22 June 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 8 of the trial.
See other transcripts: http://cryptome.org/usa-v-ssy-dt.htm
Lynne Stewart web site with case documents: http://www.lynnestewart.org/
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1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3
3 UNITED STATES OF AMERICA,
4
4 v. S1 02 Cr. 395 (JGK)
5
5 AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
6 a/k/a "Dr. Ahmed," LYNNE STEWART,
6 and MOHAMMED YOUSRY,
7
7 Defendants.
8
8 ------------------------------x
9
9
10 New York, N.Y.
10 June 1, 2004
11 9:30 a.m.
11
12 Before:
12
13 HON. JOHN G. KOELTL
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14 District Judge
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1 APPEARANCES
1
2 DAVID N. KELLEY
2 United States Attorney for the
3 Southern District of New York
3 ROBIN BAKER
4 CHRISTOPHER MORVILLO
4 ANTHONY BARKOW
5 ANDREW DEMBER
5 Assistant United States Attorneys
6
6 KENNETH A. PAUL
7 BARRY M. FALLICK
7 Attorneys for Defendant Sattar
8
8 MICHAEL TIGAR
9 JILL R. SHELLOW-LAVINE
9 Attorneys for Defendant Stewart
10
10 DAVID STERN
11 DAVID A. RUHNKE
11 Attorneys for Defendant Yousry
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1 (Trial resumed)
2 THE COURT: Good morning all. Please be seated.
3 Some preliminary items.
4 On going over the questionnaires, it appears that I
5 should strike Juror 290, who mentions names of people living in
6 his household; Juror 321, names his wife; 334, names wife; 397,
7 names roommate; 403, names boyfriend; 409, names son living at
8 home.
9 You can check those and see if you all agree with me.
10 I believe you have all raised them.
11 Second, both the defendants and the government said
12 that they couldn't locate questionnaire 389 and was that juror
13 stricken. I don't see any indication that the juror was
14 stricken. I had questionnaire 389, so it must have been an
15 error in not duplicating it for the parties. So we made copies
16 for you, and my clerk will give you copies of questionnaire
17 389.
18 I also think based on the letter that I sent you from
19 Juror 437, Juror 437 should be stricken for lots of reasons,
20 and you can get back to me on that.
21 Juror 268 -- the deputy jury administrator told me
22 that Juror 268, who you recall is the paralegal who, among
23 other people, knew the court clerk in White Plains, the deputy
24 administrator reported to me that Juror 268 mentioned to the
25 court clerk in White Plains that she was coming to New York for
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1 jury duty and the clerk told her that she would meet Mr. Price,
2 the deputy jury administrator, and so she greeted Mr. Price by
3 name when she came down here. I wanted to bring that to your
4 attention.
5 Next, has the government followed up on Juror 253?
6 MR. DEMBER: Your Honor, yes. I will have a
7 definitive answer I expect this afternoon. It does not look
8 like any of these agents will be witnesses nor would their
9 names be mentioned in this case. But I should be able to give
10 you a firm answer this afternoon.
11 THE COURT: Okay.
12 And I haven't yet followed up on Juror 217. I told
13 you that I would and I would get back to you. And it's still
14 on my list.
15 So far as I know, we haven't heard from those other
16 jurors who were supposed to get back to us on employers.
17 That is my list.
18 Anything else before we call the jurors in?
19 So the first juror will be Juror 148.
20 (Juror present)
21 BY THE COURT:
22 Q. Good morning, Juror 148.
23 A. Good morning.
24 Q. It's good to see you.
25 A. Thank you.
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1 Q. Let me ask you some preliminary questions before I go to
2 the questionnaire.
3 A. Okay.
4 Q. Since you were here last has anything changed concerning
5 your ability to serve as a juror in this case or has anything
6 occurred to you or have you seen or heard anything that may
7 affect your ability to be a fair and impartial juror in this
8 case?
9 A. Well, my father lives in upstate New York alone and
10 unfortunately was hospitalized two weeks ago, a week and a half
11 ago with pneumonia, and I had to go up there and was not able
12 to appear last week. And unfortunately he is not going to be
13 able to live alone any longer and I am going to need to help
14 him make arrangements to move and what not, so unfortunately my
15 availability, it would make it tough on my availability because
16 I need to go up and visit him and be with him.
17 Q. Okay.
18 We won't start until June 21st. We wouldn't -- you
19 won't have to call back until June 18th. And then the trial
20 will last after that.
21 Now, is that schedule do-able for you?
22 A. Well, I have some brothers and sisters and we are all
23 taking about a week to be with him so that he can make his
24 decision about selling the home. And the last scheduled
25 brother is supposed to be there right after father's day and we
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1 are going to help him sell the house and move. So it's so hard
2 for me to say because I don't know how it's going to go at this
3 point with him. Honestly I don't think -- I would like to be
4 available for the summer up until the winter months to make
5 sure that he is situated where he has to be.
6 Q. Okay.
7 You have to tell me, when you say available for the
8 summer months, you mean to be upstate New York with your
9 father?
10 A. Right, exactly.
11 Q. Okay.
12 Could you step out for a moment?
13 A. Sure.
14 (Juror absent)
15 THE COURT: I am prepared to excuse the juror.
16 MR. TIGAR: No objection, your Honor.
17 MR. DEMBER: No objection, your Honor.
18 THE COURT: Okay.
19 (Juror present)
20 BY THE COURT:
21 Q. Hi.
22 Juror 148, I will excuse you and I appreciate your
23 participating in the process and I am sure we all wish both you
24 and your father well.
25 A. Thank you very much. I appreciate it.
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1 (juror absent)
2 THE CLERK: 183.
3 MR. STERN: Judge, which juror are they bringing out?
4 THE COURT: The security officer thought that it was
5 Juror 123, but it must be either 113 or 183.
6 MR. STERN: Okay.
7 (Juror present)
8 THE CLERK: 220.
9 BY THE COURT:
10 Q. Hi, Juror 223.
11 A. No, I am 183.
12 Q. I am sorry. I misheard and so I had turned to number 223.
13 A. Okay.
14 Q. Good morning, Juror 183. It's good to see you.
15 A. Good morning to you.
16 Q. Let me ask you some preliminary questions before I get to
17 the questionnaire. Since you were here last has anything
18 changed concerning your ability to serve as a juror in this
19 case or has anything occurred to you or have you seen or heard
20 anything that may affect your ability to be a fair and
21 impartial juror in this case?
22 A. Somewhat.
23 Q. Okay, what is that? Could you keep your voice up and talk
24 into the microphone.
25 A. Okay. I am nervous. I am very nervous. I am a nervous
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1 person. I get very nervous about things like this.
2 Q. Okay.
3 Why are you nervous?
4 A. Just my personality sometimes gets very nervous about
5 situations like these.
6 Q. What situation?
7 A. The surroundings, coming here, taking the train. I have
8 never been on the train down here by myself. Twice I came I
9 came -- somebody had to bring me. I am still a little bit
10 intimidated coming by myself.
11 Q. Okay.
12 You know, your feelings are not uncommon. There are
13 other jurors -- we are a big district and people who don't live
14 in Manhattan, people who regularly, as you do, live up in
15 Westchester or even beyond, Putnam, Rockland, don't always or
16 even sometimes often come into the city and some people are
17 anxious about coming into the city. That happens. That
18 happens. I know that people live in Westchester, Putnam,
19 Rockland, and, as I said, sometimes are nervous about the city
20 and they don't often come to the city. But people obviously
21 can still serve and we try to make it as convenient and easy on
22 jurors as we can. And so in this case we sit from 9:30 until
23 4:30 and, as I told you, in a way it will be a little easier
24 for you because the marshals will take care of part of your
25 transportation for you, so it will be a little easier, but I
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1 want to obviously make sure that you are comfortable. It
2 really is a nice city and my question for you is is there
3 anything about your nervousness about coming into the city that
4 would interfere with your ability to be a fair and impartial
5 juror in the case?
6 A. I think so, because I will be thinking about how am I going
7 to get back home, you know, that sort of thing. I am not going
8 to be concentrating on what I am supposed to be really thinking
9 about and remember what I am going to hear, things like that.
10 And so on.
11 Q. Okay.
12 Can you step out for a moment?
13 (Juror absent)
14 THE COURT: I am prepared to strike the juror.
15 MR. TIGAR: No objection, your Honor.
16 MR. DEMBER: No objection, your Honor.
17 (Juror present)
18 BY THE COURT:
19 Q. Hi.
20 Juror 183, I will excuse you and I appreciate your
21 going true through the process and coming down here?
22 A. That is it?
23 Q. That is it. You can go home and all of the paperwork will
24 be taken care of through the mail.
25 A. Thank you.
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1 (Juror absent)
2 THE CLERK: 221.
3 (Juror present)
4 BY THE COURT:
5 Q. Good morning, Juror 221. It's good to see you.
6 Let me ask you some preliminary questions before I
7 turn to the questionnaire.
8 Since you were here last has anything changed
9 concerning your ability to serve as a juror in this case or has
10 anything occurred to you or have you seen or heard anything
11 that may affect your ability to be a fair and impartial juror
12 in this case?
13 A. No.
14 Q. It now appears that the date that the final jury will be
15 chosen in this case will be Monday, June 21st. So after today
16 it's unlikely that you will be called to come back before June
17 18th.
18 Does that present any serious hardship for you?
19 A. No.
20 Q. Since you were here last have you spoken to anyone about
21 this case or have you looked at or listened to anything about
22 the case?
23 A. No.
24 Q. Has anyone spoken to you about the case, and that includes
25 any conversations here at the courthouse or with any other
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1 prospective jurors?
2 A. No.
3 Q. While you were waiting with the other prospective jurors,
4 did you or anyone you overheard discuss the case?
5 A. No.
6 Q. You mention that you would not have a serious hardship if
7 chosen for the case but that you pointed out that your a
8 physician and that you have responsibilities at your hospital.
9 And you mention that you attend in the ICH.
10 What is that?
11 A. ICU, intensive care unit.
12 Q. Okay.
13 And you said without your presence care and teaching
14 will suffer. Do you want to explain that for me?
15 A. There are two physicians who run the intensive care unit in
16 the institution that I work at. We alternate days and nights
17 on call and my concern is that if I would be unable to attend
18 for long periods of time measured in weeks it would have a
19 serious impact on both our ability to take care of the patients
20 who got admitted there and as well as teaching of the family
21 practice residents who are in the program there.
22 Q. Okay.
23 You said measured in weeks. As you know, this trial
24 is expected to last 4 to 6 months. But the hospital could
25 plainly make other arrangements. Also, we sit four days a
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1 week. I am not suggesting -- and so we don't sit Fridays. We
2 don't sit weekends. And we end at about 4:30. So you could
3 continue to have obviously some involvement at the hospital and
4 individual patient care.
5 A. Yes.
6 Q. And I take it that this is a large hospital?
7 A. No, it's relatively small. It's a 200-bed hospital.
8 Q. Okay.
9 If you were chosen as a juror in this case would you
10 be a fair and impartial juror?
11 A. I think I could be.
12 Q. I ask that, and I will go over other questions, but right
13 now -- and I know you are concerned about the time and your
14 position.
15 Would you let any concerns about your personal time or
16 position interfere with the rights of all of the parties in
17 this case to a fair and impartial jury?
18 A. No.
19 Q. Do you have any doubt about that?
20 A. No.
21 Q. You mention that you had a trip scheduled to Israel at the
22 end of June and if you were chosen as a juror in this case the
23 jury selection would be on June 21st and the trial would
24 proceed after that, so that you couldn't go off on a trip on
25 June 30th. Would that present any hardship for you?
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1 A. I would like to go but if I could not, I would not.
2 Q. Okay.
3 You mention that you served on one jury in White
4 Plains and it was a civil jury and it was in state court. When
5 was that?
6 A. 4-1/2 years ago.
7 Q. And the jury reached -- oh, I am sorry, that was a case
8 though that never went to the jury?
9 A. They settled before we were called in.
10 Q. Okay. So you didn't actually sit as a juror. You didn't
11 listen to opening statements and evidence.
12 A. No.
13 Q. Anything about that experience that would prevent you from
14 being a fair and impartial juror in this case?
15 A. No.
16 Q. Among the organizations you belong to you listed AMIT.
17 What is AMIT?
18 A. American Misraghi Women's Association. My wife belongs.
19 Q. You mention that you were a witness in a medical
20 malpractice case. Were you a party in that case?
21 A. No.
22 Q. And what happened in that case?
23 A. It was thrown out of court I am told.
24 Q. Okay.
25 Anything about that experience, including your
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1 reactions to the process or the parties or the lawyers or the
2 issues, anything about that process that would prevent you from
3 being a fair and impartial juror in this case?
4 A. No.
5 Q. You mentioned that your parents came from Poland and
6 Russia. Can you tell me when they came here?
7 A. 1947.
8 Q. Okay.
9 Were either of them survivors of the Holocaust?
10 A. Both of them.
11 Q. You mention that you have been to Israel -- by the way, is
12 there anything about that that would prevent you from being a
13 fair and impartial juror in this case?
14 A. I don't think so.
15 Q. When you say you don't think so, do you have any questions
16 in your mind about that?
17 A. Having not heard all the information I am presuming that I
18 would be able to function based upon fact that was presented
19 and based upon the principles that would be defined to me by
20 the court.
21 Q. Okay.
22 Is there anything about any of the questions on the
23 questionnaire or the subject matter of the case that I have
24 explained or as I have explained it to you, anything about any
25 of that that causes you to have any doubts in your own mind
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1 whether you could be a fair and impartial juror in this case?
2 A. No.
3 Q. If you were chosen as a juror, you are correct to identify
4 what you would have to do. You would have to listen to the
5 evidence or lack of evidence and ask whether the charges in the
6 indictment were proven beyond a reasonable doubt. And you
7 would have to do that based upon the evidence or lack of
8 evidence and my instructions on the law.
9 Would you do that?
10 A. Yes.
11 Q. You mention that you have gone to Israel several times a
12 year on vacation. Anything about that that would prevent you
13 from being a fair and impartial juror in this case?
14 A. No.
15 Q. You mention that you have relatives who are currently in
16 Israel. You have a sister who is a teacher. Where does your
17 sister teach?
18 A. She teaches in a city just south of Tel Aviv called
19 Rochovah.
20 Q. Okay.
21 And you have a brother-in-law who is a museum curator.
22 Where is he a museum curator?
23 A. Here in New York, in the Battery Park Museum, in Boston, in
24 California, several places in Russia as well.
25 Q. Okay.
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1 You mention that you have colleagues -- well, you have
2 relatives who live in Israel and that you work and socialize
3 with people from the Middle East, including Israel and Jordan.
4 Is there anything about any of that that would prevent
5 you from being a fair and impartial juror in this case?
6 A. No.
7 Q. You mention that you are somewhat knowledgeable about the
8 history and practices of Islam. Just in general could you just
9 tell me the nature of that knowledge?
10 A. Well, one of the three major religions in the world with
11 some similarities with Christianity and Judaism and some
12 particular differences, in particular the need to pray five
13 times a day, and I believe a moral system very similar to the
14 other two major religions that I am familiar with.
15 (Continued on next page)
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1 BY THE COURT:
2 Q. And you mentioned that your knowledge comes from books.
3 Could you describe, if you can recall, what particular books?
4 A. There was a comparative religion book which I had to read
5 when I was in college and questions that I have placed to my
6 colleagues and friends that I think helped me understand a bit
7 more about Islam.
8 Q. You mentioned that you had heard of Sheikh Abdel Rahman.
9 Can you tell me what you heard about him?
10 A. I remember some of the details as they were presented in
11 the newspapers and TV many years ago.
12 Q. Can you describe in general what the details were that you
13 recall?
14 A. I remember that he was a cleric and I remember that he was
15 blind and I remember that it was somewhere in New Jersey and I
16 remember that it was a case that had a lot of -- I guess the
17 right word is hype associated with it. I followed some of the
18 details for a while, but in all honesty I can't remember much
19 about it.
20 Q. Any other details that you can recall now?
21 A. No.
22 Q. Any case which involved anything that has received some
23 publicity in the past may have jurors who have seen heard or
24 read something to do with something that gets involved in the
25 case. The issue for the jurors is whether they can decide this
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1 case based solely upon the evidence or lack of evidence in the
2 case and not based on anything they have seen heard or read
3 before. Anything that they have seen heard or read before
4 essentially is not evidence. It's not presented in court and
5 they have to put it aside and ask themselves, based upon the
6 evidence or lack of evidence presented in court, have the
7 charges in this case been proved beyond a reasonable doubt.
8 Is there anything that you saw, heard, or read that
9 would prevent you from doing that?
10 A. No.
11 Q. Do you know any of the other prospective jurors who were
12 called to serve in this case?
13 A. No.
14 Q. It's likely that this case will receive ongoing media
15 attention, and I want to make sure that the case is decided
16 solely on the evidence here in the courtroom and not based on
17 things that are said outside the courtroom.
18 Accordingly, I will instruct you that you must avoid
19 reading about the case in the newspapers, listening to any
20 radio or television reports or reading any internet coverage or
21 discussions about the case. And I will also direct that you
22 must avoid discussing the case with friends or family during
23 the course of the trial.
24 Will you follow those instructions?
25 A. Yes.
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1 Q. Would following those directives pose any difficulty for
2 you?
3 A. No.
4 Q. You had said yes on the questionnaire, but it was a
5 poorly-worded question and I wanted to make sure that it was a
6 mistake. Was that a mistake when you said yes, it would be
7 difficult for you to do that?
8 A. If I'm told that that's what I have to do, that's what I
9 will do.
10 Q. And we have gone over the issue of the time and I
11 understand your issues about the time. Let me just ask you
12 again, is there anything about your concerns about the time
13 that would prevent you from being fair and impartial juror in
14 this case?
15 A. I would wish not to participate if I could, but if I am
16 chosen and I have to, I will.
17 Q. I decide on issues of whether a person should or should not
18 be excused. It's very important to me, among other things, to
19 assure that every juror be fair and impartial, that a jury be
20 chosen from -- be available from a cross-section of the
21 community, from those who have many responsibilities as well as
22 those who have fewer responsibilities, because the parties are
23 entitled to that cross-section and people in society, if they
24 were involved in a case, would expect their fellow citizens to
25 similarly come forward. So the issue with respect to time is
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1 one I will decide. But if I decide that you should sit or that
2 you should be available to sit, would you hold it against any
3 of the parties in this case?
4 A. No.
5 Q. Would it interfere with your ability to be a fair and
6 impartial juror in this case?
7 A. No.
8 Q. If you were chosen as a juror in this case you would be
9 required to decide this case based solely on the evidence or
10 lack of evidence and in accordance with my instructions on the
11 law. Will you do that?
12 A. Yes.
13 Q. As you can tell from all of these questions, the
14 fundamental issue is whether there is anything in your personal
15 history or life experience that would prevent you from acting
16 as a fair and impartial juror in this case.
17 Let me ask you one final time whether there is
18 anything, whether I have asked you about it or not, that would
19 prevent you from being a fair and impartial juror in this case?
20 A. No.
21 Q. Could you step out for a moment.
22 (Juror absent)
23 MR. TIGAR: We would ask your Honor to follow up on
24 the following points. First --
25 THE COURT: I didn't hear you.
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1 MR. TIGAR: Follow up on the following points.
2 First, he said he had discussions with colleagues and
3 friends about Islam. Could we know the context? Was it in the
4 context of political events or abstract discussion, or what?
5 Second, does he have any relatives or friends who are
6 associated with the settlement movement in Israel?
7 THE COURT: Why?
8 MR. TIGAR: The present dispute in Israel over the
9 settlements in Gaza and elsewhere, probably the flashpoint
10 issue --
11 THE COURT: Do you expect any evidence at the trial on
12 the settlement issue?
13 MR. TIGAR: No, your Honor. But there is a great deal
14 of virulent anti-Arab, anti-Israeli sentiment associated with
15 those developments, and this would be an inquiry that would be
16 materially helpful to us, at the very least, in the exercise of
17 peremptory challenges.
18 Third, what is Young Israel?
19 Fourth, is he active in organizations for the children
20 of holocaust survivors? Has your Honor ruled on whether or not
21 you will ask about the settlement question?
22 THE COURT: I don't intend to ask that.
23 MR. TIGAR: May I be heard further then, your Honor?
24 THE COURT: Sure.
25 MR. TIGAR: Israel today is a nation that is very
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1 sharply divided. This is a man who visits several times a
2 year. We have as yet no hint whatever about any of his views
3 on the issues that sharply divide Israelis one to another and
4 from their Arab neighbors, zero. All we have asked your Honor
5 is one question to try to open up that window. If there is
6 another way that we can do that, I would be happy to try to
7 think of it. But this is our collective wisdom, your Honor,
8 about the way to get that.
9 THE COURT: I am not going to ask a question which has
10 nothing to do with the case. It suggests something that really
11 doesn't have anything to do with the case. I have asked lots
12 of questions and follow-up and open-ended questions to give you
13 lots of feeling for your exercise of peremptories, in addition
14 to the exhaustive questionnaire, and I really have followed up
15 with him on lots of things into what even could be viewed as an
16 intrusive examination because I thought that you were entitled
17 to that.
18 But I am not going to go and suggest issues which are
19 beyond the case. I am inclined to follow up on the other
20 questions you suggested to me.
21 MR. TIGAR: Would your Honor at least then ask, is
22 there anything about the current political situation in the
23 Middle East that gives him concerns for the survival of Israel?
24 That's Count 3.
25 THE COURT: I have your questions.
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1 Government.
2 MR. DEMBER: Nothing, your Honor.
3 (Juror present)
4 BY THE COURT:
5 Q. I just had a few follow-up questions. You mentioned, I
6 believe, that you have discussed Islam with your friends and
7 coworkers. Can you just describe for me in general what the
8 context of those discussions were? How did it come up?
9 A. I thought they were pretty innocent. It came about at the
10 end-of-year holiday period when some Middle Eastern food was
11 brought in. And I asked one of them whether the foods were,
12 besides being tasty, kosher, because I wanted to participate.
13 That led to a discussion of a different variance on
14 treats from the Middle East which I know of from my trips
15 there. And it ultimately led to a discussion about different
16 foods and the preparation of foods and where certain foods
17 could be gotten. It also led to a decision to meet somewhere
18 in Jerusalem to sample foods together.
19 We then at another occasion spoke about the need to
20 make time for prayer because I often have to, quote, sneak in
21 the afternoon prayer while I will leave the ICU and go back to
22 my office for a few minutes. I often asked, if someone had to
23 do this instead of three times a day five times a day, how they
24 would fit that in. I was assured when you need to you can.
25 Q. And these were friends from the Middle East?
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1 A. Yes. They are -- three of them are physicians. One of
2 them is a nurse. They were either born in the Middle East or
3 parents have come from the Middle East and they are -- one is a
4 Moslem -- two are Moslems. One is a Copt and two are
5 Christian.
6 Q. From what countries do they come from?
7 A. Jordan, both the East and the West Bank, and Egypt, and one
8 from Pakistan.
9 Q. And did you meet with them in the Middle East or did you
10 just talk about it?
