11836 516MSAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 January 6, 2005 8 9:30 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID STERN 23 DAVID A. RUHNKE 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11837 516MSAT1 1 (Trial resumed) 2 (In open court; jury not present) 3 MR. TIGAR: Good morning, your Honor. 4 THE COURT: Good morning. 5 MR. TIGAR: Your Honor, a dispute has arisen with 6 respect to an exhibit, which is the Yousry notebook exhibit 7 MY-1004-CT, I believe, but it is one of the Yousry exhibits. 8 During Mr. Dember's summation for the government he 9 spoke at some length about the September 1999 visit with Omar 10 Abdel Rahman and a letter that stated that Sheikh Omar Abdel 11 Rahman regarded the Islamic Group as absolved from the 12 ceasefire. It is our contention that that letter -- and there 13 is a letter in evidence that says absolved -- does not reflect 14 anything that Sheikh Omar Abdel Rahman ever said to anybody 15 and, therefore, one can make some arguments down the road, and 16 I will, about the purely speculative nature of the repeated 17 statements that Ramsey Clark thought that something was or was 18 not criminal. 19 I would like to read to the jury from the Yousry 20 notebook, which contains what one can infer are the words of 21 Sheikh Abdel Rahman, not for their truth, however. 22 The Court's limiting instruction as it appears at 9081 23 and 9082 is: Now, Exhibits MY-1000 through 1006 contain 24 written statements. 25 THE COURT: I'm sorry. I thought this was -- I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11838 516MSAT1 1 thought you began with MY-2004. 2 MR. TIGAR: 1004. Did I misspeak? 3 THE COURT: I may have misheard you. 4 MR. TIGAR: Contain written statements. Some of these 5 written statements assert that Sheikh Omar Abdel Rahman, his 6 lawyers and Mr. Yousry said certain things. You may consider 7 these written statements in Defense Exhibits MY-1000 and 8 MY-1006 -- I think it should be through -- is evidence that 9 Sheikh Omar Abdel Rahman, his lawyers, and Mr. Yousry actually 10 said the things reflected in the written statements. However, 11 the contents of what Sheikh Abdel Rahman, his lawyers, and 12 Mr. Yousry allegedly said is not admitted for their truth. You 13 may consider the content singular, but probably it is meant to 14 be plural of the statements allegedly made by Sheikh Omar Abdel 15 Rahman and his lawyers only for its effect, if any, on 16 Mr. Yousry's knowledge, intent, or state of mind. And you may 17 consider the content of the statements allegedly made by 18 Mr. Yousry only as evidence of Mr. Yousry's knowledge, intent, 19 and state of mind. And then the Court goes on to discuss 20 newspaper articles that are quoted, which is not relevant to 21 this application. 22 I understand that instruction as permitting me to say 23 that this evidence here is admitted for the fact that certain 24 words were uttered and that's what I would like to argue to the 25 jury. I understand the government has a different position. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11839 516MSAT1 1 Regardless of that and in the alternative, I 2 respectfully submit that the government, having asked the jury 3 to draw these inferences that Abdel Rahman said absolved, that 4 Ramsey Clark thought -- Ramsey Clark thought that Abdel Rahman 5 said that, that Ramsey Clark wouldn't issue it because it was 6 criminal, a change of inferences that I believe is improper and 7 not supported by the evidence, that I should be able to rebut 8 that because I think that it goes beyond the evidence in the 9 case. That's in the alternative. I think that my 10 understanding of the Court's instruction permits me to make the 11 argument in any case. 12 MR. BARKOW: Your Honor, I'd like to make four points 13 in response to Mr. Tigar's application. First, I could, if it 14 would help the Court, pass up a copy of the transcript pages 15 that Mr. Tigar just read. 16 THE COURT: Thank you. 17 MR. BARKOW: I can pass them to Mr. Fletcher. I 18 assume counsel has a copy of this. I have extra copies if 19 counsel needs one. 20 Your Honor, what the Court said does not support 21 Mr. Tigar's application because the Court correctly addressed 22 the two levels of hearsay in the notebooks in an exhibit 23 offered by Mr. Yousry. The exhibits were not admissible for 24 their truth, the Court says in the first paragraph, which is 25 lines 9 through 17, and then goes on to say about the same SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11840 516MSAT1 1 evidence that the contents of the statements in those notebooks 2 is admissible for its effect on Mr. Yousry's knowledge, intent, 3 or state of mind. 4 And when Mr. Yousry offered the exhibits, that was a 5 proper purpose for Mr. Yousry to offer the exhibits and that is 6 the purpose for which they were received. And it seems plain 7 to the government that that is what the Court said, and limited 8 the use of these exhibits to Mr. Yousry for evidence of his 9 knowledge, intent, or state of mind. That's the first point. 10 The second point is, the law supports what the Court 11 said and what the Court said was a correct statement of law 12 because what the notebooks presented when offered by Mr. Yousry 13 was two levels of hearsay, the first level being out-of-court 14 statements, the second level being that they were entered into 15 a notebook. 16 The first level of hearsay, we agreed with 17 Mr. Yousry's counsel, was addressed by the fact that these were 18 business records. The second level of hearsay, however -- I 19 think I just flipped that. The fact that it was in the 20 notebooks was addressed by the fact that they were business 21 records. The other level of hearsay, however, that they were 22 out-of-court statements were admissible only because they were 23 evidence of Mr. Yousry's knowledge, intent, or state of mind 24 because he was there at the visit and heard and wrote the 25 words. Ms. Stewart was not there. And so Ms. Stewart cannot SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11841 516MSAT1 1 overcome the second level of hearsay because she had no 2 understanding, knowledge, or awareness that any of these words 3 were stated at the time. The evidence was admitted only with 4 respect to Mr. Yousry, which was correct, was not admitted with 5 respect to Ms. Stewart and, therefore, should not be able to be 6 used by Mr. Tigar. 7 The third point is just that this was the product -- 8 to the extent this may not be a legally significant point, but 9 I just want to inform the Court, this wasn't argued before the 10 Court because this was the product of negotiation and 11 discussion between Ms. Baker and Mr. Ruhnke. And ultimately 12 Ms. Baker wrote a letter memorializing the government's 13 position back on October 27 of 2004 and stated our position 14 that the evidence should be limited to Mr. Yousry's knowledge, 15 intent, or state of mind. Discussions were had. We agreed 16 that these were business records and the second level of 17 hearsay could only be overcome for Mr. Yousry on the knowledge, 18 intent, or state of mind prong. And so that is what led to the 19 Court's instruction without argument before the Court, without 20 any input from Mr. Tigar, and without any discussion by 21 Mr. Tigar of a desire later to use this evidence. 22 Finally, your Honor, with respect to Mr. Tigar's 23 comments about Mr. Dember's arguments about Mr. Clark, there 24 was no quote or citation of argument directly by Mr. Dember, 25 but there is other evidence other than these notebooks which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11842 516MSAT1 1 proves the points that Mr. Dember argued, namely, calls 2 surrounding the September 1999 visit and also a document which 3 I don't know the exhibit number off the top of my head, but 4 that was found in Mr. Yousry's home during the search which was 5 a subsequently approved document by Ramsey Clark that set forth 6 what Abdel Rahman said. 7 That evidence, when offered by the government, the 8 calls, is direct evidence of what was said and what happened 9 there. The evidence found in the Yousry search was at the very 10 least evidence with respect to Mr. Yousry. I don't recall -- 11 and Mr. Sattar, I believe, too, that exhibit. 12 And so for those reasons, your Honor, this evidence is 13 not admitted with respect to Ms. Stewart and should not be able 14 to be relied upon by Mr. Tigar. 15 THE COURT: Hold on one moment. 16 MR. BARKOW: Your Honor, I just need to correct one 17 slight thing that I said at the end, if I may, before Mr. Tigar 18 responds. 19 THE COURT: Hold on one minute. 20 What did you want to say? 21 MR. BARKOW: The only other thing, your Honor, the 22 last point I made with reference to the exhibits that Mr. Tigar 23 relied upon, those exhibits were admitted with respect to all 24 defendants. And they actually said that Abdel Rahman said that 25 the Islamic Group should consider itself absolved from the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11843 516MSAT1 1 ceasefire. And so it supported Mr. Dember's argument and it 2 was admissible with respect to all defendants. 3 THE COURT: Mr. Tigar. 4 MR. TIGAR: Yes, your Honor. This argument rests 5 fundamentally on my desire to answer what I think is a most 6 unfair characterization of the evidence. Now we have 7 additional exhibits placed in play here. 8 First, if the Yousry notebooks are business records, 9 but admitted only for the fact that things were said, then 10 that's all I ever wanted to do with them. However, if the 11 argument is expanded that what -- that there was a letter -- 12 and there was -- it is 2312-40T. And it does at the top say: 13 Oh, approved, Ramsey Clark in Mr. Yousry's handwriting. And 14 the 40T is the translation. 15 The government just said that was admitted against all 16 defendants. Well, if it is, it is somebody's hearsay. It is 17 not Abdel Rahman's hearsay. He never said it, your Honor. 18 And, therefore, it must be somebody else's hearsay. I'm 19 entitled to go after the question of whose hearsay it was 20 because whose ever hearsay it was is a declarant here. 21 And that also relates to this broader question. We 22 are charged in a conspiracy, your Honor, and -- at some point 23 the government is trying to use, to put together all these 24 hearsay statements and attach significance to them. I say they 25 have done it in a most unfair way and I'm attempting to use SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11844 516MSAT1 1 this as a guide. As I say, fundamentally, I read the Court's 2 instruction the same way Mr. Dember does and I don't see what's 3 wrong with saying that these words aren't there, or these words 4 are there; that is to say, that this is some reflection of 5 words actually spoken, regardless of their truthful content. 6 THE COURT: Taking the issues in reverse order, it is 7 not clear to me what the difference is between the parties. 8 With respect to the other exhibits that the government says 9 were admitted against all of the defendants, I ruled on 10 objections in the course of the trial. There were no 11 objections and they are there and they are not subject to 12 limiting instructions. They are there and subject to arguments 13 by the parties as to what the documents say and whether the 14 inferences that the parties are drawing from the documents are 15 their inferences. Parties make lots of choices during the 16 course of trial as whether they want exhibits in or not, or 17 whether they want them subject to limiting instructions or not. 18 Getting back to the Yousry notebooks, which was the 19 first issue, again, it is not clear to me what the difference 20 is between the parties. To the extent that the Yousry 21 notebooks support that Abdel Rahman said that people were 22 absolved from the ceasefire -- 23 MR. BARKOW: Your Honor, the difference between the 24 parties is that, I believe -- although I don't have the 25 notebook pages in front of me -- is that the notebook pages SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11845 516MSAT1 1 don't say that. And so the evidence that was admitted from the 2 Yousry search offered by the government as coconspirator 3 statements and admitted against all defendants -- 2312-40T, for 4 example, was admitted and shows that Abdel Rahman said that the 5 Islamic Group was absolved. 