11 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 62 of the trial, June 11, 2001.
See other transcripts: usa-v-ubl-dt.htm
7293
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 11, 2001
9:15 a.m.
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12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
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7294
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 MICHAEL GARCIA
Assistant United States Attorneys
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6 FREDRICK H. COHN
DAVID P. BAUGH
7 LAURA GASIOROWSKI
Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
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DAVID RUHNKE
9 Attorney for defendant Khalfan Khamis Mohamed
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7301
1 (Deliberations resumed)
2 (Pages 7295-7300 sealed)
3 (In open court; time noted, 12:45 p.m.; defendant
4 present)
5 THE COURT: The note from the jury reads: "The jury
6 has a question regarding whether the jurors' personal
7 knowledge of such subjects as developmental psychology, social
8 learning and abnormal personality can be used in the weighing
9 of mitigating factors or whether we are to weigh such factors
10 based solely on the evidence."
11 I would propose as an answer the following: That the
12 jurors bring to their deliberations all of their general
13 background, training, and experience, on which they may rely,
14 but are not free to speculate or reach any conclusions not
15 based on the evidence presented to them. Any comments?
16 MR. FITZGERALD: Your Honor, the one concern I have
17 is whether we address the issue of one juror basically
18 providing expertise to the other jurors, such as if there was
19 a legal question a juror who was a lawyer could not explain
20 the law to other jurors, other than based upon the charge.
21 THE COURT: Lawyers is another matter. What they are
22 talking about here are developmental psychology, social
23 learning and abnormal personality, and we know that we have at
24 least one person on the jury who has training in such matters.
25 MR. COHN: Your Honor, I would note that it is the
7302
1 jurors in the plural, S apostrophe, not apostrophe S. So you
2 can't limit this to one juror.
3 THE COURT: No, no.
4 MR. COHN: All I am suggesting is that you are not
5 talking about one runaway juror who is becoming an expert in
6 the jury room.
7 MR. BAUGH: May I suggest an answer?
8 THE COURT: Yes.
9 MR. BAUGH: You are to base your decisions solely on
10 the evidence as presented. You may use your collective
11 knowledge or training to interpret that evidence.
12 THE COURT: That sounds all right.
13 MR. FITZGERALD: Your Honor, I thought yours sounded
14 more balanced, but my concern is whether or not one or more
15 jurors can testify as to expertise to other jurors.
16 THE COURT: I don't know about testify. Can a juror
17 say, I know based on my training as a therapist that persons
18 who at a very young age undergo certain experiences are
19 affected in certain ways by those experiences? Isn't that
20 something which is perfectly proper?
21 MR. FITZGERALD: I think there is a difference
22 between someone who describes a personal experience and expert
23 training. The risk in someone relaying a personal experience
24 and saying --
25 THE COURT: What language would you suggest?
7303
1 MR. FITZGERALD: Your Honor, might I suggest this?
2 Since we are 10 minutes before, I think, lunch begins, if we
3 could have a short break to think this over, because I
4 recognize this is a novel issue and I prefer to make sure we
5 don't suggest something inappropriate.
6 THE COURT: Make it five minutes. I would like to
7 respond.
8 Do you have yours in writing?
9 MR. BAUGH: Yes, your Honor. I will hand it up.
10 (Pause)
11 THE COURT: I would suggest the following. I have
12 taken some language from Mr. Baugh's suggestion and I have
13 added to that, to put it in context, and I have quoted from
14 the charge. I have some concern that collective judgment is
15 inconsistent with some other things we have said. What I
16 propose is the following:
17 Ladies and gentlemen. As jurors, you bring to your
18 deliberations all of the knowledge, training, education and
19 experience you have acquired during your lifetimes. You are
20 to base your decision solely upon the evidence as presented,
21 using your collective knowledge and experience to evaluate
22 that evidence. Your ultimate "decision on the question of
23 punishment is a uniquely personal judgment which the law in
24 the final analysis leaves up to each of you." Charge page 2.