11 A. Not yet.
12 Q. Is there anything about the situation in the Middle East
13 today that would prevent you from being a fair and impartial
14 juror in this case, listening to the evidence, or lack of
15 evidence, and determining this case based upon the evidence or
16 lack of evidence?
17 A. No.
18 Q. You mentioned that one of the organizations that you belong
19 to is, I believe, Young Israel?
20 A. Yes.
21 Q. Can you tell me what Young Israel is?
22 A. Young Israel is an organization of orthodox synagogues in
23 the United States, and I believe in Israel and several other
24 countries in the world as well.
25 Q. And are you active in any organizations of children of
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1 holocaust survivors?
2 A. We participate by virtue of my brother-in-law, who gathers
3 much information.
4 Q. Are you personally a member?
5 A. Again, my wife is in charge of membership, so we attend one
6 or two meetings a year in reference to the holocaust.
7 Q. Do you know of any particular organization like that that
8 you belong to?
9 A. No.
10 Q. Could you step out just a moment.
11 (Juror absent)
12 MR. TIGAR: No challenge for cause, your Honor.
13 MR. DEMBER: Nothing from the government, your Honor.
14 THE COURT: Call back juror 221.
15 (Juror present)
16 BY THE COURT:
17 Q. Juror 221, you're still involved in the jury selection
18 process. I will ask you to call back on June 18 and
19 Mr. Fletcher will give you a slip of paper with the name and
20 number to call.
21 Please remember my continuing instructions. It's very
22 important. Please don't talk about this case at all or
23 anything to do with it. Please remember not to look at or
24 listen to anything to do with the case. If you should see
25 something, just turn away.
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1 Please remember, as I will tell all of the jurors in
2 the case, keep an open mind until you have heard all of the
3 evidence, I've instructed you on the law, you've gone to the
4 jury room to begin your deliberations. Fairness and justice to
5 the parties requires that you do that.
6 Have a good day.
7 (Juror absent)
8 (Juror present)
9 BY THE COURT:
10 Q. Good morning, juror 223. I have some preliminary questions
11 for you before I turn to some follow-up on the questionnaire.
12 Since you were here last, has anything changed
13 concerning your ability to serve as a juror in this case or has
14 anything occurred to you or have you seen or heard anything
15 that may affect your ability to be a fair and impartial juror
16 in this case?
17 A. I did check with my employer because when I completed my
18 form I said I was not sure as to whether -- what their policy
19 is because I have two halftime jobs right now. And one company
20 will pay for four weeks and one company will pay for
21 basically -- they prorate it, so for me it would be four days
22 of missed hours.
23 Q. With those payment schedules, would serving on the jury be
24 a serious hardship for you?
25 A. If this is an extended case, yes, and I'm not paid after a
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1 week, absolutely.
2 Q. It's scheduled to be four to six months.
3 A. Absolutely. Actually, the office I work in two days a week
4 will pay for two weeks, which is, on my schedule, four
5 workdays. In essence, after two of my work weeks there, they
6 would not be paying me. What I don't know is if they would
7 hold my position.
8 Q. They couldn't penalize you.
9 A. I know that, but I have seen that happen, even though I
10 know they are not supposed to.
11 Q. Could you step out for a moment.
12 (Juror absent)
13 THE COURT: I'm prepared to excuse the juror.
14 MR. DEMBER: We have no objection, your Honor.
15 MR. TIGAR: No objection, your Honor.
16 (Juror present)
17 BY THE COURT:
18 Q. Juror 223, I will excuse you. I appreciate your
19 participation in the process. You can go home now and all the
20 paperwork will be taken care of through the mail.
21 A. Thank you.
22 (Juror absent)
23 THE DEPUTY CLERK: 248.
24 (Juror present)
25 Q. Good morning, juror 248.
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1 A. Good morning.
2 Q. It's good to see you.
3 A. Thank you.
4 Q. Let me ask you some preliminary questions. Since you were
5 here last, has anything changed concerning your ability to
6 serve as a juror in this case, or has anything occurred to you
7 or have you seen or heard anything that may affect your ability
8 to be a fair and impartial juror in this case?
9 A. No.
10 Q. It now appears that the date that the final jury will be
11 chosen in this case will be Monday, June the 21st. So after
12 today it's unlikely that you will have to call back before June
13 18. Does that present any serious hardship for you?
14 A. No.
15 Q. Since you were here last, have you spoken to anyone about
16 this case or have you looked at or listened to anything about
17 the case?
18 A. Nothing, no.
19 Q. Has anyone spoken to you about the case? And that includes
20 any conversations here at the courthouse, or with any
21 prospective jurors.
22 A. No.
23 Q. While you were waiting with the other prospective jurors,
24 did you or anyone you overheard discuss the case?
25 A. There was no discussion of any kind.
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1 Q. I'm sorry?
2 A. There was no discussion of any kind. Everyone just sat
3 silently.
4 Q. You mentioned that serving on the jury would not be a
5 serious hardship for you?
6 A. Correct.
7 Q. Can you tell me, you mentioned that your husband was in the
8 marines. When did he get out of the marines?
9 A. It was before I met him. Probably 20 years ago. More.
10 I'm with him 22 years, so more than 22 years ago.
11 Q. Anything about your husband's service in the marines that
12 would prevent you from being a fair and impartial juror in this
13 case?
14 A. No.
15 Q. Now, you mentioned that you were called for a jury and you
16 mentioned both a civil and a criminal case. Is that right?
17 A. Yes.
18 Q. And did you actually serve on the jury in a civil or
19 criminal case?
20 A. The civil case I served on the jury. And before we were to
21 deliberate the city came in and made an offer, so the case --
22 they accepted the offer and we never had to deliberate. The
23 criminal case I was picked for the jury and the day that the
24 proceedings were to start I had a funeral to attend, so I was
25 dismissed.
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1 Q. And both of those were in state court, is that right?
2 A. Yes.
3 Q. What was the charge in the criminal case? Do you recall?
4 A. I don't even recall.
5 Q. And both of those were how long ago?
6 A. The first one was probably about 18 years ago and the
7 second one was about three years ago.
8 Q. Is there anything about your experience in any of those
9 cases or with participants in those cases or your service or
10 anything that would prevent you from being a fair and impartial
11 juror in this case?
12 A. No, not at all.
13 Q. You said that you served on a grand jury and then you
14 indicated that it was in civil court in Manhattan, citizens
15 suing the state?
16 A. I don't think it was grand jury. I think I was mistaken.
17 That was the civil case I was talking about.
18 Q. You mentioned that you testified as a witness in a criminal
19 case over 22 years ago?
20 A. Yes.
21 Q. Can you tell me what that case was about?
22 A. It was an assault case and I was not an actual witness, but
23 someone who was a hearsay witness, someone told me. A witness
24 told me what they saw.
25 Q. And do you know, is there anything about that experience,
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1 that process, your reactions to it, that would prevent you from
2 being a fair and impartial juror in this case?
3 A. No, not at all.
4 Q. You mentioned hearsay. If you were chosen as a juror in
5 this case, you will hear evidence. I often explain what
6 hearsay means to the jury.
7 But irrespective of that, will you follow my
8 instructions on the law and consider the evidence or lack of
9 evidence that's admitted here in court?
10 A. Yes.
11 Q. You mentioned that you had a family member who was a
12 victim. Could you tell me what the crime was?
13 A. My brother-in-law was murdered.
14 Q. And was someone prosecuted for that?
15 A. Yes.
16 Q. And was the person convicted?
17 A. Yes, he was.
18 Q. And do you recall what the sentence was?
19 A. I think it was 20 years to life.
20 Q. How long ago was that?
21 A. Four years ago.
22 Q. Is there anything about that experience or your reactions
23 to it or with any of the participants in it, anything, that
24 would prevent you from being a fair and impartial juror in this
25 case?
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1 A. I don't think so.
2 Q. Some people express themselves differently. Do you have
3 any reason to believe that that would prevent you from being a
4 fair and impartial juror in this case, listening to the
5 evidence or lack of evidence in this case and deciding this
6 case based solely on the evidence or lack of evidence?
7 A. No.
8 Q. You also mentioned that you had sued someone?
9 A. Many years ago in a car accident.
10 Q. I'm sorry?
11 A. A car accident.
12 Q. And what happened in that case?
13 A. You mean what was the outcome?
14 Q. Yes.
15 A. We received some money, me and three other people were
16 injured, and we received a small settlement, not in excess of
17 $5,000.
18 Q. And you mentioned that you had family who also sued
19 someone?
20 A. My husband's family brought a lawsuit in connection with my
21 brother-in-law's murder.
22 Q. And what happened in that suit?
23 A. It's been settled.
24 Q. Now, is there anything about any of that, any of those
25 participations in the legal process, your reactions to it or
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1 any of the participants, that would prevent you from being a
2 fair and impartial juror in this case?
3 A. I really didn't participate in any of it. I don't think it
4 would affect my thinking, no.
5 Q. You mentioned that you had a niece who was convicted.
6 Could you tell me what the crime was?
7 A. Yes. She and a friend of hers robbed a livery cab driver
8 with not a real gun; some kind of a fake gun, and so were
9 caught.
10 Q. Was that in state court?
11 A. Probably. I didn't go to court, so I don't know. It was a
12 crime in the city.
13 Q. And do you know what the sentence was?
14 A. I don't know, but she was incarcerated for a few years.
15 Q. And did you visit her?
16 A. No, I didn't.
17 Q. Is there anything about that experience or your reaction to
18 it or any of the people involved that would prevent you from
19 being a fair and impartial juror in this case?
20 A. No. I wasn't a participant in that at all.
21 Q. You mentioned that you have a colleague who visited Egypt
22 with her boyfriend over ten years ago. Anything about that
23 that would prevent you from being a fair and impartial juror in
24 this case?
25 A. No. I have not seen her in many, many years.
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1 Q. You mentioned that you had some knowledge of Islam, that
2 you're not very knowledgeable. Can you tell me in general what
3 the extent of your knowledge is?
4 A. Probably the extent would go to dress, that the women have
5 to keep their heads covered, that there are certain prayers you
6 have to face a certain way. That's it. Very limited.
7 Q. Do you recall reading any particular books or articles
8 about Islam?
9 A. Not that I recall.
10 Q. What's the basis for your knowledge about the limited
11 knowledge that you have about Islam?
12 A. Probably things I've read in Daily newspapers or monthly
13 magazines.
14 Q. I'm sorry?
15 A. Or magazines.
16 Q. I asked whether you believed that there is a law
17 enforcement bias for or against people of Middle Eastern
18 descent or people of the Islamic faith, and you said you don't
19 know. Do you have any belief on that one way or another?
20 A. I don't know. I don't have any relatives or close friends
21 who are in law enforcement, so I don't know what their feelings
22 are.
23 Q. You mentioned that you had heard about the defendants in
24 the news. Could you tell me what, if anything, you recall
25 hearing or reading?
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1 A. It was quite a while ago. I didn't read it. I believe I
2 heard it on television, on the news. I think it had something
3 to do with mistreatment in prison. And I'm not even clear.
4 Q. And do you recall hearing or reading anything about the
5 case itself?
6 A. No, nothing.
7 Q. And do you recall hearing or reading anything about Sheikh
8 Abdel Rahman?
9 A. The name is familiar is me from the news, television news.
10 Q. Anything else?
11 A. No.
12 Q. You had mentioned in the questionnaire that you had heard
13 and complained of his treatment while in custody, is that
14 correct?
15 A. I believe that's what I heard. That's my recollection now,
16 but it was quite a while ago.
17 Q. Now, if you were chosen as a juror in this case what you
18 would have to do is listen to the evidence or lack of evidence
19 in the case and decide the case based solely on the evidence or
20 lack of evidence, not on the basis of anything you may have
21 seen or heard --
22 A. I understand that.
23 Q. Would you do that?
24 A. Yes.
25 Q. Is there anything that you have seen, heard or read that
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1 would prevent you from doing that?
2 A. I don't believe so.
3 Q. Do you have any reason to believe --
4 A. No, I don't.
5 Q. You mentioned that you're familiar with the name
6 Al-Jazeera. Have you ever watched or listened to Al-Jazeera?
7 A. No.
8 Q. There was one question that you said you didn't understand,
9 so let me explain it to you. And if you have any questions
10 about it you can ask me.
11 The rules that apply in a criminal case are that the
12 defendant, each of the defendants is presumed to be innocent.
13 The government is required to prove the charges against the
14 defendants beyond a reasonable doubt at trial. So before any
15 defendant could be convicted the jury would have to determine
16 unanimously that the charges against that defendant were proven
17 on the basis of the evidence beyond a reasonable doubt, and the
18 defendant has no obligation to do anything. The defendants can
19 remain completely mute. They have no obligation to present any
20 evidence or do anything because it is always the government's
21 burden to prove the charges in the indictment against the
22 defendant beyond a reasonable doubt. So all of those rules
23 essentially work together. The defendant is presumed to be
24 innocent. The government must prove guilt of the defendant or
25 defendants, viewing each of them individually, beyond a
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1 reasonable doubt, and the defendant has no obligation to do
2 anything.
3 A. I understand that. There was something about that
4 question -- there was something about the wording that seemed
5 awkward to me.
6 Q. The individual sentence that you underlined said: A person
7 charged with a crime has absolutely no burden to prove that the
8 defendant is not guilty. And you said: I don't understand
9 that sentence.
10 What that sentence was meant to say was that the
11 defendant has no obligation to do anything. The burden always
12 rests with the prosecution to prove the defendant is guilty
13 based upon the evidence, and they must prove that beyond a
14 reasonable doubt. That's why the defendant has no obligation
15 to prove anything. The defendant has no obligation to prove
16 that the defendant is not guilty. The government has the
17 burden to prove beyond a reasonable doubt that the defendant is
18 guilty.
19 A. I understand that.
20 Q. Will you follow that instruction?
21 A. Yes.
22 Q. If you were chosen as a juror in this case you would be
23 required to decide this case based solely on the evidence or
24 lack of evidence and in accordance with my instructions on the
25 law. Will you do that?
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1 A. Yes, I will.
2 Q. And as you can tell from all of these questions, the
3 fundamental issue is whether there is anything in your personal
4 history or life experience that would prevent you from being a
5 fair and impartial juror in this case.
6 So let me ask you one final time whether there is
7 anything, whether I have asked you about it specifically or
8 not, that would prevent you from being a fair and impartial
9 juror in this case?
10 A. No, there is nothing.
11 Q. Could you step out just for a moment.
12 A. Thank you.
13 (Juror absent)
14 MR. TIGAR: May we have just a moment, your Honor?
15 THE COURT: Sure.
16 (Pause)
17 MR. TIGAR: No questions, your Honor.
18 MR. DEMBER: We have no questions, your Honor.
19 MR. TIGAR: No challenges.
20 MR. DEMBER: And no challenges.
21 THE COURT: Call back juror 248.
22 (Juror present)
23 BY THE COURT:
24 Q. Hi, juror 248 again. You're still involved in the jury
25 selection process, so you will be asked to call back on June
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1 the 18th. Mr. Fletcher will give you a slip of paper with the
2 number to call.
3 A. Okay.
4 Q. And I would ask you to please remember to continue to
5 follow my instructions. Please don't talk about this case at
6 all. Remember not to look at, listen to, read anything to do
7 with the case. If you see something or feel something, just
8 turn away.
9 A. I understand.
10 Q. Remember, as I will tell all of the jurors who are finally
11 selected, keep an open mind until you have heard all of the
12 evidence, I've instructed you on the law, and you've gone to
13 the jury room to begin your deliberations. Fairness and
14 justice to the parties requires that you do that.
15 A. I understand.
16 Q. Have a good day.
17 A. Thank you. You, too.
18 (Juror absent)
19 (Continued on next page)
20
21
22
23
24
25
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1 THE COURT: Juror 282.
2 (Juror present)
3 BY THE COURT:
4 Q. Please have a seat.
5 Good morning, Juror 282.
6 I had a few preliminary questions.
7 Since you were here last has anything changed
8 concerning your ability to serve as a juror in this case or has
9 anything occurred to you or have you seen or heard anything
10 that may affect your ability to be a fair and impartial juror
11 in this case?
12 A. No.
13 Q. It now appears that the date that the final jury will be
14 chosen in this case will be Monday, June 21st. So after today
15 it is unlikely you will be called to come back before June 18.
16 Does that present any serious hardship for you?
17 A. No, it doesn't.
18 Q. Since you were here last have you spoken to anyone about
19 the case or have you looked at or listened to anything about
20 the case?
21 A. No.
22 Q. Has anyone spoken to you about the case?
23 A. No.
24 Q. And that includes any conversations here at the courthouse
25 or with any other prospective jurors?
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1 A. Yes.
2 Q. Okay.
3 And no such conversations?
4 A. No.
5 Q. While you were waiting with the other prospective jurors,
6 did you or anyone you overheard discuss the case?
7 A. No.
8 Q. Okay.
9 Don't tell me your street address please, but could
10 you tell me what section of the Bronx you live in? For
11 example, Morrisania, Throggs Neck --
12 A. I think it's Morrisania.
13 Q. Morrisania, okay.
14 Q. And could you tell me what you got your Bachelors degree
15 in? Did you have a major?
16 A. Yes.
17 Q. What was the major?
18 A. Governmental accounting.
19 Q. Governmental accounting?
20 A. Yes.
21 Q. Okay.
22 And you got your Masters degree. Can you tell me what
23 you got your masters in?
24 A. Organizational leadership.
25 Q. I can't hear you.
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1 A. Organizational leadership.
2 Q. Okay.
3 Could you just speak into the microphone.
4 A. Okay.
5 Q. Maybe, Mr. Fletcher, you can help with the microphone.
6 Just bring it closer.
7 Could you tell me what kind of a New York State agency
8 you work for? What does it do?
9 A. Well, we do audits. It's OTEDAR. It has something to do
10 with disability.
11 Q. Okay.
12 Does it have any responsibilities in connection with
13 law enforcement?
14 A. No.
15 Q. And can you tell me what you mean when you say that you are
16 a management specialist?
17 A. Well, basically it's only auditing. We just changed our
18 titles.
19 Q. I am sorry?
20 A. It has to do with auditing. Our titles were just changed.
21 Q. I see.
22 But you do audit work?
23 A. Yes.
24 Q. Okay.
25 Can you tell me what your father's occupation was?
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1 A. An agrarian.
2 Q. Okay.
3 Can you tell me when you described your mother's
4 occupation you explained that among other things she was a
5 community organizer.
6 What did you mean by community organizer?
7 A. Well, she was affiliated with getting homes built for other
8 people.
9 Q. Okay.
10 And was that in connection with a specific
11 organization that you recall?
12 A. She used to work for need.
13 Q. For --
14 A. Need.
15 Q. Need?
16 A. Yes.
17 Q. And you mentioned that your brother was a sergeant in the
18 Air Force. Is he still in the Air Force?
19 A. No.
20 Q. How long ago since he --
21 A. It has been a long time. He was only in there for 8 years
22 and he served in Vietnam. But he has been out I guess over 20
23 years.
24 Q. Okay.
25 Anything about that or his service in Vietnam that
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1 would prevent you from being a fair and impartial juror in this
2 case?
3 A. No.
4 Q. You mentioned that your daughter's husband's nephew had
5 plans to go to the Middle East, is that right, or orders to go
6 to the Middle East?
7 A. He is there now.
8 Q. Okay.
9 Where in the Middle East is he?
10 A. In Iraq.
11 Q. And do you know what branch of the service he is with?
12 A. No.
13 Q. Anything about that that would prevent you from being a
14 fair and impartial juror in this case?
15 A. No.
16 Q. You told us that there were four cases that you recall
17 where you were a juror and I would like to just go through
18 them.
19 Were you a juror in both criminal and civil cases?
20 A. Yes.
21 Q. And how many criminal cases that you recall?
22 A. Well, I know it was one down here.
23 Q. One in federal court?
24 A. Yes. And I think there was one in the Bronx.
25 Q. In state court?
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1 A. Yes.
2 Q. The case in federal court, what kind of crime was charged
3 in that case?
4 A. It has something to do with a prisoner. There was an
5 uprising and the prisoner had attacked the guards.
6 Q. Okay.
7 And when was that?
8 A. You know, to be precise, it was several years ago but I
9 don't know exactly -- I don't remember exactly what year.
10 Q. Okay.
11 And how long was that case?
12 A. Well, it wasn't that long.
13 Q. Okay.
14 And did the jury reach a verdict in that case?
15 A. Yes.
16 Q. Now, you recall one case in the -- the criminal case in the
17 Bronx, and what was the crime that was charged in that case?
18 A. Robbery.
19 Q. And do you recall how long ago that was?
20 A. That one happened before the one down here, so I don't
21 remember exactly how many years.
22 Q. And did the jury reach a verdict in that case?
23 A. Yes.
24 Q. Do you recall anything else, any other criminal cases that
25 you were a juror in?
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1 A. I don't recollect.
2 Q. Okay.
3 How about civil cases?
4 A. I was on one civil case that I can remember.
5 Q. One civil case?
6 A. I think so. Yes, I think it was one.
7 Q. Was that in state or federal court?
8 A. In the Bronx.
9 Q. Okay. That is state court.
10 And what was the nature of the civil case?
11 A. Well, someone was being sued for damages.
12 Q. Okay.
13 And did the jury reach a verdict in that case?
14 A. You know, I don't recollect.
15 Q. Okay.
16 Now, is there anything about your experiences with
17 those cases and with the jury process and with the various
18 participants in the process, anything at all that would prevent
19 you from being a fair and impartial juror in this case?
20 A. No.
21 Q. You were asked whether you had ever served on a grand jury
22 and you said that you weren't sure you understood what was
23 being asked. A grand jury is different from a trial jury. A
24 grand jury considers whether a charge should be brought and, as
25 I explained to you in my preliminary instructions at the last
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1 time, an indictment is not evidence, it's simply the way in
2 which a prosecution is initiated. It's not evidence of
3 anything and the jury may not consider it as evidence of
4 anything and the standard of proof before the grand jury is
5 different from that before a trial jury.
6 Do you recall ever having sat on -- now that I have
7 explained to you what a grand jury is, do you ever recall
8 sitting on a grand jury?
9 A. No.
10 Q. Okay.
11 You mentioned that you were a member of various
12 organizations. Just tell me your understanding of what a
13 couple of these are: American Veterans.
14 Are you a member of American veterans?
15 A. Well, I give donations, you know.
16 Q. Okay.
17 And mothers against drunk driving?
18 A. Yes.
19 Q. You are a member of that?
20 A. I give donations.
21 Q. Morris Dees?
22 A. I am a member of Morris Dees. That is anti-poverty.
23 Q. That is what?
24 A. Anti-poverty.
25 Q. Anti-poverty?
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1 A. Yes. It has something to do with civil rights and
2 exonerating people who have mistreated people based on race,
3 color, creed, whatever.
4 Q. Okay.
5 And We The People?
6 A. Well, I give donations to them.
7 Q. And do you know what that organization is about?
8 A. Well, yes, it has something to do with some sort of
9 litigation regarding people's rights and benefits as far as,
10 you know, Social Security and stuff on that order.