6 I believe that Mr. Tigar wants to use the notebooks to 7 impeach that evidence because he says -- and I don't have it in 8 front of me -- that it is inconsistent. And so our argument is 9 that is not evidence with respect to Ms. Stewart and it was 10 admitted at the time with a limiting instruction that it was 11 only admissible as to Mr. Yousry's knowledge, intent, and state 12 of mind. And to ask now to use it, it is too late. Basically, 13 I think Mr. Tigar wants to quote it or at least contrast it to 14 the allegedly inconsistent words in the notebooks with the 15 other evidence. But what he wants to do is use evidence that 16 isn't admissible as to his client to impeach evidence that is. 17 MR. TIGAR: Should I attempt to respond to that, your 18 Honor? 19 THE COURT: Yes. 20 MR. TIGAR: The government now concedes that it wants 21 to claim, that it does claim that Abdel Rahman said that the 22 Islamic Group is absolved. I say he never said it. I say that 23 this document that is found in Mr. Yousry's home provides no 24 evidence whatever that he ever said it. I say that's false. 25 And Mr. Dember's argument comes down to an argument about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11846 516MSAT1 1 timing. Too late, he says. 2 THE COURT: Mr. Barkow, you mean. 3 MR. TIGAR: Sorry. Mr. Barkow's argument. 4 I don't think it is too late, your Honor, and I don't 5 think that's a proper argument. 6 The notebooks represent circumstantial evidence of 7 what was said. That's what I understood the Court's 8 instruction to be. I understood the Court's instruction to be 9 that we weren't going to offer them for the truth. In my 10 opening statement I said I thought the notebooks were a 11 valuable resource. All the parties have referred to the 12 notebooks in one way or another. And so I respectfully suggest 13 that that's the common-sense approach to what's going on here. 14 MR. BARKOW: Very briefly, your Honor, my argument is 15 not that it is -- is not just that it is too late. It is that 16 the rules say that the evidence is not admissible with respect 17 to Ms. Stewart if offered by her because they were limited to 18 Mr. Yousry's knowledge, intent, and state of mind. Even if 19 offered at the time, the notebooks probably would not have been 20 admissible or would not have been admissible with respect to 21 Ms. Stewart. This was an issue that was decided and discussed 22 a long time ago. 23 Now it is too late because if Mr. Tigar wanted to 24 elicit evidence about this or try to offer evidence about this, 25 he could have done it in some other way. And the rules say SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11847 516MSAT1 1 that this evidence, these notebooks, are not admissible with 2 respect to Ms. Stewart when offered by her, because they can't 3 have any relevance to her knowledge, intent, or state of mind, 4 because she wasn't there. 5 MR. TIGAR: Because this is a conspiracy case, your 6 Honor, what happened and what was said, obviously, is important 7 to Ms. Stewart in many ways. 8 The Court said: You may consider these written 9 statements as evidence that Sheikh Abdel Rahman actually said 10 the things reflected in the written statement. That's what the 11 Court said. That's what I relied on at the time. That's my 12 position. 13 Excuse me, your Honor. Mr. Ruhnke reminds me of an 14 additional matter. 2312-40T bears the typewritten signature 15 Abu Omar which the government claims is Mr. Sattar. I would 16 like to argue -- I believe that we should be relieved from all 17 hearsay constraints in arguing whether or not the statement 18 accurately reflects what it says in there. That's an 19 alternative argument under Rule 806 in chambers, just to make 20 sure the record is complete. 21 THE COURT: The document came in apparently without a 22 limiting instruction, so the government is not disputing that 23 argument to be made with respect to -- as I understand it, with 24 respect to 2312. 25 MR. BARKOW: That's correct, your Honor. Just not in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11848 516MSAT1 1 reliance upon the notebooks which are not admissible with 2 respect to Ms. Stewart. 3 MR. TIGAR: My argument is that I'd like to use -- 4 even if the Court sustains the government's hearsay position, I 5 want to use 1004-CT to show that the government's 6 characterization of it is false. 7 THE COURT: Let me go back to the Yousry notebook. 8 The instruction was worked out by the parties. 9 Interpreting the instruction that I gave and listening to the 10 parties, the first paragraph of the limitation is, as 11 Mr. Barkow says, the explanation for the business records, 12 nature of the notes such that the notes reflect what was said. 13 It goes on to say that the contents are not admitted for the 14 truth. What that would mean in the context of a statement such 15 as absolved is that the truthful content of the statement is 16 that people are actually absolved rather than that someone is 17 saying that people are absolved. And that's the second level 18 of hearsay and it is the definition of hearsay offered in 19 evidence to prove the truth of the matter asserted. 20 Then the second paragraph reflected the understanding 21 of the parties as to the only relevance to the case of the fact 22 that something was said in Mr. Yousry's presence and it is 23 relevant only to Mr. Yousry's knowledge, intent, and state of 24 mind. But it is now said, in view of the way in which the 25 evidence developed, there is another use for the simple fact of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11849 516MSAT1 1 what was said, not for the truth of anyone being absolved, but 2 for the fact that something was said. And that would not be 3 precluded by the rules of evidence because it is not being 4 admitted for the truth of the content that someone is absolved. 5 And it is subject to argument as to whether Mr. Yousry got it 6 right in his notes or didn't get it right in his notes. 7 But argument over whether it was in fact said 8 doesn't -- the fact of that, rather than for its truthful 9 content would be permitted under the Federal Rules of Evidence, 10 and I don't believe would be precluded by the stipulation as to 11 what the limiting effect is, so long as it doesn't go to the 12 truthful content. 13 MR. TIGAR: I believe I understand your Honor's view 14 as expressed and that as expressed is the use that I had 15 intended to make and no more. 16 MR. BARKOW: Your Honor, I would only say this then. 17 If Mr. Tigar is going to use this piece of evidence, which I 18 don't even know what it says. I don't know what page it is. 19 THE COURT: Take a moment. 20 MR. BARKOW: If Mr. Tigar is going to use this piece 21 of evidence as impeachment of other evidence, then, to my mind, 22 the only proper way to make that argument would be something 23 along the lines of, this exhibit, 2312-40T says this, this 24 other exhibit says this. They contradict each other. You 25 don't know which one is right. As opposed to this other SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11850 516MSAT1 1 exhibit -- 2 MR. TIGAR: I will be happy to do it that way. 3 I was about to lapse into sarcasm, but I won't, but 4 I'll do it that way. 5 THE COURT: Did you all work out the other issue about 6 the beginning of the -- 7 MR. TIGAR: Yes, your Honor. What I intend to say is 8 that I had referred yesterday to an exhibit called MY-517. 9 That was subject to a limiting instruction. Please disregard 10 my reference to it. 11 MR. BARKOW: Your Honor, I thought we had, but 12 actually the agreement, as I understood it, would be there 13 would be no reference to the exhibit by exhibit number, by 14 content, by title, by description. At most, if anything, I 15 referred to an exhibit, but it is not admissible and short of 16 anything more than that, we would object to. 17 THE COURT: Do you want anything said? 18 MR. BARKOW: No, your Honor. If anything would be 19 said, we think the appropriate thing might be sustained. But 20 if the Court isn't going to comment on the objection, then I 21 think nothing needs to be said. 22 THE COURT: Okay. 23 MR. TIGAR: I'm sorry, your Honor. I thought I had to 24 say the name of the exhibit so the jurors wouldn't write in 25 their notes. Whatever exhibit Mr. Tigar referred to yesterday, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11851 516MSAT1 1 we don't know what it is, you need to disregard it. I'll just 2 not refer to it at all. 3 THE COURT: Is that satisfactory? 4 MR. BARKOW: Yes, your Honor. If there is no 5 reference to it at all, that would be satisfactory. 6 THE COURT: Now that you have raised the issue of 7 another exhibit that was subject to a limiting instruction or 8 not subject to a limiting instruction, I don't know with regard 9 to 2312 whether the parties want to discuss what reference, if 10 any, is appropriate with respect to that exhibit. 11 MR. TIGAR: 2312-040 and 040T are in evidence. I'm 12 not aware of any limiting instruction. 13 MR. BARKOW: I think that's right, your Honor. 14 MR. TIGAR: There we go. 15 THE COURT: Are we ready to bring in the jury then? 16 MR. TIGAR: We will just take a minute, if we may, 17 your Honor, to get our table organized. 18 (Pages 11852-11859 SEALED by order of the Court) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11860 5165SAT2 1 THE COURT: Please be seated, all. All right, let's 2 bring in the jury. 3 (Jury present) 4 THE COURT: Please be seated, all. 5 Good morning, ladies and gentlemen. 6 THE JURY: Good morning, your Honor. 7 THE COURT: It is good to see you all, as always. 8 Ladies and gentlemen, we've been going some time on 9 summations, we began last week. And I just wanted to give you 10 an update and remind you about some of my continuing 11 instructions. We expect that the summations will be concluded 12 and I will instruct you on the law after the conclusion of the 13 summations, the early part of next week. So, that I wanted to 14 give you, advise you of that. 15 It is important that you always continue to follow all 16 of my instructions. Remember, I have given you specific 17 instructions with respect to summations nothing that the 18 lawyers say is evidence, it is your recollection of the 19 evidence that controls. 20 With respect to all issues of the law, I will instruct 21 you on the law in my final instructions. The lawyers are 22 welcome to refer to what they expect I will charge you on the 23 law but if any lawyer states any principle of law different 24 from what I tell you what the law is, it is always my 25 instructions on the law that you must follow. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11861 5165SAT2 1 Remember always to follow my continuing instructions. 2 It's very important that you continue to keep an open mind 3 until I have instructed you on the law and you have gone to the 4 jury room to begin your deliberations. Remember, as I have 5 told you, that's so important because you are the judges of the 6 facts and you decide the facts in the context of my 7 instructions on the law. 8 So, it's only after you have heard my instructions on 9 the law that you will have the entire picture of the case 10 before you and be in a position to begin to deliberate. That's 11 why I have also told you that it's important not to talk about 12 the case at all among yourselves or with anyone else when you 13 go home. 14 All of these instructions are really part of a piece, 15 they're part of a unified whole in the way in which you, as 16 jurors, perform your function of providing a fair and impartial 17 consideration of the entire case, which is your duty as jurors. 18 It is so important for jurors to keep an open mind, 19 not to discuss the case until they have the entire case and 20 they have heard my instructions on the law. Then it will be 21 the obligation of the jurors, then and only then, to begin 22 deliberations. And, as I will tell you during the course of my 23 final instructions, it is so important in the course of 24 deliberations to exchange views, to listen to the views of all 25 of the other jurors before the jury reaches a decision. It is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11862 5165SAT2 1 important for jurors to respect each other and to exchange 2 views as I will tell you, that is the very essence of jury 3 deliberations, and you must do that in an atmosphere of 4 complete fairness and impartiality. 