now, just one moment.
10 MR. BAUGH: I'm not making any comment about officer
11 Pepe.
12 THE COURT: Just one moment.
13 With respect to counsel's stating his personal views
14 on the death penalty, I did --
15 MR. BAUGH: I apologize. When I said I'm opposed to
16 violence, I --
17 THE COURT: No, that's not what you said. You said
18 you oppose the death penalty. It was improper and you made
19 the comment.
20 With respect to your comments about the defendant's
21 good conduct in the proceedings and in the courtroom, in fact,
22 the defendant is shackled. In fact, we spent hours and hours
23 making clear what the consequence of any misconduct would be.
24 MR. BAUGH: Yes, your Honor.
25 THE COURT: And the government's objection is, I
7206
1 think, well-taken. Being well-taken, however, I don't believe
2 that any worthwhile purpose would be served by any further
3 statement to the jury.
4 Is the government seeking some further statement by
5 the Court?
6 MR. FITZGERALD: Not from the Court.
7 MR. BAUGH: Your Honor, there is one --
8 THE COURT: Meaning what?
9 MR. FITZGERALD: I think it is appropriate for the
10 government to say "you have no evidence whatsoever either way
11 what people think of whether or not he's dangerous." He has
12 vouched that the marshals in this courtroom do not think he is
13 dangerous, misleading the jury. I'm not going to comment,
14 obviously, on the --
15 MR. BAUGH: I would like the record to be read back.
16 THE COURT: You want the record read back? That's
17 easy enough.
18 (Record read)
19 MR. FITZGERALD: Obviously the defendant is someone
20 who, in a prior proceeding, interfered with a marshal in the
21 jury box when Mr. El Hage ran across the courtroom on an
22 occasion and so the fact is that he is shackled to the table.
23 THE COURT: Well, you know what I could do is I could
24 strike those remarks, but I don't know that that really --
25 MR. FITZGERALD: Your Honor, I think the fair
7207
1 response is for the government to point out "and you have
2 heard no testimony about what people think about whether he's
3 dangerous or not and weigh that with --
4 THE COURT: What does that mean, "what people think
5 about" --
6 MR. FITZGERALD: He said no one in the courtroom is
7 afraid of his safety. He argued that to the jury. There is
8 no evidence one way or the other.
9 THE COURT: I don't think that's clear. I don't
10 think the thrust of that is --
11 MR. FITZGERALD: Judge, we have a situation where
12 someone asked us to refrain from offering the courtroom
13 incident. We haven't put in, obviously, the shackles. Then
14 he takes advantage of that to argue to the jury that
15 Mr. al-'Owhali has behaved well in court, when he knows that
16 to be wrong, and we withheld proof on that basis.
17 He knows that he's shackled to the table. He now
18 wants to make the argument to the jury, leaves them with the
19 impression that he has been a good, model defendant in the
20 courtroom, and then simply have it withdrawn.
21 I think that the appropriate measure is for the
22 government to argue to the jury, to the extent that anyone
23 would want you to believe that no one is afraid of him and
24 he's had good conduct, that he could have called someone on
25 the preponderance of the evidence standard. They didn't.
7208
1 They just disregarded that.
2 THE COURT: You see, you get into problems of casting
3 a burden on the defendant. I think it was an improper
4 comment. I think it was an improper comment. I think it was
5 in violation of the understandings that previously existed.
6 I'm going to instruct the jury that those remarks are
7 stricken and that they are to disregard them.
8 MR. BAUGH: Your Honor, then we have this one last
9 issue: The Officer Pepe statement you just made.
10 THE COURT: Yes.
11 MR. BAUGH: It is obvious that the Officer Pepe
12 incident is still a problem in relation to this defendant,
13 and --
14 THE COURT: No. Let me make that statement clear.
15 What you were saying was you have been sitting next to your
16 client and that you have no fear of your client because he has
17 not in any way indicated any animosity toward you. You are
18 not afraid that, if he had an opportunity, he would not seize
19 you and use you as a hostage to achieve some other object.
20 Fine. But what I'm just saying is that, at the same time, you
21 have made arguments to the Court that, or arguments have been
22 made to the Court that Officer Pepe suffered his grievous
23 injuries because he was too lax and he didn't handcuff the
24 inmate and so on.
25 MR. BAUGH: Excuse me, your Honor. I cannot sit here
7209
1 and allow you to put false statements in my mouth. I have
2 never said that.
3 THE COURT: I certainly don't do that intentionally.
4 MR. BAUGH: Thank you. Well, you did.
5 THE COURT: Yes.
6 MR. BAUGH: We filed a Brady request asking what
7 those circumstances were and you denied it. I have never said
8 that, because the broad brush you paint this young man with
9 because he's Arab, and the people who attacked Officer Pepe
10 were, is improper.
11 THE COURT: Now, Mr. Baugh?
12 MR. BAUGH: Yes, sir.
13 THE COURT: Do not accuse me of being a racist,
14 because there is no justification for that, and for you to say
15 that I reach any conclusion because a defendant is an Arab is
16 unspeakable.
17 MR. BAUGH: Your Honor, to me, it is not unspeakable
18 and I don't mind saying it. If it offended you, well --
19 However, we are concerned about it. And with that
20 Officer Pepe statement you just made, it just came up again,
21 and that is my concern. And I would ask the Court to try
22 everything it can to view this as Mr. al-'Owhali and base your
23 determinations of on what he is entitled to on what he is
24 doing in here.
25 THE COURT: When the jury returns at 2:15, I will
7210
1 strike the comments made with respect to the defendant's
2 demeanor in the courtroom and incarceration.
3 We're adjourned until 2:15.
4 (Luncheon recess)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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23
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25
7211
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: Good afternoon. We're now at the stage
5 in the proceeding where the government is permitted to make a
6 rebuttal argument. Mr. Fitzgerald.
7 MR. FITZGERALD: Thank you, Judge.
8 THE COURT: Before he does that, ladies and
9 gentlemen, during the closing arguments made on behalf of the
10 defendant Al-'Owahli reference was made with respect to the
11 subject of future dangerousness to his behavior while he was
12 in custody and in the courtroom, and those remarks are
13 stricken from the record.
14 MR. FITZGERALD: Thank you, Judge.
15 Good afternoon. In dealing with the most serious
16 question you could imagine, the question of the appropriate
17 punishment, I suggest to you that Mr. Baugh took three tacks
18 this afternoon or this morning with you. First, he tried to
19 distract you from the real issue. Second, he tried to blame
20 other people for the situation that Al-'Owahli has put
21 everyone in, and, third, I submit he was inviting you not to
22 follow your sworn oath to follow the law and vote for or
23 against the death penalty if the circumstances justify it.
24 Let's talk about the distraction. The main
25 distraction Mr. Baugh pointed to was Iraq, and what is
7212
1 happening in Iraq with the embargo and the food for oil
2 program and the sanctions. Let us talk about what that issue
3 is and what it is not.
4 What it is is a serious issue that ought to be
5 addressed in the appropriate forum, in the United Nations in
6 the congresses, in the legislatures of countries they should
7 bring forward the people with those points of view to explain
8 why they think there should be no embargo or why some of the
9 embargo should be lifted. They should bring forward those
10 other people with a different point of view who are worried
11 about the countervailing interests, the poison gases,
12 biological weapons, chemical weapons, nuclear weapons, what
13 we've done to the Kurds and Iraq and treat the issue
14 seriously. No one is taking that lightly. But that issue has
15 nothing to do with the issue of what is the just punishment
16 for the crime that Al-'Owahli committed on August 7th, 1998.
17 In fact, if you recall al-'Owhali's statement he
18 mentioned nothing about the embargo, nothing about the food
19 for oil program.
20 The other distraction is to talk about someone who
21 wrote a report about water treatment and predicted what the
22 consequences would be if things did not change. The report
23 does not advocate destroying water treatment plants. It talks
24 about what will happen if nothing is done. Distract by
25 focusing on Madeline Albright brief question and answer and
7213
1 accuse her of genocide. Blame the CIA for the fighting in
2 Afghanistan. No showing Al-'Owahli was ever trained by anyone
3 from the CIA. Al-'Owahli went a decade later to Afghanistan
4 for training. No showing that the CIA trained people how to
5 blow up embassies.
6 What I submit to you, America's actions are not on
7 trial here. We are on trial here because this man committed a
8 crime. This man made a cold blooded calculated decision to
9 kill 213 people and felt no remorse about it. And when you're
10 in a courtroom and you realize that the law says that some
11 murders are so horrible, some crimes are so evil that the
12 death penalty is justified, when you look and you compare this
13 person convicted of murder to all of those other murderers,
14 that David Baugh told you about, who do it for greed or
15 something like that, and you recognize that the thought that
16 comes to mind is if there is a law that says that some crimes
17 deserve a death penalty, if not this case, then when? And
18 when you realize that you seek to distract.
19 Think about this. In trying to numb all of us to the
20 pain that al-'Owahli caused, Al-'Owahli can't point to another
21 human being committing a crime. He has to assert war crimes
22 by nations, war crimes on such a scale that he alleges nations
23 carried them out in order to have a comparison to the awful
24 things he did, mass slaughter.
25 Mr. Baugh talked to you about hypocrisy. Hypocrisy
7214
1 is handing up a copy of the Geneva Convention on behalf of a
2 defendant who committed genocide by truck. What I submit to
3 you is you learned something about Iraq. Keep that with you,
4 but Iraq does not have to do with this defendant's motivation.