11 Q. Okay.
12 Now, is there anything about your participation in any
13 of those organizations that would prevent you from being a fair
14 and impartial juror in this case?
15 A. No.
16 Q. You mentioned that your younger brother was a corrections
17 officer and was he a corrections officer for the state or the
18 city?
19 A. The state.
20 Q. Okay.
21 Is he still a corrections officer?
22 A. No.
23 Q. How long since he was a corrections officer?
24 A. 2 years.
25 Q. And do you know why he ceased to be a corrections officer?
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1 A. Well, he was out on sick leave and when he went back I
2 think they sort of like peeved him off.
3 Q. Can you keep your voice up.
4 A. When he went back I think they sort of like annoyed him and
5 he quit.
6 Q. I can't hear you. When he went back --
7 A. When he went back there was some sort of annoyance and he
8 just quit.
9 Q. Okay.
10 Is there anything about that or your brother's former
11 occupation that would prevent you from being a fair and
12 impartial juror in this case?
13 A. No.
14 Q. If you were called as a juror, I instruct the jurors that
15 no person is entitled to any greater or lesser credibility
16 based on their occupation, and that includes law enforcement
17 officers or prison guards or corrections officers. No one is
18 entitled to any greater or lesser credibility based on their
19 occupation and will you follow that instruction?
20 A. Sure.
21 Q. You mentioned that someone in your family had been a victim
22 of a crime, a serious crime. Can you tell me who that was,
23 what that was about? Don't tell me a name. I just mean what
24 kind of a crime?
25 A. Well, it was my son, my oldest son.
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1 Q. Okay.
2 A. They say there was an accident and he was murdered.
3 Q. Okay.
4 Was someone prosecuted for that?
5 A. They didn't ever find out who did it.
6 Q. When did that happen?
7 A. I think it was in 1985. You know, he left home to go for a
8 walk and he went out through the bottom of the building and he
9 just never returned. And when they found him, you know, they
10 said it was an accident. He was out of some of his clothing so
11 I think somebody tried to rob him or whatever, so I don't know
12 who did it.
13 Q. Okay.
14 Is there anything about that that would prevent you
15 from being a fair and impartial juror in this case?
16 A. No.
17 Q. Thank you.
18 You mentioned that someone close to you was falsely
19 accused of a crime filling out the wrong time sheet.
20 A. I don't think it was a crime, you know, it was just a human
21 error.
22 Q. Okay. Who was that?
23 A. My son.
24 Q. Okay.
25 Is there anything about that experience that would
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1 prevent you from being a fair and impartial juror in this case?
2 A. No, because human beings are capable of error and, you
3 know, I feel that there are enough people in a system that if
4 an error is committed it's brought to that person's attention
5 without it getting out of hand.
6 Q. Okay.
7 Was your son -- were any charges brought against your
8 son as a result of that?
9 A. No. You know, this is -- maybe I shouldn't have put it
10 down.
11 Q. No, I appreciate your searching your mind and putting
12 anything down. That is fine.
13 A. Well, it's a very hairy situation because what led up to it
14 is that my son, you know, was owed an evaluation and over a
15 year had passed and he hadn't gotten an evaluation and he is
16 doing all of his his work. So he asked for an evaluation
17 repeatedly, in a respectful and dignified manner, and he was
18 never given the evaluation and the next thing that happened is
19 that he was going through an interrogation and this is what
20 popped up. The fact that he had made an error on his time card
21 that hadn't even been brought to his attention.
22 Q. Okay.
23 Anything about that that would prevent you from being
24 a fair and impartial juror in this case?
25 A. No, because I believe in treating people the way I like to
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1 be treated.
2 Q. Okay.
3 You mentioned that your younger brother had law
4 enforcement training. What kind of -- and also that was in
5 connection with working for corrections?
6 A. You mean my younger brother?
7 Q. Yes. You told me that your younger brother had law
8 enforcement training.
9 A. Yes.
10 Q. That was in connection with working as a corrections
11 officer?
12 A. Yes.
13 Q. Okay.
14 And you also mentioned that your son worked as a
15 paralegal during college?
16 A. Yes, my younger son.
17 Q. And don't tell me the name of the company or so that your
18 son worked for, but did he work for a law firm or for the
19 government or what kind of work did he do as a paralegal?
20 A. Well, he worked at the Bronx courts.
21 Q. Okay.
22 Now, anything about your younger brother's work as a
23 corrections officer, your son's work as a paralegal, anything
24 about that that would prevent you from being a fair and
25 impartial juror in this case?
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1 A. No.
2 Q. You mentioned that your doctor went to Iraq. Is he back
3 from Iraq?
4 A. Yes.
5 Q. And why did he go to Iraq?
6 A. Well, he was over there over a year plus as a doctor.
7 Q. Okay.
8 Anything about that that would prevent you from being
9 a fair and impartial juror in this case?
10 A. No.
11 Q. You mentioned that you have a co-worker -- co-workers from
12 Pakistan and Egypt. Anything about that that would prevent you
13 from being a fair and impartial juror in this case?
14 A. No.
15 Q. You mention that you were somewhat knowledgeable about the
16 history and practices of Islam. Could you just explain to me
17 what your general knowledge is?
18 A. Well, I know that they have certain ideologies and certain
19 eating habits and they dress a bit different, you know. That
20 is just about as much awareness as I have of them.
21 Q. Okay.
22 Can you tell me what the -- what do you mean by
23 certain ideologies?
24 A. Well, I think some of their thought pattern regarding
25 religion is a little bit different than mine, you know.
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1 Q. Okay.
2 And what is the source of your knowledge? Generally.
3 A. You mean --
4 Q. Books, magazines, talking to people?
5 A. I do a lot of reading and I am constantly listening to
6 family radio, you know, which is all around, a well rounded
7 source of spirituality and I just believe in, you know -- I
8 just believe in a higher being.
9 Q. Okay.
10 Is there anything that you have seen, heard or read
11 about Islam that would prevent you from being a fair and
12 impartial juror in this case?
13 A. No, because I don't judge people.
14 Q. I am sorry?
15 A. Because I don't go around judging other people.
16 Q. Okay.
17 I asked whether you ever had a negative experience
18 with someone from the Middle East and you said yes. There was
19 a lack of communication, the Egyptian. What did you mean by
20 that?
21 A. Well, the negativity was on the other person's part. It
22 wasn't on my part because I ignored it, but it was due to a
23 lack of communication. And that happens sometimes but I don't
24 delve into it. You know, I just leave it alone.
25 Q. Okay.
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1 Anything about that that would prevent you from being
2 a fair and impartial juror in this case?
3 A. No.
4 Q. You mention that you heard of Lynne Stewart and briefly Mr.
5 Sattar and Mr. Yousry. Can you tell me what you have heard or
6 read?
7 A. Well, the gentlemen, I read that they were involved in some
8 terrorist act and --
9 Q. I am sorry, you read?
10 A. The gentlemen, I read that they were involved in, you know,
11 some terrorist act having to do with the World Trade Center and
12 I read that Lynne Stewart was their -- she was a lawyer, you
13 know, in some respect and I recollect that it was stated that
14 she was supplying information to I don't know whether it was
15 one of these sheikhs or whatever. I just read something about
16 it, you know.
17 Q. Okay.
18 And what have you heard or read about Sheikh Abdel
19 Rahman?
20 A. Well, I think he is the one who she was alleged to have,
21 you know, passed -- given some sort of information to.
22 Q. Okay.
23 And can you tell me what you heard or seen or read
24 about this case?
25 A. What I said is basically, you know, sums up what I read.
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1 You know, that they were involved with terrorism as far as the
2 World Trade Center was concerned the first time and I just read
3 something about Ms. Stewart.
4 Q. I am sorry, I didn't hear you.
5 A. I briefly remember reading something about Ms. Stewart,
6 that she was affiliated, you know, with the sheikh.
7 Q. Okay.
8 Now, any case or any matter that has received some
9 publicity, jurors may have seen something or heard something
10 about it. But what the press prints may not be correct. And
11 what the law requires is that the jury conscientiously, fairly,
12 put aside anything that they have heard or read outside of
13 court and that they listen to the evidence or lack of evidence
14 in the case and decide the case based solely on the evidence or
15 lack of evidence that is presented in court and my instructions
16 on the law. That is what the law requires for many reasons.
17 It's the basic principle of justice that cases be decided in
18 court based upon evidence which is presented and tested in
19 court, and not based upon what happens outside.
20 And there are many reasons for that, including, among
21 other things, what goes on outside of court may not be accurate
22 and it certainly is not tested under the rules that apply in
23 court. So the question is whether anything that you have seen,
24 heard or read about anything to do with the case would prevent
25 you from being a fair and impartial juror in this case?
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1 A. No.
2 Q. If you were chosen as a juror, would you decide the case
3 based solely on the evidence or lack of evidence and my
4 instructions on the law?
5 A. Sure.
6 Q. I had asked you whether you knew anyone who had been
7 injured or killed in an act of terrorism and you said the World
8 Trade Center terrorist attack and my question is how many
9 people did you know who were injured or killed in that?
10 A. I didn't know anyone personally.
11 Q. Okay.
12 I should also tell you that this case is not about
13 9/11. The defendants are not charged with any allegations
14 concerning 9/11 so this case simply doesn't involve 9/11. Is
15 there anything about 9/11 that would prevent you from being a
16 fair and impartial juror in this case?
17 A. No.
18 Q. If you were chosen as a juror in this case you would be
19 required to decide the case based solely on the evidence or
20 lack of evidence and in accordance with my instructions on the
21 law. Will you do that?
22 A. Yes.
23 Q. And as you can tell from all of these questions, the
24 fundamental issue is whether there is anything in your personal
25 history or life experience that would prevent you from acting
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1 as a fair and impartial juror in this case. So let me ask you
2 one final time whether there is anything, whether I have asked
3 you about it specifically or not, that would prevent you from
4 being a fair and impartial juror in this case?
5 A. No.
6 Q. Okay.
7 Could you step out for a moment?
8 A. Surely.
9 (Juror absent)
10 THE COURT: Yes, sir.
11 MR. TIGAR: Your Honor, she lists on the form three
12 grandchildren and I assume those are grandchildren, and no
13 children. She has a son who was killed but that would be long
14 enough ago that that would not account for the 4-month-old
15 grandchild.
16 Could you just ask her how many children she has and
17 their ages and occupations?
18 THE COURT: Sure.
19 MR. TIGAR: I am sorry I didn't notice that before but
20 it doesn't seem to fit.
21 THE COURT: All right.
22 MR. TIGAR: Second, your Honor, with respect --
23 THE COURT: Hold on.
24 Okay.
25 MR. TIGAR: With respect to the brother who was a
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1 correction officer, did she talk about his work with him?
2 THE COURT: All right.
3 MR. TIGAR: And, third, if anything is suggested by
4 the inquiry about how many children, was it the son who was
5 killed who had the problem about the evaluation and the time
6 sheet or was it some other child? I didn't understand the
7 entire exchange, your Honor.
8 THE COURT: Okay.
9 MR. TIGAR: Finally, she mentioned that she gives
10 money to Morris Dees. It would be helpful to know does she
11 regularly receive publications from Mr. Dees' organization.
12 The reason for that, your Honor, is that Mr. Dees is a
13 Janus-based person. He not only litigates about the Klan but
14 he also puts out information about alleged terrorists, and so
15 on, and some of it having to do with prosecutions of terrorists
16 and so on.
17 THE COURT: Okay. I will ask, but I would have
18 thought that that question came from the other table but I will
19 ask.
20 MR. TIGAR: The reason is that the last capital case
21 that I tried Mr. Dees put out 250,000 copies of a leaflet about
22 our client saying he was guilty. And we thought that was
23 unkind.
24 MR. BARKOW: Your Honor, at one point this juror said,
25 "I don't judge people" and then followed that with "I don't go
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1 around judging other people," and we just ask that you follow
2 up and ask her what she meant by that. It might have been out
3 of context but she kind of volunteered it.
4 THE COURT: Okay. You know, I will ask that. It
5 really goes to the question on the questionnaire which is 106,
6 but I will ask. Okay.
7 By the way, if these questions don't provoke anything
8 I will tell the juror to come back on June 18th. The parties
9 agree?
10 MR. DEMBER: Yes, your Honor.
11 MR. TIGAR: Defense agrees, your Honor.
12 THE COURT: All right.
13 (Juror present)
14 BY THE COURT:
15 Q. Hi. Juror 282, I have a few follow-up questions.
16 Can you tell me -- and I know I express everyone's
17 sympathy and concern for your child who died -- what other
18 children do you have? Can you just tell me?
19 A. I have two daughters and a son.
20 Q. Okay.
21 And can you tell me approximately how old the
22 daughters are?
23 A. My oldest daughter is -- I think she is 41, and my youngest
24 one is 39, and my son, you know, he is in his thirties.
25 Q. Okay. And can you tell me what each of them do, what their
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1 occupations are?
2 A. My son works with computers. He is sort of like a systems
3 analyst. And my daughter, she just got a new position and it
4 has something to do with -- it's a new title and it has
5 something to do with data base. She works with the North
6 Carolina government.
7 Q. Okay.
8 By the way --
9 A. And my youngest one, she is out of the job arena for now.
10 After 19 years, she is a housewife.
11 Q. Okay.
12 Can you tell me what kind of an organization your son
13 works for? Don't tell me the employer specifically but just
14 what kind of a company or organization it is.
15 A. The state.
16 Q. The state?
17 A. Yes.
18 Q. Okay.
19 You mentioned that you have a brother who was a
20 corrections officer.
21 A. Yes.
22 Q. And did you talk to him about his work?
23 A. Sure. I tried to get him to go back after he quit.
24 Q. Okay.
25 A. And I think he regrets it but he just didn't go back and
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1 now he is in the bargaining to get something with DMV.
2 Q. I am sorry?
3 A. He is trying to get something with DMV but I talked to him
4 about being a correction officer and I thought it would have
5 been good for him because he had all sorts of commendations and
6 all sorts of awards and all of that and I didn't think he
7 should just let somebody peeve him off to the degree where he
8 just would say, well, I am out of here, you know. So, yeah, I
9 talk to him a lot.
10 Q. Okay.
11 Anything about any of your conversations with your
12 brother that would prevent you from being a fair and impartial
13 juror in this case?
14 A. No.
15 Q. Okay.
16 You mentioned -- is it your son who is the computer
17 systems analyst who had the problem with the time sheets?
18 A. Yes.
19 Q. Okay.
20 A. You know, he was a programmer and that is where the
21 evaluation came in at, his title was computer programmer. And
22 he was looking for an evaluation after a whole year of working
23 in it and his work record is good and they just didn't give him
24 one. Instead of giving him the evaluation, they sought to, you
25 know, try to find fault with him and that is how this came up
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1 about the time card, which I think is kind of -- I don't think
2 it's fair, you know, because everybody makes mistakes.
3 Q. Okay.
4 Q. You mention -- in going through the organizations that you
5 contribute to you mentioned you contribute to Mr. Dees.
6 A. Yes.
7 Q. Do you receive publications from him?
8 A. Yes.
9 Q. Anything about any of those publications that would prevent
10 you from being a fair and impartial juror in this case?
11 A. No, because I think his publications are enlightening.
12 They are educational and they are all about tolerance.
13 Q. Okay.
14 I have no idea whether in any publication by him there
15 would be any reference to this case at all. I have no idea.
16 But will you follow my instructions that if you should ever
17 see, hear or read anything about this case you just turn away
18 because you can't -- do you understand that?
19 A. Oh, sure, I understand.
20 (Continued on next page)
21
22
23
24
25
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1 BY THE COURT:
2 Q. Will you do that?
3 A. Sure.
4 Q. You mentioned that you don't judge other people. Could you
5 explain to me what you meant by that?
6 A. Well, I know sometimes people can allow someone else's
7 preconceived notion, make them judge a person, and I don't do
8 that. I like to delve into a person for myself and get a
9 clearer understanding from myself without judging based on
10 something someone else has said.
11 Q. If you were chosen as a juror in this case, would you
12 decide this case based solely upon the evidence or lack of
13 evidence in this case and my instructions on the law?
14 A. Yes.
15 Q. Is there anything in your religious, philosophical or other
16 beliefs that would prevent you from being a fair and impartial
17 juror in this case?
18 A. No.
19 Q. Juror 282 you're still involved in the jury selection
20 process. I will ask you to call back on June the 18th.
21 Mr. Fletcher will give you a slip of paper with all of the
22 instructions on it.
23 Please remember to follow my continuing instructions.
24 Please don't talk about this case at all, don't look at, listen
25 to, read about anything to do with the case. If you should see
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1 something, just turn away. Remember always to keep an open
2 mind until you have heard all of the evidence, I've instructed
3 you on the law and you've gone to the jury room to begin your
4 deliberations. That's the instruction that I will give to all
5 of the jurors. Fairness and justice requires that you do that.
6 All right?
7 A. Sure.
8 Q. Have a good day.
9 A. Thank you.
10 (Juror absent)
11 THE COURT: I think we will break for 10 minutes.
12 (Recess)
13 THE COURT: As I have said before, as to the last
14 juror there were no further questions and no challenges for
15 cause, which takes us then to 283.
16 (Juror present)
17 BY THE COURT:
18 Q. Good afternoon, juror 283.
19 A. Good afternoon, sir.
20 Q. Good to see you.
21 Since you were here last has anything changed
22 concerning your ability to serve as a juror in this case, or
23 has anything occurred to you or have you seen or heard anything
24 that may affect your ability to be a fair and impartial juror
25 in this case?
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1 A. No, sir.
2 Q. It now appears that the date that the final jury will be
3 chosen in this case will be Monday, June 21, so you won't have
4 to call back before June the 18th. Does that present any
5 serious hardship for you?
6 A. No, sir.
7 Q. Since you were here last have you spoken to anyone about
8 the case or have you looked at or listened to anything about
9 the case?
10 A. No, sir.
11 Q. And has anyone spoken to you about the case? And that
12 includes anyone here at the courthouse or any of the other
13 prospective jurors.
14 A. No, sir.
15 Q. While you were waiting with the other prospective jurors,
16 did you or anyone you overheard discuss the case?
17 A. No, sir.
18 Q. You mentioned on your questionnaire that you live with your
19 daughter, wife, mother-in-law, and father-in-law. I would like
20 you to tell me what if any of their occupations are. Your
21 wife?
22 A. My wife is a secretary.
23 Q. And what kind of an organization does your wife work for,
24 without telling us the name? Company or government?
25 A. Company.
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1 Q. What kind of company was it?
2 A. Construction.
3 Q. And your mother-in-law, does she work?
4 A. She is retired.
5 Q. And what did she do before?
6 A. She was a nurse.
7 Q. And your father-in-law?
8 A. He is retired.
9 Q. And what did he do?
10 A. He was a security officer.
11 Q. And what kind of security officer? Private security
12 officer?
13 A. Yes.
14 Q. And what kind of a company did he work for? Do you know?
15 A. I am not sure.
16 Q. And is your daughter old enough to work?
17 A. Yes. But she is in college and she is attending -- she
18 does nursing.
19 Q. Can you tell me what kind of vocational or technical school
20 your wife attended?
21 A. Typing, typing, shorthand.
22 Q. And you mentioned that you work for a city agency. Can you
23 tell me what kind of city agency? What does the agency do?
24 A. Transport.
25 Q. Transportation?
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1 A. Transportation.
2 Q. And are you an electrician?
3 A. Yes, sir.
4 Q. You mentioned that you served on two criminal juries, one
5 in 1996. And when was the last jury you served on, about how
6 many years ago?
7 A. Approximately three, four years ago.
8 Q. And the case in 1996, what was the charge -- both of those
9 cases were in state court, is that right, in the Bronx?
10 A. Yes, sir.
11 Q. The 1996 case, what was the charge in that case?
12 A. I think it was gun possession and resisting arrest.
13 Q. You had said on the form child abuse and drugs?
14 A. Yes. I think that was the second one. I don't know if I'm
15 mixing up them.
16 Q. Well, what do you recall about the last case? What was the
17 charge in that case four years ago?
18 A. I think that one was the child abuse and the drugs
19 possession.
20 Q. Did both cases go to the jury for a verdict? Don't tell us
21 what the verdict was.
22 A. Yes.
23 Q. Both cased were submitted for a verdict. And did the jury
24 reach a verdict in both cases?
25 A. Yes, sir.
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1 Q. And how long was the last trial that you served on? How
2 long did the trial last?
3 A. Approximately two weeks.
4 Q. Is there anything about your experiences with being a juror
5 in those cases and your reactions to the process and to the
6 various participants in the process, anything about that that
7 would prevent you from being a fair and impartial juror in this
8 case?
9 A. No, sir.
10 Q. You mentioned that someone in your family had been a victim
11 of a serious crime. Can you tell me what relation that person
12 was to you and what the crime was?
13 A. My mother-in-law, she was mugged in an elevator. It was an
14 attempted rape.
15 Q. And was someone prosecuted for that?
16 A. No, no one was ever brought to justice.
17 Q. Is there anything about that experience that would prevent
18 you from being a fair and impartial juror in this case?
19 A. No, sir.
20 Q. In the course of explaining to you some of the evidence
21 that might be admitted at trial I pointed out that there may be
22 evidence of recorded conversations between attorneys and their
23 client, and I asked whether there was anything about that that
24 would prevent you from rendering a fair and impartial verdict,
25 and you said that there was because a conversation between an
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1 attorney and a client should be privileged.
2 Now, let me explain something. I, as the judge, rule
3 on questions of law, and that includes the admissibility of
4 evidence. So if you hear evidence, that's because the evidence
5 is legally admissible. And whether the evidence should be
6 legally admissible or not legally admissible is a matter for me
7 as the Court. It is for the jury to listen to all of the
8 evidence that is admitted and to make a determination whether
9 based upon all of the evidence or lack of evidence the
10 government has proven the charges in the case beyond a
11 reasonable doubt.
12 So the fact that some of the conversations might be
13 conversations between attorneys and the client should not enter
14 into your deliberations. It's for you as a juror to consider
15 all of the evidence in the case that is admitted. It's not for
16 the jurors to say, I like that kind of evidence, or I don't
17 like that kind of evidence. It's for the jurors to consider
18 all of the evidence that I admit. And it is up to the Court to
19 determine whether the evidence is legally admissible or not
20 legally admissible.
21 Do you understand the principles that I have laid out?
22 A. Yes, sir.
23 Q. Now, having heard those principles, is there anything about
24 the fact that some of the evidence in the case may include
25 conversations between attorneys and their client? Is there
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1 anything about that that would prevent you from being a fair
2 and impartial juror in the case?
3 A. I see as like a stumbling block because under the
4 perception that I, between an attorney and his client and
5 chaplain and someone else, the perception that is confidential
6 and private. It may be a stumbling block.
7 Q. What do you mean, it may be a stumbling block?
8 A. Although you said you make the decision of what is
9 acceptable or not.
10 Q. Right.
11 A. I still see that as a cloud.
12 Q. I'm sorry?
13 A. I see it as a cloud hanging over.
14 Q. A club?
15 A. A cloud.
16 Q. A cloud?
17 A. Yup.
18 Q. What do you mean by, you see it as a cloud?
19 A. To me it seemed like there was some sort of invasion of
20 privacy.