5 So, I reemphasize all of these things to try and put 6 my continuing instructions into context. Also, I give them now 7 because we've been going on for some time in summations and I 8 want to let you know where we are in terms of the schedule of 9 the case and to reemphasize to all of you to please, remember 10 to follow my continuing instructions; keep an open mind, don't 11 discuss the case, wait until you have finally heard my 12 instructions on the law and you are ready to deliberate and to 13 deliberate with complete fairness and impartiality with respect 14 for the views of all of you. 15 And I will reemphasize all of this in my final 16 instructions to you but, again, you will only have those final 17 instructions after the summations are concluded and so I hope 18 that the explanation of the schedule and the instructions is of 19 use to all of you. 20 With that, Mr. Tigar, you may proceed. 21 MR. TIGAR: Thank you, your Honor. 22 Good morning again, members of the jury. 23 THE JURY: Good morning. 24 MR. TIGAR: I broke off yesterday and I was going to 25 start talking, and I will in a minute, about that September SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11863 5165SAT2 Summation - Mr. Tigar 1 1999 prison visit, but I wanted to look back and as I did at my 2 own words yesterday, I have tried, consistent with the 3 acoustics in this room, not to be shouting or banging on the 4 lectern or doing that and I'm not saying that to preach at you, 5 it is just that I look back on my own life and, you know, 6 decisions that I made when I was angry weren't always the very 7 best ones that I made in life. I mean, has anybody heard of 8 unrighteous indignation? It is easy to get all wound up. 9 See, I believe, based on some experience talking to 10 people in courts and so on, that the constitution and the rules 11 about evidence and listening and open-mindedness and hearing 12 both sides and beyond a reasonable doubt and even the parts 13 that say equal protection of the laws for people and so on, the 14 constitution is a way of protecting us from ourselves, 15 protecting us from the way that our emotions might get in the 16 way of dealing fairly with the rights of people. 17 But I suggest that to you and I know the Judge will 18 instruct you on the law, that's the law, but I wanted to share 19 that with you. 20 Now, we can look here, I propose to, at this September 21 1999 prison visit. Now, you will, I think you will recall a 22 lot of testimony about it. That was a visit where Mr. Clark 23 was the lawyer and Mr. Yousry was the translator and where, of 24 course, the other person present was Omar Abdel Rahman. 25 Now, there is no recording of that visit. What there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11864 5165SAT2 Summation - Mr. Tigar 1 is is there are telephone calls, Mr. Sattar is talking about 2 it. I've talked about that. The government can't have it both 3 ways, that we are to believe everything that Mr. Sattar says 4 about one visit and disbelieve what he says about another one. 5 I'm suggesting, therefore, to you, that his version of what 6 happened there, particularly because he wasn't there, is not 7 something on which you can rely. That visit, you will recall, 8 is one in which the government spent, prosecutor spent a great 9 deal of time. He claimed to you that there was evidence that 10 at that visit Abdel Rahman said the Islamic Group is absolved 11 of the cease-fire, which he then translated into a call for the 12 killing. 13 He then went on to say that it would be criminal to 14 issue such a statement and that Ramsey Clark wouldn't do it 15 even though the Sheikh said it because to do it would be 16 criminal, criminal, criminal, criminal -- he said criminal five 17 times, referring to some characterization of what the 18 prosecutor claimed Mr. Clark was thinking about not issuing 19 this statement about being absolved. 20 Now, I'm going to suggest to you, as I have before, 21 that that version of events is wholly fictitious. That didn't 22 happen. The evidence says that didn't happen. Let me put it 23 more accurately, the evidence says that didn't happen. 24 Let me go back. It is true that found in Mr. Yousry's 25 house in a search, I believe was Government Exhibit 2312-040, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11865 5165SAT2 Summation - Mr. Tigar 1 will put it up on the Elmo here, and it said -- it's in Arabic 2 except for the typeface of the date is 9/21/1999. 3 Now, if that's the date -- and those are of course 4 Arabic numerals because they were invented by Arabs in the 5 early part of the common era -- that's September the 21st, 6 1999. The visit was Saturday, September 18th. There is no 7 dispute about that. So, this document is dated after that. It 8 says old, approved Ramsey Clark. 9 Now, Mr. Yousry testified that approved Ramsey Clark 10 means that it was a document therefore that was approved to be 11 read to Abdel Rahman at some point and the government offered 12 this document. 13 The only evidence of its date therefore is that it was 14 prepared three days after the prison visit. Now let's look at 15 the translation, that would be 2312-40T, again, a government 16 exhibit, handwritten in English, they say at the top, old 17 approved, and here is a translation. And at the bottom the 18 government translates Abu Omar 9/21/1999, that's Mr. Sattar. 19 And sure enough, it says: What, great disappointment at the 20 outcome, confirm our commitment. Let's see, adhere to it, so 21 forth and so on. And you are absolved. 22 See that? You are absolved. Shall I zoom in on that? 23 You can see it right there. You are absolved. But that's not 24 a letter from the Sheikh, it's a letter to the Sheikh and it 25 bears a date three days after the visit and it says beloved SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11866 5165SAT2 Summation - Mr. Tigar 1 brother Abu Omar. 2 Now, it does claim that these were, quote, points 3 dictated to me. I was granted the freedom to phrase them. See 4 that language? Yes, that's up there, all right? Points 5 dictated to me. Well, the undisputed evidence is that Sheikh 6 Omar Abdel Rahman never dictated anything to Mr. Sattar after 7 1997 when he was barred from the jail. 8 The government hasn't been clear -- maybe they will be 9 in their rebuttal argument -- is the claim that once again the 10 government is going to embrace Mr. Sattar and say, well, he 11 must be telling the truth here, it wasn't dictated to him? 12 Well, that wouldn't be right. That it got to him indirectly? 13 There is no evidence, members of the jury, that Abdel Rahman 14 ever said those words to Mr. Sattar. 15 Next point. There is no evidence, members of the 16 jury, that Abdel Rahman ever said those words to anybody. 17 One thing this case makes abundantly clear, I suggest 18 to you for your consideration, that Mr. Yousry is a compulsive 19 note taker. Mr. Yousry's notebooks fill pages and pages. You 20 saw stacks of them, a group of them which is MY- -- let me get 21 this right -- 1000 through MY-1006 were introduced in evidence. 22 They were subject to a very, somewhat lengthy limiting 23 instruction and I will take the liberty to read it. 24 Some of those written statements assert that Sheikh 25 Omar Abdel Rahman, his lawyers and Mr. Yousry, said certain SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11867 5165SAT2 Summation - Mr. Tigar 1 things. You may consider those written statements in these 2 defense exhibits -- referring to those -- as evidence that 3 Sheikh Abdel Rahman's reaction, his lawyers and Mr. Yousry 4 actually said the things reflected. 5 And then the Court goes on to say, Yes, but not for 6 the truth of what was said. So that if you look at a Yousry 7 notebook and Sheikh Abdel Rahman says a guard hit me today, or 8 I'm sick today, or something happened yesterday, it was not for 9 the truth. It is not evidence of that, it is just evidence 10 that he said that. And that's consistent with this general 11 idea that in our American system before we start saying that 12 people are true or untrue or whatever, we would like to see 13 them up there in the chair and let the lawyers interrogate them 14 on direct and cross-examination and that they take the oath and 15 all of those other guarantees about trustworthiness. 16 So, where are we so far? We have a history of at 17 least opening up to doubt when people that weren't there say 18 things about what the Sheikh said. 19 The September 1999 prison visit that's in Mr. Yousry's 20 notebook, and this is MY-1004CT, beginning at page 624, Yousry 21 notebook page -- I will put that up so you can see what it 22 looks like -- this is the English translation. You may recall 23 that there are facing pages. There is some Arabic original, 24 not that it will do me any good but there it is. 25 Now, it begins, Mr. Clark -- this is all that's in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11868 5165SAT2 Summation - Mr. Tigar 1 there about any view of the cease-fire: Tell Ahmed to write it 2 down. Disappointed. Crossed out, disappointment. 3 That's it. He's disappointed in the initiative. You 4 can go all the way through here. You get some discussion of to 5 present to Mubarak himself. The Sheikh send a lawyer, to 6 request amnesty and be permitted to return to Egypt. And so 7 on. 8 The word "absolve," the concept of absolved, an idea 9 about absolve, an idea to take up the killing is not in there. 10 What is in there is notes of the Sheikh's statement about 11 returning to Egypt. There is a whole page in there in which he 12 is reported to be cussing out Ramsey Clark for not paying 13 enough attention to him. Well, that's not admitted for the 14 truth because I think the evidence is Ramsey Clark did pay a 15 lot of attention to him -- not a word. 16 That visit is on the 18th, this other letter is on the 17 21st. 18 Now, then there is a telephone call where Mr. Sattar 19 is saying, well, Ramsey Clark wouldn't issue a statement. 20 Well, what statement wouldn't Ramsey Clark issue? If the 21 statement that he wouldn't issue is one that says absolved, 22 then the logical explanation would be, well, he didn't issue it 23 because the Sheikh didn't say it. 24 But no, the prosecutor didn't want that. He wanted to 25 say that Ramsey Clark understood that the Sheikh said absolved. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11869 5165SAT2 Summation - Mr. Tigar 1 And in fact summation even goes further than that. He says 2 that at the time that these folks -- he makes the allegation as 3 of the September 18th, 1999 visit, Mohammed Yousry, Sheikh 4 Rahman and Sattar are conspiring to kill or kidnap people. He 5 said that. 6 And he made the claim based on the assumption that 7 they had all participated in a statement that says you're 8 absolved of the cease-fire. 9 Well, folks, conspiracy takes at least two to tango. 10 And there is no evidence, I suggest to you, no credible 11 evidence that Sheikh Abdel Rahman said absolved. And there is 12 no credible evidence that Mr. Yousry ever said or thought or 13 wanted absolved. 14 Of course, the government counsel didn't say oh, by 15 the way and Ramsey Clark heard it to so therefore -- he did 16 claim that Ramsey Clark heard it but didn't make the allegation 17 or put him in the mix. What he did say was that Ramsey Clark 18 wouldn't do it because it was criminal, criminal. 19 In short, a series of suppositions not based on the 20 credible evidence. Why am I taking the time to do this? 21 Because the trail of documents is sometimes difficult to read. 22 The trail of documents is sometimes difficult to parse. 23 And so, the final question that I would pose to these 24 prosecutors is, were you not here completely the day when 25 Ramsey Clark appeared? He came. He took the oath. He took SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11870 5165SAT2 Summation - Mr. Tigar 1 the witness stand. He was examined about prison visits and 2 representation. 