25 Any comments?
7304
1 MR. FITZGERALD: Your Honor, I would object to the
2 last portion of the charge. I don't think that is the right
3 response to the question. What I would suggest is that the
4 language say something to the effect of each juror should
5 apply his or her common sense and experience and discuss these
6 views and experience with others. However, no juror should be
7 viewed by the other jurors as an expert in particular areas.
8 I think the notion is that they can share their common
9 experiences and they should discuss them, but no one person
10 should dwarf the other's views.
11 MR. COHN: Judge, I oppose that. I mean, everybody
12 makes a value judgment in discussions about things and about
13 whose experience is more compelling. I don't think that an
14 instruction that we are all equals and that nobody has
15 compelling knowledge is a proper standard.
16 THE COURT: I will strike collective. I have trouble
17 with collective. I will substitute weigh for evaluate,
18 because that's the term that they use. So that I propose
19 this: As jurors you bring to your deliberations all of the
20 knowledge, training, education and experience you have
21 acquired during your lifetimes. You are to base your decision
22 solely upon the evidence as presented, using your knowledge
23 and experience to weigh that evidence. You should discuss and
24 consider the issues presented, sharing with each other your
25 views. Ultimately, each juror must determine for himself or
7305
1 herself the weight to be given to the evidence.
2 Everybody is nodding their head in the affirmative.
3 All right, I will send that note in to the jury.
4 The jurors are going home at 3:00 today. That was to
5 enable a juror to attend a closing. The closing has been
6 postponed till Friday afternoon but the other jurors in
7 reliance made conflicting engagements. So we will sit today
8 until 3:00, and let's defer the issue of Friday until we get
9 further along in the week.
10 (Luncheon recess)
11 AFTERNOON SESSION
12 2:15 p.m.
13 THE COURT: We have reached a point in light of the
14 jury's most recent note, which I take it you have all seen,
15 which is a matter that we discussed at some length earlier,
16 and that is the consequence if the jury should not be
17 unanimously in favor of the death penalty, and we very
18 consciously, after considerable discussion, drafted the charge
19 and the special verdict form as we did, and did not
20 specifically advise the jury what the consequence of a lack of
21 unanimity would be, although there was a consensus that the
22 consequence of a lack of unanimity is that the sentence
23 becomes a sentence of life imprisonment.
24 I propose the following answer to the jury's
25 question: Ladies and gentlemen of the jury. The charge
7306
1 correctly informs you, page 28, line 1, that if you do not
2 unanimously find beyond a reasonable doubt that the death
3 sentence should be imposed, you should indicate this in
4 section V of the special verdict form. Let me elaborate on
5 how this is done. If the jury has not unanimously found that
6 death is the appropriate sentence, then the government has
7 failed to prove that death is appropriate to your unanimous
8 satisfaction. If this is the case, then your verdict is that
9 Al-'Owhali should be sentenced to life imprisonment, and you
10 should check the first box on page 15. Before you reach any
11 conclusion based on a lack of unanimity in favor of a death
12 sentence, you should continue your discussions until you are
13 fully satisfied that further discussion will not yield a
14 unanimous verdict in favor of death.
15 I put the last sentence in in anticipation of a
16 government request for an Allen charge, which I think is not
17 appropriate, the classic Allen charge is not appropriate in a
18 situation such as this, where there is no such thing as a hung
19 jury.
20 Mr. Cohn.
21 MR. COHN: Your Honor, while I agree if an answer
22 were to be given this would be an appropriate one, in my view
23 this is a deadlock notice and a verdict, and that giving any
24 further charge other than inquiring whether or not they are
25 not unanimous -- sorry about the double negative -- is
7307
1 inappropriate.
2 THE COURT: But they haven't said that. They have
3 said there is no room to indicate if the jury is not
4 unanimous. They have not said and in fact we are not
5 unanimous. They are raising a question as to the structure of
6 the charge. The incredibly perceptive way they have focused
7 on the deliberate --
8 MR. COHN: Omission.
9 THE COURT: Deliberate omission is a little
10 oxymoronic -- the deliberate structuring of the charge.
11 MR. COHN: Your Honor, I must say that I don't think
12 you need to be Delphic to determine what they are saying.