21 Q. Jurors bring with them to this process their thoughts and
22 ideas. And the issue is whether they can put aside any of
23 their prior thoughts or ideas as well as anything they have
24 seen or heard about the case and decide the case based upon the
25 evidence or lack of evidence and the Court's instructions on
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1 the law.
2 And on this subject the real issue is if the evidence
3 were admitted, conversations between attorneys and their
4 client, the law is that the jury is to consider all of the
5 evidence or lack of evidence. That's the law, and I rule on
6 issues of admissibility.
7 And so the question really is, do you think that if I
8 admit that evidence and place it before you you could consider
9 it in the same way that you would the other evidence in the
10 case, or whether you think you would have difficulty in doing
11 that.
12 Because what we are talking about is, it is a
13 principle of law about jurors following the Court's
14 instructions and whether the jurors are able to do that. So
15 you tell me.
16 A. I think I can follow the Court's instructions.
17 Q. Do you have any doubts about that?
18 A. A little.
19 Q. Tell me why.
20 A. I think I can follow the Court's instruction.
21 Q. You told me that you think that the conversations between
22 attorneys and client are like conversations between a chaplain
23 and someone. What did you mean by that?
24 A. What is said between those two parties is confidential and
25 private. And whatever is said between the two parties should
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1 not be able to be held against the person.
2 Q. Now, on the questionnaire when I asked you whether there
3 was anything about the nature of the case that causes you to
4 believe that you should not serve as a juror you said yes,
5 because of the recorded conversations as evidenced between
6 attorneys and client.
7 What did you mean by that?
8 A. Like I said before, I was under the impression that a
9 client and an attorney have certain privileges and certain
10 things that they can talk freely between themselves. And how
11 that information was obtained, I perceive it as being -- I
12 don't know if it's illegal, but not being right.
13 Q. I can't get into your mind. You would have to tell me
14 what's in your mind. And the question is whether you, having
15 listened to everything that I have said, and having thought
16 about what you think about this kind of evidence, whether there
17 is anything about that evidence that would prevent you from
18 having considered it along with all of the other evidence in
19 the case and deciding the case on that basis.
20 And you have to tell me whether there is or isn't --
21 there is no right answer to this. You just have to help me to
22 understand whether you would consider it along with all of the
23 other evidence in the case, or whether you have doubts or
24 reservations about that kind of evidence.
25 So I have explained to you what the rules of law are
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1 here. But you have to tell me whether you can follow those
2 instructions and consider the evidence along with all the other
3 evidence in the case, or whether you feel so strongly about
4 that issue that it would prevent you from doing that. As I
5 say, there is no right answer here. There is just an answer
6 that tells me what's in your mind. So you have to explain this
7 to me.
8 A. I do think I can follow instructions. Putting that aside,
9 I don't think there is any problem following instruction.
10 Q. Would you consider that evidence along with all of the
11 other evidence in the case and decide the case based solely
12 upon the evidence or lack of evidence, including that evidence,
13 if that evidence is admitted?
14 A. Yes.
15 Q. And having thought about it and having thought about that
16 kind of evidence, will you be able to do that?
17 A. I think so, yes.
18 Q. You say you think so. Do you have any doubts in your own
19 mind whether you can do that?
20 A. No doubts.
21 Q. Are you sure about that?
22 A. Yes.
23 Q. If you were chosen would you consider that evidence along
24 with all the other evidence in the case and decide this case
25 based solely upon the evidence or lack of evidence, and my
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1 instructions on the law?
2 A. Yes.
3 Q. And having carefully considered that, is there anything
4 about that kind of evidence that would prevent you from doing
5 that?
6 A. No, sir.
7 Q. You mentioned that you have coworkers from Yemen and
8 Israel. Is there anything about that that would prevent you
9 from being a fair and impartial juror in this case?
10 A. No, sir.
11 Q. You said you were not very knowledgeable about Islam. Just
12 tell me in general what your knowledge of Islam is, the
13 history, practices of Islam, in general.
14 A. I don't know anything much about the Islamic faith. I
15 don't really know much about it. Just basic stuff.
16 Q. Anything about that that would prevent you from being a
17 fair and impartial juror in the case?
18 A. No, sir.
19 Q. You mentioned that you thought that you thought that there
20 was a law enforcement bias with respect to people of Middle
21 Eastern descent or people of the Islamic faith. Could you tell
22 me what you meant by that?
23 A. I had an experience where a gentleman, he was not -- he was
24 of East Indian descent and we were going into somewhat off
25 limits, place that we had permission to go in. And we all were
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1 all let in except the other guy. He had to stay back and he
2 was questioned.
3 Q. He was questioned by the police?
4 A. By the security officer.
5 Q. Is there anything about that that would prevent you from
6 being a fair and impartial juror in this case?
7 A. No, sir.
8 Q. Do you understand that this is a criminal case and it's not
9 for the jury to ask in a case why was the case brought or why
10 were other people not named in the case, or anything like that.
11 The issue for the jurors is whether the charges against these
12 defendants who are on trial have been proven beyond a
13 reasonable doubt based upon the evidence or lack of evidence.
14 Do you understand that?
15 A. Yes.
16 Q. And will you follow that instruction?
17 A. Yes.
18 Q. You mentioned that you had heard something about Sheikh
19 Abdul Rahman. Can you tell me what you heard or read?
20 A. I thought I heard that he was the mastermind in the first
21 World Trade bombing.
22 Q. Anything else?
23 A. I think he was found guilty and sentenced to life in
24 prison.
25 Q. Anything else?
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1 A. Basically, that's it.
2 Q. Now, if you were chosen as a juror in this case, the jurors
3 would have to put aside anything that they have seen, heard, or
4 read, and decide the case based solely on the evidence or lack
5 of evidence received in court.
6 And there are many reasons for that, including the
7 fact that not everything that's published in the press is
8 accurate and, more importantly, under our rule of law the
9 jurors are entitled to consider only the evidence or lack of
10 evidence that's received in court.
11 Is there anything that you have seen, heard, or read
12 that would prevent you from deciding the case based solely on
13 the evidence or lack of evidence and my instructions on the
14 law?
15 A. No, sir.
16 Q. The jurors who sit in this case will be instructed that
17 they must base their decisions entirely on the evidence
18 produced in court and not from any outside source or
19 preexisting opinions or attitudes. Can you do that despite
20 anything that you may have read, seen, or heard about the case?
21 A. Yes.
22 Q. And despite anything you may have read, seen, or heard
23 about the case, can you still be fair to both the prosecution
24 and the defense?
25 A. Yes, sir.
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1 Q. You had answered two questions on the questionnaire no that
2 I thought that those were probably mistakes, because I had
3 asked you those same questions.
4 Similarly, it is likely that this case will receive
5 ongoing media attention. And I want to make sure that the case
6 is decided solely on the evidence in the courtroom and not
7 based on things that are said outside the courtroom.
8 Accordingly, I will instruct the jurors that they must
9 avoid reading about the case in the newspapers or reading or
10 listening to any television reports or reading any internet
11 coverage about the case. And I will direct that the jurors
12 must avoid discussing the case with friends or family during
13 the course of the trial.
14 Will you follow those instructions?
15 A. Yes, sir.
16 Q. And would following those instructions pose any difficulty
17 for you?
18 A. No, sir.
19 Q. Again, you had answered yes, that it would pose a
20 difficulty on the questionnaire, but I thought it was probably
21 a mistake.
22 A. Yes.
23 Q. Is there anything about the nature of the case that causes
24 you to believe that you should not serve as a juror in this
25 case?
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1 A. No, sir.
2 Q. You paused, so tell me, is there anything that causes you
3 to believe that you should not serve as a juror in this case?
4 Let me put it another way. Is there anything that causes you
5 to doubt that you will be a fair and impartial juror in this
6 case?
7 A. No, sir. My reason for pausing was just something, I had
8 like -- I saw jurors after cases, high-profile cases, and they
9 comment about their lives have changed. That's why I paused.
10 Comment after the case with the media attention and stuff like
11 that. That was my reason for pausing.
12 Q. Whether you choose to talk with the media after the case is
13 completely up to you. As I explained to you in the initial
14 instructions, the jurors in this case are anonymous, so their
15 identities are not known to the press. And after the case is
16 over, whether you choose to talk is up to you. So there is no
17 reason, none, that you should have any concern over anyone
18 bothering you, interfering with you, or changing your life at
19 all.
20 Do you understand that?
21 A. Yes, sir.
22 Q. And so that should not be a concern for you at all.
23 So let me just ask you, again, whether there is
24 anything about the case that causes you to believe that you
25 should not be a juror in this case?
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1 A. No, sir.
2 Q. If you were chosen to be a juror in this case you would be
3 required to decide the case based solely on the evidence or
4 lack of evidence and in accordance with my instructions on the
5 law.
6 Will you do that?
7 A. Yes, sir.
8 Q. And as you can tell from all of these questions, the
9 fundamental issue is whether there is anything in your personal
10 history or life experience, whether I have asked you about it
11 specifically or not, that would prevent you from being a fair
12 and impartial juror in this case? Let me ask you one final
13 time whether there is anything, whether I have asked you about
14 it specifically or not, that would prevent you from being a
15 fair and impartial juror in this case?
16 A. No, sir.
17 Q. Could you step out just for a moment.
18 (Juror absent)
19 THE COURT: No questions?
20 MR. BARKOW: Your Honor, we recognize that ultimately
21 this juror on the issue of attorney-client privilege
22 communications did say that he had no doubts that he could
23 follow the Court's instructions. However, we noted -- and I
24 counted -- that before he gave the answer that there were no
25 doubts in his mind he had, obviously, said several times that
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1 there were problems. But before he actually gave that answer,
2 he paused for what I counted to be five seconds. That's a long
3 time. In response to all of the Court's other questions he
4 answered immediately.
5 And I think that based on the Court's and our
6 observations of him, frankly, we think that he does have
7 problems with that. And even though ultimately after being
8 asked three or four times, even though ultimately he said he
9 didn't have doubts, based on our observations of his demeanor
10 in answering that question, we think that he should be stricken
11 for cause.
12 MR. RUHNKE: I think you gave this juror every
13 possible opportunity to come forward and say I do have doubts,
14 and every time, including in the open-ended way you left it up
15 to the juror and he thought about it, he said he could put it
16 aside, and I don't think the juror should be excused.
17 THE COURT: I agree with that. This is plainly a
18 conscientious juror who paused over several questions,
19 including the final question about whether there was anything
20 else. And when he came up with whether or not there was
21 anything else, it wasn't even about attorney-client. It was
22 about his concern over publicity.
23 I explored with him the issue of attorney-client. He
24 has looked at it from all sorts of aspects. And ultimately, as
25 everyone acknowledges, he did not have any doubts that he will
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1 consider it along with all of the other evidence and follow my
2 instructions on the law. And he plainly has thought about or,
3 as the questioning went on, thought carefully about all of his
4 answers, and I find him to be credible. And when he assures me
5 that he will be a fair and impartial juror, there is nothing
6 about this or anything else that's been raised that would
7 prevent him from being a fair and impartial juror. So this is
8 not a challenge for cause.
9 Let's call the juror back.
10 (Continued on next page)
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1 (Juror present)
2 BY THE COURT:
3 Q. Hi.
4 Juror 283, you are still involved in the jury
5 selection process, so I will ask you to call back on June 18th
6 and Mr. Fletcher will give you a slip of paper indicating who
7 you should call and please remember it's very important to
8 follow my continuing instructions.
9 Please don't talk about this case at all. Remember
10 not to look at, listen to, read anything to do with the case.
11 If you should see something just turn away. Please remember,
12 as I will tell the jurors who are finally chosen, keep an open
13 mind until you have heard all of the evidence, I have
14 instructed you on the law and you have gone to the jury room to
15 begin your deliberations. Fairness and justice to the parties
16 requires that you do that.
17 All right?
18 A. Yes, sir.
19 (Juror absent)
20 THE CLERK: 287.
21 (Juror present)
22 BY THE COURT:
23 Q. Please have a seat. Good afternoon, juror 287.
24 A. Good afternoon.
25 Q. Good to see you.
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1 Let me ask you -- let me follow up on a couple of
2 questions in the questionnaire.
3 You had mentioned that serving on the jury in this
4 case would be a serious hardship. Can you explain to me why it
5 would be?
6 A. Well, I am a very sick person. I have a letter from my
7 doctor. When I came here May 4 I was here from 8 in the
8 morning until almost 3:30. I got home very sick because I am a
9 diabetic and I have high blood pressure and I am a very nervous
10 person. And I got home and I thought I was going to faint but
11 I got home in time and my husband was home by then and he made
12 me something to eat and bring up my sugar, you know. And I
13 don't think I could be a good juror like that.
14 Q. O okay.
15 Could you step out for a moment?
16 (Juror absent)
17 THE COURT: I am prepared to excuse the juror.
18 MR. BARKOW: We agree, your Honor.
19 MR. TIGAR: No objection, your Honor.
20 THE COURT: Okay. Call the juror back.
21 (Juror present)
22 BY THE COURT:
23 Q. Juror 287, I will excuse you. I appreciate your having
24 participated in the process. You can go home now and all of
25 your paperwork will be taken care of through the mail. Again,
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1 I appreciate your having participated.
2 A. Thank you very much.
3 Q. No problem. I appreciate your having participated in the
4 process.
5 A. Okay.
6 (Juror absent)
7 THE COURT: 290, I believe.
8 MR. TIGAR: While the juror is coming in, as to
9 question 9 there are 3 names.
10 MR. RUHNKE: This is one of the jurors you mentioned
11 this morning, your Honor.
12 THE COURT: The parties agree?
13 MR. DEMBER: Yes, your Honor.
14 MR. TIGAR: Yes, your Honor.
15 (Juror present)
16 BY THE COURT:
17 Q. Good afternoon, Juror 290. It's nice to see you.
18 I have gone over the responses to the questionnaire
19 and I will excuse you as a juror. And I very much appreciate
20 your having participated in the process of jury selection in
21 this case. You can now go home and all of your paperwork will
22 be taken care of through the mail. Thank you for coming in.
23 (Juror absent)
24 THE CLERK: 291.
25 (Juror present)
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1 BY THE COURT:
2 Q. First seat, first row. Thank you.
3 Good afternoon, Juror 291.
4 A. Good afternoon.
5 Q. It's nice to see you.
6 A. Thank you.
7 Q. Since you were here last has anything changed concerning
8 your ability to serve as a juror in this case or has anything
9 occurred to you or have you seen or heard anything that may
10 affect your ability to be a fair and impartial juror in this
11 case?
12 A. Well, I go to school so you told me it's going to last
13 about 6 months and I will be in school, you know, during that
14 time.
15 Q. Yes. Do you go full-time?
16 A. No, I go part-time.
17 Q. At night?
18 A. No, during the day.
19 Q. During the day.
20 We sit 4 days a week and we sit until about 4:30. We
21 don't sit on Fridays or weekends. So when you had completed
22 the questionnaire you had indicated that serving on the jury
23 would not be a serious hardship for you.
24 A. I think I did write that, yes.
25 Q. I am sorry?
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1 A. I did write that, but after I thought about it and I
2 thought about the 6 months and all that, like I said, I go in
3 the morning and it's over like at ten or 11 o'clock and I am
4 quite sure you start at 9 o'clock.
5 Q. Right.
6 What are you going to school for?
7 A. Human services.
8 Q. I am sorry?
9 A. Human services.
10 Q. Could you adjust the schedule in any way so that you could
11 serve as a juror and still go to school?
12 A. Well, I already registered so it's in the morning.
13 Q. I am sorry?
14 A. I already registered and it's if the morning.
15 Q. Would taking off a semester be a hardship for you?
16 A. Well, I had just started and I would like to sort of
17 continue to go and complete it.
18 Q. Okay.
19 Could you step out for a moment?
20 A. Certainly.
21 (Juror absent)
22 THE COURT: I am prepared to excuse the juror.
23 MR. RUHNKE: We agree, your Honor.
24 MR. DEMBER: No objection, your Honor.
25 THE COURT: Okay.
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1 (Juror present)
2 BY THE COURT:
3 Q. Juror 291, I will excuse you. I appreciate your
4 participating in the process and you can go home now and all of
5 your paperwork will be taken care of through the mail.
6 A. All right, thank you very much.
7 Q. All right.
8 (Juror absent)
9 THE COURT: That is it for this morning.
10 I will see you all at 2 o'clock this afternoon.
11 MR. TIGAR: Your Honor, the next juror on our list is
12 292.
13 THE COURT: Yes.
14 MR. TIGAR: At question 9 the juror provided the first
15 name of the spouse and although it's only a first name it is an
16 unusual spelling of a first name, so I didn't know where that
17 fell in terms of the court's practice.
18 THE COURT: I saw that and I didn't think that it
19 would be so demonstrative that it would be disqualifying
20 because without a last name it would be difficult to check that
21 out.
22 Does the government have any view?
23 MR. DEMBER: Your Honor, this particular juror lives
24 in Manhattan so we don't believe that her anonimity has been
25 compromised or the juror's anonimity has been compromised.
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1 THE COURT: Do you agree?
2 MR. TIGAR: We agree. We have no problem with it I
3 just wanted to make sure that the court had seen it and it has
4 and so there was a position taken.
5 THE COURT: Okay. See you this afternoon.
6 (Luncheon recess)
7 (Continued on next page)
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1 AFTERNOON SESSION
2 2:10 p.m.
3 THE COURT: Next is juror 292.
4 MR. TIGAR:
5 (Juror present).
6 BY THE COURT:
7 Q. Good afternoon, juror 292. It's good to see you.
8 Since you were here last, has anything changed
9 concerning your ability to serve as a juror in this case or has
10 anything occurred to you or have you seen or heard anything
11 that may affect your ability to be a fair and impartial juror
12 in this case?
13 A. No, nothing, your Honor.
14 Q. It now appears that the date that the final jury will be
15 chosen in this case will be Monday, June 21. So after today
16 it's unlikely that you will be called to come back before June
17 the 18th. You'll have to call in on June the 18th. Does that
18 present any hardship for you?
19 A. No.
20 Q. Since you were here last, have you spoken to anyone about
21 the case or have you looked at or listened to anything about
22 the case?
23 A. No. I heard one mention that the case was starting on NPR.
24 Q. Anything else?
25 A. No.
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1 Q. Again, if inadvertently you see or hear something, just
2 turn away, all right?
3 A. That's what I did.
4 Q. Has anyone spoken to you about the case? And that includes
5 anyone here at the courthouse or any other prospective juror.
6 A. No.
7 Q. While you were waiting with the other prospective jurors,
8 did you or anyone you overheard discuss the case?
9 A. No.
10 Q. Without telling me the name of the business, can you tell
11 me what type of business your wife runs?
12 A. My wife runs a cooking school.
13 Q. Let me go over the two cases that you -- before that, you
14 mentioned that you have a friend who was a medic in Desert
15 Storm?
16 A. Yes.
17 Q. Is that person back in the United States now?
18 A. Yes. He is a fireman.
19 Q. I'm sorry?
20 A. Yes. He lives in Buffalo, New York.
21 Q. Anything about that that would prevent you from being a
22 fair and impartial juror in this case?
23 A. No.
24 Q. Let me go over your prior jury service. You told us that
25 you were a juror in two prior cases?
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1 A. Yes.
2 Q. One was a civil traffic court in California?
3 A. Yes.
4 Q. And what was the nature of that case?
5 A. I believe it was a drunk driving case.
6 Q. And did that case actually go to a jury verdict? Don't
7 tell us what it was.
8 A. No. The case was dismissed. Somehow, they found one of
9 the jurors went to the site of where the arrest occurred, so
10 the jury was dismissed.
11 Q. There was another case. You had a criminal case in New
12 York State, is that right?
13 A. Correct.
14 Q. And what was the nature of the charge in that case?
15 A. The nature of the charge was against an individual who was
16 charged with drug dealing in New York City.
17 Q. And was that in state court?
18 A. Yes.
19 Q. And how long did the trial in that case last?
20 A. I believe it was about a week, four days of trial and three
21 days of jury deliberation.
22 Q. And that was state court?
23 A. Yes.
24 Q. And without telling us the verdict, did the jury reach a
25 verdict?
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1 A. No, the jury was not able to reach a verdict.
2 Q. Is there anything about those experiences and your
3 reactions to anything about the process or any of the people
4 involved in the process, anything about that that would prevent
5 you from being a fair and impartial juror in this case?
6 A. No, there isn't.
7 Q. You mentioned that someone in your family was sued by
8 someone, your wife's business was sued?
9 A. Yes. My wife was sued by a client. That was settled out
10 of court.
11 Q. Anything about that that would prevent you from being a
12 fair and impartial juror in this case?
13 A. No, not at all.
14 Q. You mentioned that your brother was convicted on a couple
15 of occasions. Can you tell me what the crimes were?
16 A. The first time was attempted murder in the State of New
17 York, and the second time was child molestation in the State of
18 Florida.
19 Q. Was he convicted on both occasions?
20 A. He was convicted on both occasions.
21 Q. And do you recall what the sentences were?
22 A. I only know about the first sentence. I believe it was
23 like five or six years in New York State prison. After that, I
24 lost contact with him, so I don't know what happened in
25 Florida.
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1 Q. Did you visit him at all in prison?
2 A. No, I did not.
3 Q. Is there anything about that experience, those incidents --
4 by the way, did you go to either of the trials?
5 A. I went to a hearing in New York State, but not the actual
6 trial.
7 Q. Anything about any of that and your experience or your
8 experience with any of the participants in that process that
9 would prevent you from being a fair and impartial juror in this
10 case?
11 A. No.
12 Q. You mentioned that you've done some statistical analysis as
13 part of an intellectual property case?
14 A. Yes.
15 Q. And you testified as a result of that?
16 A. I did not testify. I prepared analyses that went to the
17 attorneys and in the end both those cases were settled before
18 trial.
19 Q. There were two cases?
20 A. Yes.
21 Q. Were they related or separate?
22 A. Separate cases.
23 Q. Anything about that or your experience with the process
24 that would prevent you from being a fair and impartial juror in
25 this case?
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1 A. No, sir.
2 Q. You mentioned that there was -- that your deceased
3 father-in-law had an attorney who had a bad experience with a
4 lawyer. Could you describe that?
5 A. My father-in-law, before he died, was seeking to get a
6 divorce. That attorney sort of dragged out the divorce
7 proceedings and getting a final will done, and then he died
8 before anything could be completed. So there was some mess to
9 clean up at the end.
10 Q. Was it your father-in-law who died?
11 A. Yes, my father-in-law did.
12 Q. Is there anything about that that would prevent you from
13 being a fair and impartial juror in this case?
14 A. No.
15 Q. Would you hold any of those experiences against any of the
16 parties or the lawyers in this case?
17 A. No, not in this case, no.
18 Q. You mentioned that you were not very knowledgeable about
19 Islam, the history and practices of Islam. Could you tell me,
20 just describe for me briefly what your general knowledge is.