3 It would have been simple for a party with the burden 4 of proof to ask him: Mr. Clark, did you understand that the 5 Sheikh said "absolved"? 6 Mr. Clark, did you decline to issue the statement? 7 And then the most serious allegation of all, 8 Mr. Clark, did you think that what you were doing, being asked 9 to do was criminal and therefore you didn't do it? 10 And if he had said yes to all of those things, then 11 that would indeed have been some serious evidence that the 12 defense would have to confront. But they didn't ask him. They 13 didn't ask him. They had questions about, oh, this SAM and 14 that SAM. 15 And then you remember they had a question about the 16 Iran hostage crisis. Right there, that was -- and when 17 Mr. Clark proved that he knew about the Iran hostage crisis 25 18 years ago and had a really sharp view of the danger to innocent 19 people that had been raised there and how Cyrus Vance had had 20 to resign from the government because the hostage rescue was 21 botched. 22 Well, you know, you're entitled to look at the 23 interplay of witness and lawyer to get the symbolism here. The 24 government lawyer backed up away from that pretty quick. 25 Folks, this is not a contest between some prosecutor's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11871 5165SAT2 Summation - Mr. Tigar 1 imagination and the quality of our evidence. This is not a 2 contest between a lawyer's rhetoric. Let me make it more 3 general and not be pointing fingers. I don't want to do that 4 necessarily in any hostile way. 5 This is not a contest between rhetoric and evidence. 6 This is a case about whether they who brought these charges can 7 prove each and every element of each and every offense beyond a 8 reasonable doubt. It is like when Mr. Fitzgerald was on the 9 stand about the SAMs. Oh, Ramsey Clark violated the SAMs. And 10 then the government was saying in their summation, well, he 11 didn't. Well, it would have been as easy as pie to ask 12 Mr. Fitzgerald calling, it's redirect examination, gee, 13 Mr. Fitzgerald, let me show you that SAM. Were you wrong? 14 They didn't do that either. 15 But there is a more general point I would like to make 16 to you about this. Later on in the summation government 17 counsel said that while Sheikh Abdel Rahman and Lynne Stewart 18 and so on didn't want to participate in a peaceful political 19 process in Egypt. 20 Then they said the Sheikh issuing a statement like 21 that would have the opposite -- if he issued a violent 22 statement, let's say got to, I will get to that, it would have 23 the opposite effect of that in Egypt. You know that, that's 24 common sense. 25 That discussion about the March visit, the Sheikh's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11872 5165SAT2 Summation - Mr. Tigar 1 discussion of political parties that was had for the benefit of 2 Mr. Yousry's dissertation, well, you see that? The Sheikh 3 didn't like peaceful political parties in Egypt. What are we 4 supposed to conclude from that I don't know. Maybe the 5 rebuttal summation will tell us what we are supposed to 6 conclude from that. 7 Is the suggestion that there is a peaceful democratic 8 system in Egypt where folks go to the polls and vote and all 9 opinions are respected and the Sheikh's not wanting to 10 participate in it is wrong? 11 Is the suggestion that the Egyptian government 12 wouldn't possibly respond to prejudice? 13 In short, is the suggestion that the defendants must 14 have acted in bad faith because they were grossly bad, wrong 15 about the political situation in Egypt? 16 Well, Ramsey Clark represented Sheikh Abdel Rahman 17 from 1994 on down to the present day and still does. He issued 18 press statement after press statement after press statement. 19 He went to Egypt over and over again. He testified that he met 20 with the head of the Egyptian security intelligence services 21 who remembered Sheikh Rahman because he used to feed Sheikh 22 Rahman when he, the head of security, was a guard in the jail. 23 No, Mr. Clark never met with Mr. Mubarak, he met with 24 some of his people. He thought, therefore, in good faith, 25 together with the other lawyers on this team, that this idea of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11873 5165SAT2 Summation - Mr. Tigar 1 issuing statements, of keeping the Sheikh informed, of visiting 2 him, was related to goals that he had as an experienced lawyer 3 on the domestic and international scene. 4 You notice the prosecutor said that it was a crime to 5 bring in a statement in which Mr. Taha had expressed some view 6 about the cease fire. They didn't stick that on Ramsey but if 7 it was a crime and Ramsey Clark did it they didn't have the 8 courage to come out and say he did it too. But he did bring it 9 in and was the only one that could have, but of course Ramsey 10 Clark did turn out to be right because the only evidence you 11 have of what actually helped in that meeting was when the 12 Sheikh learned about it he didn't go and say absolve the 13 cease-fire. 14 He found out what the view was -- and I will go into 15 this in detail and I'm sorry to take your time -- well, I'm not 16 sorry about it, I'm going to do it. 17 When we presented that evidence -- and I say we, you 18 are entitled to look at all of us -- Mr. Clark and his 19 experience and all of the things and calculations he made and 20 what he thought about the situation in Egypt, what could the 21 government have done at that point in rebuttal? They could 22 have called somebody. 23 Ramsey Clark is the only witness who testified here, 24 to you, who ever spoke to an official of the Egyptian 25 government about Sheikh Omar Abdel Rahman's situation. He is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11874 5165SAT2 Summation - Mr. Tigar 1 the only witness who testified here with detailed knowledge of 2 how transfer treaties work and that you, as he said, you can 3 get one done in a week. He is the only witness who testified 4 here who ever visited the Middle East on behalf of Sheikh Abdel 5 Rahman. 6 As Mr. Yousry testified, he is the only witness that 7 ever communicated Sheikh Abdel Rahman's views, aspirations and 8 desires to leaders in the Middle East. That was testimony. 9 And the government, although we have no burden to call 10 witnesses, the government was free to rebut him. And yet they 11 want to erect some castle in the air, some pretense about, 12 well, what the situation in Egypt must be and what it must be 13 like there. 14 Well, is there evidence offered by the government 15 about the political system in Egypt? Yes, there is. It is the 16 record of Nasser Ahmed's asylum proceeding across the street at 17 the immigration court, as a result of which an immigration 18 Judge, in an opinion that was read to you, Government Exhibit 19 2666, held that Nasser Ahmed should not be returned to Egypt 20 and should be granted asylum, which was a two-part inquiry; 21 first, that Nasser Ahmed had not done anything that he had been 22 accused of that would disqualify him to remain in our country; 23 and that Court rejected the secret evidence once it became 24 clear and could be rebutted, and criticized the government's 25 presentation about not knowing the difference between these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11875 5165SAT2 Summation - Mr. Tigar 1 groups. 2 So, that happened. And you remember Nasser Ahmed, he 3 was a paralegal, Ms. Stewart's paralegal trying to help out on 4 the Sheikh's case until they scooped him up, arrested him right 5 in the middle of the Sheikh's trial, as Ms. Stewart told you 6 and then the FBI started trying to ask him about what the 7 defense was doing right in the middle of the trial. They won 8 that case. 9 Now, the second part of the asylum application is the 10 one that's important here for the point I'm now making, and 11 that is that the immigration judge would have to conclude that 12 Mr. Ahmed would be at risk of persecution if he returned to 13 Egypt because of his view. I didn't make that up. 14 But there is something even more powerful here, that 15 again, human rights conditions in Egypt are not a defense to 16 the charges in this case and I'm not claiming that they are. 17 What I am saying is this: That a series of absolutely 18 unsupported assumptions arising from somebody's imagination 19 about what does and does not work in terms of the Egyptian 20 government has no basis in the record whatever by this party 21 that has the burden of proof. 22 Hosni Mubarak is a ten-horn dictator. That's not 23 state department language. But let me show you another exhibit 24 that the government introduced in evidence. 25 See, in order to get asylum, a fellow like Nasser SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11876 5165SAT2 Summation - Mr. Tigar 1 Ahmed has to, the government has to go get a country report or 2 an asylum report, an advisory opinion. 3 I will put this up here, this is Government Exhibit 4 2675. That's what it is. This is the advisory opinion from 5 the Department of State, they're the people that are charged by 6 law about knowing about this. Then the Bureau of Democracy, 7 Human Rights and Labor and so on, executive office. 8 Now, this was introduced because it bears on 9 Ms. Stewart's knowledge, intent and state of mind. I'm not 10 making any greater claim than that. Here is an information. 11 Now, you will have this in evidence. You will be able to read 12 the whole thing. I won't tax your patience with it. I have 13 seen those that take notes have taken notes, you will have it. 14 But I would like to point out that this is a document 15 by our own state department and it does say that the Islamic 16 Group -- and this is as of 1996 -- had engaged in terrorist 17 acts. It does say that the Group and the government are locked 18 in a cycle of violence. But it also says that the government 19 generally respects many human rights but others are restricted 20 by the continued imposition of the emergency law as the 21 security forces and terrorist groups, as I said, remain locked 22 in the cycle of violence. 23 The ruling NDP, that's Hosni Mubarak's party, National 24 Democratic Party, that's a party in Egypt, dominates the 25 political scene to such an extent that the people do not have a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11877 5165SAT2 Summation - Mr. Tigar 1 meaningful ability to change their government. The people do 2 not have a meaningful ability to change their government. 3 And then there are two paragraphs about how the 4 government behaves towards dissenting groups. 5 Well, I don't -- this is introduced for Lynne 6 Stewart's state of mind, certainly tends to show her good 7 faith, you know, when she says angry words about what she 8 thought about Hosni Mubarak. 9 The point of it is, members of the jury, that if the 10 government wants you to believe certain things about Egypt and 11 the likely effect of this or that approach to the Egyptian 12 government and how lawyers are or are not acting in good faith, 13 they have the burden, I suggest to you, to call people to the 14 witness stand that can be cross-examined. Because otherwise, 15 members of the jury, as I say, it becomes a contest between 16 lawyer rhetoric and the evidence that is presented. 17 Now, the next piece of business that was characterized 18 and that was the statement by the prosecutor that Mr. Jabara 19 wouldn't do something and he claimed that Mr. Jabara wouldn't 20 do it, what, because it was wrong or whatever. Well, like 21 Ramsey Clark, Abdeen Jabara understands that both issuing a 22 press release with Abdel Rahman's statement and views of the 23 cease-fire is, has nothing to do with being a good lawyer. 24 Well, in the evidence in the case, members of the 25 jury, there are press releases by Abdeen Jabara on Sheikh SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11878 5165SAT2 Summation - Mr. Tigar 1 Rahman's conditions and views on issues, such as violence, 2 including denials about statements the Sheikh did and didn't 3 issue. 