13 They are saying that there is no place on this jury verdict --
14 THE COURT: That's right, because --
15 MR. COHN: I believe they are saying there is no
16 place for us to give the answer we want to give and it is
17 clear to me what the answer is, which is we are not unanimous,
18 particularly in light of the last note and your Honor's answer
19 to it. I believe even something as modified of an Allen
20 charge as you can get, and you have made it not an Allen
21 charge -- I concur that this is not an Allen charge. I don't
22 believe once they have indicated a deadlock that there is any
23 choice but to determine --
24 THE COURT: They haven't said that. They have said,
25 in other words, there is no room to indicate if the jury is
7308
1 not unanimous. So they may be saying, just as a matter of
2 logic, we don't know what happens if we are not unanimous.
3 They are not saying we are and in fact that is where we are.
4 And if you are right, if this is in fact where they are, it
5 won't take very long to tell us that they have reached a
6 verdict.
7 MR. COHN: It's not a question of how long it takes.
8 It is a question of what is appropriate. It seems to me that
9 although it is not a traditional deadlock note, given the way
10 this charge is constructed and the strictures of Jones, it
11 seems quite clear that they are not unanimous and it should
12 not go further once they have informed us.
13 THE COURT: I understand your position. I don't
14 agree with it.
15 MR. FITZGERALD: Your Honor, I would object to the
16 proposed answer on the following grounds. The second
17 paragraph first. If the jury ends up being split, I don't
18 think that the answer is that they unanimously found that the
19 government failed to prove beyond a reasonable doubt. I think
20 we know what the result is. I would suggest the following and
21 I will explain.
22 THE COURT: Yes.
23 MR. FITZGERALD: Ladies and gentlemen. If you come
24 to a unanimous decision as to the appropriate sentence to be
25 imposed, either life imprisonment or the death penalty, you
7309
1 are to so indicate on pages 15 and 16. If you cannot come to
2 a unanimous decision as to a particular count or all counts,
3 then you should so indicate by a note, without telling the
4 court how you are divided. Then we would know where we are.
5 If the jury sends a note saying we are divided and cannot um
6 come to a conclusion, we can discuss whether an Allen charge
7 is appropriate, but they should not check a box indicating a
8 unanimous decision not to impose the death penalty when in
9 fact they appear deadlocked.
10 THE COURT: I debated that, and the problem with that
11 is, it doesn't tell them a consequence, right?
12 MR. FITZGERALD: Right.
13 THE COURT: If it just says you should tell us
14 that -- in your language, then it seems to me we withhold from
15 them the consequences of that, and it seems to me it makes the
16 process fairer and more informed if they know that the
17 consequence of that is not that it goes to another jury, which
18 is what classically happens, but rather that it is
19 dispositive.
20 I debated including, in other words, putting in after
21 you check the first box, in other words, the law on this
22 subject is that if the jury is not unanimously in favor of
23 death, then the jury is unanimous in favor of life
24 imprisonment. There is no such thing as a hung jury in a
25 death penalty proceeding.
7310
1 MR. FITZGERALD: Your Honor, I understand the concept
2 but I don't think that is accurate. If the jurors, whatever
3 number there might be, are divided --
4 THE COURT: Well, could we say, this is because --
5 you should check the first box on page 15. This is because
6 the consequence of a lack of unanimity in favoring death is a
7 verdict in favor of life imprisonment.
8 MR. FITZGERALD: Your Honor, it is not a verdict.
9 The holding in Jones is that the deliberative process has
10 broken down.
11 THE COURT: We have agreed that the substance is that
12 the verdict is life imprisonment, and I don't know whether the
13 difference that you make is a public relations difference, a
14 difference with respect to the next jury phase, what --
15 MR. FITZGERALD: Two points, Judge.
16 THE COURT: Yes.
17 MR. FITZGERALD: The courts talk about an interest in
18 finality. Two things. If the jury is deadlocked, I think we
19 should have a note indicating they are deadlocked and an
20 opportunity to have an Allen charge given, trying to reach a
21 verdict in good conscience. Number one. Number two, it is
22 not good public relations for us to get a right answer. I
23 think the jury is entitled to know if it is life imprisonment,
24 but more important we need to know whether there is a
25 deadlock, which could be an intellectual question, that there
7311
1 is a problem here.