21 A. My general knowledge is that Islam started around 700 A.D.
22 It's a major world religion. There are two major fractions,
23 Sunni and Shiite. And it is a very different organization than
24 my native catholic church; no pope, for example.
25 Q. And can you tell me what the basis for your knowledge is?
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1 Have you read any books or articles?
2 A. I read some articles after 9/11.
3 Q. Any particular articles that you can recall?
4 A. I guess, some survey articles in the New York Times or Wall
5 Street Journal.
6 Q. Are you bias or prejudiced towards any people of Middle
7 Eastern descent or any people of the Islamic faith?
8 A. No, I am not.
9 Q. Could you describe for me what you saw or heard about the
10 defendants in this case?
11 A. I remember the woman defendant --
12 Q. I'm sorry.
13 A. The woman defendant, Ms. Stewart. The day that she was
14 arrested, I believe I was watching the news at 11:00 and they
15 simply described her background. She had been the attorney for
16 the person already convicted and now she was being charged with
17 certain things.
18 Q. Anything else?
19 A. No.
20 Q. Other than that, is there anything that you can recall
21 seeing or hearing about this case?
22 A. I may have heard about the individuals, more details in the
23 case, but there has been so much going on that I really don't
24 find it distinctive.
25 Q. Can you tell me what you have seen or heard about Sheikh
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1 Abdel Rahman?
2 A. That's the blind Sheikh?
3 Q. Yes.
4 A. I know that he was tried for involvement, I believe, in the
5 first World Trade Center bombing and ultimately convicted.
6 Q. Anything else?
7 A. Nothing particular, no.
8 Q. Is there anything that you have seen, heard or read that
9 would prevent you from being a fair and impartial juror in this
10 case?
11 A. No, I don't believe so.
12 Q. Let me just briefly explain something. Any case or any
13 case that involves matters that have received some publicity,
14 jurors come to the case with the possibility that they have
15 seen or heard something. The law requires that cases be
16 decided solely on the basis of the evidence or lack of evidence
17 in court and not on the basis of anything that jurors may have
18 seen, heard, or read, and there is lots of reasons for that.
19 Fundamentally, the law requires that the case be decided on the
20 basis of evidence that's presented in court that's subject to
21 challenge and that the jurors hear when they are jurors in the
22 case.
23 What jurors may have heard seen or read in the past
24 cannot enter into their deliberations and indeed what the press
25 has published can sometimes be wrong. It's not subject to the
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1 same kinds of verification tests that evidence is subject to in
2 court. So jurors have to put aside anything they have seen,
3 heard, or read and decide the case based solely upon the
4 evidence or lack of evidence in court. Will you do that?
5 A. Yes, I will do that.
6 Q. And is there anything that you have seen, heard, or read
7 that would prevent you from doing that?
8 A. No, there isn't.
9 Q. You mentioned that you have seen tapes of -- from
10 Al-Jazeera on U.S. TV. Other than that what you have seen on
11 U.S. TV, have you watched Al-Jazeera or listened to Al-Jazeera?
12 A. No, I have not.
13 Q. And is there anything that you have seen, heard or read
14 from Al-Jazeera as reported on U.S. TV that would prevent you
15 from being a fair and impartial juror in the case?
16 A. No, there is not.
17 Q. One of the things that you mentioned is that you have seen
18 tapes of Osama Bin Laden on Al-Jazeera as shown on U.S. TV. It
19 is possible that some matter or matters in connection with Bin
20 Laden may come up in evidence in this case.
21 Is there anything about that that would prevent you
22 from being a fair and impartial juror in this case?
23 A. No.
24 Q. If you were chosen as a juror in this case you would be
25 required to decide this case based solely on the evidence or
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1 lack of evidence and in accordance with my instructions on the
2 law. Will you do that?
3 A. Yes.
4 Q. As you can tell from all of my questions, the fundamental
5 issue is whether there is anything in your personal history or
6 life experience that would prevent you from acting as a fair
7 and impartial juror in this case. Let me ask you one final
8 time whether there is anything, whether I have asked you about
9 it specifically or not, that would prevent you from being a
10 fair and impartial juror in this case?
11 A. No, your Honor. I believe the importance of being fair and
12 impartial, I would truly strive to do that.
13 Q. Do you have any reason to doubt that you will be a fair and
14 impartial juror in this case?
15 A. No, I do not.
16 Q. Could you step out for a moment.
17 (Juror absent)
18 MR. TIGAR: Your Honor, the juror mentioned that after
19 9/11 he had read about Islam in the Wall Street Journal and the
20 New York Times. He lives in Tribeca. And I wondered if your
21 Honor would be willing to say to him, as you have to the other
22 jurors, that 9/11 is not involved in this case. But is there
23 anything about that that could affect his ability to be fair
24 and impartial?
25 THE COURT: Okay.
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1 If nothing comes from that, I will tell the juror to
2 call in on June the 18th.
3 (Juror present)
4 BY THE COURT:
5 Q. Just a couple of follow-up questions.
6 You mentioned that you read some matters about Islam
7 after 9/11. I want to advise you that none of the defendants
8 in this case are accused of having done anything in connection
9 with 9/11. This case doesn't involve 9/11, the charges don't
10 involve 9/11, this case doesn't concern 9/11.
11 A. Understood.
12 Q. Is there anything about 9/11 that would prevent you from
13 being a fair and impartial juror in this case?
14 A. No.
15 Q. You are still involved in the jury selection process. I
16 will ask you to call in on June the 18th. Mr. Fletcher will
17 give you a piece of paper to indicate who and when to call.
18 Please, it's very important, remember to follow my
19 continuing instructions. Please don't talk about this case at
20 all. Remember not to look at, listen, read anything to do with
21 the case. If you should see or hear something, just turn away.
22 Remember, as I will tell all the jurors, keep an open mind
23 until you have heard all of the evidence, I have instructed you
24 on the law, and you have gone to the jury room to begin your
25 deliberations. Fairness and justice requires that you do that.
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1 All right?
2 A. Okay.
3 Q. Good to see you.
4 A. Thank you.
5 (Juror absent).
6 THE DEPUTY CLERK: 296.
7 THE COURT: The jury administrator, I believe, advises
8 that juror 294 went home with a leg injury and a doctor's
9 appointment and is scheduled to return tomorrow morning and
10 that juror 319 is here.
11 (Juror present)
12 BY THE COURT:
13 Q. Good afternoon.
14 Juror 296?
15 A. Yes.
16 Q. Good afternoon.
17 A. Good afternoon.
18 Q. Good to see you.
19 A. Thank you. You, too.
20 Q. Since you were here last has anything changed concerning
21 your ability to serve as a juror in this case or has anything
22 occurred to you or have you seen or heard anything that may
23 affect your ability to be a fair and impartial juror in this
24 case?
25 A. Yes, it has.
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1 Q. Tell me about that.
2 A. My financial status has changed since I last was here.
3 Q. What's happened?
4 A. I'm unemployed and so I need to seek employment. I'm
5 currently unemployed. My unemployment ran out and I have to
6 seek employment at this time. So I wouldn't be able to serve
7 for four months.
8 Q. When you were here last and filled out the questionnaire
9 you indicated that it would -- when you knew at that point that
10 you were not employed, you indicated that being on the jury
11 would not be a serious hardship?
12 A. I didn't realize that there was no extension on
13 unemployment. I just found that out.
14 Q. There is no assurance that over this period of time you
15 will actually find other employment, right?
16 A. Well, I'm seeking employment diligently because I need to
17 work.
18 Q. How much time have you been spending looking for another
19 job? When did the unemployment run out?
20 A. It ran out on May 11.
21 Q. How much time do you spend looking for a new job?
22 A. Every day.
23 Q. Do you want to step out for a moment.
24 (Juror absent)
25 THE COURT: I'm prepared to excuse the juror.
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1 MR. DEMBER: We agree, your Honor.
2 MR. TIGAR: We agree, your Honor.
3 (Juror present).
4 BY THE COURT:
5 Q. Juror 296, I'll excuse you. You can go home now and all of
6 your paperwork will be taken care through the mail.
7 A. Thank you, your Honor.
8 (Juror absent)
9 THE DEPUTY CLERK: 304.
10 (Juror present)
11 BY THE COURT:
12 Q. Good afternoon, juror 304.
13 A. Good afternoon.
14 Q. Since you were here last, has anything changed concerning
15 your ability to serve as a juror in this case, or has anything
16 occurred to you or have you seen or heard anything that may
17 affect your ability to be a fair and impartial juror in this
18 case?
19 A. No, nothing has occurred.
20 Q. It now appears that the date that the final jury will be
21 chosen will be Monday, June 21. So after today you won't have
22 to call back until June the 18th. Does that present any
23 serious hardship for you?
24 A. No, not at all.
25 Q. Since you were here last, have you spoken to anyone about
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1 the case or have you looked at or listened to anything about
2 the case?
3 A. No, I have not.
4 Q. Has anyone spoken to you about the case? And that includes
5 any conversations here at the courthouse, or with any other
6 prospective jurors.
7 A. No.
8 Q. While you were waiting with the other prospective jurors,
9 did you or anyone you overheard discuss the case?
10 A. No, we did not.
11 Q. Let me just ask you some follow-up questions on the
12 questionnaire.
13 You mentioned that you live with your parents and your
14 brother. Does your brother work?
15 A. He is a senior in high school right now.
16 Q. You mentioned that someone in your family was in the
17 reserves for 15 years. Who was that?
18 A. That was my aunt, my mother's sister.
19 Q. Anything about that that would prevent you from being a
20 fair and impartial juror in this case?
21 A. No, not at all.
22 Q. You mentioned that you belong to an organization called
23 Estamos El Futuro. Can you describe --
24 A. Hispanic organization. They recently had a conference up
25 in Albany, I believe a month ago.
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1 Q. What does the organization do?
2 A. It's more of assisting out Hispanics getting to higher
3 positioning for themselves.
4 Q. You mentioned that you have a close friend who brought
5 criminal charges against someone?
6 A. Close friend that -- someone in my family had sued someone
7 else. I believe they sued a doctor for malpractice.
8 Q. What happened to that suit?
9 A. I don't know. It was a distant relative. I don't speak to
10 them any longer.
11 Q. You had also checked on the questionnaire that there was a
12 question whether you or someone close to you had ever brought
13 criminal charges against someone. And you checked off yes for
14 a close friend. Do you recall?
15 A. I believe it was -- something was stolen from a close
16 friend. I'm not a hundred percent sure why I put that down.
17 Q. You also checked yes for a close friend suing someone?
18 A. I believe with regards to the malpractice lawsuit.
19 Q. Is there anything about either of those incidents that
20 would prevent you from being a fair and impartial juror in this
21 case?
22 A. No, not at all.
23 Q. You mentioned that either you or someone close to you
24 belonged to an organization, the purpose of which was to defend
25 people's civil liberties and civil rights. And you said you
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1 don't know the name of the organization that they were part of.
2 And my question is, do you recall some organization? Was it
3 you or --
4 A. It was someone in my family.
5 Q. And you don't recall the name --
6 A. I don't recall the name of the organization. It's another
7 one of my aunt's -- my mother's sister. She is in all of the
8 organizations for the Hispanic community.
9 Q. Anything about that that would prevent you from being a
10 fair and impartial juror in this case?
11 A. No, not at all.
12 Q. You mentioned that your uncle is an attorney. Don't tell
13 me what firm and practice he is at, but what kind of law he
14 practices, if you know?
15 A. I believe it's real estate.
16 (Continued on next page)
17
18
19
20
21
22
23
24
25
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1 Q. And you mentioned that you have a close friend who is a
2 paralegal or was a paralegal?
3 A. Yes.
4 Q. Again without telling me the name of the law firm or so, do
5 you know what kind of organization the paralegal worked for?
6 A. I believe he worked for entertainment law.
7 Q. Okay.
8 And is there anything about those connections that
9 would prevent from you being a fair and impartial juror in this
10 case?
11 A. No, not at all.
12 Q. You mentioned that you had a close friend who is a retired
13 FBI agent. Do you know when that friend retired?
14 A. I believe he retired 5 or 6 years ago.
15 Q. Okay.
16 It's possible that in this case law enforcement
17 officials, including possibly FBI agents, may be witnesses.
18 The law is that no witness is entitled to any greater or lesser
19 credibility based on their occupation. Will you follow that
20 instruction?
21 A. Yes.
22 Q. Is there anything about the fact that you have a close
23 friend who is a retired FBI agent that would prevent you from
24 following that instruction?
25 A. No.
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1 Q. Anything about that that would prevent from you being a
2 fair and impartial juror in this case?
3 A. No.
4 Q. You mentioned that you have worked with someone from Iran.
5 Is there anything about that that would prevent you from being
6 a fair and impartial juror in this case?
7 A. No, not at all.
8 Q. Do you have any biases or prejudices against any people of
9 Middle Eastern descent or any people of the Islamic faith?
10 A. No.
11 Q. You said that you were not very knowledgeable about the
12 history and practices of Islam. Could you just tell me in
13 general what the general extent of your knowledge is?
14 A. My general extent is I know of Ramadan and I know the
15 Muslims have to pray at a certain time during the day towards
16 the east. That is pretty much the extent of it.
17 Q. Do you recall reading any particular books or articles
18 about Islam?
19 A. No.
20 Q. Anything about that that would prevent you from being a
21 fair and impartial juror in this case?
22 A. No.
23 Q. You mentioned that a girl that you graduated high school
24 with had died in the Twin Towers. This case is not about 9/11.
25 The defendants are not charged with having done anything in
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1 connection with 9/11. This case is simply not about 9/11. Is
2 there anything about the girl that you knew or anything about
3 9/11 that would prevent you from being a fair and impartial
4 juror in this case?
5 A. No.
6 Q. If you were chosen as a juror in this case, you would be
7 required to decide this case based solely on the evidence or
8 lack of evidence and in accordance with my instructions on the
9 law. Would you do that?
10 A. Yes.
11 Q. As you can tell from all of these questions, the
12 fundamental issue is whether there is anything in your personal
13 history or life experience, whether I have asked you about it
14 specifically or not, that would prevent you from being a fair
15 and impartial juror in this case. So let me ask you one final
16 time whether there is anything, whether I have asked you about
17 it specifically or not, that would prevent you from being a
18 fair and impartial juror in this case?
19 A. No, there is nothing.
20 Q. Okay.
21 Could you step out for a moment.
22 (Juror absent)
23 THE COURT: No questions, no challenges?
24 Call back Juror 304.
25 (Juror present)
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1 BY THE COURT:
2 Q. Hi, Juror 304.
3 You are still in the jury selection process. So I
4 will ask you to call back on June 18th. Mr. Fletcher will give
5 you a note explaining who to call, where to call. Please
6 remember to follow my continuing instructions. Please don't
7 talk about this case at all. Remember not to look at or listen
8 to anything to do with the case. Remember always, as I will
9 instruct the jurors, remember to keep an open mind until you
10 have heard all of the evidence, I have instructed you on the
11 law and you have gone to the jury room to begin your
12 deliberations. Fairness and justice to the parties requires
13 that you do that.
14 All right?
15 A. Yes.
16 Q. All right. Have a good day.
17 (Juror absent)
18 THE CLERK: 311.
19 (Juror present)
20 BY THE COURT:
21 Q. Good afternoon, Juror 311.
22 A. Good afternoon.
23 Q. Since you were here last has anything changed concerning
24 your ability to serve as a juror in this case or has anything
25 occurred to you or have you seen or heard anything that may
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1 affect your ability to be a fair and impartial juror in this
2 case?
3 A. No.
4 Q. It now appears that the date that the final jury will be
5 chosen in the case will be Monday, June 21st. So after today
6 you won't have to call back until June 18th. Does that present
7 any serious hardship for you?
8 A. No.
9 Q. Since you were here last have you spoken to anyone about
10 this case or have you looked at or listened to anything about
11 the case?
12 A. No.
13 Q. Has anyone spoken to you about the case?
14 A. No.
15 Q. And that includes any conversations here at the courthouse
16 or with any other prospective jurors.
17 A. Correct.
18 Q. And while you were waiting with the other prospective
19 jurors, did you or anyone you overheard discuss the case?
20 A. No.
21 Q. You mentioned that you live with your mother's sister and
22 your sister's three daughters.
23 A. Right.
24 Q. Can you tell me if any of the other members of your
25 household or what the other members of your household do? Are
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1 they employed?
2 A. Actually my sister is a nurse. Three days ago my father
3 just came from Colombia, so it's something new that is not
4 there.
5 Q. Okay, thank you.
6 A. And I actually live with a partner as I mentioned there
7 too.
8 Q. I am sorry?
9 A. I also live with a partner.
10 Q. Okay.
11 Is your father employed now?
12 A. No, he just got back from Colombia two days ago and he is
13 retired in Colombia, so in the future I think he will be
14 working.
15 Q. And what did he do before he was retired?
16 A. He was -- he retired as a truckdriver in Colombia.
17 Q. Okay.
18 Q. And does your mother work outside the home?
19 A. Actually she is also retired from Colombia. She was a
20 principal of a school in Colombia and also she is retired.
21 Q. Okay.
22 A. So at the moment she is not working. She just takes care
23 of the house.
24 Q. And is your partner employed?
25 A. Yes.
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1 Q. And what does your partner do?
2 A. He works for a neighborhood organization here in the city
3 for corner visions for private schools.
4 Q. And what sort -- again, don't tell me the name of the
5 organization but what sort of work does your partner do for
6 that organization?
7 A. They manage public schools in the city, all over the city.
8 That is what they do.
9 Q. Okay.
10 And the children who live in the house, your sister's
11 children, they are too young and they don't work, right?
12 A. Yes, correct.
13 Q. All right.
14 Q. You mentioned I believe that you were divorced?
15 A. Correct.
16 Q. And you mentioned in response to a question that your
17 spouse or partner had completed or significant other had
18 completed a post graduate degree.
19 A. Correct.
20 Q. Was that your former wife?
21 A. No.
22 Q. That is your partner?
23 A. That is the partner now, correct.
24 Q. And your partner has a masters in English literature and
25 math?
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1 A. Correct.
2 Q. Okay.
3 Can you tell me, you mentioned that some member of
4 your family was in the Army for 2 years?
5 A. Correct, my cousin.
6 Q. And you mention that you had a cousin or cousins in Iraq.
7 A. No, I don't. Did I mention that?
8 Q. The question was have you or anyone you know served
9 overseas in the ongoing wars in Iraq or Afghanistan or
10 operation Desert Storm or in the Persian Gulf.
11 A. My cousin she was in Iraq but now she is here in North
12 Carolina. She was in Iraq about last year. Now she is back to
13 North Carolina I think.
14 Q. Okay.
15 What service was she in?
16 A. I know she was in the Army but I have no idea what she was
17 doing there.
18 Q. Okay.
19 The military service by your cousins, anything about
20 that that would prevent you from being a fair and impartial
21 juror in this case?
22 A. No, I don't think so.
23 Q. You mention that you vacationed in Egypt in 2002 with with
24 relatives?
25 A. Correct.
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1 Q. Can you tell me where did you go in Egypt?
2 A. Actually it was on a cruise and we went to Alexandria and
3 we went in a tour to the desert, to the Pyramids, and we stayed
4 there like a couple of days only. Like I say, it was a cruise
5 through the Mediterranean.
6 Q. There may be evidence in this case concerning events in
7 Egypt but if you were chosen as a juror in this case you would
8 have to decide this case based solely on the evidence or lack
9 of evidence that is received in this case.
10 Will you do that?
11 A. Sure, I will.
12 Q. And you mention that you have a friend from Egypt. Is
13 there anything about that that would prevent you from being a
14 fair and impartial juror in this case?
15 A. No.
16 Q. You mention that you are somewhat knowledgeable about
17 Islam. Can you tell me in general what you know about the
18 history and practices of Islam?
19 A. Well, I know that they are like regular religions. They
20 are people who take the religion very to the extremes and other
21 people who are just, you know, they don't go to the extremes.
22 I mean, that is about it.
23 Q. Okay.
24 Do you recall reading any specific books or articles
25 about Islam?
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1 A. No. Whatever I took in college about the religion in
2 general.
3 Q. All right.
4 Is there anything about what you have seen, heard or
5 read about Islam that would prevent you from being a fair and
6 impartial juror in this case?
7 A. No.
8 Q. The jurors who sit in this case will be instructed that
9 they must base their decision entirely on the evidence produced
10 in court and not from any outside source or pre-existing
11 opinion or attitude.
12 Can you do that despite anything you may have read,
13 seen or heard about this case?
14 A. Yes.
15 Q. Okay.
16 You had said "no" on the questionnaire and I thought
17 it might be a mistake because it came -- was that a mistake?
18 A. Yes, it was a mistake. I am sorry, yes.
19 Q. If you were chosen as a juror in this case, you would be
20 required to decide the case based solely on the evidence or
21 lack of evidence and in accordance with my instructions on the
22 law.
23 Will do you that?
24 A. Yes.
25 Q. As you can tell from all of these questions, the
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1 fundamental issue is whether there is anything in your personal
2 history or life experience that would prevent you from being a
3 fair and impartial juror in this case.
4 A. No.
5 Q. Okay.
6 Let me ask you one final time whether there is
7 anything, whether I have asked you about it specifically or
8 not, that would prevent you from being a fair and impartial
9 juror in this case?
10 A. No.
11 Q. Okay.
12 Could you step out for a moment?
13 (Juror absent)
14 THE COURT: All right, no questions, no challenges?
15 Let's bring back Juror 311.
16 (Juror present)
17 BY THE COURT:
18 Q. Juror 311, you are still in the jury selection process. So
19 I will ask you to call back on June 18th. Mr. Fletcher will
20 give you a slip of paper to indicate who to call and all. It's
21 very important that you follow my instructions. Please don't
22 talk about this case at all. Please don't look at or listen to
23 anything to do with the case. If you should see or hear
24 something just turn away.
25 Remember always, as I will tell the jurors who are
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1 finally selected, keep an open mind until you have heard all of
2 the evidence, I have instructed you on the law and you have
3 gone to the jury room to begin your deliberations. Fairness
4 and justice to the parties requires that you do that.
5 All right?
6 A. Yes.
7 (Juror absent)
8 THE CLERK: 314.
9 (Juror present)
10 BY THE COURT:
11 Q. Good afternoon, Juror 314. Good to see you.
12 Since you were here last has anything changed
13 concerning your ability to serve as a juror in this case or has
14 anything occurred to you or have you seen or heard anything
15 that may affect your ability to be a fair and impartial juror
16 in this case?
17 A. Yes.
18 Q. Okay. What happened?
19 A. I had a disagreement with my wife on a question of
20 hardship.
21 Q. Okay.
22 A. She believes that we cannot afford it, me not working for 4
23 to 5 months and paying a mortgage and the college of our son.
24 We had a different view of hardship.
25 Q. Okay.
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1 So tell me, having thought about the issue of economic
2 hardship, you are self-employed.
3 A. Yes.
4 Q. And you would be --
5 A. We would have to spend our life savings basically.
6 Q. I am sorry?
7 A. We would have to spend our savings during that time.
8 Q. Okay.
9 And having thought about it and discussed it with your
10 wife your conclusion is it would be a serious economic hardship
11 for you?