5 What we have to focus on is the circumstance of this crime.
6 Other distractions, bring up the opposite. Bring up
7 Martin Luther King and Pee Wee Reese, hide behind them. Well,
8 what do you your heroes do? You're asked to think what your
9 heroes would do in the jury room. Your heroes, he or she
10 would stand up at the beginning of the trial, during jury
11 selection and say, can I follow my oath? Can I vote for or
12 against the death penalty as appropriate? And the hero would
13 say, if I can, I'll tell the Judge yes, and I'll follow
14 through. And that's what we ask you to do, follow your oath.
15 You've been told here that Al-'Owahli is a youth.
16 Well, he had a free will, he had a choice, he made a decision,
17 he sought out a mission, he made sure that in his role he got
18 to do a violent mission and kill people. He didn't want to
19 wash cars or clean the tables at a training camp. He traveled
20 internationally to carry out that mission. He saw what was
21 going to happen and carried out the bombing.
22 You've heard he used a stun grenade. There is no
23 fragmentation. I submit to you the stun grenade was to get
24 the guard away to get it closer to the embassy, closer to the
25 building. If he wanted to scare away Kenyans why not yell out
7215
1 bomb, run for your life, bomb. The only person's life that he
2 sought to protect when he ran was his.
3 Mr. Baugh told you that everybody has a good reason
4 to kill. The only person's reasons to kill who is on trial
5 here is Mr. Al-'Owahli. He had no good reason. He had no
6 reason to put Teresia Rungu in a wheelchair he. Had no reason
7 to blind Ellen Bomer. He had no reason to kill Julian Bartley
8 or his son or some of the other people. And that's what this
9 trial is about.
10 Remember one thing when you focus on justice in this
11 case. The one thing that's clear, this defendant is clearly
12 guilty. The evidence was overwhelming, he admitted it. You
13 are looking at a person who is so guilty, and what Mr. Baugh
14 tells you is, well, if he's sent for life imprisonment think
15 about it, sixty years times 365 days. And I submit to you
16 think 60 years times 365 days times three eight hour shifts
17 for all the guards who have to guard him for those 60 years,
18 for all the guards who are going to have to guard someone who
19 hates America so much he kills with no remorse, for all the
20 guards who will be viewed from his eyes as the enemy, for all
21 the guards he thinks should die. Sixty times 365 times 24,
22 times 3. You have to get through all those shifts to make
23 sure that an innocent man, a guard, does not die.
24 You heard reference to the fact that he wished to be
25 a martyr. Now I think for a moment, well, if he wanted to be
7216
1 a martyr although he ran away, you give him what he wants or
2 what he doesn't want. Let me make a suggestion. Give him no
3 vote. He killed 213 people. You do justice for the crime he
4 committed, and for the victims he killed, so mercilessly.
5 And also remember something; we talk about the word
6 revenge. Mr. Baugh would like you to think that a sentence of
7 death is revenge and let's stop the killing. Revenge is when
8 you kill someone else for something that someone around them
9 did. Retribution is legitimate. 213 people had their lives
10 snuffed out. All their family lives around them were ruined.
11 The four thousand injured, included maimed, blinded, crippled
12 people who have to deal with life. Their lives are ruined.
13 There are two 213 people who never lived another day
14 after that bombing. Mr. Al'-Owahli being sentenced to death
15 he'll be given a sentence no worse than a sentence he imposed
16 on 213 people without any sense of due process, without any
17 right, without any decency.
18 You've been told that if you vote for death you want
19 to be a killer, and I submit to you by saying that no one
20 wants to be a killer. No one is asked to be a killer. We are
21 sitting here in a system of law that says some crimes are so
22 horrible, some murders are so egregious, sometimes the cause
23 is so great, the person should face the death penalty and you
24 agreed to fairly weigh that, and if you fairly weigh that in
25 this case with this crime committed, I submit to you that the
7217
1 only punishment that does justice for the victims is the death
2 penalty. The person who is responsible for Al-'Owahli's death
3 is Al-'Owahli. He knew what he was doing. He had a free
4 choice, and he went ahead and did it, and don't let anyone put
5 that weight on you.
6 When you look at the mitigating factors and you see
7 discussion of other persons more culpable or equally culpable
8 not facing death, think about the persons who have no
9 culpability, Nathan Algana, buried beneath the rubble and they
10 all face death and they had no choice. Mr. Baugh said to you
11 you have to think at the end as to what is appropriate, and
12 then he said, appropriate as to what? I submit to you your
13 verdict should be appropriate as to the law, as to justice,
14 and to your oath, an oath you gave and you can vote for or
15 against the death penalty.
16 Let's be frank. It's not easy to ask you to vote for
17 the death penalty. It's not easy to vote for the death
18 penalty. No one claims it is. It's extremely hard. It
19 should be hard. Thank God it's hard. But sometimes in life
20 the hard things are what you have to do. Sometimes the hard
21 things are difficult, but the answer is clear. I submit to
22 you when you go in the jury room bring in a sense of
23 Al-'Owahli, bring in a sense of the prison guards, and bring
24 in a sense of the victims, and when you look at al-'Owahli
25 recognize that he's the one who put himself here. He had a
7218
1 free mind, he had a free will, he had a choice. He made that
2 choice. He killed. He must be held accountable.
3 Think about the prison guards who will have to guard
4 him for those 60 times 365 times eight, times three, and don't
5 tell them he's small. Don't tell Ellen Bomer he's small.
6 Don't tell Howard Kavaler's children he's small, because if he
7 proved anything in this case, he proved that small people
8 kill.
9 Think about the victims. We submit to you the single
10 most important factor in this case are those victims. What
11 they went through, their pain, their loss, and their
12 suffering. We won't show you any pictures, videotapes. You
13 know what they said. You know what they said and you saw the
14 pain, and Mrs. Bartley who lost a husband and a son. The
15 pride, the carriage of Teresia Rungu to wheel herself in here
16 with so much dignity after what was done to her. For the
17 people, the hundred bodies, people who died beneath the
18 rubble, from Mordecai Thomas Onuno who carries around that
19 anniversary card, because that's all that he has left to hold
20 on to. For Clara Aliganga who has nothing to hold on to, no
21 Nathan, because Al-'Owahli decided to steal all these people
22 from their loved ones to kill them brutally.
23 I submit to you when you look at the law, the law
24 that says certain crimes are evil enough to deserve the death
25 penalty, if ever there is a crime, it's this one, the brutal
7219
1 murder of 213 people.
2 I ask you to follow your oath. I ask you to remember
3 that the only justice that can be done for the victims of this
4 case, the only sentence that fits the horrible crime is a
5 sentence of death. It's not easy to say that. It's not easy
6 to vote for it, but I submit you must.
7 Thank you.
8 THE COURT: Thank you, Mr. Fitzgerald. We'll take a
9 very brief recess.
10 (Recess)
11 (Continued on next page)
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7220
1 (Jury not present)
2 THE COURT: Mr. Cohn.
3 MR. COHN: Your Honor, I wish to object to certain
4 portions of the government's rebuttal which I believe was not
5 responsive to the argument of Mr. Baugh, which I realize is
6 somewhat generalized, but most particular I am concerned with
7 his notion the jury should punish the crime instead of
8 Mr. Al-'Owahli. He said, this is a crime that cries out for
9 punishment essentially. I mean I'm paraphrasing in essence
10 the last few minutes. That's not the test.
11 The test is whether or not this person has committed
12 crime with all the aggravators and mitigators, if the
13 aggravates substantially outweigh the mitigators it is
14 deserving of the death penalty. I don't suggest he should
15 have said this that way, that is somewhat dry, but for him
16 just to invoke the crime itself which is naturally horrendous
17 and the mere commission of does not warrant the death penalty
18 substantially misstates the law, and essentially it is a cry
19 for legalism, and I object to it and ask the Court for a
20 curative instruction.
21 THE COURT: What would you suggest by way of curative
22 instruction?
23 MR. COHN: Well, I don't know, your Honor. I always
24 from time to time I'm not always sure the cure isn't worse
25 than the disease.
7221
1 THE COURT: I think the argument was a fair argument,
2 that the salient factor in the jury's consideration was the
3 magnitude of the impact on the victims and I think that was --
4 MR. COHN: And although I disagree and reserve for
5 another forum the amount of the impact that could have been
6 impressed on the jury that's not my argument. I made it to
7 you. My argument here is he said this is a crime, if no other
8 crime calls out for this penalty, this is the one, and I think
9 that that ignores and calls for the jury to ignore a whole
10 host of other factors which this Court has been very careful
11 to impress on them in the charge that you are about to
12 deliver.
13 And I think quite frankly, your Honor, the respect
14 they have for Mr. Fitzgerald and his work in this case
15 obfuscates the issue and needs some redress. What it is I
16 can't say I'm smart enough to say in ten seconds, but if you
17 give me a few seconds I'll think about it, if you're inclined
18 to do something. If you're not inclined to do something, then
19 I shouldn't waste what little gray power I have left.
20 THE COURT: Mr. Fitzgerald.
21 MR. FITZGERALD: The arguments made by Mr. Baugh
22 about world events, in any event, I think we're about to give
23 the jury the explanation of the law. I did not misstate the
24 law. In fact, I think I hewed to it quite closely, certainly
25 by comparison.
7222
1 THE COURT: I don't think any action by the Court is
2 appropriate.