2 These three choices on the verdict form assume a
3 unanimous decision has been reached. If you cannot reach a
4 unanimous decision, you are to let us know by note and the
5 parties and the court can proceed from there. But I don't
6 think we should assume that they are deadlocked or take
7 deadlocked as being unanimously against the death penalty. I
8 think we need to qualify whatever language is used by count in
9 the unlikely event that there is a split by count.
10 (Pause)
11 THE COURT: Let me read it again: Ladies and
12 gentlemen of the jury. The charge correctly informs you, page
13 28, line 1, that if you do not unanimously find beyond a
14 reasonable doubt that the death sentence should be imposed,
15 you should indicate this in section V of the special verdict
16 form. Let me elaborate on how this is done. If the jury has
17 not unanimously found that death is the appropriate sentence,
18 then the government has failed to prove that death is
19 appropriate to your unanimous satisfaction. If this is the
20 case, then your verdict is that Al-'Owhali should be sentenced
21 to life imprisonment and you should check the first box on
22 page 15. This is because the consequence of a lack of
23 unanimity in favor of death is a verdict in favor of life
24 imprisonment. Before you reach any conclusion based on a lack
25 of unanimity in favor of a death sentence, you should continue
7312
1 your discussions until you are fully satisfied that further
2 discussion will not yield a unanimous verdict in favor of
3 death. Again, you are to consider this separately as to each
4 count listed in the special verdict form.
5 MR. COHN: I need a minute, Judge.
6 THE COURT: Yes.
7 MR. FITZGERALD: It might save time since I won't
8 need a minute to say that we object on the grounds of 3593(e).
9 It says that the jury by unanimous vote shall recommend
10 whether the defendant should be sentenced to death, to life
11 imprisonment without possibility of release, or some other
12 lesser sentence, and the latter part does not apply. A
13 deadlock is not a verdict and I think we shouldn't tell the
14 jury that it is a verdict. The jury either agrees unanimously
15 that death is appropriate, they agree unanimously that life is
16 appropriate, or they deadlock. The consequence of a deadlock
17 may be a life sentence but that is not a verdict.
18 THE COURT: When you say may be --
19 MR. FITZGERALD: The consequence is, but it is not a
20 verdict.
21 THE COURT: We are all in agreement if this jury is
22 deadlocked it is a life sentence. Shouldn't fairness indicate
23 that they know that, so that the jurors may turn to one juror
24 and say, you know, that's what is going to happen, if you
25 don't vote in favor of death, then you understand that will
7313
1 override the 11. Not it is going to go before some other
2 jury, not that the judge is going to make some independent
3 decision. We are all in agreement that that is what happens,
4 and what we are debating now is whether the jury should be
5 told that is what will happen.
6 MR. FITZGERALD: But if they are told that, assuming
7 we should tell them that, my only point is that we should tell
8 them that a failure to agree upon on a verdict is not a
9 verdict. The consequence will be that this is not presented
10 to another jury --
11 THE COURT: What is the difference between it not
12 being a verdict and something which definitively indicates to
13 the court what is to be in the judgment?
14 MR. FITZGERALD: I think it comes from Jones, where
15 it says the government, particularly in a capital proceeding,
16 has a very serious interest in the finality of having a
17 verdict, a consensus as the conscience of the community.
18 There is an interest in both sides to having 12 people be
19 unanimous one way or the other, and for a verdict to be
20 reached where 12 people say death versus life has a greater
21 effect for the process than some split which may result --
22 will result in life imprisonment on a practical sense but it
23 is not the conscience of the community speaking with one
24 voice.
25 THE COURT: Let me give it another try.
7314
1 MR. COHN: Your Honor, before you do, the government
2 is just clearly wrong. Congress created a structure which
3 said no unanimity, no death.