4 The government, by this time in the analysis, has 5 decided to recast Mr. Sattar in its plate because by the time 6 summation got to the point of discussing the February visit, 7 the government is saying that Mr. Sattar's telephone calls 8 incorrectly characterize what the visit is about. So, the 1999 9 Mr. Sattar is different from the 2000 Mr. Sattar. 10 And I want to make something very clear to you. I 11 don't represent Mr. Sattar and I'm not a part of the attempt to 12 prosecute Mr. Sattar. I am neither of those things, I am 13 talking about the evidence as it relates to Lynne Stewart. 14 You know, it's hard enough to be on trial here for 15 anybody without a thought that I'm ganging up on Ahmed Abdel 16 Sattar because I'm not. You will consider the evidence as to 17 him separately and individually and I would not like anything I 18 say to detract from his right to have you do that. I do have 19 an obligation, a solemn obligation to represent Lynne Stewart 20 and I intend to carry it out to the best of my ability and if 21 that involves commenting on things like this, I will. 22 This is this long prison visit, this long; I'm holding 23 it up, that's a big one. And you will be pleased to know that 24 I'm not going to read the whole thing to you. But first 25 Mr. Jabara says, I'm not going to be involved in this letter, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11879 5165SAT2 Summation - Mr. Tigar 1 he does say that. Then Mr. Yousry explains, okay, I will take 2 it to Ramsey. 3 So much for the idea that Ramsey and Jabara are, have 4 some fundamental -- that you can break them off from Lynne 5 Stewart. That was one of the big objectives I think in that 6 summation, was to separate Lynne Stewart out. 7 And then Jabara says: Lets, eh...eh... Ramsey and I 8 talked about this and then continuing -- he said that whatever 9 happens I should not get in a situation where I don't get cut 10 off, he said, because it's more important. 11 What does that mean? Well, I suggest to you that 12 Ramsey Clark told Abdeen Jabara you're the only Arabic speaker, 13 we may have some confrontation down the line with Pat 14 Fitzgerald, and of all the people that are going to have that 15 confrontation where we have that fight you can't be the one 16 because you're the Arabic speaker. 17 Let's take -- let's take the most pro-government 18 reason. If I did this I might get cut off, i.e., I might get a 19 letter from Pat Fitzgerald saying you can't see the Sheikh 20 anymore. That's about 10 light years from being prosecuted for 21 a crime, a bad letter from Pat Fitzgerald. But no, that's not 22 what he is saying. 23 What he is saying is something very consistent with 24 what Lynne Stewart told you about the May visit. She was very 25 clear, members of the jury, that Pat Fitzgerald might very well SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11880 5165SAT2 Summation - Mr. Tigar 1 be agitated about a statement that she made. 2 It is not a crime to make an Assistant United States 3 Attorney agitated. It is sometimes an obligation. What she 4 said was, and I don't mean to make light of it -- what she said 5 was -- and now we can go back and see the significance of it -- 6 a condition suit had been filed in Springfield, Missouri, and 7 then dismissed without prejudice. A condition suit based in 8 Minnesota would be expensive and difficult. Why? Because he 9 is in Minnesota and there are all these forms to fill out. 10 But suppose you could get Pat Fitzgerald engaged in 11 telling the lawyers what they could and couldn't do in 12 Manhattan. Then he would be suing Pat Fitzgerald in Manhattan. 13 It's not, you know, venue -- venue where the dispute 14 happens, it's important. I don't know. You can, this is 15 just -- but James Fenimore Cooper, the great novelist, 16 threatened to sue Horace Greeley, who was a newspaper editor, 17 because he didn't like one of Fenimore's books about the 18 Mohawk. And Greeley said, well, he will not sue us in Albany, 19 for we are known here; and he will not sue us in Oswego, for he 20 is known there. 21 Venue. Venue. And people's common experience, you 22 want to get the case. 23 So, there certainly was some thought at that time, and 24 I want to concede that to you, that the lawyers knew that Pat 25 Fitzgerald might very well look askance and write them a nasty SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11881 5165SAT2 Summation - Mr. Tigar 1 letter, which they would then use as a basis for challenging 2 his behavior and saying, Fitzgerald, we didn't violate the 3 SAMs. 4 But of course you know what happened, right? 5 Fitzgerald backed down. And I will go into that in detail but 6 do you remember when the government lawyer wanted to play for 7 you the conversation where Ms. Stewart was talking with 8 Mr. Yousry about Fitzgerald's letter and he wanted to make a 9 point and then by accident they played a thing that boomed out 10 in the courtroom: Stanley told Pat and Lynne Stewart -- I 11 shouldn't be, Stanley told Pat you don't want to go to Court 12 and I don't want to go to court. 13 So much for the idea that they didn't negotiate about 14 what was and wasn't right. But the point was that Fitzgerald 15 backed down, that's what I said in the opening. But right now 16 that's what Mr. Jabara is talking about and that's the 17 reasonable inference. And the government attempts to build it 18 as part of this structure of imagination. 19 Now we come then to the May -- excuse me, your Honor, 20 may I take a break at this moment since I am about to change 21 subjects? 22 THE COURT: All right. 23 MR. TIGAR: Thank you. 24 THE COURT: Ladies and gentlemen, we will take 10 25 minutes. Please remember my continuing instructions. Please, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11882 5165SAT2 Summation - Mr. Tigar 1 don't talk about this case at all, please always remember to 2 keep an open mind until I have finally instructed you on the 3 law and you have gone to the jury room to begin your 4 deliberations. 5 Have a good break and I look forward to seeing you 6 shortly. 7 All rise, please. 8 (Jury not present) 9 THE COURT: See you shortly. 10 (Recess) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11883 516MSAT3 Summation - Mr. Tigar 1 THE COURT: Let's bring in the jury. 2 (Jury present) 3 THE COURT: Remember, ladies and gentlemen, to 4 continue to apply my instructions with respect to summations. 5 Mr. Tigar, you may proceed. 6 MR. TIGAR: Members of the jury, I'm very thankful for 7 the break because I can confer with other people at our table 8 and I can look back at my notes. I want to make some little 9 clarifications and corrections, things I didn't point out when 10 we were doing it. I hope that's an illustration of the 11 deliberative process and the way in which we all sometimes need 12 to re-examine our strongly-expressed views about things when we 13 look at some evidence that maybe we hadn't thought about. 14 The first is, I don't want to overstate this 15 Department of State report. After all, it is the Department of 16 State that was saying, don't give asylum or you don't need to 17 give asylum to Mr. Nasser Ahmed. There are many things in here 18 that say that there are some opposition parties in Egypt and 19 that the terrorist groups commit violence and so on. That does 20 exist in there. The part I read, the people have no meaningful 21 opportunity, ability to change their government, that's in 22 there, too. It is not offered for the truth. 23 My point was not to read this and make that the whole 24 evidence. It is just a State Department report. But to say 25 that if the government wanted to present evidence to contradict SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11884 516MSAT3 Summation - Mr. Tigar 1 Mr. Clark's view, they could have done so. That's only 2 important because based on the human experience that we bring 3 to the courtroom, although we can certainly think of violent 4 overthrows that happen, I also hope we know that repressive 5 regimes have dissolved or stepped aside without violent 6 overthrow. It happened in Chile. Pinochet stepped down. 7 Nelson Mandela got out. After what? A summer of nonviolent 8 protests when thousands of people took to the streets. 9 Now, the second thing I want to talk about in that 10 connection is that I was incomplete in talking about the Yousry 11 notebook because I referred you to pages -- and I'm right about 12 that -- that begin with the very first page of the visit, which 13 was page 624. But there is another reference that I didn't 14 show you to the same exhibit, apparently -- again, we can't get 15 this for the truth, but at page 632 the Sheikh -- apparently, 16 the Sheikh is saying, thank you for your concern and he is 17 talking disappointment is the least. Define your goals, 18 comprehensive review. 19 So there is more in there than what I pointed to. 20 But, once again, the point I was making, the word absolved 21 appears nowhere in there. There is no evidence from this that 22 the Sheikh said absolved, which is what the government 23 summation is built on. And then I did make a statement. I was 24 referring to this letter, 2312-40 and 2312-40T, that letter 25 that was signed, if you recall, Abu Omar. And somebody said I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11885 516MSAT3 Summation - Mr. Tigar 1 misspoke and said it was addressed to the Sheikh. But actually 2 it says beloved brother and it is dated 9/21. There is no 3 testimony as to whom this is addressed. The inference would be 4 that it was a draft prepared by somebody, not the Sheikh. 5 There is no evidence that it ever was, and that it had been 6 intended perhaps to go to Muntasir al-Zayyat, to whom it was 7 addressed, but there simply is no evidence. The evidence is, 8 it didn't go out. 9 Now, you recall that I did quote from -- so much for 10 the attempt to clarify. You will recall that I did quote from 11 the prosecutor's summations saying that it is absolutely 12 criminal to bring in some letter from Taha or from anybody that 13 wanted to inquire about the ceasefire even if the lawyers 14 thought that they needed to get the Sheikh's view about that in 15 order to communicate. 16 You also will hear the judge's instructions. This is 17 not a case where we are all going to sit down and read the SAMs 18 and then have a vote on who is right and who is wrong. This is 19 a case in which the government has the burden of proving beyond 20 a reasonable doubt that the defendants conspired to violate the 21 SAMs, i.e., that they intentionally violated a known legal 22 duty. In other words, they have to negate this good-faith 23 idea. You will hear the judge's instructions on it. It will 24 be -- those will control. I am not going to attempt to 25 restate. The judge will say them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11886 516MSAT3 Summation - Mr. Tigar 1 But I do say, this is not a contest about who gets to 2 read the SAMs. But Government Exhibit 2653. This is a 3 December 10, 1999 SAM. Now, you may remember, by the way, that 4 these SAMs were only good for 120 days, so that would be 5 December, January, February, March, April. So around April you 6 would expect to see another SAM. And when we get there we will 7 see -- and you did see -- that the government sent Lynne 8 Stewart a SAM in April, but it was dated December 10. That was 9 along with an affirmation that contained a typo that said that 10 she was signing in December 2000, even though it was only May. 11 Well, it is just a typo. Everybody understood. It certainly 12 indicates that this was not exactly the most pressing concern 13 of everybody in the United States Attorney's Office to get 14 these right. 15 Special Administrative Measures, page 3. Attorney use 16 of interpreters/translators. III. An attorney of record may 17 only allow a federally approved translator to translate the 18 inmate's correspondence as necessary for attorney-client; that 19 is, inmate privileged communication. And that's under the use 20 of translators and interpreters. 21 What were they doing in the prison? Mr. Yousry, the 22 translator, was translating correspondence that the attorneys 23 thought was necessary for communication. It is true. There is 24 a whole other section that deals with mail, mail, legal mail. 25 Then it tells about how they are going to send it in and so on. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11887 516MSAT3 Summation - Mr. Tigar 1 That's a whole different section of the SAM which deals with 2 matters that are sent through the postal service or some other 3 device for getting items from some distant place to the prison, 4 because, obviously, the translator isn't going to carry the 5 thing as a courier to the prison. These are two different 6 sections of the SAM. 7 You all can sit down and say, wait a minute, I don't 8 read it that way or somebody else doesn't read it that way. 9 That's not the point. The point is, can they prove beyond a 10 reasonable doubt the charges in this case? Ms. Stewart was on 11 the stand for a great long time defending, explaining how she 12 continued to read these things as permitted, as giving the 13 lawyers the opportunity to do what they did. And when I get 14 down to August and Fitzgerald, there will be some more language 15 about that. 16 But let me now turn to the May visit. That is the 17 visit in which the government says a lot of things happened. 18 First it says that Ms. Stewart said the words, good for them. 19 She did say those words. And that when she said them she meant 20 it was a good thing to take hostages. 21 May I have 1706? 22 That reading is not supported. That reading is simply 23 not supported. There is not any evidence in this case that 24 Ms. Stewart thinks that it is a good idea to take hostages. 25 This is the problem, members of the jury, with the kind of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11888 516MSAT3 Summation - Mr. Tigar 1 evidence that we have in this case. It is lawful, it is 2 admissible, but it ain't the best that you could have. The 3 best evidence is always what you hear from the witness stand 4 and gets cross-examined and examined. Because there isn't so 5 much opportunity for missteps and misstatements as people say 6 things. 7 Members of the jury, we elect to high public office 8 persons who are not able to get through a press conference 9 without a misstatement. And the reason that that's okay in our 10 America is that the rules are different out there than they are 11 in here. 12 I am telling the Sheikh about the Abu Sayyaf group in 13 the Philippines, et cetera. The New York Times never said they 14 wanted to free the Sheikh. Then in rapid fire: And Ramsey 15 Yousef, Abdel Rahman says; Stewart says: Hum, but their demand 16 is free. Stewart says: Good for them. I didn't read that 17 either. What is she referring to? Good for them they took 18 hostages? No. Otherwise, she would say, good for them, they 19 took hostages. Good for them. Good for them, I didn't read 20 that either. The New York Times never said. 21 The problem -- it is a human thing. It is a human 22 thing, I understand, as I get older, and that is that I'm 23 responding to what's said about two beeps after it gets said, 24 and Mr. Yousry so understands it. She says, sir, she never 25 read it in the newspapers either. Oh, you can say, no, I am SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11889 516MSAT3 Summation - Mr. Tigar 1 not sure I want to read it that way. I am not sure. 2 Members of the jury, there are two ways to look at the 3 conduct of Lynne Stewart in this case, two basic ways. You can 4 take every word she uttered, every thought she allegedly had 5 every memo she ever made, and you can give it the most sinister 6 interpretation that you wish. And then at the end of the day 7 you can say, well, that's Lynne Stewart and I suggest to you 8 there are two very powerful reasons not to do that. One is, 9 not fair. She is presumed innocent. It is their burden to 10 prove it. And their burden to prove it not by manipulating 11 offhand references and parsing transcripts and squeezing 12 meaning out and so on. 13 In light of this basic principle, hey, prove it. And 14 also because when she took the stand she told you what she 15 thought. They cross-examined her, you saw her. And folks we 16 will get to that in a little while, but they went to her office 17 and spent hours and hours and hours there and seized all of her 18 computers and had access to everything. And they came away 19 with nothing that suggests that that is her view. Indeed, her 20 unguarded, unguided comments as she had in the New York Times 21 back in 1995 said that's not her view. She is not for that 22 anarchistic terroristic violence. She has politics you might 23 very well disagree with,. It is not fair and it is not 24 consistent. 25 But there is something in there. She does go on to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11890 516MSAT3 Summation - Mr. Tigar 1 say, you know, the fact that they are using your name out 2 there, that keeps your name in the paper. Does that mean that 3 she is in favor of it? Well, I think you have to ask yourself 4 that question, fair question. When Prime Minister Blair stands 5 up in the British parliament, hypothetically, and says, there 6 is an awful lot of violence in Ireland and people are killing 7 each other and taking hostages and so on, and Jerry Adams says, 8 yeah -- the head of the IRA or whatever it is. I don't know 9 all those politics -- whoever it is said, well, you know, it is 10 going on and it is going to keep going on until you do 11 something about the Irish freedom or the condition of the 12 catholics in Belfast or whatever, does that mean that that 13 fellow wants the violence to continue or is he stating a simple 14 fact about the ugly world in which we live? 15 Do you criticize people for saying that, you know, as 16 long as the injustice continues that I perceive, violence will 17 probably continue? That is the oldest form of political 18 argument known to people who oppose what they see as 19 repression. The resistance will continue until you change. It 20 is pretty ugly world in which we live, in which that kind of 21 argument gets made and recognized as being made. I didn't make 22 it, you didn't make it, Lynne Stewart didn't make it. But it 23 is a reality. It was made by the Boston revolutionaries 24 beginning in 1761. I am not going to make a 4th of July speech 25 about it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11891 516MSAT3 Summation - Mr. Tigar 1 Yes, there was Martin Luther king who stood for 2 nonviolence, but uptown there was Malcolm X, and he said, well, 3 nonviolence is probably a pretty good idea. If things don't 4 change, I don't know how we are going to keep people under 5 control here. It is just a reality, and Lynne Stewart 6 recognized it. It is a world she did not make, but it is a 7 world in which these things happen. 8 The May visit -- we recognize a difference between 9 preaching and meddling. Suppose Lynne Stewart did think Abu 10 Sayyaf, oh, yeah, that's a good idea. Suppose she thought 11 that. Suppose the Sheikh thought that. He didn't, by the way. 12 In a later conversation I'll show you that. There are people 13 out there that do believe in that, but they are not criminals 14 until the government proves beyond a reasonable doubt that they 15 got together with somebody under realistic circumstances and 16 agreed to go some place and do it; that is to say, disagreeing 17 with people's politics is not a part of what this is about. 18 There are ways in which you're permitted by the law to 19 use evidence about people's political views no matter how 20 radical they are, and the judge will give you an instruction 21 about it and I ask you to consider it carefully and listen to 22 it and put it into effect. I will not try to restate it. It 23 is lengthy and it is complex and it respects both the 24 fundamental American view that we tolerate all points of view 25 in this wonderful diverse society of ours, and also the law SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11892 516MSAT3 Summation - Mr. Tigar 1 places limits on the people's freedom of expression, and the 2 judge will tell you about that. 3 Further, going on in the May visit, the prosecutor 4 told you that Ms. Stewart was not candid with you because she 5 said she didn't fully know about Taha and so on. On 6 cross-examination she did say in some detail what she 7 understood what Taha was about. Mr. Dember asked her about it. 8 I don't see what's -- again, I am not going to sit here and 9 read to you great sections of Lynne Stewart's direct and 10 cross-examination even when I get to the part of my summation 11 that deals with her view of the world. I'm not going to do it. 12 You know why I am not going to do it? Several 13 reasons. The first is, when I started doing this, they didn't 14 have Live Notes and daily copy and people looking at screens 15 and so on. We just came to court and we listened to the 16 witnesses and 12 people remembered each one. I remember this 17 part and I remember that part and they would sit down and 18 deliberate in good faith and figure it out. And then they 19 would come in with a verdict and we would go home. We would 20 come in first or we would come in second, or we would win or 21 lose and so on. This idea that we are going to read 22 transcripts from now until next spring is not exactly my idea 23 of how we try a case, in addition to the fact that I'm not used 24 to doing it this way. You get to look at the witnesses. 25 If reading transcripts to you were the way to persuade SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11893 516MSAT3 Summation - Mr. Tigar 1 you, I would just fax this thing in and not take your time with 2 it. You saw the witnesses, and the impression they made on 3 you, for good or ill, I want to suggest to you is the way to do 4 this. That's why I've been spending so much time making the 5 point that it is the live witnesses that count because that's 6 the way it ought to work. 7 Next charge, the guards, the distractions of the 8 guards. Other counsel dealt with that. I am not going to deal 9 with it at any length. The undisputed evidence in this case 10 is, at one time across the road there at MCC, which is a 11 building that you can walk past and see and it is not very far 12 away, there was a guard who misunderstood what Mr. Yousry was 13 doing because he was translating at great length and the 14 lawyers weren't talking and they had some dispute about it. If 15 that hadn't happened, if that sort of thing didn't happen, if 16 someone wanted to contradict Mr. Yousry's recollection of that 17 and Ms. Stewart's understanding that that's what had occurred, 18 they could have called you a witness. We are not even talking 19 about air fare from Egypt. 20 This is really -- the complaint about the lawyers not 21 wanting to be interrupted by the guards is a classic example of 22 government taking advantage of a problem that itself created. 23 If you wanted to visit your client in this jailhouse you got 24 there at 8:30 in the morning and you had to be done by three. 25 They didn't tell you why you had to be done by three. Probably SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11894 516MSAT3 Summation - Mr. Tigar 1 because of the count. Every afternoon at a certain time they 2 have to go down the people and supposed to come up with the 3 same number at the end of every day. Otherwise, the telephones 4 start ringing and people are in trouble. So you have the 5 count. 6 Of course, if a lawyer is visiting the prison, you 7 don't want to be counted as one of the people that ought to be 8 in there because you don't want to be in there when the day is 9 over. You want to be out of there. Your visit is limited from 10 8:30 to three. 11 The visit is also limited by your resources. You want 12 to have it on a weekend because this is a pro bono case and the 13 telephone calls are generally limited to an hour. Those are 14 restrictions imposed by guess what, the government, in 15 pursuance of its need for prison security. So in obedience to 16 the SAMs, they adopt a certain method of working. Any other 17 explanation simply defies reason, as other counsel have said. 18 In order to make it reasonable to believe that the 19 guards were going to jump in because somebody was saying 20 something in Arabic, you have to promptly transmute the guards 21 into people that spoke and understood Arabic. No, it doesn't 22 make any sense. 