3 (Continued on next page)
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7223
1 (Jury present)
2 THE COURT: Ladies and gentlemen, you will find on
3 your seats a few documents. Two documents are the Court's
4 instructions to you with respect to the law to be applied at
5 this phase of the case, and the special verdict form that you
6 are to complete. The envelope contains a certificate that
7 you're each to sign with your own name and then seal, and I'll
8 talk about that later.
9 Again, as was the case with the guilt phase, I have
10 given you a written copy of my remarks and I will deliver them
11 orally, and it is for you to decide whether you wish to read
12 along or just listen, or read along for a while and then just
13 listen. It is whatever you feel most comfortable.
14 Members of the jury, it is now my duty to instruct
15 you as to the law applicable to the sentencing phase of this
16 case. As I mentioned to you in my preliminary remarks, the
17 sole question presently before you is whether Mohammed Rashed
18 Daoud Al-'Owahli should be sentenced for his capital offenses
19 to either (1) the death penalty or (2) life imprisonment
20 without the possibility of release.
21 The selection between these two very serious choices
22 is yours and yours alone to make. If you determine as to a
23 particular count that Mr. Al-'Owahli should be sentenced to
24 death, or instead to life imprisonment without the possibility
25 of release, the Court is required to impose whichever sentence
7224
1 you choose as to that count. There is no parole in the
2 federal system.
3 Remember that you have previously found
4 Mr. Al-'Owahli guilty of the following capital counts in the
5 indictment, all of which -- and I interrupt to say you should
6 have with you in the jury room copies of the indictment,
7 copies of the charge with respect to the guilt phase.
8 You have previously found Mr. Al-'Owahli guilty of
9 the following capital counts in the indictment all of which
10 arise out of the August 7, 1998 bombing of the United States
11 Embassy in Nairobi Kenya:
12 Counts 5, 7, 9 through 221, 233 through 273, 278 and
13 279. Even though there are a total of 258 capital counts at
14 issue here, you must still approach the sentencing decision
15 before you separately as to each count and, of course, with an
16 open mind. I cannot stress to you enough the importance of
17 your giving careful and thorough consideration to all the
18 evidence. And regardless of any opinion you may have as to
19 what the law may be, or should be, it would be a violation of
20 your oaths as jurors to base your sentencing decision upon any
21 view of the law other than that which is given to you in these
22 instructions.
23 Some of the legal principles that you must apply to
24 your sentencing decision duplicate those you followed in
25 reaching your verdict as to guilt or innocence. Others are
7225
1 different. The instructions I am giving you now are a
2 complete set of instructions on the law applicable to the
3 sentencing decision. I have prepared them to ensure that you
4 are clear in your duties at this important stage of the case.
5 I have also prepared, as before, a special verdict form that
6 you must complete. The form, by detailing the special
7 findings you must make, will aid you in properly performing
8 your deliberative duties.
9 Now, although Congress has left it wholly to you, the
10 jury, to decide Mr. Al-'Owhali's proper punishment, it has
11 narrowed and channeled your discretion in specific ways,
12 particularly by making you consider and weigh any aggravating
13 and mitigating factors present in this case.
14 As I explained previously, these factors have to do
15 with the circumstances of the crime, or the personal traits,
16 character, or background of Mr. Al-'Owahli, or anything else
17 relevant to the sentencing decision. Aggravating factors are
18 those that would tend to support imposition of the death
19 penalty. By contrast, mitigating factors are those that
20 suggest that life in prison without the possibility of release
21 is an appropriate sentence in this case.
22 Of course, your task is not simply to decide what
23 aggravating and mitigating factors exist here, if any.
24 Rather, you are called upon to evaluate any such factors and
25 to make a unique, individualized choice between the death
7226
1 penalty and life in prison without the possibility of release.
2 In short, the law does not assume that every
3 defendant found guilty of committing murder should be
4 sentenced to death. Nor does the law presume that
5 Mr. Al-'Owahli, in particular, should be sentenced to death.
6 Rather, your decision on the question of punishment is a
7 uniquely personal judgment which the law, in the final
8 analysis, leaves up to each of you.
9 As to the burden of proof. The government, at all
10 times and as to all of the capital counts, has the burden of
11 proving beyond a reasonable doubt that the appropriate
12 sentence for Mr. Al-'Owahli is in fact the death penalty.
13 Specifically, that means that the government must prove as to
14 each capital count all of the following beyond a reasonable
15 doubt:
16 (1). The existence of at least one gateway
17 factor,(2); the existence of at least one statutory
18 aggravating factor; (3) the existence, if any, of nonstatutory
19 aggravating factors, and (4), that all the aggravating factors
20 found to exist sufficiently outweigh all the mitigating
21 factors found to exist as to make a sentence of death
22 appropriate, or, in the absence of any mitigating factor, that
23 the aggravating factors found to exist alone make a sentence
24 of death appropriate.
25 A reasonable doubt is a doubt based upon reason and
7227
1 common sense after careful and impartial consideration of all
2 the evidence.
3 Proof beyond a reasonable doubt must be proof of such
4 a convincing character that a reasonable person would rely and
5 act upon it without hesitation in the most important matters
6 of his or her own affairs. Yet proof beyond a reasonable
7 doubt does not mean proof beyond all possible doubt.
8 A defendant never has the burden of disproving the
9 existence of anything which the government must prove beyond a
10 reasonable doubt. The burden is wholly upon the government,
11 the law does not at all require Mr. Al-'Owahli to produce
12 evidence that a particular aggravating factor does not exist
13 or that death is not an appropriate sentence.
14 As such, Mr. Al-'Owahli is not required to assert or
15 establish any mitigating factors, however, if one or more
16 mitigating factors are asserted, it is Mr. Al-'Owhali's burden
17 to establish any mitigating factors by a preponderance of the
18 evidence.
19 To prove something by a preponderance of the evidence
20 is to prove it by a lesser standard of proof than proof beyond
21 a reasonable doubt. To prove something by a preponderance of
22 the evidence is to prove that it is more likely true than not
23 true. It is determined by considering all of the evidence and
24 deciding what of the evidence is more believable. If,
25 however, the evidence is equally balanced, you cannot find
7228
1 that the mitigating factor has been proved.
2 The preponderance of the evidence is not determined
3 by the greater number of witnesses or exhibits presented by
4 the government or the defendant. Rather, it is the quality
5 and persuasiveness of the information which controls.
6 In making all the determinations you are required to
7 make in this phase of the trial, you may consider any evidence
8 that was presented during the guilt phase as well as
9 information that was presented at this sentencing phase.
10 You may thus consider the testimony, exhibits and
11 stipulations offered by both sides during the guilt phase; the
12 parties were not required to re-offer that evidence. However,
13 you may not consider any evidence from the guilt phase that
14 was received solely against someone other than Mr. Al-'Owahli.
15 In deciding what the facts are, you may have to
16 decide what testimony you believe and what testimony you do
17 not believe. You may believe all of what a witness said, or
18 part of it or none of it. In deciding what testimony of any
19 witness to believe, consider the witness' intelligence, the
20 opportunity the witness had to see or hear the things
21 testified about, the witness' memory, any motives that witness
22 may have for testifying a certain way, the manner of the
23 witness while testifying, whether that witness said something
24 different at an earlier time, the general reasonableness of
25 the testimony, and the extent to which the testimony is
7229
1 consistent with other evidence that you believe.
2 Also, recall that for our purposes here the terms
3 "evidence" and "information" have the same meaning.
4 Mr. Al-'Owahli did not testify in this case. There
5 is, however, no burden upon Mr. Al-'Owahli to prove that he
6 should not be sentenced to death. Instead, the burden is
7 entirely on the prosecution to prove, beyond a reasonable
8 doubt, that a sentence of death is in fact justified.
9 Accordingly, that Mr. Al-'Owahli did not testify must not be
10 considered by you in any way, or even discussed, in arriving
11 at your sentencing decision.
12 You must deliberate and determine the appropriate
13 sentence for each of the capital counts separately. Although
14 I will be discussing the capital counts as a group, your
15 findings regarding gateway factors, aggravating factors, and
16 all other issues pertaining to these counts must treat each of
17 these counts separately.
18 It is possible that even though all of the counts are
19 connected with the bombing of the Nairobi embassy, you may
20 find differences which would justify different sentencing on
21 different counts.
22 The instructions I am about to give you, as well as
23 the special verdict form you will be completing, will first
24 address your findings, if any, regarding the four so-called
25 gateway factors, and the statutory aggravating factors
7230
1 identified by the government with regard to each capital
2 count.
3 The instructions and the Special Verdict Form
4 thereafter address your finding, if any, as to each capital
5 count regarding the existence of nonstatutory aggravating
6 factors and mitigating factors as well as the weighing of
7 aggravating and mitigating factors.
8 With respect to gateway factors. Before you may
9 consider the imposition of the death penalty for any capital
10 count, you must first unanimously find, beyond a reasonable
11 doubt, the existence as to that count of at least one of the
12 four gateway factors identified by the government. The
13 gateway factors are as follows:
14 1. That the defendant intentionally killed the
15 victim or victims of the particular capital offense charged in
16 the respective count of the indictment, or.
17 2. That the defendant intentionally inflicted
18 serious bodily injury that resulted in the death of the victim
19 or victims of the particular capital offense charged in the
20 respective count of the indictment, or.
21 3. That the defendant intentionally participated in
22 an act, contemplating that the life of a person would be taken
23 or intending that lethal force would be used in connection
24 with a person, other than one of the participants in the
25 offense, and the victim or victims of the particular capital
7231
1 offense charged in the respective count of the indictment died
2 as a direct result of the act, or.