4 THE COURT: But the government is saying that there
5 is a difference, and in terms of the perception of what
6 occurred here between saying the jury unanimously found that
7 life was appropriate and that the jury did not unanimously
8 find death was appropriate, and I think that is -- let me --
9 MR. COHN: Before you write it down, just hear me one
10 second.
11 THE COURT: Yes.
12 MR. COHN: I don't think the perception argument
13 holds a lot of water. While victims' rights have seemed to
14 have taken over our lives, I don't think their comfort in this
15 is at the final analysis the issue. Jones does not stand for
16 the government's interest in having a unanimous verdict.
17 Jones stands for the fact that you can't give the jury an out
18 at the very beginning by inviting one juror to be stubborn.
19 At that point it is because they didn't ask the question.
20 They have clearly asked the question, and not answering the
21 question in the way you intended to answer it seems to me to
22 be an evasion at best, which is beneath this court.
23 THE COURT: Thank you.
24 MR. FITZGERALD: I would note for the record that the
25 Supreme Court in Jones, two quotes from page 9, "It speaks to
7315
1 what happens in the event that the jury is unable to fulfill
2 its role when deliberations break down and the jury is unable
3 to produce a unanimous sentence recommendation." Continuing,
4 "We further have recognized that in a capital sentencing
5 proceeding, the government has a 'strong interest in having
6 the jury express the conscience of the community on the
7 ultimate question of life or death', citing Lowenfield v.
8 Phelps. I think it is not a perception issue. I think it is
9 the law, and the Supreme Court has recognized it that way.
10 THE COURT: I think we are all in agreement as to
11 what occurs if the jury is not unanimously in favor of the
12 death penalty. Let me take another crack at it.
13 (Pause)
14 THE COURT: The other alternative is that we ask them
15 to strike the word "unanimously."
16 MR. FITZGERALD: Your Honor, I would object to that,
17 because we don't want to have them not reach a verdict but
18 indicate that they did.
19 MR. COHN: The other alternative, your Honor, is to
20 add a fourth clause in the verdict sheet which says that we
21 are unable to find unanimously.
22 THE COURT: I may do that.
23 MR. FITZGERALD: Your Honor, in that regard we would
24 suggest that we do it as we do in the guilt phase. If the
25 jury is unable to reach a verdict, they send out a note saying
7316
1 they are deadlocked. They do not check a deadlocked box on
2 the verdict sheet.
3 (Pause)
4 THE COURT: Ladies and gentlemen. If the jury does
5 not unanimously find in favor of the death sentence on any
6 count, then the consequence is that the defendant will be
7 sentenced to life imprisonment on that count. Before you
8 reach any conclusion based on a lack of unanimity in favor of
9 death on any count, you should continue your discussions until
10 you are fully satisfied that no further discussion will lead
11 to a unanimous verdict in favor of death. If you are
12 satisfied that you cannot achieve unanimity in favor of death
13 on any count, you should write on the bottom of page 15 the
14 following: We the jury do not unanimously find that the death
15 sentence is appropriate. We understand that the consequence
16 of this is that Mr. Al-'Owhali will be sentenced to life
17 imprisonment. Indicate whether this is for all counts or as
18 to which counts this is applicable.
19 I think I have tried to accommodate --
20 MR. COHN: Your Honor, just for accuracy sake, before
21 I say I think this is an Allen charge and therefore not
22 permissible, you should at least add the words life without
23 possibility of release.
24 THE COURT: Without the possibility of release.
25 MR. COHN: But I think it is an Allen charge and that
7317
1 they have voted and having voted that it's over. I know that
2 your Honor has overruled it but I want to make the record
3 clear.
4 THE COURT: Does the government have anything to say?
5 MR. FITZGERALD: No objection, Judge.
6 THE COURT: Very well.
7 They indicated that they want to go home at 3:00. We
8 will see whether they adhere to that or not.
9 MR. COHN: Your Honor, do you wish to ask them
10 whether or not they wish to go home at 3:00?
11 THE COURT: No. They are a very self-sufficient
12 jury.
13 (At 3:00, the jury adjourned until 9:30 a.m.,
14 Tuesday, June 11, 2001)
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