23 Mr. Fitzgerald pointed out in answer to questions by 24 Mr. Stern, of course, the lawyers keep things private and 25 secret that shouldn't be shared with others. Everybody in this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11895 516MSAT3 Summation - Mr. Tigar 1 room, we grow up understanding that there are certain things we 2 do that we are entitled to keep private. And the fact that we 3 insist on it doesn't mean it is bad. You know, I understand 4 how we might want to think otherwise. 5 I have trouble with the idea that my teenager had a 6 diary with a lock on it, but I recognized that she legitimately 7 felt there were some things she was entitled to keep private no 8 matter how much I as her father thought that maybe that wasn't 9 such a good idea. But I surely didn't make speeches pointed at 10 her to try to distract me or whatever about it. 11 Members of the jury, it doesn't make sense, unless you 12 take that everything Lynne Stewart did must be wrong. 13 Let's get to the heart of it. Let's get to the part 14 that's real here, the part that supposedly the case is about, 15 the part that supposedly has to do with the alleged creation of 16 some danger some place because by golly that is important and 17 it was important to these lawyers. And Lynne Stewart said if 18 that had been the issue, if that what had been issued was some 19 call to violence, she never would have done it. And although 20 the government didn't ask Ramsey Clark that question, I am just 21 as sure as I can be that that's so, and Abdeen Jabara, too. 22 Now we get to it. What happened? What did the Sheikh 23 say, number one? What did the Sheikh say? What didn't he say? 24 What did Lynne Stewart understand him to say? After the Sheikh 25 said it, was there evidence that others distributed things that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11896 516MSAT3 Summation - Mr. Tigar 1 he didn't say and other people said they wouldn't have 2 distributed? Did it get hyped by somebody other than Lynne 3 Stewart whose behavior Lynne Stewart couldn't control in which 4 circumstances where she was not aware. Then, of course, 5 finally, what happened? What happened when all this was over? 6 Sheikh Abdel Rahman understands who Taha is. He is a leader of 7 the -- a former leader, someone involved in the Islamic Group, 8 and he is in Afghanistan with Bin Laden and al-Zawahiri, quite 9 the leader. That's like that Jonathan Winters routine. Some 10 of you men go take that beach. I will be off shore 3,000 yards 11 with a pair of high-powered binoculars watching your progress. 12 He's in Afghanistan. 13 Let me skip ahead to something because I think it is 14 important. Let me see if I can find it here. 15 After all this thing shakes out, there is a telephone 16 call on the 23rd of June 2000, after the prison visit. I know 17 I'm getting ahead of myself, but I said this so many times, it 18 is probably about time that I showed what I meant. 1731T. 19 1731T is a phone call on the 23rd of June 2000 with Sheikh Omar 20 Abdel Rahman, Lynne Stewart, Mohammed Yousry, and the guard. 21 There it is. 22 By this time there has been the whole shakeout. A 23 statement has been issued by Mr. Salaheddin, the guy with the 24 story. And somehow other newspapers got it, clearly not from 25 Lynne Stewart, because, A, she never talked to them and, B, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11897 516MSAT3 Summation - Mr. Tigar 1 there is a different version. The press reaction was 2 happening. The Sheikh has issued his clarification saying I 3 did not cancel the initiative. I left it to those inside Egypt 4 to think about it. Watch his language. You know, there is 5 evidence in here, based on some of these calls, that the Sheikh 6 is slipping, that he is seeing things that aren't there, and 7 smelling things that aren't there, and he is disturbed and 8 angry being locked up all the time and in isolation. 9 As Ramsey Clark said, he was sharp, he would correct 10 you if you had something wrong. He had a memory. And when it 11 was working, it worked. So the Sheikh in all these statements 12 he is saying it is the people inside Egypt. He uses that 13 terminology, those inside, those who know. He is by his 14 locution, by his way of expressing excluding Taha. 15 Well, there is actually a discussion about that. Look 16 at this. Sir, regarding al Rifa'i Taha, he is telling you that 17 he was not expelled from the Gama'a, but he is a member only. 18 Yes. 19 Yousry: He is not a member at all. Huh? He is not 20 considered a member of Al-Shura Committee. He is not 21 considered? Yes, sir. Unless you want that Lynne calls him 22 and tells him you want him to go back or something. Or do you 23 want that? What do you want Lynne to do exactly? No, no, no, 24 I cannot. They are -- they are free to do what they want. I 25 can't. It is their business. And if I come out and say that, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11898 516MSAT3 Summation - Mr. Tigar 1 they will be forced to take him back, and I don't want it this 2 way. 3 They will be forced to take him back and I don't want 4 it this way. He is commanding, he is directing his lawyer not 5 to contact Taha. And the undisputed evidence, members of the 6 jury, is that she never did, never spoke to him, never 7 corresponded with him or talked to him. Never wrote one. Her 8 client told her not to. And that Sheikh Abdel Rahman 9 understands perfectly -- not perfectly. Nobody is perfect -- 10 understands well enough that there is a dispute going on, that 11 Taha is over here, that his historic companions are over there, 12 and he doesn't want this guy involved in the leadership of 13 whatever is left of the Islamic Group. 14 I put that forward now, although I have not really 15 gotten deeply into the May 2000 visit because it is the sort of 16 thing I suggest that illuminates intent. I don't want to 17 commit the error of which I have accused others and placed at 18 others' doors. That is to say, this is a recording. It is a 19 statement in the Arabic language. We get it, therefore, 20 through the filter of translators and so on. I will say that 21 unlike -- this call seems to have fewer problems than some of 22 the other calls. But nonetheless I recognize that it is 23 imperfect. Okay. It is imperfect. As I said before, this is 24 not a level playing field, members of the jury. It is not my 25 burden to build you some story. It is my burden to point to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11899 516MSAT3 Summation - Mr. Tigar 1 the doubts and to say the ways in which the government has not 2 been complete and candid with you. 3 Government counsel tells you that, of course, Taha 4 wants to end the ceasefire. Hey, we know that. That is true. 5 That's just over and over and over again. What does he do? I 6 am not going to read the transcript that so many other people 7 have read. But the fact is, he said, all right, I will 8 question it. I will say that I am upset that they are shooting 9 kids at the school, which is not much different from the kind 10 of statement that somebody would make who was concerned about 11 that. And I withdraw my personal support, but, after all, it 12 is up to you. That's the statement. You saw it over and over 13 and over again in this evidence. That's the statement. 14 And I am not going to take your time because this case 15 has to end some time, and reread that transcript. I urge you 16 to reread it both days, the 19th and the 20th. And you will 17 not find a word in there in which Sheikh Abdel Rahman says, 18 pick up a gun, point a gun, use a gun, start him on the 19 violence or anything like that. He withdraws his personal 20 support. That is so clear that the prosecutor then says: This 21 conversation takes place first. And what you learn from these 22 conversations, we are now going to go into phone calls, that 23 Sattar and Stewart and Yousry do a little editing. It makes 24 the message from Abdel Rahman stronger. Then he shifts over 25 and talks about a conversation that Mr. Sattar had with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11900 516MSAT3 Summation - Mr. Tigar 1 Mr. Taha in which Mr. -- the prosecutor alleges that Mr. Sattar 2 added the words prepare for confrontation. He is candid enough 3 to tell you that Lynne Stewart is not on that call. It is in a 4 language she doesn't speak. But the call took place and you 5 can look at it. She wasn't there. I have no idea one way or 6 another about it. It had nothing to do with what happened in 7 May or what she did, but it was a call. 8 But in the portion of the summation where the 9 government lawyers says, then he writes, he is talking. He 10 then said, the defendants have done some editing. Having 11 carefully explained to you that there were telephone calls 12 after the visit in which Lynne Stewart did not participate, 13 that were conducted with people she never spoke to in a 14 language she neither speaks or understands, the defendants, the 15 defendants, the defendants. And that, members of the jury, I 16 need to just plead with you again is not the way the system is 17 supposed to work. 18 Then the prosecutor goes further and underscores it. 19 And I say this because everybody -- people do get it wrong. 20 When I'm done here, there will be one of these prosecutors 21 stand up and try to just tear a patch of what I say and maybe I 22 remember this or got the page wrong or didn't take account of 23 this or that or the other thing. That's okay. I say that's 24 okay because I didn't have a burden of proof here and all I 25 have to do is point to some reasonable doubts and the playing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11901 516MSAT3 Summation - Mr. Tigar 1 field is not level. 2 Sattar is against the ceasefire. He is with Taha and 3 Abdel Rahman, as you know. He is in favor of ending the 4 ceasefire, resuming the violence, resuming the killing, 5 resuming the kidnapping, resuming terrorism. Did you hear him 6 say that? Sattar is with Taha and Abdel Rahman, as you know. 7 Now, it is clear -- one or two more thoughts here. 8 Way back in the '90s, before Lynne Stewart began to represent 9 him, Abdel Rahman said some pretty ghastly things, awful things 10 about violence and so on and in the name of the religion. 11 Well, you know, some of us -- people that were raised in 12 conservative religious faiths in some parts of the country, we 13 had a lot of bigotry in our church. We grew out of it, we hope 14 we did. Ain't it awful? How religion gets people spun up to 15 do and say these horrible things. There are these whole 16 communities and places in the world that you go and little boys 17 will -- somebody's grandfather killed somebody and hadn't been 18 avenged yet, but we will get around to it next week. That's 19 awful. 20 That whole trial -- I'll talk about that trial -- is 21 about whether those were sermons or fiery sermons when Emad 22 Salem, that guy who got paid a million dollars and had a tape 23 recorder, had him participate in a present-day crime, not an 24 analysis of history. That's what this trial was about. I will 25 talk about that. You give me a million dollars and a tape SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11902 516MSAT3 Summation - Mr. Tigar 1 recorder, I will get that for you, too. That was that trial. 2 After the trial was over, he then issued apparently 3 this other thing about anger and lashing out and so on. And 4 all of the lawyers who talked about that have said, that's bad 5 stuff, too. When we say it is bad stuff and we hear about 6 airplanes and planes, please, let's don't look at that with 7 20/20 hindsight, because I'll tell you something. If you want 8 to take that language and use it and pump it up and say back in 9 1997, or whenever it was, and you will remember that Nasser 10 Ahmed was accused of smuggling it out, that was not sustained. 