3 4. That the defendant intentionally and specifically
4 engaged in an act of violence, knowing that the act created a
5 grave risk of death to a person, other than one of the
6 participants in the offense, such that participation in the
7 act constituted a reckless disregard for human life and the
8 victim or victims of the particular capital offense charged in
9 the respective count of the indictment died as a direct result
10 of the act.
11 Your findings as to whether the government has proven
12 the existence, beyond a reasonable doubt, of a particular
13 factor from among these four gateway factors must be separate
14 and unanimous as to each capital count.
15 And with regard to your findings, you may not rely
16 solely upon your first-stage verdict of guilt or your factual
17 determinations therein. Instead, you must now decide each
18 issue for yourselves again.
19 Any finding that a gateway factor has been proven as
20 to a particular count must be based on Mr. Al-'Owhali's
21 personal actions and intent. Intent or knowledge may be
22 proven like anything else. You may consider any statements
23 made and acts done by Mr. Al-'Owahli, and all the facts and
24 circumstances in evidence which may aid in a determination of
25 Mr. Al-'Owhali's knowledge or intent. You may, but are not
7232
1 required to, infer that a person intends the natural and
2 probable consequences of acts knowingly done or knowingly
3 omitted.
4 In the event that you unanimously find, beyond a
5 reasonable doubt, that a particular gateway factor exists as
6 to all the capital counts, you are to indicate that finding on
7 the appropriate line in Section I, Part A of the Special
8 Verdict Form.
9 In the event that you unanimously find, beyond a
10 reasonable doubt, that a particular gateway factor exists as
11 to some but not all of the capital counts, you are to indicate
12 that finding on the appropriate line in Section I, Part A of
13 the Special Verdict Form, and also identify on the line
14 provided, by count number, the specific capital counts as to
15 which you find that gateway factor applies.
16 If you do not unanimously find that a particular
17 gateway factor has been proved beyond a reasonable doubt with
18 respect to any of the capital counts you should mark the
19 appropriate space in Section I, Part A.
20 I instruct you that any gateway factor found by you
21 to exist is not an aggravating factor and may not be weighed
22 by you in deciding whether or not to impose a sentence of
23 death.
24 For any capital count, if you do not unanimously find
25 that the government has proven beyond a reasonable doubt the
7233
1 existence as to that count of any of the four gateway factors,
2 your deliberative task as to that capital count will be over
3 and the Court will impose a mandatory sentence on that count
4 of life imprisonment without possibility of release.
5 Section I, Part B of the Special Verdict Form
6 provides a space for you to indicate those counts, if any, for
7 which you have not unanimously found that the government has
8 proven beyond a reasonable doubt the existence of any gateway
9 factor.
10 Let's now turn to 1 of the Special Verdict Form.
11 As used in this section the term "capital counts"
12 refers to Counts Five, Seven, 9 through 221, 233 through 273,
13 278, and 279.
14 Please indicate which, if any, of the following
15 gateway factors you unanimously find that the government has
16 proven beyond a reasonable doubt. For each of the four
17 gateway factors listed in Part A below, you must mark one of
18 the responses. Then it lists. Part A. 1. That the
19 defendant intentionally killed the victim or victims of the
20 particular count that you are considering.
21 The choices there are we unanimously find that this
22 factor has been proved beyond a reasonable doubt with regard
23 to all of the capital counts.
24 If you so find you would indicate there. Then it
25 says: We unanimously find that this factor has been proven
7234
1 beyond a reasonable doubt with regard to the following capital
2 counts only. In which case you would identify which of the
3 capital counts that you see listed on the first two lines on
4 that page as to which you have found the factor has been
5 proven beyond a reasonable doubt.
6 The third choice is: We do not unanimously find that
7 this factor has been proven beyond a reasonable doubt with
8 regard to any of the capital counts.
9 And then the form continues in that format with
10 respect to the second, third, and fourth, and it tells you in
11 Part B, after reviewing your finding in Section I, Part A,
12 please identify by count number those capital counts, if any,
13 for which you have not unanimously found that the government
14 has proven beyond a reasonable doubt the existence of any
15 gateway factor.
16 We tell you at the bottom: For each capital count if
17 you did not unanimously find that the government has proven
18 beyond a reasonable doubt at least one of the above gateway
19 factors with respect to that count, then your deliberations
20 are over as to that count. That is to say, you are not to
21 consider in Section II or thereafter on through Section VI any
22 of the counts that are specified above in Section I, Part B.
23 In other words, a gateway is a threshhold. Unless that
24 threshhold is crossed by you unanimously finding one gateway
25 factor applying to that count, consideration with respect to
7235
1 that count is over.
2 If there is no capital count for which you
3 unanimously find the gateway factor has been proven beyond a
4 reasonable doubt, skip forward to Section VI, and complete
5 that Section in accordance with the directions there. Then
6 notify the Court you have completed your deliberations. If
7 you found at least one gateway factor with regard to one or
8 more capital counts, continue on to Section II.
9 We return to charge itself on page 10 and we deal
10 with statutory aggravating factors.
11 If and only if you unanimously find that the
12 government has proven beyond a reasonable doubt that at least
13 one of the four gateway factors exists as to a particular
14 capital count, you must then proceed to determine whether the
15 government has proven beyond a reasonable doubt the existence
16 of any of the following four statutory aggravating factors
17 with respect to that count.
18 1. The deaths, and injuries resulting in death,
19 occurred during the commission or attempted commission of
20 another offense, namely one of the following offenses listed
21 under Title 18, United States Code, Section. Then it lists
22 them.
23 2. The defendant in the commission of the offense
24 knowingly created a grave risk of death to one or more persons
25 in addition to the victims of the offense.
7236
1 3. The defendant committed the offense after
2 substantial planning and premeditation to cause the death of
3 one or more persons or to commit an act of terrorism.
4 4. The defendant intentionally killed or attempted
5 to kill more than one person in a single episode.
6 At this point the law directs you to consider and
7 decide, separately as to each of the capital counts for which
8 you have unanimously found the existence of at least one
9 gateway factor, the existence or nonexistence of the statutory
10 aggravating factors specifically claimed by the government.
11 You are reminded that to find the existence of a
12 statutory aggravating factor as to a particular count, your
13 decision must be unanimous and beyond a reasonable doubt. Any
14 finding that one or more of these factors has been proven must
15 be based on Mr. Al-'Owhali's personal actions and intent.
16 In the event that you unanimously find beyond a
17 reasonable doubt that a particular statutory aggravating
18 factor exists as to all the capital counts for which you have
19 found the existence of at least one gateway factor, you are to
20 indicate that finding on the appropriate line in Section II,
21 Part A of the Special Verdict Form.
22 In the event that you unanimously find beyond a
23 reasonable doubt that a particular statutory aggravating
24 factor exists as to some but not all of the capital counts for
25 which you have found the existence of at least one gateway
7237
1 factor, you are to indicate that finding on the appropriate
2 line in Section II, Part A of the Special Verdict Form, and
3 also identify on the line provided by count number, the
4 particular counts as to which you find the statutory
5 aggravating factor applies.
6 If you do not unanimously find that a particular
7 statutory aggravating factor has been proved beyond a
8 reasonable doubt with respect to any of the capital counts you
9 are considering you should mark the appropriate space in
10 Section II, Part A of the Special Verdict Form.
11 For any capital count for which you unanimously find
12 the existence at least one gateway factor, if you do not also
13 unanimously find as to that same count the existence of at
14 least one statutory aggravating factor, then your deliberative
15 task as to that count will be over and the Court will impose a
16 mandatory sentence on that count of life imprisonment without
17 the possibility of release.
18 Section II, Part B of the Special Verdict Form
19 provides a space for you to indicate those counts, if any, for
20 which you have not unanimously found that the government has
21 proven beyond a reasonable doubt the existence of any
22 aggravating factor.
23 Let me now instruct you in detail on the specific
24 elements necessary for the government to prove each of those
25 four statutory aggravating factors beyond a reasonable doubt.
7238
1 As to death or injury resulting in death, during the
2 commission of another offense:
3 The first statutory aggravating factor alleged by the
4 government with regard to the various counts is that the
5 deaths or injuries resulting in death of the victim or victims
6 identified in a particular count occurred during the
7 commission of a crime other than the crime charged in that
8 particular count. Thus, as to each count, you must determine
9 if the victim or victims identified was killed during the
10 commission of certain other crimes, as those other crimes are
11 set forth in the Special Verdict Form.
12 Depending on the particular count the other crimes
13 alleged are one or more of the following offenses: 18 USC
14 Section 844(f), bombing of property leased to the United
15 States government; 18 USC, Section 1116, killing or attempted
16 killing of internationally protected persons. 18 USC, Section
17 2332, terrorist acts abroad against United States nationals,
18 and 18 USC, Section 2332a the use of a weapon of mass
19 destruction.
20 In order to prove that the deaths or injuries
21 resulting in death occurred during the commission of the
22 separate offense of bombing of property leased to the United
23 States government, in violation of 18 USC, Section 844(f), the
24 government must prove beyond a reasonable doubt exactly that,
25 the death or injury resulting in death of the victim or
7239
1 victims identified identification in the particular count
2 occurred during the commission of a violation of 18 USC,
3 Section 844(f). You have previously found that Mr. Al-'Owahli
4 violated 18 USC 844(f) as reflected in your guilty verdict on
5 Count 5. Accordingly, solely as to Count 5, you may not
6 consider the commission of the violation of 18 USC Section,
7 844(f) as "another crime."