12 A. Yes, I had to agree with her.
13 Q. Okay. Could you step out for a moment.
14 (Juror absent)
15 THE COURT: I am prepared to excuse the juror.
16 MR. TIGAR: No objection, your Honor.
17 MR. DEMBER: No objection.
18 (Juror present)
19 BY THE COURT:
20 Q. All right, Juror 314, you are excused. I appreciate your
21 having participated in the process and you can go home now and
22 all of your paperwork will be taken care of by mail?
23 A. Thank you.
24 (Juror absent)
25 THE CLERK: 318.
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1 (Juror present)
2 BY THE COURT:
3 Q. Good afternoon, Juror 318.
4 A. Good afternoon.
5 Q. Good to see you.
6 Since you were here last has anything changed
7 concerning your ability to serve as a juror in this case or has
8 anything occurred to you or have you seen or heard anything
9 that may affect your ability to be a fair and impartial juror
10 in case?
11 A. I believe so. Yes.
12 Q. And what is that?
13 A. I recalled having seen, much earlier than being summoned,
14 news reports regarding the people involved.
15 Q. Okay.
16 A. This is maybe 2 years ago.
17 Q. Okay.
18 Anything else?
19 A. No.
20 Q. What do you recall about those news reports?
21 A. Lynne Stewart, and my understanding was -- my recollection
22 was that she was defending someone and had been accused of
23 certain activities that were illegal.
24 Q. Okay. Anything else?
25 A. No, that was very general, but it did come back to me.
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1 Q. Well, I very much appreciate your bringing it to my
2 attention. If you were chosen as a juror in this case, the
3 jurors are told that under the law they are required to decide
4 a case based solely upon the evidence or lack of evidence and
5 my instructions on the law. And it's possible that jurors have
6 seen or heard something about the case or people involved in
7 the case and jurors have to simply put that aside and decide
8 the case based solely upon the evidence or lack of evidence
9 received in court.
10 Do you understand that?
11 A. I do.
12 Q. And if you were a juror would you do that?
13 A. I could do that.
14 Q. Okay.
15 It now appears that the date that the final jury will
16 be chosen in this case will be Monday, June 21st. So after
17 today it's unlikely that you will be called to come back until
18 June 18th.
19 Does that present any serious hardship for you?
20 A. None that I can think of at this time.
21 Q. Okay.
22 Since you were here last have you spoken to anyone
23 about the case or have you looked at or listened to anything
24 about the case?
25 A. No.
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1 Q. Has anyone spoken to you about the case, and that includes
2 any conversations here at the courthouse or with any other
3 prospective jurors?
4 A. Co-workers teasing me, you know.
5 Q. I am sorry?
6 A. Co-workers, what are you doing, and I said I can't tell
7 you.
8 Q. Good.
9 A. Other than that nothing.
10 Q. While you were waiting with the other prospective jurors,
11 did you or anyone you overheard discuss the case?
12 A. No.
13 Q. Okay.
14 Now, in discussing serious hardship on the
15 questionnaire, you said that you thought that this case would
16 be a serious hardship and first you said you thought it would
17 be a serious economic hardship.
18 A. Well, I am the only one on my job who does what I do and if
19 I am not working I am not really clear on my employer's policy
20 regarding jury duty.
21 Q. You were for the New York State court system, right?
22 A. Correct.
23 Q. What we have done is if there were an issue as to whether
24 an employer would pay, an employee can go back and check with
25 their employer whether the employer will pay. I have no
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1 question in my mind that the New York State court system would
2 pay the salary of any of their employees who are called for
3 jury duty, whether it be in the state court or the federal
4 court. Indeed, the New York State courts have made it very
5 clear that jury service is very important and that public
6 officials, judges, right up through the Chief Judge of the
7 Court of Appeals of the State of New York, are called for jury
8 duty. So do you have any real --
9 A. I picked up the pamphlet that we prepared for that purpose
10 but I didn't find anything that addressed the federal courts.
11 Q. Do you have any question?
12 A. None.
13 Q. Do you have any question in your mind?
14 A. None officially. I need to check with HR.
15 Q. You could check with Chief Judge Kaye.
16 A. Yes, I could.
17 Q. And there is no real question in your mind, is there, that
18 your salary would be paid? Isn't that right?
19 A. I will check with the judge.
20 Q. You can check. Okay.
21 Now, the second issue that you raised is that you work
22 for the court system and that there is no one else in the court
23 system who can quite do what you do.
24 A. That is correct.
25 Q. Okay.
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1 Now, you can check also with the New York State court
2 system whether if you were called for jury duty in the same way
3 that judges, public officials and everyone else can go for jury
4 service, whether you could be spared, whether others could do
5 your work or people can pitch in. So the question is for your
6 employer, and again I tell people not to tell them anything
7 about the case or what the individual matters are because you
8 can't talk about the case. All you can say is you have been
9 asked to be a juror in a long case and can accommodations be
10 made for you. That is all. Okay?
11 A. Yes.
12 Q. And assuming that the answer from your employer is yes, you
13 will be paid and, yes, accommodations can be made for you to be
14 spared, do you have any serious hardship?
15 A. No.
16 Q. Okay.
17 Now, I decide issues of hardship and I want you to
18 check on those things but I also want to make sure if you were
19 chosen as a juror in this case and I, after listening to what
20 you tell me from your employer, conclude that you can serve,
21 that you will be a fair and impartial juror, that you wouldn't
22 for a moment hold it against any of the parties in this case
23 that I determine that there is no hardship here. If you were
24 chosen would you be a fair and impartial juror?
25 A. Yes. You mean because I am angry at you I would take it
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1 out on other individuals?
2 Q. Yes.
3 A. No.
4 Q. Would you have any resentment against any of the parties in
5 this case or any of their lawyers?
6 A. For your deciding that I could serve?
7 Q. Yes.
8 A. No.
9 Q. Would you have any feelings as a result of my decision that
10 you could serve that would interfere with your ability to be a
11 fair and impartial juror in this case?
12 A. No.
13 Q. You mentioned that you live with your godparents. Can you
14 tell me what they do?
15 A. Well, my uncle -- he is not my uncle, he is my godfather.
16 He is a retired superintendent and his wife, and he recently
17 became unemployed and I have kind of taken him in.
18 Q. Okay.
19 A. And his wife.
20 Q. And is his wife employed?
21 A. She does child care.
22 Q. Okay.
23 You mention that you had maternal uncles and aunts who
24 were in the Armed Forces, in the Air Force and the Marines.
25 A. Yes.
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1 Q. Is there anything about that that would prevent you from
2 being a fair and impartial juror in this case?
3 A. No.
4 Q. You mention that you had a family member or members who
5 were in Vietnam. Could you tell me who, and what the
6 relationship was to you?
7 A. An uncle who was an officer in the Air Force and a cousin
8 who was an infantry medic.
9 Q. Okay.
10 Anything about that that would prevent you from being
11 a fair and impartial juror in this case?
12 A. No.
13 Q. You mention that you were on two criminal juries in the
14 state court in the Bronx and could you just explain to me
15 briefly what the charges were in each of those cases?
16 A. Well, my best recollection is that it's a very long time
17 ago. There was one case where a landlord and tenant had a
18 dispute. It was a two-family house. The landlord lived in the
19 property along with the tenant. There was a dispute that
20 escalated and -- it escalated into an altercation. The
21 landlord attempted to hit the tenant with a tire iron and his
22 wife was -- the landlord's wife was struck by the landlord in
23 the commotion. So the landlord -- the tenant was on trial as a
24 result of this occurrence.
25 Q. Okay.
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1 And without telling us what the verdict was, the jury
2 reached a verdict in that case, is that right?
3 A. Yes, the defendant was not guilty.
4 Q. Okay.
5 And in the other case, tell me what the other case was
6 about.
7 A. An off duty security guard was walking across a park and
8 observed a crowd of people and a very large man was attacking a
9 smaller man with a baseball bat and the security guard took out
10 a Saturday night special and shot the large man who was
11 attacking the smaller man dead. It was not a licensed gun
12 situation.
13 Q. Okay.
14 And in that case without telling us what the verdict
15 was, did the jury reach a verdict?
16 A. Yes.
17 Q. All right.
18 Is there anything about your participation in those
19 trials that would -- and your reaction to the process and the
20 participants, anything about that that would prevent you from
21 being a fair and impartial juror in this case?
22 A. No. If anything, in one of the cases it gave me a new
23 respect for the voir dire.
24 Q. Okay.
25 In answering the question on the questionnaire you
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1 were asked do you think that your prior jury service would in
2 any way impair or interfere with your ability to serve as a
3 juror and you said yes.
4 A. Well, because it's a double-edged sword. We have to go
5 through this process and it just -- it has to be done. As bad
6 as it is, it's the best there is. So it's yes and no.
7 Q. I am sorry?
8 A. It's a yes and no answer.
9 Q. Okay.
10 You say it gave a new respect for voir dire. People
11 come to the process -- what did you mean by that, by the way?
12 A. What did I mean by what?
13 Q. That it gave you a new respect.
14 A. Because it can be very boring and you are like what are
15 they getting at? Why are they asking this? And one question
16 was asked and the answer made me sit up in my seat. I was
17 shocked at what I heard and that I could hear this from a
18 person who I perceived as a thinking, socialized person, and to
19 hear the response that I heard was just mind-boggling and made
20 me realize that we must do this.
21 Q. All right.
22 Now, as you know, and as I previously told you, one of
23 the things that jurors have to do is to put aside any of their
24 prior reactions or things that they may have heard or seen and
25 decide a case, this case, based solely on the facts, the
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1 evidence in this case and my instructions on the law. And so
2 that is why we go over the prior experience in order to ask
3 whether there is anything in that experience that would prevent
4 you from deciding this case based solely on the evidence or
5 lack of evidence in this case and my instructions on the law.
6 Is there?
7 A. Well, no. As I said, this is the way it is. This is the
8 way we do it and it works.
9 Q. Okay.
10 If you were chosen as a juror, would you be a fair and
11 impartial juror in this case?
12 A. I believe so.
13 Q. All right.
14 Do you have any reason to doubt your ability to be a
15 fair and impartial juror in this case?
16 A. No.
17 Q. You mentioned that you appeared before a grand jury, a
18 state grand jury, and you were asked to explain a
19 notice-to-appear process.
20 A. Yes.
21 Q. Did you appear as a fact witness or as an expert witness?
22 A. I don't know what my status was at that time. I was asked
23 by the Westchester County ADA to appear and we didn't discuss
24 the title of my status at that time.
25 Q. Okay.
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1 Is there anything about that experience that would
2 prevent you from being a fair and impartial juror in this case?
3 A. No.
4 Q. You mentioned that your aunt was the victim of a crime,
5 that she was hit over the head, and was someone prosecuted for
6 that?
7 A. I don't know that. That was my cousin's grandmother but
8 she was in her 90s when these people did this to her coming out
9 of a bank and I really don't know the particulars other than
10 having observed her in the hospital bed with halo on.
11 (Continued on next page)
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1 BY THE COURT:
2 Q. And you mentioned that someone in your family sued someone?
3 A. I don't recall. If you could refresh me.
4 Q. You were asked whether someone in your family sued someone
5 and you said yes?
6 A. I had an uncle who was an attorney. He was suing people
7 all the time.
8 Q. You mentioned that you had a maternal uncle who was a
9 criminal defense attorney.
10 A. But personally he had issues, I think? What did you mean
11 by -- you know, he had -- I have to tell you a story. I jumped
12 on my couch one day, I jumped from one room to the other and I
13 hit my eye on the couch, and he said: Where did you get the
14 couch from? Klein Sleep, many years ago. He said: They are
15 big enough to sue.
16 This was the kind of kind of guy he was. He is dead
17 now.
18 Q. He did civil and criminal defense work?
19 A. His main stead was criminal defense.
20 Q. You were asked whether anyone has been sued by someone and
21 you said yes, some member of your family. I don't know whether
22 that was supposed to refer to your uncle also.
23 A. I suspect. I don't know what my state of mind was at that
24 point of the very long survey. I may have been just answering.
25 Q. And you were asked whether anyone you knew was in prison
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1 and you said yes, your grand nephew was convicted of murder.
2 A. Um-hum.
3 Q. And when was that?
4 A. I'll say approximately ten years ago.
5 Q. And was that in the state court?
6 A. Yes.
7 Q. And what was the sentence?
8 A. I think it was 25 to life. I am not sure.
9 Q. Did you go to the trial in that case?
10 A. No.
11 Q. Have you visited --
12 A. No. I have nothing to do with that part of my family.
13 Q. Now, is there anything about any of these matters that I
14 have covered with you or your reactions to the process or any
15 of the people or anything in any of those incidents that would
16 prevent you from being a fair and impartial juror in this case?
17 A. No, I don't think so. Not at this point in time.
18 Q. What do you mean, at this point in time?
19 A. These things happened 10, 15, 20 years ago. I was very
20 angry and upset at that time, and I'm not anymore.
21 Q. You mentioned at one time you were unfairly detained by the
22 New York Police Department?
23 A. Yes.
24 Q. Could you just describe what happened?
25 A. I was about 20, 19. I was coming from my aforementioned
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1 cousin's funeral, the Vietnam vet, and we were getting on a
2 train, my sisters, and I were getting on a train coming from
3 Brooklyn, and I put my token in the turnstile and went through
4 and my sisters had to stop and get tokens. And I'm pulling in
5 the train door, along with about 10, 15 other students and I'm
6 saying, come on, come on, come on. And this cop comes out of
7 nowhere and he grabs me by my coat collar, he pulls me out of
8 the train, and he put its his two hands in my chest and pushes
9 me, and I just go back. My hands are in my coat pocket. And
10 he did it two more times.
11 And he pushed me three times and I don't think -- my
12 reaction was not the normal reaction, which is to put your
13 hands up in a defensive posture. I think because I was so
14 emotionally drained coming from a funeral I had nothing in me.
15 He pushed me three times and I went back each time. He
16 proceeded to write me a summons for interfering with a transit
17 facility which at the time the fine was $10. I just said I
18 would pay it. My sisters were screaming. No. We are going to
19 court. They went to the court. And the judge reduced the fine
20 from 10 to $5. I think that says a lot about the officer's
21 actions.
22 Q. Anything about that situation that would prevent you from
23 being a fair and impartial juror in this case?
24 A. Not now. It made me more aware -- we are all human and
25 that guy clearly had a problem that day. Fortunately, for both
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1 of us, I was emotionally drained.
2 Q. You mentioned that you were a former corporate paralegal.
3 Can you tell me, without telling me the name of the firm, what
4 kind of firm it was at which you were a paralegal?
5 A. It was a law firm, Madison Avenue.
6 Q. Big firm, small firm?
7 A. Medium large firm. And we did mostly transactions with
8 banks and power companies. They had a bond department. We had
9 also a trademark infringement department, insurance. So I got
10 to do a little work in all those areas.
11 Q. Anything about that that would prevent you from being a
12 fair and impartial juror in this case?
13 A. No.
14 Q. You told us that you work for the court system. Is there
15 anything about your occupation that would prevent you from
16 being a fair and impartial juror in this case?
17 A. I think, if anything, it has given me more insight into
18 people. So, no, the answer is no.
19 Q. You were asked whether you had strong views about lawyers,
20 and you said yes. In summary, lawyers need to be reminded more
21 than nonlawyers to be courteous.
22 A. I deal a lot in the court system with what are called court
23 attorneys. And in my opinion, this group of people frequently
24 act rude, I would say is the way to put it. And my job is to
25 train and educate them. And on more than one occasion there
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1 have been some interactions that have been less than
2 professional, in my opinion, and I have very strong opinions
3 regarding that.
4 Q. The next question, you said that you yourself were the
5 subject of rude treatment?
6 A. Absolutely. I was ready to write to Character and Fitness
7 regarding this guy, absolutely. He was totally out of bounds
8 and he had to be told by an attorney in my department that he
9 had better apologize, and he begrudgingly apologized to me and
10 I decided not to engage in that battle. Had he not, there
11 would have certainly been a letter from me to Character and
12 Fitness regarding his demeanor.
13 Q. Is there anything about any of those incidents or about
14 what you do that would prevent you from being a fair and
15 impartial juror in this case?
16 A. I think I'm more aware of what I consider inappropriate
17 lawyerly or nonlawyerly behavior and decorum. I may have a
18 higher standard in that regard.
19 Q. One of the things that I tell jurors is the issue in the
20 case is not the lawyers. The issue in the case is whether the
21 government has proven the charges in the indictment beyond a
22 reasonable doubt based on the evidence or lack of evidence and
23 in accordance with my instructions on the law. It doesn't make
24 a difference whether you, the jurors, like a lawyer or don't
25 like a lawyer. It doesn't make a difference whether you think
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1 that I like a lawyer.
2 The only issue is whether the government has proven
3 the charges in the indictment beyond a reasonable doubt. So
4 will you follow that instruction?
5 A. Maybe I need to expound on that. I'm not talking about
6 liking or disliking an attorney. I'm talking about how an
7 attorney interacts with their colleagues. I can certainly
8 determine whether or not a person is being respectful to
9 another person. And this is where my litmus test, I believe --
10 I hope you understand that focus. I'm not talking about I
11 don't like that guy because I don't like his haircut. I am
12 talking about how one person addresses another person and how
13 they act when dealing with them.
14 Q. But the issue at trial is not whether you think that
15 lawyers are respectful or disrespectful, rude or not rude.
16 These are questions of style and ultimately they are matters
17 for the Court to regulate. The important issue is whether you
18 would allow anything like that to interfere with your sworn
19 duty as a juror, which is to assess the evidence and to ask
20 whether the government has proven the charges in the indictment
21 beyond a reasonable doubt based on the evidence or lack of
22 evidence and my instructions on the law. And so would you
23 follow those instructions?
24 A. I don't know. I have to be very honest with you. I am
25 very sensitive regarding that matter. And having been a victim
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1 of a rude attorney and I really -- it's very important to me
2 that these professionals treat each other professionally, very
3 important to me. Because in my opinion, they all aspire a
4 higher office. They all aspire to be judges, in my opinion.
5 And you've got to be better than the rest of us. So decorum
6 and attitude and demeanor among professionals is very important
7 to me.
8 Q. Are you telling me that if you were concerned about the
9 demeanor or decorum of the attorneys that you would let it
10 interfere with your duty as a juror --
11 A. That's not what I'm saying. I'm saying I have a heightened
12 sensitivity regarding that.
13 Q. The issue is whether it would interfere with your ability
14 to decide the case, based upon the evidence or lack of evidence
15 and my instructions on the law.
16 A. I don't know.
17 Q. I'm sorry?
18 A. I don't know.
19 Q. Could you just step out for a moment.
20 (Juror absent)
21 THE COURT: I am going to stop at this point or pursue
22 it. But I'm also happy or prepared to strike the juror at this
23 point.
24 MR. TIGAR: You mean remove him from the jury pool.
25 THE COURT: Yes.
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1 MR. TIGAR: We consent, your Honor.
2 MR. DEMBER: So do we, your Honor.
3 (Juror present)
4 THE COURT: Juror 318, I'll excuse you as a juror.
5 You can go home now and all of your paperwork will be taken
6 care of by mail.
7 A. Thank you.
8 (Juror absent)
9 THE DEPUTY CLERK: 319.
10 (Juror present)
11 BY THE COURT:
12 Q. Good afternoon, juror 319.
13 A. Good afternoon.
14 Q. Since you were here last, has anything changed concerning
15 your ability to serve as a juror in this case, or has anything
16 occurred to you, or have you seen or heard anything that may
17 affect your ability to be a fair and impartial juror in this
18 case?
19 A. No.
20 Q. It now appears that the date that the final jury will be
21 chosen in this case will be Monday, June 21. So after today
22 you won't have to call back until June the 18th. Does that
23 present any serious hardship for you?
24 A. No.
25 Q. Since you were here last, have you spoken to anyone about
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1 this case, or have you looked at or listened to anything about
2 the case?
3 A. I've told a few people at work that I was in the jury pool
4 for the case, but not discussed it.
5 Q. I'm sorry. You told them --
6 A. That I was in the jury pool for the case, but I have not
7 discussed it.
8 Q. For this particular case, or for a case?
9 A. I told them broadly that it was a case. They asked me what
10 the case was. I told them it was this case. That was the end
11 of the discussion.
12 Q. I should have made it clearer that you should just say that
13 you're involved in jury selection for a criminal case, a case,
14 but not tell them anything about the case. Did you discuss the
15 case at all?
16 A. No.
17 Q. Since you were here last, have you spoken to anyone about
18 the case or have you looked at or listened to anything about
19 the case?
20 A. No.
21 Q. Has anyone spoken to you about the case? And that includes
22 any conversations here at the courthouse or with any other
23 prospective jurors.
24 A. No.
25 Q. While you were waiting with the other prospective jurors,
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1 did you or anyone you overheard discuss the case?
2 A. No.
3 Q. It becomes clear going through the questionnaire that
4 you're an attorney at a law firm. You've mentioned the law
5 firm. In general, what kind of law do you practice at the
6 firm?
7 A. Litigation.
8 Q. And what kinds of litigation?
9 A. Business litigation.
10 Q. I'm sorry?
11 A. Business litigation. I do some bankruptcy work. I've been
12 involved in some of the investigations of mutual funds, breach
13 of contract cases, fraudulent conveyances.
14 Q. Did you get involved in any criminal defense work?
15 A. I have not.
16 Q. You mentioned that one of the organizations that you belong
17 to is JCC. What is JCC?
18 A. Jewish Community Center. It's an athletic and community
19 center. They hold classes for children and adults on Jewish
20 and non-Jewish projects.
21 Q. Anything about your membership in that organization or any
22 of the organizations that you belong to that would prevent you
23 from being a fair and impartial juror in this case?
24 A. No.
25 Q. You mentioned that your father was in the army. Anything
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1 about that that would prevent you from being a fair and
2 impartial juror in the case?
3 A. No.
4 Q. You mentioned that your family is planning to visit Israel
5 early next year. Anything about that that would prevent you
6 from being a fair and impartial juror?
7 A. No.
8 Q. You mentioned that either you or members of your family
9 have been members of People for the American Way?
10 A. My husband and I are currently.
11 Q. And that you've been members of Amnesty International?
12 A. Um-hum.
13 Q. Is that right?
14 A. Yes.
15 Q. And other groups that take positions on law enforcement
16 issues?
17 A. Yes.
18 Q. What other groups that you can --
19 A. The American Civil Liberties Union. Those are the ones
20 that come to mind. We are now or have been members of
21 organizations of that ilk.
22 Q. Anything about that that would prevent you from being a
23 fair and impartial juror in this case?
24 A. No.
25 Q. You mentioned that you and people close to you have been
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1 victims of burglary and assault. Do you know if any of those
2 cases resulted in any prosecution?
3 A. They did not.
4 Q. You mentioned that your house was burglarized?
5 A. When I was a child.
6 Q. And that you and your husband sued Federal Express in small
7 claims court, is that right?