11 So there is no evidence about who did it. We don't say that 12 and say, that should have been a warning of terrible things 13 that were going to happen later. A lot of blame needs to be 14 laid at a lot of doors for that. But he did say and it was 15 awful, too. 16 What did the lawyers want in good faith? If I'm his 17 lawyer, what do I want? What's the model here, remembering, 18 like so many clients, you can't always control it, can't 19 control everything your clients do. Sometimes they are 20 recidivists. Sometimes they do wrong again and it is 21 frustrating. But if a person is a lawyer for somebody with a 22 history of involvement in terrorism or violence, if you don't 23 want to use a loaded term, whether it is a leader of the Irish 24 Republican Army or leader of the Boumou or the leader of 25 anything? What do you want? What would you want? What makes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11903 516MSAT3 Summation - Mr. Tigar 1 sense? Because common sense you didn't park at the door. 2 What makes sense is that you want your client to have 3 constructive engagement with somebody on the other side. 4 That's why it was so regretful that the government didn't 5 choose to bring somebody to contradict Ramsey Clark so we could 6 have a real debate about this. We sure know that Ramsey Clark 7 understood the principle of constructive engagement. You can't 8 change what your client did in the past and you only have a 9 limited power to control what your client is doing right now. 10 But within the realm of good faith, not the government's 11 version of let's tell you all how to practice law and you jump 12 up and down with our rules and everything will be fine if you 13 just do it that way. I'm talking about independent lawyers. 14 Constructive engagement could legitimately and 15 logically mean, I'm still here, I'm still a force. No. I will 16 not advocate that people kill people. I won't. I might tiptoe 17 up and say, I'm getting angry at you, but that was the job that 18 the lawyers were doing. And why did the prosecutor from the 19 point of the summation on, where he talked about the message, I 20 withdraw my support? Every time he said withdraw his support 21 he also said, and, therefore, resume violence and killing, 22 which wasn't what was there. And I know that you won't make 23 the mistake of that. Let's take it out of the terrorism 24 context. Suppose there is a ceasefire. Don't even suppose 25 there is a ceasefire. Let's suppose that a dispute has existed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11904 516MSAT3 Summation - Mr. Tigar 1 for a long time in a community. We will unload the violence 2 out of it. 3 Where two community groups have agreed not to 4 disparage each other anymore because they had been feuding and 5 fussing and fighting and create things. And person walks into 6 a meeting of their side, their community group, or sends a 7 message to their community group, you know what, we agree we 8 weren't going to disparage the Hatfields or the McCoys or 9 whatever, but by golly, one of those Hatfields was down last 10 week and saying bad things and so on. And I'm not saying that 11 we should stand still on this. I don't support it right now 12 but, of course, I'm not really involved in it. Why don't you 13 all think about it. That's what Sheikh said. I'm upset, I 14 withdraw my personal support. You all should think about it, 15 you know more about it than I do. 16 And the thing that the government wants to leap from 17 that is an assertion that there was some likelihood of imminent 18 lawless violence based on that and they want to do it without 19 proof. And worse than without proof, they want to do it by 20 imposing on us some world view that says that we better watch 21 out for the terrorist because they are going to jump out from 22 behind every tree and everything that we hear or see should be 23 interpreted in light of that. And folks, maybe that's a 24 reasonable world view today, today. I've spoken to people that 25 say, you know, I used to be more tolerant of things than I am SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11905 516MSAT3 Summation - Mr. Tigar 1 now. I don't think it is a reasonable world. What I think, 2 what you think it doesn't matter. Because we are not judging 3 Lynne Stewart with the 20/20 hindsight of people who have had 4 that experience and reacted to it. 5 Your Honor, I've been going about -- would your Honor 6 like me to continue a few more minutes before the lunch is 7 here? Because I could. 8 THE COURT: We can break for lunch now. 9 MR. TIGAR: Thank you, your Honor. 10 THE COURT: Ladies and gentlemen, it is very important 11 that you continue to follow my instructions. Please remember 12 not to talk about this case at all. Remember always to keep an 13 open mind until I finally instructed you on the law, you've 14 gone to the jury room to begin your deliberations. 15 We will resume at 2:00. Have a good lunch. 16 All rise, please. Please follow Mr. Fletcher to the 17 jury room. 18 (Jury not present) 19 THE COURT: Please be back at ten of two. 20 (Luncheon recess) 21 (Continued on next page) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11906 5165SAT4 1 A F T E R N O O N S E S S I O N 2 2:05 p.m. 3 (Trial resumed; jury not present) 4 THE COURT: Good afternoon, all. Please, be seated. 5 Bring in the jury, please. 6 MR. TIGAR: Shall I stand at the lectern, your Honor? 7 THE COURT: If you wish. 8 MR. TIGAR: Thank you. 9 (jury present) 10 THE COURT: Please be seated, all. 11 Good afternoon, ladies and gentlemen. 12 THE JURY: Good afternoon, your Honor. 13 THE COURT: It is good to see you all. 14 All right. Ladies and gentlemen, remember to apply my 15 continuing instructions with respect to summations. 16 Mr. Tigar, you may proceed. 17 MR. TIGAR: Thank you, your Honor. 18 Before we went off for lunch we were, I was talking 19 about this May prison visit and the things that went on after 20 it. And the prosecutor said to you that you should make no 21 mistake about it, when Abdel Rahman was dictating his response 22 to Yousry, his response to Taha on May 20th, it was crystal 23 clear what he meant and what he intended. What he meant was, 24 and what he intended was that he was calling for and was 25 withdrawing support and calling an end for the cease-fire and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11907 5165SAT4 Summation - Mr. Tigar 1 resumption of violence and killing. 2 Not only is that not crystal clear, I submit to you 3 that it's irresponsible to say it. Omar Abdel Rahman said I 4 withdraw my personal support, you all know better than I do, 5 you discuss it. That's what he said. 6 What right does any lawyer here have to tell you, 7 based on no evidence, that that lawyer has looked deep inside 8 the heart or the mind of some person and that words that person 9 did not say and intentions that person did not express were 10 somehow not just arguable but crystal clear. 11 And a lawyer who bears the burden of proof on an 12 issue, any of us here, ought not to be doing that. 13 Now, from the evidence in the case Abdel Rahman heard 14 about the controversy in the media. There was a telephone call 15 on the 20th of June, 2000; that was not recorded. As a result 16 of that call Mr. Sattar, apparently with input, made it, got 17 together a statement and issued the clarification that you have 18 seen, Government 2663, that says I did not cancel the 19 initiative. 20 And from the other exhibits that were reviewed by 21 other counsel it is, I submit to you, indisputable, that Abdel 22 Rahman was exactly correct in his reading. Whether you agree 23 or disagree he ought to have done it, he was correct. 24 The inside people, the people on the ground in Egypt 25 issued statements saying that in fact although it had not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11908 5165SAT4 Summation - Mr. Tigar 1 benefitted Abdel Rahman that the initiative had caused the 2 government to loosen up, to release people from jail, 3 particularly sick people; that it had been a wonderful thing. 4 And they issued those statements. 5 And in the end the atmosphere was that the authority 6 of those inside was vindicated and that's why I read from the 7 call on the 23rd of June when Abdel Rahman was asked directly, 8 you know, Mr. Taha is not happy. He was told, in effect, Do 9 you want Lynne to do something about that? He said, No, I 10 don't want them to take him back, Taha being in Afghanistan. 11 Now, before lunch I was talking about this business of 12 thinking about how to conduct a negotiation or how to make a 13 presentation and there could be a good faith disagreement over 14 whether what these lawyers were doing by way of tactics was 15 right or wrong or was eventually going to succeed. And if the 16 government wanted to present some evidence to say that 17 Mr. Clark didn't know what he was talking about and despite his 18 long experience he didn't know, they could have done so, but 19 they did not. 20 And so, what we have is zero evidence that the lawyers 21 were not acting in good faith according to their understanding 22 of what the law is. 23 But there is one more little fact about this that I 24 think it is important to underscore. Abdel Rahman became aware 25 on the 23rd of June in a call that was recorded, Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11909 5165SAT4 Summation - Mr. Tigar 1 Exhibit 1731X, of the press controversy; and they were talking 2 about his, a statement that was issued clarifying matters. 3 So, in 1731X they're talking about 2663. Here is 4 Government 2663, you have seen it a dozen times in this trial. 5 Now, I did not cancel the cease-fire, it's got that right 6 there. But then number 5, it says, I made my position clear, 7 I'm asking my brothers and sons to withhold public comment. 8 Number 5. 9 In 1731C, transcript -- 1731T, excuse me, transcript, 10 T; Abdel Rahman -- they read this to him. He says: Read to me 11 number 5 again, who? 12 And so there is then is something unintelligible and 13 it says Mr. Yousry is reading -- another one of these problems 14 with the calls, it is just not intelligible. 15 Abdel Rahman: Fine. You made some changes. 16 Yousry: Yes, are you referring to the issue of 17 silence? 18 Abdel Rahman: Mmm. 19 Yousry: I really don't know. You really never asked 20 us to be silent. 21 Abdel Rahman: Yes. That is wrong. 22 So, Ms. Stewart did not prepare the five point 23 statement, 2663, so it will be for you to consider who added 24 the number five about silence and whether you think it has any 25 significance. What Ms. Stewart did participate in and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11910 5165SAT4 Summation - Mr. Tigar 1 Sheikh reaffirmed was he did not cancel the cease-fire. 2 Now we get to Mr. Fitzgerald's predicted response. 3 And I want to suggest to you again the government's 4 reconstruction of what happened there is fanciful. And the 5 first thing is that when Lynne Stewart tells Lisa Sattar I can 6 Pat Fitzgerald, which I had said, I think, in opening statement 7 was a sign that, hey, I'm doing this out in the open, the 8 government interprets it as sinister, it must mean that she 9 knew that Pat Fitzgerald would object and therefore she knew is 10 that she was doing something wrong. 11 I think that that may be the argument. I'm not sure. 12 But let me look at this. If that's the argument it is 13 nonsense. You all have sat through this trial. We trial 14 lawyers try cases, there is a lot of expressions for it -- we 15 try it in the envelope, we try it according to the rules. And 16 every day we come to court we know that sometime somewhere some 17 lawyer on the other side might stand up and object. Sometimes 18 I come to court and maybe I know the question is close to the 19 edge. I am sworn to defend my client and apply and go after 20 the rules the best way I know how. And the fact that when I do 21 it draws an objection from the other side, or that I might 22 think that it would draw an objection from the other side, 23 provided I think I'm going to win in the end, or that we might 24 reach some compromise, there could be an objection and the 25 judge would call a recess and the lawyers would talk about it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11911 5165SAT4 Summation - Mr. Tigar 1 That's okay. That's the way the system works because 2 that's the way t