8 In order to prove that the deaths or injuries
9 resulting in death occurred during the commission of separate
10 offenses of killing or attempted killing of internationally
11 protected persons, in violation of 18 USC, Section 1116, the
12 government must prove beyond a reasonable doubt exactly that,
13 that the death or injury resulting in death of one or more of
14 the victims of the Nairobi bombing occurred during the
15 commission of a violation of 18 USC, Section 1116. You have
16 previously found that Mr. Al-'Owahli violated 18 USC, Section
17 116 as reflected in your guilty verdicts on Counts 278, 279,
18 and 280. When you consider Counts 278 and 279, you may not
19 consider the commission of the violation of 18 USC, Section
20 116 as "another crime."
21 In order to prove that the death or injuries
22 resulting in death occurred during the commission of the
23 separate offense of terrorist acts abroad against United
24 States nationals in violation of 18 USC, Section 2332, the
25 government must prove beyond a reasonable doubt exactly that,
7240
1 that the death or injury resulting in death of one or more of
2 the victims of the Nairobi bombing occurred during the
3 commission of a violation of 18 USC, Section 2332.
4 You have previously found that Mr. Al-'Owahli
5 violated 18 USC, Section 2332, as reflected in your guilty
6 verdict on Count 1.
7 In order to prove that the deaths or injuries
8 resulting in death occurred during the commission of the
9 separate offense of use of a weapon of mass destruction
10 against United States nationals in violation of 18 USC, 2332a,
11 the government must prove beyond a reasonable doubt exactly
12 that the death or injury resulted in death of one or more of
13 the victims of the Nairobi bombing occurred during the
14 commission or a violation of 18 USC, Section 2332a.
15 You have previously found that Mr. Al-'Owahli
16 violated 18 USC, Section 2332aas reflected in your guilty
17 verdict on Count 7. Accordingly, solely as to Count 7, you
18 may not consider the commission of the violation of 18 US v.
19 2332a as another crime.
20 For each of the capital counts you are considering,
21 in order to find that the government has satisfied its burden
22 of proving beyond a reasonable doubt that the deaths or
23 injuries resulting in death of the victims of the Nairobi
24 bombing occurred during the commission of one or more of these
25 other offenses, you must unanimously agree on which other
7241
1 offenses were committed by Mr. Al-'Owahli. Your finding as to
2 this statutory aggravating factor must be indicated in the
3 appropriate space in Section II, Part A.1 of the Special
4 Verdict Form.
5 The Special Verdict Form, page 5 with respect to
6 statutory aggravating factors spells this out again and
7 reminded you as to which of the counts you may not consider
8 particular crimes.
9 After you've done that, it tells you in the
10 directions on page 8, for each of the capital counts you are
11 considering in this section if you do not unanimously find
12 that the government has proven beyond a reasonable doubt that
13 at least one of the above statutory aggravating factors with
14 respect to that count, then your deliberations are over as to
15 that capital count.
16 In other words, you are not to consider in Section
17 III or thereafter until Section VI, any of the counts you have
18 specified in Section II, Part B. If there is no capital count
19 which you unanimously find that at least one statutory
20 aggravating factor has been proven beyond a reasonable doubt
21 skip forward to Section VI and complete that Section in
22 accordance with the directions there. Notify the Court you
23 have completed your deliberations.
24 If you found one or more statutory aggravating
25 factors with regard to one or more capital counts continue on
7242
1 to Section III.
2 In other words, deviating from there first the
3 gateway and you must find to warrant further consideration
4 with respect to a particular count that at least one gateway
5 factor has been proven. Then with respect to those counts as
6 to which you find that one gateway factor has been proven you
7 must also find one statutory aggravating factor has been
8 proven. If you have found both the gateway factor and the
9 statutory factor as to that count, then you proceed. If you
10 have not found at least one gateway factor and at least one
11 statutory aggravating factor then your deliberations with
12 respect to that count are closed.
13 (Continued on the next page)
14
15
16
17
18
19
20
21
22
23
24
25
7243
1 THE COURT: (Continuing) Turning, then, to the second
2 statutory aggravating factors -- I'm on page 14, if you are
3 following me:
4 The second statutory aggravating factor alleged by
5 the government with regard to the capital counts is that, in
6 the commission of the particular offenses, the defendant
7 knowingly created a grave risk of death to one or more persons
8 in addition to the deceased victim or victims identified in
9 the particular capital count.
10 To establish the existence of this factor, the
11 government must prove beyond a reasonable doubt that
12 Mr. al-'Owhali, in committing the offense described in the
13 capital count you are considering, knowingly created a grave
14 risk of death to one or more persons in addition to the
15 deceased victim or victims identified in the particular count.
16 "Knowingly" creating such a risk means that
17 Mr. al-'Owhali was conscious and aware that his conduct in the
18 course of committing the offense might have this result.
19 Mr. al-'Owhali's conduct cannot merely have been the product
20 of ignorance, mistake or accident. Knowledge must be proved
21 like anything else. You may consider any statements made and
22 acts done by Mr. al-'Owhali, and all the facts and
23 circumstances in evidence which may aid you in the
24 determination of Mr. al-'Owhali's knowledge.
25 "Grave risk of death" means a significant and
7244
1 considerable possibility that another person might be killed.
2 In order to find that the government has proven this factor
3 beyond a reasonable doubt, you must unanimously agree on a
4 particular person or a class of persons who were placed in
5 danger by Mr. al-'Owhali's actions.
6 "Persons in addition to the victims" include innocent
7 bystanders in the zone of danger created by the defendant's
8 acts, but do not include other participants in the offense.
9 Your finding as to this statutory aggravating factor
10 must be indicated in the appropriate space in Section II, Part
11 A.2 of the Special Verdict Form.
12 The third statutory aggravating factor alleged by the
13 government with regard to the capital counts is that the
14 defendant committed the offenses under the particular counts
15 after substantial planning and premeditation to cause the
16 death of a person or to commit an act of terrorism.
17 "Planning" means mentally formulating a method for
18 doing something or achieving some end.
19 "Substantial planning and premeditation" means a
20 considerable or significant amount of planning and
21 premeditation.
22 An "act of terrorism" is an act calculated to
23 influence or affect the conduct of government by intimidation
24 or coercion, or to retaliate against government conduct.
25 I'm told I skipped premeditation, which I didn't
7245
1 premeditatively do that.
2 "Premeditation" means thinking or deliberating about
3 something and deciding whether to do it beforehand.
4 To find that the government has satisfied its burden
5 of proving beyond a reasonable doubt that Mr. al-'Owhali
6 engaged in substantial planning and premeditation either to
7 cause the death of a person or to commit an act of terrorism,
8 you must unanimously agree on the particular object of the
9 substantial planning and premeditation either to cause the
10 death of a person, to commit an act of terrorism, or to do
11 both. Your finding as to this statutory aggravating factor
12 must be indicated in the appropriate space in the Section II,
13 Part A.3 of the Special Verdict Form.
14 The fourth and final statutory aggravating factor
15 alleged by the government with regard to the capital counts is
16 that the defendant intentionally killed or attempted to kill
17 more than one person in a single criminal episode.
18 To establish the existence of this factor, the
19 government must prove beyond a reasonable doubt that
20 Mr. al-'Owhali intentionally killed or attempted to kill more
21 than one person in a single criminal episode. You must
22 unanimously agree on the particular actual or intended victims
23 or a class of intended victims in order to find that this
24 factor has been proved beyond a reasonable doubt.
25 "Intentionally killing" a person means killing a
7246
1 person on purpose, that is: Willfully, deliberately, or with
2 a conscious desire to cause a person's death (and not just
3 accidentally or involuntarily).
4 "Attempting to kill" a person means purposely doing
5 some act which constitutes a substantial step (beyond mere
6 preparation or planning) toward killing a person, and doing so
7 with the intent to cause a person's death. You may not find
8 that the defendant attempted to kill a person who was actually
9 killed.
10 "A single criminal episode" is an act or series of
11 related criminal acts which occur within a relatively limited
12 time and place, or are directed at the same person or persons,
13 or are part of a continuous course of conduct related in time,
14 place, or purpose.
15 You may, but are not required to, infer that a person
16 of sound mind intended the ordinary, natural, and probable
17 consequences of his knowing and voluntary acts. Thus, you may
18 infer from Mr. al-'Owhali's conduct that he intended to kill a
19 person if you find: (1) that Mr. al-'Owhali was a person of
20 sound mind; (2) that the victim's death was an ordinary,
21 natural, and probable consequence of Mr. al-'Owhali's acts
22 (even if the victim's death did not actually result, in the
23 case of an attempt); and (3) that Mr. al-'Owhali committed
24 these acts knowingly and voluntarily. But once again, you are
25 not required to make such an inference. Your finding as to
7247
1 this statutory aggravating factor must be indicated in the
2 appropriate space in Section II, Part A.4 of the Special
3 Verdict Form.
4 Finally, let me reiterate that if, with respect to
5 any capital count, you do not unanimously find that the
6 government has proven beyond a reasonable doubt at least one
7 statutory aggravating factor, your deliberations as to that
8 particular count are concluded. Please identify any such
9 counts in Section II, Part B of the Special Verdict Form.
10 If the requirements of the gateway factor and the
11 statutory aggravating factor are satisfied, that is, you have
12 found at least one of each with respect to the particular
13 count, you must then consider whether the government has
14 proven the existence of any non-statutory aggravating factor
15 with regard to that count. As before, you must agree
16 unanimously, and separately as to each count, that the
17 government has proven beyond a reasonable doubt the existence
18 of any of the alleged non-statutory aggravating factors.