8 A. They rear-ended our car.
9 Q. What was the result of that case?
10 A. It was settled.
11 Q. Is there anything about any of these experiences with the
12 legal process or with any of the participants in the process
13 that would prevent you from being a fair and impartial juror in
14 this case?
15 A. No.
16 Q. You mentioned that you had represented clients in a lawsuit
17 against New York City?
18 A. Yes.
19 Q. Tell me what kind of lawsuit that was.
20 A. It was a class action alleging racial profiling by the
21 street crimes unit.
22 Q. Is that case ongoing, or has it been resolved?
23 A. The fee petition is ongoing. The underlying dispute has
24 been resolved. It was settled.
25 Q. You mentioned that you have challenged tax claims from the
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1 IRS. Is that personally or on behalf of clients?
2 A. Personally. That was many years ago.
3 Q. Anything about any of these incidents we have just gone
4 over that would prevent you from being a fair and impartial
5 juror in this case?
6 A. No.
7 Q. You mentioned that you were a clerk for a judge. Was that
8 a judge of this court or another court?
9 A. It was a federal district court, but not this court.
10 Q. And you have friends who are lawyers, including lawyers who
11 work for the district attorney's office and the U.S. Attorney's
12 Office?
13 A. Yes.
14 Q. And you also have friends who are public defenders?
15 A. Yes.
16 Q. Do they work for Legal Aid in this district?
17 A. They work in the state system. They are not federal
18 lawyers.
19 Q. With respect to the people you know who are Assistant U.S.
20 Attorneys, you saw the list of people who were involved in this
21 case?
22 A. Yes.
23 Q. Do you know any of those people?
24 A. No.
25 Q. Is there anything about any of these connections or the
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1 people you know that would prevent you from being a fair and
2 impartial juror in this case?
3 A. No.
4 Q. You disclosed that you have been to Israel, you have
5 friends who have lived and worked in various Mideast countries,
6 numerous Mideast countries. Is there anything about any of
7 that that would prevent you from being a fair and impartial
8 juror in this case?
9 A. No.
10 Q. You said that you're somewhat knowledgeable about Islam.
11 Could you tell me in general what the extent of your knowledge
12 is?
13 A. I have a very good friend who is Muslim and my knowledge is
14 both conversations with her and recreational reading.
15 Q. And what recreational reading?
16 A. Nothing in particular. Newspaper articles, magazine
17 articles.
18 Q. Is there anything about that that would prevent you from
19 being a fair and impartial juror?
20 A. No.
21 Q. Do you have any biases or prejudices towards people of
22 Mideast descent or people of the Islamic faith?
23 A. No.
24 Q. You mentioned that you believe that there is racial
25 profiling of men of Middle Eastern descent and men who are
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1 Muslim. What's the basis for that belief?
2 A. Conversations with people, magazine and newspaper articles,
3 my general understanding about the way the police operate,
4 given the depositions I took and was present at in the
5 litigation that we discussed.
6 Q. I'm sorry?
7 A. The depositions I was present at and the litigations that
8 we discussed a few minutes ago against the city.
9 Q. Is there anything about that that would prevent you from
10 being a fair and impartial juror in this case?
11 A. No.
12 Q. You mentioned that you have seen some things about the
13 defendants in this case and the case. Tell me what you recall.
14 A. What I recall is that there is -- I don't know if there is
15 still an ongoing issue, but there was an issue regarding
16 attorney-client communication between Ms. Stewart and her
17 client. And that what I remember about what I've read is that
18 the communication involved -- and I don't remember if it was
19 bringing messages to him or taking messages from him -- but
20 those messages -- their communications were tapped or listened
21 to or otherwise disclosed.
22 Q. Do you recall anything else?
23 A. The information you provided to us on the day we filled out
24 the questionnaires.
25 Q. Anything else that you recall reading or hearing about the
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1 case or the defendant?
2 A. No.
3 Q. And what do you recall about Sheikh Abdel Rahman?
4 A. I know generally the charges which he was accused and
5 convicted. I know generally about the trial and the
6 allegations about his followers and his influence in radical
7 Islamic circles.
8 Q. Anything else?
9 A. That's all I remember right now.
10 Q. Any case that's received some publicity has jurors who may
11 have seen, heard, read about the case. The issue is whether
12 the jurors will put that aside and decide the case based solely
13 upon the evidence or lack of evidence that's received in court
14 and my instructions on the law. And so if you were chosen as a
15 juror in the case would you decide the case based solely on the
16 evidence or lack of evidence received in court and my
17 instructions on the law?
18 A. Yes.
19 Q. And is there anything that you have seen, heard or read
20 which would prevent you from doing that?
21 A. No.
22 Q. You mentioned that you work with a former U.S. Attorney and
23 that you know Assistant U.S. Attorneys in the Southern
24 District. Is there anything about that that would prevent you
25 from being a fair and impartial juror in this case?
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1 A. No.
2 Q. You also mentioned that you are familiar with Michael Tigar
3 and Jane Tigar. Can you tell me how you're familiar with them?
4 A. Mr. Tigar spoke -- I heard him speak when I was in law
5 school. I believe that I attended law school with Ms. Tigar.
6 Q. Anything about that that would prevent you from being a
7 fair and impartial juror in this case?
8 A. No.
9 Q. You pointed out that -- do you know me?
10 A. No.
11 Q. Have we ever met?
12 A. I believe we have met.
13 Q. In what connection?
14 A. At an event for the law firm at which I work.
15 Q. Is there anything about that, the fact that I would be the
16 judge at this trial, that would prevent you from being a fair
17 and impartial juror in deciding the case based solely upon the
18 evidence or lack of evidence and my instructions on the law?
19 A. No.
20 Q. If you were chosen as a juror in the case would you follow
21 the instruction that you should not talk about this case at all
22 and that if anyone should try to talk to you about the case you
23 should not do that?
24 A. Yes, I would follow that instruction.
25 Q. Would you also follow the instruction that you're not to
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1 look at or listen to anything to do with the case. And if you
2 should see or hear something that inadvertently touches on the
3 case, that you will simply turn away?
4 A. Yes.
5 Q. If you were chosen as a juror in this case you would be
6 required to decide this case based solely on the evidence or
7 lack of evidence and in accordance with my instructions on the
8 law. Will you do that?
9 A. Yes.
10 Q. As you can tell from all of my questions, the fundamental
11 issue is whether there is anything in your personal history or
12 life experience that would prevent you from acting as a fair
13 and impartial juror in this case.
14 So let me ask you one final time whether there is
15 anything, whether I have asked you about it specifically or
16 not, that would prevent you from you being a fair and impartial
17 juror in this case?
18 A. There is nothing. One additional item that I didn't
19 include on the questionnaire occurred to me when -- during this
20 time period which is that cocounsel in the litigation against
21 the city was the Center for Constitutional Rights. And in our
22 meetings with them -- and I don't remember the details beyond
23 that -- they mentioned something having to do with Ms. Stewart
24 and this case. I don't remember any additional details, for
25 what it's worth.
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1 Q. Is there anything about that that would prevent you from
2 being a fair and impartial juror in this case?
3 A. No.
4 Q. Could you step out for a moment.
5 (Juror absent)
6 MR. DEMBER: May I have a moment, your Honor?
7 Your Honor, just two matters that I think really need
8 to be brought on the record and bring to everyone's attention.
9 One is the juror just mentioned that I guess with
10 respect to that lawsuit she had a relationship or was joined by
11 the Center for Constitutional -- I forget the actual name of
12 the entity. Obviously, those are the folks who filed a brief
13 on behalf of the defendants in this case during the initial set
14 of motions that were filed. I just want to bring that to your
15 Honor's attention.
16 The second matter -- which I think is perhaps more
17 significant, but important -- that all parties are aware of is
18 the fact that as your Honor may remember, when this case was
19 first brought to court, Joseph Bianco I would fairly
20 characterize as lead counsel in this case. As your Honor may
21 be aware of and I assume some of the defense counsel may be
22 aware of, he is at the firm where this juror comes from. I
23 believe he is a partner, but I am not sure. And I believe he
24 is in the litigation department. He is not on our original
25 list of witnesses or names that might come up.
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1 It occurred to us, as you mentioned questions about
2 the list, his name doesn't appear. I guess it's possible
3 during the course of this trial that Mr. Bianco's name may
4 arise. He was also involved in the investigation which led to
5 the indictments in this case.
6 And so perhaps your Honor wishes to ask her a question
7 about Mr. Bianco, whether she has worked with him or whether
8 she knows him. It's always possible that his name might come
9 up in this case at some point in time.
10 THE COURT: I noted Mr. Bianco when the list was
11 longer and I noted that he was at the firm, and plainly there
12 are two former U.S. Attorneys at the firm. What do you want me
13 to ask about that? I'll ask --
14 MR. DEMBER: Your Honor, I would ask you to ask her
15 whether she knows Mr. Bianco and whether his name is mentioned
16 in this case or not, whether that would affect her ability to
17 be fair and impartial.
18 I would note for the Court that Mr. Tigar has
19 indicated in the past that when he questions Mr. Fitzgerald,
20 when he comes on the stand, that bias may be an issue. And
21 while Mr. Fitzgerald was involved to a degree in the -- early
22 on in this case, I believe it's fair to say Mr. Bianco is the
23 one who led the investigation, the criminal investigation of
24 this case, which ultimately resulted in this indictment. So
25 bias on the part of Mr. Fitzgerald may become somewhat
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1 irrelevant and may become more pertinent or more relevant as to
2 the lead prosecutor's bias or lack of bias in this case.
3 THE COURT: I'll listen to the defendants also. I had
4 thought, by the way, that the -- obviously, the parties know
5 far more about what the potential evidence in the case may be.
6 But just from what I had seen, the issue of what the government
7 has told me about Mr. Fitzgerald was that Mr. Fitzgerald would
8 be an important witness and that the interaction between
9 Mr. Fitzgerald and the defendant are matters that are involved
10 in terms of correspondence and conversations and that -- again,
11 the parties can correct me if I'm wrong. They took Mr. Bianco
12 off the list because they didn't view him as a likely trial
13 witness. But you can correct me if I'm wrong on any of this.
14 You all know more about the potential evidence than I do.
15 MR. DEMBER: Your Honor, he is off the list because
16 when we prepared the list we certainly didn't think he would
17 ever be a witness in this case. If your Honor remembers some
18 of the testimony from the hearing we had back in September last
19 year, Mr. Fitzgerald I thought testified quite clearly that
20 once -- he certainly testified about his interaction with
21 Ms. Stewart and her lawyer. But at some point in time he
22 indicated that he ended up on a side of a wall on the
23 intelligence investigation side of the wall and that others
24 would do the criminal investigation.
25 And I believe that's where Mr. Bianco played a
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1 prominent role and that's why, in view of what Mr. Tigar has
2 mentioned the last few weeks about bias and motive on the part
3 of Mr. Fitzgerald, I'm concerned at this point that the
4 direction -- the focus might be on Mr. Bianco all of a sudden
5 because he led the criminal investigation.
6 THE COURT: I'll certainly ask questions about
7 Mr. Bianco. Do you want me to ask anything about the Center
8 for Constitutional Rights?
9 MR. DEMBER: I don't believe that's necessary, your
10 Honor. I don't think that would ever come up during the course
11 of the trial. They just have to file an amicus brief at some
12 point.
13 MR. TIGAR: Your Honor, I'd like to be very clear, the
14 only reason that we mentioned the potential bias of
15 Mr. Fitzgerald was that he was endorsed as a trial witness, and
16 we would have the right to cross-examine him on that subject.
17 We have no similar intent, information, desire with
18 respect to Mr. Bianco. So far as we are aware, he had the role
19 that was briefly mentioned when that hearing was held before
20 your Honor last September, and we did not think he would be a
21 major figure in this case and do not think so to this day.
22 MR. DEMBER: My brief response to that, your Honor, is
23 that if in fact Mr. Fitzgerald is attacked for bias and motive,
24 the government might be required to then prove to the jury or
25 want to prove to the jury or present to the jury evidence that
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1 Fitzgerald was not involved in the criminal investigation, but
2 that perhaps in doing that Mr. Bianco's name might come up.
3 That's all.
4 THE COURT: Sufficient unto the day, I'll ask the
5 questions because the name might come up, and I'm not going to
6 make any rulings on this. But if you think about the issues
7 for a moment, it's somewhat strange that he would introduce
8 Mr. Bianco as a rebuttal witness. Mr. Fitzgerald would be
9 challenged on the basis of bias or whatever to challenge the
10 substance of his testimony. To think that there would then be
11 a rebuttal witness to say, oh, no, others didn't have the same
12 motives, you can think about that. And I don't want to rule on
13 anything before it is presented to me. Just think about it.
14 And I will ask the questions.
15 Any other questions that the parties want me to pursue
16 with this juror?
17 Any challenges for cause?
18 MR. TIGAR: Not from here, your Honor.
19 MR. DEMBER: No, your Honor.
20 (Continued on next page)
21
22
23
24
25
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1 (Juror present)
2 BY THE COURT:
3 Q. Just a few follow-up questions.
4 It is possible that law enforcement witnesses and
5 lawyers and prosecutors or former prosecutors may be called as
6 witnesses in the case and the law is that no witness is
7 entitled to any greater or lesser credibility based upon their
8 occupation. You would have to assess the credibility of each
9 witness based upon that witness' testimony and the standards
10 for assessing credibility of a witnesses' ability to perceive,
11 recall, interest and the like, and assess each witness'
12 credibility.
13 Would you do that?
14 A. Yes.
15 Q. And can you do that with respect to all of those potential
16 classes of people, whether they be law enforcement personnel or
17 prosecutors, former prosecutors, attorneys?
18 A. Yes. I assume that the people who are potential witnesses
19 were included in that questionnaire. For instance, the former
20 U.S. Attorney with whom I worked I assume -- it would be more
21 difficult for me to do that if she, for instance, was on the
22 stand, if there was someone I knew. But I assume that the
23 potential witnesses are limited to the list of people in the
24 jury questionnaire.
25 Q. All right.
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1 It is possible that another former assistant, Mr.
2 Bianco, his name may come up in the course of the case.
3 Whether he is a witness or not I do not know and would you be
4 able to listen to his testimony and assess his credibility in
5 the same way as you would the credibility of any other witness?
6 A. I think so. When you know someone it becomes more
7 difficult but I think so.
8 Q. You are intelligent and you are familiar with the law and
9 what you would be required to do as a juror?
10 A. Yes.
11 Q. And would you do that with respect to Mr. Bianco in the
12 same way as you would with any other witness?
13 A. I would it to the best of my ability.
14 Q. I am sorry?
15 A. I would do it to the best of my ability.
16 Q. Will you do that?
17 A. Yes, I will do that.
18 Q. Okay.
19 Can you step out just for one more moment?
20 (Juror absent)
21 THE COURT: Do the parties want me to pursue anything
22 further? Do you want me to pursue the former U.S. Attorney
23 with whom she has worked or anything further with respect to
24 Mr. Bianco?
25 MR. TIGAR: Nothing further from this table, your
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1 Honor.
2 MR. DEMBER: No, your Honor.
3 THE COURT: All right.
4 Any challenges for cause?
5 MR. TIGAR: No, your Honor.
6 MR. DEMBER: No, your Honor.
7 THE COURT: Okay.
8 (Juror present)
9 BY THE COURT:
10 Q. Hi.
11 You are still in the jury pool and I will ask you to
12 call back on June 18th. Mr. Fletcher will give you a note
13 about who to call. It's very important that you follow my
14 instructions very carefully. Please don't talk about this case
15 at all or anything to do with it and you should just tell
16 people that you are involved in jury selection for a long
17 trial, period. And as I have told other potential jurors, if
18 anyone wants to talk to you what you do is you say just stop
19 it. The judge has told me not to talk about this, and that is
20 what you should do. Because when you begin even just to give
21 an indication of the case or something like that, it leads to
22 other questions and even though all of that can be wholly
23 innocent, the most prudent course is just to stop it. So
24 please don't talk about this case at all. Don't look at or
25 listen to or read anything to do with the case. If you should
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1 see or hear something inadvertently, just turn away and as I
2 will tell all of the jurors who are finally selected, keep an
3 open mind until you have heard all of the evidence, I have
4 instructed you on the law and you have gone to the jury room to
5 begin your deliberations. Fairness and justice requires that
6 you do that.
7 All right?
8 A. Yes. May I ask you a question? Will this process occur
9 again or will I find out on --
10 Q. On June 18th you will call in and in all likelihood you
11 will be told to come back on June 21st. And June 21st is the
12 day that I expect that the final jury will be chosen in the
13 case.
14 A. Thank you.
15 (Juror absent)
16 THE CLERK: 320.
17 (Juror present)
18 BY THE COURT:
19 Q. Good afternoon, Juror 320. It's good to see you.
20 Since you were here last has anything changed
21 concerning your ability to serve as a juror in this case or has
22 anything occurred to you or have you seen or heard anything
23 that may affect your ability to be a fair and impartial juror
24 in this case?
25 A. No, sir.
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1 Q. It now appears that the date that the final jury will be
2 chosen in this case will be Monday, June 21st. So after today
3 it's unlikely you will be called to come back before June 18th.
4 Does that present any serious hardship for you?
5 A. No, sir.
6 Q. Since you were here last have you spoken to anyone about
7 this case or have you looked at or listened to anything about
8 the case?
9 A. No.
10 Q. Has anyone spoken to you about the case, and that includes
11 any conversations here at the courthouse or with any other
12 prospective jurors?
13 A. No, sir.
14 Q. While you were waiting with the other prospective jurors,
15 did you or anyone you overheard discuss the case?
16 A. No.
17 Q. Okay.
18 You are retired and this case would not pose any
19 serious hardship for you, is that right?
20 A. After 6 months it would.
21 Q. The case is expected to last 4 to 6 months.
22 A. You are pushing the envelope at 6 months.
23 Q. In what sense?
24 A. I have tickets and things to go away in December of this
25 year.
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1 Q. When in December?
2 A. Actually November 30th. I mean, I could change those if I
3 could have a definitive answer by September with no economic
4 detriment.
5 Q. Okay.
6 As you can appreciate, all of the parties and the
7 court would make every effort to understand how long the case
8 is going and to do the case as efficiently as possible. And no
9 one has any interest in making the case longer than it would
10 otherwise be and all of the parties, however, have the right to
11 a fair trial and to present their evidence in the way that is
12 most meaningful and I will obviously attempt to assure that the
13 case is done as efficiently as possible, but there can't be a
14 guarantee.
15 It's a long case and I have explained that and I will
16 try to be as accommodating for all of the jurors. There are
17 some things that you can't predict. For example, individual
18 personal days for individual jurors as emergencies come up in
19 the course of a trial is one of them that I attempt to
20 accommodate. So in fairness if you were selected as a juror in
21 this case and something happened and the case went -- something
22 happened and it didn't go according to what I thought were my
23 predictions in September and it turned out that you had to try
24 and adjourn the trip, the tickets, couldn't you do that without
25 serious economic hardship to yourself or disruption to your
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1 life?
2 A. I could, but I would like an answer by maybe the 15th or
3 the 20th or the 25th of October would be okay with me.
4 Q. Okay.
5 You know, I will do the best I can.
6 A. That is all we can ask.
7 Q. So is it fair that sitting on the jury would not be a
8 serious hardship for you?
9 A. Not really, no.
10 Q. Can you tell me what post graduate degrees your spouse
11 obtained?
12 A. Masters in education, College of New Rochelle. She has
13 another masters and approximately 15 to 30 credits beyond that
14 in various workshops and things of that nature. The second
15 Masters is also I think reading and it could be from a myriad
16 of colleges because she took them from various different
17 colleges under different situations.
18 Q. Were you personally in the Army?
19 A. Yes, sir.
20 Q. And you were there for 2 years, is that right?
21 A. 2 two months, 17 days, 5-1/2 hours.
22 Q. Okay. Anything about that that would prevent from you
23 being a fair and impartial juror in this case?
24 A. Absolutely not.
25 Q. When you were asked about the organizations that you belong
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1 to you mentioned Selective Service draft board.
2 A. I just was issued my 20-year certificate saying thank you
3 very much, goodbye. It was about 3 weeks ago.
4 Q. You mention that your spouse belongs to had as a.
5 A. Yes.
6 Q. Is there anything about that that would prevent you from
7 being a fair and impartial juror in this case?
8 A. I don't think so, sir.
9 Q. You mention that you get -- that you read a ham radio
10 monthly?
11 A. Yes, QSD.
12 Q. Do you use a ham radio?
13 A. I have a license. Do I use it? Once in a long time maybe
14 at a field situation basically to impress my grandchildren.
15 Q. Okay. You regularly listen to any news reports from other
16 countries on the ham radio?
17 A. No, it's a small band. I don't go international with it.
18 Q. Okay.
19 A. It's a hand-held situation, just local, that kind of stuff.
20 Q. Okay.
21 You mentioned that you were some member of your family
22 has belonged to an organization that takes positions on gun
23 control.
24 A. Yes. When my children became 19 or 20 years of age I
25 decided I would get a gun, a handgun. They had moved out of
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1 the house by then. I had to belong -- if you want a gun permit
2 in the State of New York one thing you have to do is go to
3 about an 8-hour course with the NRA. It's usually given by NRA
4 instructors. So to take the course you have to belong. It's a
5 Catch-22 type situation. Do I belong to it, yes. Do I read
6 their magazines? Once in a while.
7 Q. Anything about that that would prevent you from being a
8 fair and impartial juror in this case?
9 A. I don't think so.
10 Q. You explained that you have visited Israel. Is there
11 anything about that that would prevent from you being a fair
12 and impartial juror?
13 A. I have never visited Israel, sir.
14 Q. I am sorry. You are right. I was too broad.
15 The question asked whether you or anyone you know has
16 visited the Middle East and then you said yes, Israel.
17 A. Yes, two or three of my friends have gone on 5 day, 7-day
18 trips. My granddaughter has expressed a desire to go and would
19 like to go. She is 14, probably in the next couple of years.
20 Q. Anything about that that would prevent you from being a
21 fair and impartial juror in this case?
22 A. No, sir.
23 Q. You mentioned that you work with people of Middle Eastern
24 descent. Do you know what countries they are descended from?
25 A. I was the county printer in Westchester for 8 years and
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1 then I worked 2 years, so I worked with a myriad of people in
2 the County of Westchester and I really couldn't tell you what
3 backgrounds most of them were. Some of them I knew were I
4 think of Arab background but that is mostly speculation on my
5 part.
6 Q. Anything about that that would prevent you from being fair
7 and impartial?
8 A. No.
9 Q. You said that you are not very knowledgeable about the
10 history and practices of Islam. Can you just describe for me
11 what the general extent of your knowledge is?
12 A. It's very superficial. I really did not ever take a course
13 in it or anything like that. I think it would probably be, for
14 lack of a better word, maybe street wise and that is about it,
15 on the street level.
16 Q. Okay.
17 What do you mean by that?
18 A. Well, it's a difficult question. I really don't know. I
19 mean, if you are going to ask me for specifics or give me a
20 test I think I probably would fail it.