19 The law permits you to consider and discuss only the
20 three non-statutory aggravating factors specifically claimed
21 by the government in advance and listed below. You are not
22 free to consider any other facts in aggravation that you may
23 conceive of on your own.
24 The non-statutory aggravating factors alleged by the
25 government with regard to each of the capital counts are as
7248
1 follows:
2 1. The defendant -- that is, Mr. al-'Owhali -- poses
3 a continuing and serious threat to the lives and safety of
4 others with whom he will come in contact.
5 2. As demonstrated by the deceased victims' personal
6 characteristics as individual human beings and the impact of
7 the deaths upon the deceased victims' families, the defendant
8 caused injury, harm, and loss to those victims and their
9 families, and the defendant caused serious physical and
10 emotional injury and grievous economic hardship to numerous
11 individuals who survived the bombing.
12 3. The victims and intended victims included
13 high-ranking public officials of the United States serving
14 abroad and the offense was motivated by such status.
15 These non-statutory aggravating factors are
16 self-explanatory and do not require substantive instruction.
17 Note that the non-statutory aggravating factor of future
18 dangerousness may only be considered by you in the context of
19 the mandatory life sentence without the possibility of release
20 that must be imposed by the Court if Mr. al-'Owhali is not
21 sentenced to death.
22 Again, your findings regarding these factors must be
23 separate and unanimous with regard to each count that you are
24 considering. You also must unanimously agree, beyond a
25 reasonable doubt, that the non-statutory aggravating factor
7249
1 alleged by the government is in fact aggravating. As I
2 mentioned at the beginning of the sentencing hearing, an
3 aggravating factor is a fact or circumstance that would tend
4 to support imposition of the death penalty.
5 In the event that you unanimously find, beyond a
6 reasonable doubt, that a particular non-statutory aggravating
7 factor applies to all of the capital counts for which you have
8 found at least one gateway factor and at least one statutory
9 aggravating factor, you are to indicate that finding on the
10 appropriate line in Section III of the Special Verdict Form.
11 In the event that you unanimously find that a particular
12 non-statutory aggravating factor applies to some but not all
13 of these counts, you are to indicate that finding on the
14 appropriate line in Section III of the Special Verdict Form,
15 and also identify on the line provided, by count number, the
16 particular counts as to which you find the non-statutory
17 aggravating factor applies.
18 If you do not unanimously find that a non-statutory
19 aggravating factor has been proven beyond a reasonable doubt
20 with regard to any capital count, you should so indicate in
21 Section III of the Special Verdict Form.
22 Unlike with gateway factors and statutory aggravating
23 factors, you are not required to find a non-statutory
24 aggravating factor with regard to a particular count before
25 you may consider the death penalty as the possible sentence
7250
1 for that count. Rather, the law only requires that before the
2 jury may consider an alleged non-statutory aggravating factor
3 in its sentencing decision as to any capital count, the jury
4 must first unanimously agree that the government has proven
5 beyond a reasonable doubt the existence of that factor as to
6 that count.
7 After you have completed your findings regarding the
8 existence or nonexistence of non-statutory aggravating
9 factors, you should proceed to Section IV of the Special
10 Verdict Form, to consider whether any mitigating factors
11 exist.
12 Before you may consider the appropriate punishment
13 for any of the capital counts for which you have unanimously
14 found the existence of at least one gateway factor and at
15 least one statutory aggravating factor, you must consider
16 whether Mr. al-'Owhali has proven the existence of any
17 mitigating factors with regard to those counts. A mitigating
18 factor is not offered to justify or excuse Mr. al-'Owhali's
19 conduct. Instead, a mitigating factor is a fact about
20 Mr. al-'Owhali's life or character, or about the circumstances
21 surrounding the particular capital offense, or anything else
22 relevant that would suggest, in fairness, that life in prison
23 without the possibility of release is the appropriate
24 punishment than a sentence -- is the more appropriate
25 punishment than a sentence of death.
7251
1 Unlike with aggravating factors, which you must
2 unanimously find proven beyond a reasonable doubt in order for
3 you even to consider them in your deliberations, the law does
4 not require unanimity with regard to mitigating factors. Any
5 one juror who is persuaded of the existence of a mitigating
6 factor must consider it in his or her sentencing decision.
7 Therefore, it is Mr. al-'Owhali's burden to establish
8 a mitigating factor -- furthermore, it is Mr. al-'Owhali's
9 burden to establish a mitigating factor only by a
10 preponderance of the evidence. This is a lesser standard of
11 proof under the law than proof beyond a reasonable doubt. A
12 factor is established by a preponderance of the evidence if
13 its existence is shown to be more likely so than not so. In
14 other words, a preponderance of the evidence means such
15 evidence as, when considered and compared with that opposed to
16 it, produces in your mind the belief that what is sought to be
17 established is, more likely than not, true. If, however, the
18 evidence is equally balanced, you cannot find that the factor
19 has been proved.
20 The following are the mitigating factors alleged by
21 Mr. al-'Owhali:
22 1. That other members of the conspiracy, previously
23 arrested or presently cooperating with the United States,
24 guilty of or charged with planning and facilitating the
25 bombings of the United States embassies and the killing of
7252
1 United States nationals will not be punished by death.
2 2. That Mr. al-'Owhali is less culpable than those
3 conspirators who planned and facilitated the bombing of the
4 United States Embassy in Nairobi, Kenya and continue to plan
5 and execute similar acts in the future.
6 3. That Mr. al-'Owhali does not have a prior history
7 of criminal conduct.
8 4. That, although having intentionally participated
9 in an act, contemplating that the lives of Americans be taken,
10 Mr. al-'Owhali did not intend that the Kenyan victims not
11 employed by the United States Embassy be injured or killed.
12 5. A. That Mr. al-'Owhali intended, by the
13 commission of the offenses of which he has been convicted, to
14 save members of his ummah, his religious community, regardless
15 of nationals, from imminent death, injury, terrorism and
16 genocide.
17 B. That Mr. al-'Owhali committed the offenses for
18 which he has been convicted based upon his sincere belief,
19 whether or not you agree with that belief, that his conduct
20 was mandated by his religion.
21 C. That Mr. al-'Owhali believed that the United
22 States embassies were legitimate military targets because he
23 had the sincere belief, as proposed by Usama Bin Laden, that
24 embassies fulfilled military and intelligence surveillance
25 functions which furthered the aims of the United States
7253
1 Government and opposed the aims and objectives of Usama Bin
2 Laden.
3 6. That Mr. al-'Owhali committed the offenses for
4 which he has been convicted while young in age; and
5 7. That Mr. al-'Owhali was indoctrinated in
6 conservative Muslim teachings which promoted jihad and
7 martyrdom during his early and formative years.
8 In Section IV of the Special Verdict Form, you are
9 asked to report the total number of jurors who individually
10 find a particular mitigating factor established by a
11 preponderance of the evidence.
12 Let me deviate. So the contrast, with respect to
13 aggravators, you must be unanimous. It must be beyond a
14 reasonable doubt. With respect to mitigators, you need not be
15 unanimous, and the standard of proof is a lesser proof of
16 preponderance of the evidence.
17 And this is repeated in the Special Verdict Form, and
18 the Special Verdict Form then asks that you indicate the
19 number of jurors who find a particular mitigating factor. If
20 you are unanimous, it would be 12. If one juror believes that
21 the mitigating factor has been proven by a preponderance of
22 the evidence, then the answer is one. Whatever the number is.
23 Additionally, the law permits each of you to consider
24 anything about the circumstances of the offense, or anything
25 about Mr. al-'Owhali's background, record, or character, or
7254
1 anything else relevant that you individually believe mitigates
2 against the imposition of the death penalty. As such, if
3 there are any mitigating factors not argued by the attorneys
4 for Mr. al-'Owhali but which any juror, in his or her own or
5 with others, finds to be established by a preponderance of the
6 evidence, that juror is free to consider it in his or her
7 sentencing determination. In Section IV of the Special
8 Verdict Form, you are to indicate any such additional
9 mitigating factors that one or more of you independently finds
10 to exist by a preponderance of the evidence.
11 And if you look at page 13 of the Special Verdict
12 Form, at the bottom it says, "The law does not limit your
13 consideration of mitigating factors to those that can be
14 articulated in advance. Therefore, you may consider during
15 your deliberations any other factor or factors in Mohamed
16 Rashed Daoud Al-'Owhali's background, record, character, or
17 any other circumstances of the offense that mitigate against
18 imposition of a death sentence.
19 "The following extra spaces are provided to write in
20 additional mitigating factors, if any, found by any one or
21 more jurors. If more space is needed, write 'continued' and
22 use the reverse side of this page."
23 And you will see there is a space for you to indicate
24 the nature of the additional mitigating factor which you have
25 found to be found, and the number of jurors who so find.
7255
1 After you have concluded your findings regarding the
2 existence or nonexistence of mitigating factors, you should
3 proceed to Section V of the Special Verdict Form, to weigh the
4 aggravating factors and mitigating factors with regard to each
5 of the counts for which you have unanimously found at least
6 one gateway factor and at least one statutory aggravating
7 factor.
8 Which brings us to the weighing of the aggravating
9 and mitigating factors.
10 If, and only if, you unanimously find, beyond a
11 reasonable doubt, that the government has proven the existence
12 of at least one gateway factor and at least one statutory
13 aggravating factor with regard to any capital count; and after
14 you then determine whether the government has proven beyond a
15 reasonable doubt the existence of any non-statutory
16 aggravating factors with regard to that count, and whether
17 Mr. al-'Owhali has proven by a preponderance of the evidence
18 the existence of any mitigating factors, you must then engage
19 in a weighing process with regard to that count. This
20 weighing process asks whether you are unanimously persuaded,
21 beyond a reasonable doubt, that the aggravating factors
22 sufficiently outweigh any mitigating factors -- or, in the
23 absence of any mitigating factors, that the aggravating
24 factors are themselves sufficient -- to call for a sentence of
25 death on the particular capital count you are considering.
7256
1 You are to conduct this weighing process separately
2 with regard to each of the capital counts for which you have
3 found at least one gateway factor and at least one statutory
4 aggravating factor. Each juror must individually decide
5 whether the facts and circumstances in this case, and as to
6 each count, call for death as the appropriate sentence.
7 In determining the appropriate sentence for the
8 capital count you are considering, all of you must
9 independently weigh the aggravating factor or factors that you
10 unanimously found to exist with regard to that count --
11 whether statutory or non-statutory -- and each of you must
12 weigh any mitigating factors that you individually or with
13 others found to exist. You are not to weigh any of the four
14 gateway factors I mentioned previously as part of this
15 process. In engaging in the weighing process, you must avoid
16 any influence of passion, prejudice, or any other arbitrary
17 consideration. Your deliberations should be based upon the
18 evidence you have seen and heard, and the law on which I have
19 instructed you.
20 Again, whether or not the circumstances in this case
21 call for a sentence of death is a decision that the law leaves
22 entirely to you. Remember that all 12 jurors must agree
23 beyond a reasonable doubt that death is in fact the
24 appropriate sentence, but that no juror is ever required by
25 the law to impose a death sentence. The decision is yours as
7257
1 individuals to make.
2 The process of weighing aggravating and mitigating
3 factors in order to determine the proper punishment is by no
4 means a mechanical process. In other words, you should not
5 simply count the total number of aggravating and mitigating
6 factors and reach a decision based on which number is greater;
7 rather, you should consider the weight and value of each
8 factor. In carefully weighing these various factors, you are
9 called upon to make a unique individual judgment about the
10 sentence Mr. al-'Owhali should receive.
11 The law contemplates that different factors may be
12 given different weights or values by different jurors. Thus,
13 you may find that one mitigating factor outweighs all
14 aggravating factors combined, or that the aggravating factors
15 proved do not, standing alone, justify the imposition of a
16 sentence of death beyond a reasonable doubt. Similarly, you
17 may find that a single aggravating factor sufficiently
18 outweighs, beyond a reasonable doubt, all mitigating factors
19 combined so as to justify a sentence of death.
20 Each juror is individually to decide what weight or
21 value is to be given to a particular aggravating or mitigating
22 factor in the decision-making process. Bear in mind, however,
23 that in order to find that a sentence of death is appropriate
24 for a particular count, the jurors must be unanimous in their
25 conclusion, beyond a reasonable doubt, that the aggravating
7258
1 factor or factors proven as to that count sufficiently
2 outweigh any mitigating factors found -- or, in the absence of
3 any mitigating factors, that the aggravating factors alone are
4 sufficient -- to call for a sentence of death.
5 In the event that you do not unanimously find, beyond
6 a reasonable doubt, that the balancing process leads you to
7 the conclusion that a sentence of death is a called for as to
8 any of the capital counts, please indicate in Section V of the
9 Special Verdict Form.
10 For any capital count, if you unanimously find that
11 the government has failed to prove beyond a reasonable doubt
12 that death is the appropriate sentence for Mohamed Rashed
13 Daoud Al-'Owhali, the Court will then sentence Mr. al-'Owhali
14 on that count to life imprisonment without the possibility of
15 release. The Court has no other sentencing option.
16 In the event that you unanimously find, beyond a
17 reasonable doubt, that the balancing process leads you to the
18 conclusion that a sentence of death is called for as to all
19 the capital counts, please so indicate in Section V of the
20 Special Verdict Form. In the event that you unanimously find,
21 beyond a reasonable doubt, that the balancing process leads
22 you to the conclusion that a sentence of death is called for
23 as to some but not all the capital counts, so indicate in
24 Section V of the Special Verdict Form and also identify on the
25 line provided, by count number, the particular counts to which
7259
1 you unanimously impose the death sentence.
2 If you turn then to page 15 of the Special Verdict
3 Form, it says there are general directions for Section V. As
4 used in the section, the term "capital counts" refers only to
5 those counts for which you found one gateway factor in Section
6 I and at least one statutory aggravating factor in Section II.
7 You may not impose a sentence of death on a particular capital
8 count unless you have first found with regard to that count,
9 unanimously and beyond a reasonable doubt, one gateway factor
10 in Section I and at least one statutory aggravating factor in
11 Section II.
12 In this section, enter your determination of the
13 defendant's sentence with regard to each of the capital
14 counts. Your verdict as a jury must be unanimous with regard
15 to each question in this section.
16 After considering the information presented by both
17 sides during the penalty phase and individually balancing the
18 aggravating factors found to exist against the mitigating
19 factors found to exist, and then the first choice is:
20 "We, the jury, unanimously find that the government
21 has failed to prove beyond a reasonable doubt that death is
22 the appropriate sentence for defendant Mohamed Rashed Daoud
23 Al-'Owhali for any of the capital counts. We, therefore,
24 return a decision that Mohamed Rashed Daoud Al-'Owhali will be
25 sentenced to life imprisonment without the possibility of
7260
1 release, separately as to each count."
2 Or: "We, the jury, unanimously find beyond a
3 reasonable doubt, for all of the capital counts, that the
4 aggravating factor or factors found to exist sufficiently
5 outweigh the mitigating factor or factors found to exist --
6 or, in the absence of any mitigating factors, that the
7 aggravating factor or factors are themselves sufficient -- so
8 that death is the appropriate sentence for defendant Mohamed
9 Rashed Daoud Al-'Owhali. We vote unanimously that Mohamed
10 Rashed Daoud Al-'Owhali shall be sentenced to death separately
11 as to each count.
12 Or: "We, the jury, unanimously find beyond a
13 reasonable doubt, for some of the capital counts, that the
14 aggravating factor or factors found to exist sufficiently
15 outweigh the mitigating factor or factors found to exist --
16 or, in the absence of any mitigating factors, that the
17 activating factor or factors are themselves sufficient -- so
18 that death is the appropriate sentence for defendant Mohamed
19 Rashed Daoud Al-'Owhali with regard to each of the following
20 capital counts only." And then you are asked to identify each
21 count by count number.
22 And it says, "With regard to the above-listed capital
23 counts, we vote unanimously that Mohamed Rashed Daoud
24 Al-'Owhali shall be sentenced to death separately as to each
25 count. With regard to each of the remaining capital counts,
7261
1 we sentence the defendant to life imprisonment without the
2 possibility of release separately as to each count."
3 And each juror must sign his or her juror number
4 below, indicating that the above sentence determination
5 reflects the jurors' unanimous decision. And you sign there
6 by juror number.
7 Returning to the charge, I'm on page 29, if you are
8 following me: In your consideration of whether the death
9 sentence is appropriate, you must not consider the race,
10 color, religious beliefs, national origin, or sex of either
11 the defendant or the victims. You are not to return a
12 sentence of death unless you would return a sentence of death
13 for the crime in question without regard to the race, color,
14 religious beliefs, national origin, or sex of either the
15 defendant or any victim.
16 To emphasize the importance of this consideration,
17 Section VI of the Special Verdict Form contains a
18 certification statement. Each juror should carefully read the
19 statement, and sign your juror number in the appropriate place
20 if the statement accurately reflects the manner in which each
21 of you reached your individual decision.
22 And turning, then, to page 18, you see it says, "By
23 signing your juror number below, each of you individually
24 certifies that the consideration of the race, color, religious
25 beliefs, national origin, or sex of Mohamed Rashed Daoud
7262
1 Al-'Owhali or the victims was not involved in reaching your
2 individual decision. Each of you further certifies that you,
3 as an individual, would have made the same recommendation
4 regarding a sentence for the crime or crimes in question
5 regardless of the race, color, religious beliefs, national
6 origin, or sex of the defendant, or the victims."
7 And then on this form, on single copy on this form,
8 you each sign your juror number. Then, after you have
9 completed this form, you will each be given a new
10 certification, and that is the certification that is contained
11 in the brown envelope that you received and it has
12 certification, juror number, and an envelope which bears your
13 juror number on the outside.
14 Please sign that certificate using your real name,
15 place the certificate in the envelope, seal the envelope, and
16 when you render a verdict, give the envelope to the marshal.
17 And all of the certificates bearing your real name will be
18 kept by the court under seal.
19 I'm on page 30. Concluding Remarks:
20 I have now outlined for you the rules of law
21 applicable for your consideration of the death penalty and the
22 process by which you should determine the facts and weigh the
23 evidence, and in a few moments you will retire to the jury
24 room.
25 The importance of your deliberations should be
7263
1 obvious. I remind you that you can return a decision
2 sentencing Mr. al-'Owhali to death only if all 12 of you are
3 unanimously persuaded, beyond a reasonable doubt, that the
4 death sentence is in fact appropriate.