21 Q. Do you have any biases or prejudices towards people of
22 Middle Eastern descent or people of the Islamic faith?
23 A. No.
24 Q. You may hear evidence in the case about an individual named
25 Sheikh Omar Abdel Rahman who is sometimes referred to as the
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1 blind Sheikh. Have you seen, heard or read anything about
2 Sheikh Abdel Rahman?
3 A. Eight, ten years ago very cursory news accounts. I haven't
4 dwelled on it. You had mentioned him in your opening remarks
5 and it clicked in the mind but that was about it.
6 Q. Okay.
7 Anything that you have seen, read or heard that would
8 prevent you from being a fair and impartial juror in this case?
9 A. I don't think so, sir.
10 Q. Do you know any of the other prospective jurors who have
11 been called in the case?
12 A. No.
13 Q. If you were chosen as a juror in this case, you would be
14 required to decide the case based solely on the evidence or
15 lack of evidence and in accordance with my instructions on the
16 law. Will do you that?
17 A. Yes, sir.
18 Q. And as you can tell from all of these questions, the
19 fundamental issue is whether there is anything, anything why
20 your personal history or life experience that would prevent you
21 from being a fair and impartial juror in this case. So let me
22 ask you one final time whether there is anything, whether I
23 have asked you about it specifically or not, that would prevent
24 you from being a fair and impartial juror in this case?
25 A. None that I know of, sir.
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1 Q. All right. Could you step out for a moment?
2 (Juror absent)
3 MR. TIGAR: Two areas, your Honor.
4 First, he served on the Selective Service Draft Board
5 for 20 years. Would the court please ask him what his duties
6 were during that time? What did he do? There was registration
7 during that time. I don't know if they had any classification
8 functions or not. Perhaps you can ask him how he was selected
9 or who selected him.
10 Do I need to go any further than that? There was a
11 time when draft boards were involved in monitoring and indeed,
12 as the Supreme Court held, suppressing dissent, and it would be
13 helpful to us to get some information about how he regarded his
14 job.
15 Second, your Honor asked him about his knowledge of
16 Islam. He said he was street wise and your Honor asked him
17 what he meant by that and then he said it was a difficult
18 question and didn't answer it.
19 THE COURT: I took that -- and I believe there were
20 one or two follow-ups that he just really can't put his finger
21 on anything. He said if he were required to take a test he
22 would fail, that he just couldn't come up with anything.
23 MR. TIGAR: Would your Honor ask him a question
24 perhaps have you talked about Islam with your neighbors and
25 friends or attitudes towards Islam with your neighbors and
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1 friends? Just something to open that up for us.
2 THE COURT: All right. I also followed up with
3 whether he has any biases or prejudices towards any people of
4 Middle Eastern descent or the Islamic faith after he had spoken
5 about Islam.
6 Okay.
7 MR. DEMBER: Nothing, your Honor.
8 THE COURT: If these questions don't produce anything
9 I will tell him to come back on June 18th. Okay.
10 (Juror present)
11 BY THE COURT:
12 Q. Hi. Please have a seat.
13 Juror 320, I just have a few follow-up questions.
14 Could you tell me what your duties were on the
15 Selective Service Board?
16 A. Well, for 20 years it was in what they call a deep freeze.
17 And once a year we would be brought up to snuff as far as what
18 the laws are. Classic case, 6 years ago we can draft women now
19 up to the age of 44 if they are associated with the medical
20 situation, which very few people knew. And we were told this
21 immediately about 6 years ago. And during the one day that we
22 were there usually from 9 in the morning until 3 o'clock in the
23 afternoon we would have various scenarios given to us. Usually
24 it was clergy men, hardship case, and I think something else
25 along those lines because there is no school deferment any
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1 more. And we would try to assess through these play acting
2 situations -- sometimes it was videotapes -- what our feelings
3 were or what your decision was on a particular case. No one
4 was allowed -- they were always allowed deferments. At this
5 particular point the Selective Service only gives you
6 deferments for one year maximum and that was it if it ever came
7 to pass.
8 Q. Because the draft is not currently in place.
9 A. Correct.
10 Q. But the draft or the Selective Service Board exists.
11 A. Oh, yes. It exists so therefore it's supposed to be able
12 to according to what we were told, to put a full scale Army in
13 the field or in basic training in 93 days.
14 Q. If the law were changed.
15 A. If the law was changed and if it was enacted.
16 Q. How were you selected to serve on the board?
17 A. Gee, whiz, that is about 20 years ago. I attended a party.
18 Somebody was running for some public office. Somebody at the
19 party said would anybody like to join the Selective Service and
20 I said why not, I have nothing else to do. It would be
21 interesting to do it. We were given -- I think it was Mario
22 Cuomo sent the letter and what have you and we went away for 2
23 days for an initial situation. And then that was it. We just
24 sort of hung around for 20 years.
25 Q. Anything about that that would prevent you from being a
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1 fair and impartial juror in this case?
2 A. No. Actually it taught me how to be a little fair and
3 impartial. You sort of like wait to the end.
4 Q. All right.
5 Do you recall discussing Islam or practices or history
6 of Islam with any of your friends or acquaintances?
7 A. Not really. I mean, I don't really think I have ever had a
8 serious conversation about it.
9 Q. Okay.
10 A. It interests me at times but since I am out of the work
11 force and I am not in academia, I wouldn't have any real place
12 to go. I mean, I play golf and you don't really discuss
13 religion on a golf course.
14 Q. All right.
15 Is there anything in your personal history or life
16 experience that will prevent you from being a fair and
17 impartial juror in this case?
18 A. Not that I know of, sir.
19 Q. Okay.
20 Juror 320, I am going to ask you to call in on June
21 18th. Mr. Fletcher will give you a slip of paper which gives
22 you all of the details and please, please remember to follow my
23 continuing instructions. Don't talk about the case at all.
24 Remember don't look at, listen to, read anything to do with the
25 case. Remember to keep an open mind until you have heard all
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1 of the evidence, I have instructed you on the law and you have
2 gone to the jury room to begin your deliberations. All right?
3 A. Yes, sir.
4 Q. Okay.
5 A. Call in on the 18th?
6 Q. That is correct.
7 A. The evening of the 18th, sir?
8 THE CLERK: The slip says after 5 o'clock.
9 THE COURT: After 5 o'clock on June 18th.
10 A. Thank you very much.
11 Q. Okay.
12 (Juror absent)
13 THE CLERK: 321.
14 MR. RUHNKE: This is one of the jurors who lists a
15 name, the wife's full name and it may be one of the ones we
16 mentioned this morning. We think he should be excused.
17 MR. DEMBER: We agree, your Honor.
18 THE COURT: Okay.
19 MR. DEMBER: Question number 9.
20 (Juror present)
21 BY THE COURT:
22 Q. Please have a seat.
23 Juror 321, I have gone over the questionnaire and I
24 have decided to excuse you, so I appreciate your participation
25 in the process and at this point you can go home and all the
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1 paperwork will be taken care of by mail.
2 A. Thank you.
3 (Juror absent)
4 THE COURT: There were some who were missing, 294,
5 319.
6 MR. BARKOW: 294 I think you said was coming back
7 tomorrow because after leg injury. And 319 we believe was the
8 attorney at your Honor's former firm.
9 THE COURT: There is no one else present?
10 THE CLERK: Correct.
11 THE COURT: Okay.
12 So we will pick up tomorrow with the next 20 and I
13 have to talk to Mr. Price about whether any of the ones who
14 were skipped over will be here tomorrow, 294 apparently. Would
15 be here tomorrow. I don't know if any of the others who were
16 skipped over.
17 MR. PRICE: No, your Honor. There were previously 4
18 skipped over and 3 appeared, and 113 we can't get ahold of.
19 THE COURT: Okay.
20 I have a commitment tomorrow at noon so I am going to
21 call in 8 jurors in the morning and 12 in the afternoon and we
22 will break from 12 until 1:30. I know Mr. Ruhnke in his last
23 letter said this should exhaust all the jurors who reasonably
24 practically could be used. I don't know the answer to that.
25 We will see how it goes in the course of the week.
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1 MR. RUHNKE: Your Honor, at the present time I don't
2 know what the exact number is but it's somewhere in the high
3 50s or low 60s that we have pre-screened and we want to be
4 aware if your Honor wishes to stop. I assume we can keep apace
5 with a couple of more days will bring us close to the 70s or
6 80s. I am wondering where your Honor would like to stop in the
7 process.
8 THE COURT: That sounds more or less right. We will
9 see where we are as the week goes on.
10 MR. RUHNKE: Thank you.
11 THE COURT: I thought -- there are some question
12 marks.
13 MR. RUHNKE: There are 3 or 4 waiting to be heard back
14 from. If I am correct about where we are, we have around 62
15 counting those 3 or 4 people. And that is plus or minus a
16 couple on my own count I am sure.
17 THE COURT: Is that counting --
18 MR. RUHNKE: Yes, it counts the 3 or 4 people we are
19 waiting to hear back from. Maybe we can revisit this question
20 on Thursday.
21 THE COURT: That sounds good. I have told Mr.
22 Fletcher to clear Friday morning in order to see if we don't
23 finish this week. Okay?
24 I have a couple of other items for you. One is on the
25 issue of the transcripts.
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1 The parties have apparently resolved all of the issues
2 of the manner in which the transcripts are to be presented to
3 the jury with the sole exception of who is to read them. The
4 government seeks to have the trial attorneys and other members
5 of the trial team read them. The defendants object and urge
6 that people wholly unrelated to the trial team should read
7 them, although they proffer that they have tried to work this
8 issue out.
9 All parties agree that this is a matter committed to
10 the sound discretion of the trial judge. All parties also
11 agree that it is the most common practice in this district to
12 have members of the trial team read transcripts to the jury and
13 that has in fact been this court's practice without any
14 problems having arisen.
15 The practice is not generally confusing and is
16 efficient in that it reduces the number of people required to
17 be involved in the trial. In this case the defendants do raise
18 a fair issue about possible confusion arising from the
19 government trial lawyers reading those portions of the
20 transcripts attributable to the defendants.
21 This would have been heightened by the government's
22 previous proposal of having the trial lawyers sit with placards
23 in front of them describing them as defendants.
24 Therefore, in this case any portions of the
25 transcripts that are attributable to the defendants should be
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1 read by a government representative other than one of the
2 government trial lawyers who will otherwise address the jury or
3 a government agent who will otherwise testify. The remaining
4 portions of the transcripts attributable to other persons other
5 than the defendants can be read by those persons.
6 This resolution will permit a fair and efficient
7 presentation of the transcripts to the jury.
8 MR. BARKOW: Your Honor, just a question about what
9 the court just said. In terms of addressing the jury, does
10 your Honor mean someone performing a jury address or anyone who
11 is examining a witness at any point? There may be an AUSA who
12 is not giving a jury address.
13 THE COURT: No, I mean the assistants who are
14 examining witnesses or opening or closing.
15 MR. BARKOW: So it would include all four?
16 THE COURT: Yes.
17 (Continued on next page)
18
19
20
21
22
23
24
25
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1 MR. BARKOW: We just didn't understand the term
2 specific.
3 THE COURT: It means that the four of you will not
4 read those portions of the transcripts attributable to the
5 defendants; similarly, any case agent who would otherwise
6 testify so that the functions are separated. And I read the
7 correspondence very carefully on all of this. And you can
8 correct me if I'm wrong, but I don't see that that requires,
9 given the number of people, paralegals and the like, additional
10 personnel. In any event, it's a fair and reasonable
11 resolution.
12 I want to raise one other issue with you. I was able
13 to decide the issue of the transcripts based upon everything
14 that you had given to me because I thought that the briefing
15 was complete. The issue with respect to the conviction of
16 Sheikh Rahman is not nearly as precise as the briefing on the
17 issue of the transcripts. And before I decide the issue I
18 simply wanted to lay out for you some of the issues and urge
19 you to think about them before I finally decide this issue.
20 It is not clear to me from the correspondence and the
21 briefs exactly what I'm being asked to rule on in connection
22 with this issue. The issue, I believe, initially arose as a
23 defense motion to exclude the conviction of Sheikh Rahman. But
24 in the recent papers the defendants concede that the fact of
25 the conviction will be before the jury, several witnesses will
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1 testify about it. There will be references to it in
2 conversations among the parties.
3 There is, for example, a conversation that the
4 government points to between Ms. Stewart and the Sheikh's wife
5 that refers to the finality of the conviction after the Supreme
6 Court denied certiorari. And the basic facts of the case will
7 include the fact that Ms. Stewart represented Sheikh Rahman at
8 trial. Mr. Yousry testified at the trial. All of that is
9 certainly background and context for how the people came
10 together.
11 The defendant suggests that I take judicial notice of
12 facts relating to the conviction if I think that any of the
13 facts are relevant. Some facts are relevant for background and
14 context, such issues as the fact and the date of a conviction
15 and the date it became final, subject to no further appeal.
16 Under the rules, if the parties want me to take judicial
17 notice, the parties should provide me the specifics as to which
18 they want the Court to take judicial notice.
19 Overriding all of this and the issue behind 803(22) is
20 that the conviction would not be able to be used by the jury
21 for the truth of the matters found by the first jury. So a
22 jury instruction would be appropriate to explain to the jury
23 that the defendants are not bound by the jury determination of
24 the truth of the charges at the first trial because the
25 defendants were not parties to the first trial.
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1 And this goes to the government's effort to admit the
2 judgment of conviction as independent evidence separate and
3 apart from all of the possible information that the defendants
4 have in their files or that they were told, or that they
5 discussed in conversation, all of which may go to other issues
6 such as the defendant's state of mind, the defendant's motive
7 or intent.
8 Finally, the defendants in some correspondence say
9 many of these issues are premature because there are
10 evidentiary issues with respect to various items of evidence
11 that the government points to. And so I come back to where I
12 started, which is, the parties should consider what
13 realistically from the evidence in the case will be before the
14 jury with respect to the first trial and what appropriate
15 instruction the jury should be given with respect to that.
16 And I also started by saying that the papers are not
17 fully clear with respect to what the parties are asking the
18 Court to do because the defendants on the one hand argue that
19 the conviction itself is inadmissible and on the other hand
20 argue that the fact of conviction is something that definitely
21 will come out from the testimony of witnesses.
22 Given that structure, one would think, but I'm
23 perfectly happy to listen to the parties, that there is a basic
24 structure of facts that could be given to the jury by judicial
25 notice, if that's what the parties wish, because I appreciate
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1 that stipulations are difficult to reach, with an appropriate
2 instruction for the jury that explains what the law is with
3 respect to the result of the first trial.
4 As I say, if I get no further guidance from the
5 parties on that, I will deal as best I can with what you have
6 given me. But I have tried to highlight for you what I thought
7 were some of the gaps. I tried to do it in the first argument.
8 I tried to do it a little more fully now.
9 MR. TIGAR: I was about to say I apologize, but then
10 the Court the other day said don't apologize. I think we have
11 tried to lay out the issues.
12 Let me make this suggestion to the Court and through
13 the Court to the government. Should it be necessary --
14 appropriate to take judicial notice of the conviction, then the
15 parties surely should agree on some form on which that would
16 occur and an accompanying instruction or, at the very least,
17 submit competing proposals. I would suggest that the parties
18 do that by some time fixed by the Court within the next few
19 days.
20 With respect to the issues that we believe that the
21 Court has before it, the issue of relevancy of the conviction
22 itself, the issue your Honor raises about the inevitably of
23 people mentioning it, given the other evidence and therefore
24 what does that do to our argument about admissibility, I think
25 I have a clear answer for that.
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1 Second, with respect to what might be called the
2 epiphenomenon that the government has brought into play here,
3 the briefs from the Second Circuit and so forth and so on,
4 that's a set of issues.
5 The third would be any 403 issue with respect to the
6 cumulative character of things that would otherwise be
7 admissible.
8 If the Court would find it helpful, we could do a
9 two-page letter that outlined in bullet point form the issues
10 that we believe the Court has to decide based on the briefs, or
11 we could ask you to simply take some time and answer the
12 Court's questions. I am prepared to do it now or some other
13 time. I want to do it in a way that frames the issues which we
14 believe to be to be live and important.
15 THE COURT: Mr. Barkow.
16 MR. BARKOW: Yes, your Honor. With respect to the
17 inevitably point, the references in the conversations, search
18 materials and that sort of thing, I think that that is one
19 category of issues that will most appropriately and concretely
20 be dealt with by your Honor as they arise.
21 With respect to the independent fact of the
22 conviction, the denial certiorari, the Second Circuit's
23 opinion, what I would propose is that the parties try to work
24 out before any additional briefing is filed either two dueling
25 proposed formulations of judicial notice, or, to the extent it
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1 can be agreed upon, a joint proposal with disagreement as to
2 those independent facts the government seeks to offer; as the
3 Court characterized it at the oral argument, the extrinsic
4 evidence. So perhaps the parties can work that out by way --
5 whether it turns out to be judicial notice or stipulation or
6 what have you. And if we can't, then we can submit proposed
7 kind of dueling suggestions.
8 With respect to the other categories of evidence, the
9 search materials and that sort of thing, it seems to me also
10 that there is some inevitably to that coming in. And what we
11 really -- what we were attempting to do in our papers was to
12 make sure that we weren't going to say anything again in our
13 opening statement that was later going to be deemed
14 inadmissible. And I may be incorrect, but I'm getting the
15 sense that that sort of material, search material, references
16 in the conversations, at least that the Court is inclined to
17 think that that might be admissible at least in part because
18 the defense seems to me -- I may be wrong. It seems to be
19 conceding to some extent that that's inevitable.
20 I think the other issues perhaps we should try to
21 deal -- the parties should try to deal with.
22 THE COURT: There are levels of inevitably, of course.
23 It was clear from the defense correspondence that the
24 defendants say, of course, that the fact of conviction will be
25 discussed by witnesses. From what little I recall of the
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1 interchanges on the last evidentiary hearing I thought that
2 there was information there also.
3 But it's hard to believe that the parties would intend
4 to go into the trial without -- and would provide the jury with
5 background that these people came together in the course of
6 this criminal trial, but not what the result of the trial was,
7 despite the fact that there are conversations that talk about
8 it becoming final. And it would appear to me that the most
9 important thing for the jury out of all of this to understand
10 is exactly what I was referring to in terms of the limiting
11 instruction with respect to the result of the first trial,
12 which is a legal matter.
13 But I have tried to explain to you why I thought there
14 were some gaps in the correspondence, and it really would be
15 most useful to me, frankly, to have the parties at least talk
16 about it first before giving me more letter briefs attempting
17 to clarify it.
18 MR. TIGAR: We certainly will, your Honor, but I want
19 to be clear. We do not, have not, will not concede that the
20 Second Circuit brief, the judgment of conviction and other
21 items, are coming into evidence. I don't think we need to talk
22 about that. With respect to this inevitably position --
23 THE COURT: One of the issues is, it is important to
24 draw distinctions, for example, between the judgment of
25 conviction as independent evidence out there and materials that
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1 are otherwise in the defendant's files, which are being
2 proffered for defendant's state of mind in Koger, which is the
3 defendant's case cited. The Court went through an analysis
4 which made it clear that the judgment in that case was not
5 admissible was, there was no evidence that the defendant in
6 that case had ever seen it, so it couldn't be admitted for
7 state of mind.
8 The government in its papers says you have -- they
9 want to admit, as I see it, both the judgment of conviction
10 independently and anything found in the defendants' files, and
11 so careful distinctions simply have to be drawn. And the
12 defendants also argue in their papers that now is not the time
13 to -- it's not ripe to decide the admissibility of various
14 items of evidence, including evidence found in the defendants'
15 files, and I certainly don't want to jump forward on any issue.
16 MR. TIGAR: Subject to other arguments, your Honor, we
17 may not put on a defense. We understand that there are many
18 things in Ms. Stewart's files or that she knew or thought she
19 knew that would be relevant to her state of mind if she puts on
20 a defense. But time out of mind, that has not been admissible
21 to prove the truth of the fact remembered or believed and,
22 thus, however, the relevance of the rest of a document that she
23 says she relied on, the admissibility doesn't become an issue
24 until and unless she places her state of mind at issue in her
25 case. So with respect to those matters, that was our concern.
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1 We also had a little 403 time out concern.
2 THE COURT: There are state of mind issues that are
3 part of the government's case to establish all of the elements
4 of the offenses. So evidence can't be put aside and say, well,
5 you have to wait for the defense case if it is evidence that
6 goes to state of mind with respect to the proof relevant to the
7 elements of the offenses.
8 MR. TIGAR: I recognize that, your Honor. That,
9 however, does not seem to be a category that covers the
10 evidence that goes beyond what the Court has discussed as a
11 potential subject of judicial notice.
12 I also want to make clear that we did say at the
13 beginning -- and we maintain our position -- one could try this
14 case without ever telling this jury that Sheikh Abdel Rahman
15 was convicted of anything. He was in custody. Unless somebody
16 raises a question that he was lawlessly in custody, which we
17 made clear we don't intend to do, one could do that. When I
18 say inevitably, it's simply that I see that the train I hoped
19 to ride has left the station. We maintain our position. I
20 think the Court has ruled against me.
21 So now the question is, how can we deal with what the
22 Court appears prepared to decide, which will be something the
23 jury will find out, and how do we do it in harmony with
24 803(22)? Not to belabor the point, the Koger case did say
25 unequivocally, 803(22) is of absolute day. The relevancy
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1 argument is relevancy. Relevancy never trumps hearsay.
2 803(22) is one of those rare rules that culls out the Sixth
3 Amendment. 803(8) is another one. Therefore, we attach
4 particular importance to it.
5 THE COURT: The parties can talk about this and you
6 can get back to me on it soon. And you can also get back to me
7 on the list of potential list I gave you this morning. With
8 respect to the list, did the parties review that list?
9 MR. DEMBER: Your Honor, I did with the exception of
10 one juror where I don't have that questionnaire here, so I can
11 deal with that particular one tomorrow morning. I can go
12 through the list, your Honor, if you would like.
13 THE COURT: The only reason I raise it now is we can
14 avoid calling in these people, perhaps.
15 MR. RUHNKE: Your Honor, we did look at them as we
16 went through one. We consent to each of the jurors that your
17 Honor excused this morning.
18 MR. DEMBER: The only question I have a question about
19 is juror 334. I must have missed that going through the
20 questionnaire. I usually propose questions when someone has
21 identified a family member.
22 MR. STERN: Question No. 9 gives his wife's full name.
23 MR. DEMBER: If I can see it.
24 MR. STERN: Yes.
25 MR. DEMBER: I am sure it's there. I just want to see
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1 it that's all. It is certainly there, your Honor.
2 MR. STERN: We are all in agreement.
3 MR. DEMBER: We are all in agreement. Thank you.
4 THE COURT: I'll make sure that we strike jurors 334,
5 397, 403, 409, 437. And did the government follow up on 253?
6 MR. DEMBER: Yes, your Honor. As far as we can
7 certainly tell, the three FBI agents who the juror identified
8 are not going to be witnesses in this case, and we have no
9 reason to believe at all that their names will be mentioned at
10 any point during the trial.
11 THE COURT: Anything else for me?
12 See you all at 9:30 am.
13 (Adjourned to Wednesday, June 2, 2004, at 9:30 a.m.)
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SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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