5 When you are in the jury room, please discuss all
6 aspects of these sentencing issues among yourselves with
7 candor and frankness, but also with a due regard and respect
8 for the opinions of one another. Each of you must decide this
9 question for yourself and not merely go along with the
10 conclusion of your fellow jurors. In the course of your
11 deliberations, no juror should surrender his or her
12 conscientious beliefs of what is the truth, of what is the
13 weight and the effect of the evidence, and what should be the
14 outcome as determined by that juror's individual conscience
15 and evaluation of the case. Remember that the parties and the
16 Court are relying upon you to give full consideration and
17 mature consideration to this sentencing. By so doing, you
18 carry out to the fullest your oath as jurors; that you will
19 well and truly try the issues of this case and a just result
20 render.
21 If it becomes necessary during your deliberations to
22 communicate with me for any reason, simply send me a note
23 signed by your foreperson. Do not attempt to communicate with
24 the Court or any other court personnel by any means other than
25 a signed writing. I will not communicate with any member of
7264
1 the jury on any subject touching on your sentencing decision
2 other than in writing or orally here in open court.
3 When you have reached a decision, send me a note
4 signed by your foreperson that you have reached a decision.
5 Do not indicate in the note what the decision is. In no
6 communication with the Court should you have give a numerical
7 count of where the jury stands in its deliberations.
8 Whichever decision you reach, please sign and fill
9 out the Special Verdict Form accordingly. The foreperson must
10 also be prepared to report to the Court your findings as to
11 the gateway, aggravating and mitigating factors, and then of
12 your sentencing decision.
13 Let me remind you again that nothing that I have said
14 in these instructions -- and nothing that I have said or done
15 during the trial -- has been said or done to suggest to you
16 what I think the outcome should be. What the sentencing
17 decision should be is your exclusive duty and responsibility.
18 I would ask of the jurors seated in the last row, do
19 you have any personal belongings in the robing room? Do you
20 have any personal belongings in the robing room? Would you go
21 now to the robing room and come back to court, bringing those
22 personal belongings.
23 Anything else from counsel?
24 MR. BAUGH: Nothing from the defense, your Honor.
25 THE COURT: All counsel said no.
7265
1 Please swear the marshal.
2 (Marshal sworn)
3 THE COURT: Ladies and gentlemen, you are experts in
4 the deliberation process, so I don't think I have to explain
5 at great length what that process is. I remind you what I
6 said last time you began to deliberate: That I feel like a
7 captain turning over the command of the ship to you. So if
8 you want to stay beyond 4:30, that's up to you. If you don't,
9 that's fine.
10 Tomorrow we adjourn at 3:00. Do you want to start at
11 9:30? You get here about that time in any event. I know that
12 the gentleman who had difficulty arriving at 9:30 is no longer
13 with us. Would you rather start at 9:30? You want to leave
14 it the way it is?
15 Just let us know or let the marshal know. We will
16 follow your instructions in that regard. Of course, if there
17 is anything you wish to see or anything you wish to have read
18 again, you just send us a note. We'll be in the courtroom
19 awaiting your instructions. And you may retire to the jury
20 room.
21 (The jury retires to deliberate upon a verdict at
22 4:00 p.m.)
23 THE COURT: It had been my intent to tell the
24 alternates that they are still on-call but that they will not
25 be called prior to the 18th. Is there any objection to that?
7266
1 I think that's so that people are not on tenterhooks.
2 MR. BAUGH: Are you going to give them the usual --
3 THE COURT: Not to talk to anybody.
4 MR. BAUGH: -- publicity warning? I think it might
5 be -- between now and the 18th, I think it might be
6 particularly heavy.
7 THE COURT: Yes.
8 (Alternates present)
9 THE COURT: Ladies and gentlemen, I'm going to excuse
10 you now and just remind you what I said the last time you were
11 excused: That you are still on this jury. Therefore, you are
12 still to continue not to read or talk or listen to anything
13 with respect to this case or anything related to this case.
14 If anyone should seek to talk to you about the case and
15 persist, if you walk away, then let me know. I say that as a
16 matter of routine, not that I anticipate that it would happen.
17 And you will be on telephone call. I can tell you,
18 however, that you will not be called back before the 18th. So
19 you know that you are not on tap until that day.
20 Thank you very much for your patience and your
21 cooperation, and you are excused.
22 (Alternates excused)
23 THE COURT: I take it that if the jury asks for any
24 exhibits that were referred to, that they are available in a
25 form in which they can be sent.
7267
1 Let me ask another question. I'm merely asking it
2 for information because I don't know the answer, and that
3 relates to the timing of sentencing. For example, the
4 sentence, obviously, is going to be dictated by the verdict,
5 but there is a formal imposition of sentencing which has some
6 significance for timing and other purposes.
7 One possibility is not to actually impose the
8 sentence until the completion of the K.K. Mohamed proceedings,
9 so that those sentences would be on the same timetable for all
10 purposes.
11 Does anybody have any feeling as to (A) what is
12 legally required or (B) as to what would be appropriate here?
13 MR. COHN: I have actually given it some thought,
14 your Honor, and because of the ten-day jurisdictional
15 requirement in filing a notice of appeal, it seems to me that
16 we have got an extension on the Rule 33 filing for 90 days,
17 which I think is the 27th of July. It's in the order,
18 whatever it is. And I would suggest that sentence be
19 adjourned to that day or to the day of decision on those
20 motions.
21 In addition, one of the issues is whether or not, in
22 the case where the sentence is for death, there ought to be a
23 pre-sentence investigation report, which none of us has had
24 any experience, but maybe your Honor has --
25 THE COURT: I know that the probation department has
7268
1 given that considerable thought. I think there is a
2 pre-sentence report prepared with respect to the other two
3 defendants, but not with respect to these defendants. My
4 preference would be to have one simply because a pre-sentence
5 report, many people don't realize, serves purposes other than
6 sentencing -- that it goes with the defendant to the BOP.
7 MR. COHN: That's my thought as well, your Honor.
8 Since many of the conditions and programs available in jail
9 are dependent on the report, or at least initially informed by
10 the report, it would be my feeling we ought to have one.
11 THE COURT: Your preference, then, is that if the
12 sentence is one other than death, that the Court order a
13 pre-sentence report, whether or not it is mandated, that the
14 Court ask the probation department to prepare one.
15 MR. COHN: That is my preference. We will then work
16 out the mechanics of how that works between myself and the
17 defense team and then the pre-sentence people.
18 THE COURT: Well, the statute says, 3593(c),
19 notwithstanding Rule 32(c) of the Federal Rules of Criminal
20 Procedure, when a defendant is found guilty or pleads guilty
21 to an offense under 3591, no pre-sentence report shall be
22 prepared.
23 MR. COHN: I guess that takes care of my thoughts.
24 THE COURT: I'm not sure just what that mandates in
25 terms of --
7269
1 MR. COHN: It's something for us to think about
2 anyway.
3 THE COURT: All right. I suppose we ought to consult
4 further with the probation office. Does the government have
5 any feeling? Assuming that it would not be called a
6 pre-sentence report and but that they are willing to prepare
7 it despite the statute, does the government have any objection
8 to its preparation? You don't have to answer now.
9 MR. FITZGERALD: If we can think about it overnight.
10 THE COURT: Think about it overnight and perhaps talk
11 to the probation department. I think they were of the view
12 that they would follow the statute and would not prepare one,
13 but I didn't pursue with them the thought of what would occur
14 if the Court specifically requested it.
15 All right. Anything else?
16 MR. FITZGERALD: If I could just put one thing on the
17 record. Mr. Cohn asked to have a copy provided to him of
18 Government Exhibit 2002, which is the chart of names with some
19 pictures.
20 MR. COHN: We announced we got it.
21 MR. FITZGERALD: I just wanted to note on the record
22 for the record that same exhibit had been referred to by
23 Mr. Baugh in his opening and shown to the jury without
24 objection.
25 MR. BAUGH: So stipulated.
7270
1 MR. COHN: We have it, your Honor.
2 THE COURT: I think Mr. Cohn simply wanted it
3 recorded on the record. You wanted it recorded the exhibit
4 numbers of the photographs that were shown which were not
5 referred to by exhibits.
6 MR. COHN: And the government has given me a list and
7 we'll read it into the record at some appropriate time.
8 THE COURT: Anything else?
9 MR. FITZGERALD: No, thanks.
10 THE COURT: Okay. You remember what I previously
11 said the last time about presence in the courtroom, and we'll
12 await further instructions from the jury, which I would
13 anticipate will be that they would like to go home.
14 (Recess pending verdict)
15
16 (In open court; jury not present)
17 THE COURT: At approximately 4:15 the jury handed me
18 a note which reads:
19 The jury requests the individual copies of the book
20 regarding Islam if possible or if not possible exhibit DD,
21 copies of the chapters received in evidence.
22 What I suggest is we give them both, that is, the
23 book and exhibit DD, just stick exhibit DD in the book. Is
24 that agreeable?
25 MR. GARCIA: Yes, Judge.
7271
1 MR. BAUGH: Yes, your Honor.
2 THE COURT: Also, exhibit AA GG and HH. We don't
3 request these for today. Tomorrow will be fine. Lastly, also
4 Al-'Owahli exhibit U (re: Geneva Convention) Thank you.
5 The jury has left for the day, and so the first thing
6 tomorrow morning which will be 9:30, we'll send in these
7 exhibits to the jury. We're adjourned until that time.
8 (Adjourned to Wednesday, June 6, 2001, 9:30)
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7272
1 DEFENDANT EXHIBITS
2 Exhibit No. Received
3 GG .........................................7138
4 HH .........................................7139
5 DD .........................................7139
6 GOVERNMENT EXHIBITS
7 Exhibit No. Received
8 2281 .......................................7145
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