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 that we make -- it's called -- it's not called 3 the everybody-be-nice-to-each-other system, it is called the 4 adversary system. It is called a system in which we struggle 5 with each other because we got this sense that that's how the 6 truth gets out, that's how there is effective representation. 7 Lynne Stewart told you she knew that at some point she 8 was courting disagreement with Pat Fitzgerald not because she 9 thought she was wrong and he was right but because she didn't 10 think that -- she thought Pat Fitzgerald was a tough adversary 11 who would take any opportunity to overstate things and 12 overvalue the issue. After all, this is the Pat Fitzgerald 13 that thought that Sheikh Abdel Rahman did the Murrah building. 14 You know, he at least when he came here and got on the 15 stand and took the oath, was kind enough to have some humility. 16 Anyway, then the phone call takes place with Lynne 17 Stewart and Pat Fitzgerald and I won't recreate what government 18 counsel said about it. Ms. Stewart described it. She said I'm 19 going to have my lawyer call you. 20 And then there was, there were minutes and minutes of 21 that summation consumed with attacking the idea that she simply 22 said I'm going to have my lawyer call you as opposed to saying 23 wait a minute there was a bubble, there was this, there was 24 that, and so on. 25 Let me go back through that because if you happen to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11912 5165SAT4 Summation - Mr. Tigar 1 regard that as important -- and again, this is one of these 2 things where I can't ask you, gee, did that make an impression. 3 They spent a lot of time on it, let me do it. 4 What about that call? A senior government lawyer 5 calling a senior member of the bar, a colleague who he knows 6 from a case and says, you did something contrary to these 7 regulations. There will be something happening to you, it will 8 be that you won't see your client again. Not anything else. 9 You won't see your client again. And that's it. I may send 10 you something but that's -- 11 Now, what does the lawyer know at that point? You may 12 recall that one of the reasons that was talked about is that 13 Bill Kuntsler, William Kunstler, the late William Kunstler -- 14 he was alive then, could not represent Sheikh Abdel Rahman. He 15 had a conflict. He was representing somebody else so he 16 couldn't represent Sheikh Abdel Rahman. And you have seen in 17 this case each of these defendants has a team of lawyers 18 because each of these defendants, there is no secret, has 19 separate interests. During this very summation I have said 20 things that contradict what other lawyers are saying. 21 The issue of conflict of the lawyer's undivided 22 loyalty to the client lies at what the heart of what 23 Ms. Stewart believed the profession is about. In the words of 24 some English barrister, to represent that client at all risks 25 and all costs above all others and among all others too; and he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11913 5165SAT4 Summation - Mr. Tigar 1 said himself because he was an English guy in the 18th Century 2 and there were only males who did it. 3 So, what's the deal? Suddenly Abdel Rahman is going 4 to be deprived of Lynne Stewart's service as his lawyer at a 5 time when she was planning to file a lawsuit. That was the 6 same thing Abdeen Jabara was worried about. 7 You know, these lawyers can't just get into fussing 8 with the government in a way that could hurt the client. You 9 have to think about how, gee, how are we going to work this 10 out? 11 So, he was telling her, Ms. Stewart, we are going to 12 essentially punish your client and we think you did wrong. 13 Right there Lynne Stewart has a conflict. She can argue about 14 her own situation, she can argue about her client's situation. 15 She has a motive, gee, maybe Pat Fitzgerald is going to do 16 something more. Maybe he won't like me. Maybe I will have 17 trouble. Maybe I should, you know, do something, get away from 18 representing this client. To heck with the client, I will walk 19 away from it, I'm not making any money on it anyway. 20 That's a logical thing a person could have to do, 21 right? Because she has a profession to uphold. 22 And you remember in the recording she says, my whole 23 career, I stake my career on this. 24 Pat Fitzgerald might have the power to prevent her 25 from going into any federal penal facility. Think about that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11914 5165SAT4 Summation - Mr. Tigar 1 Lynne Stewart is a woman who, from the beginning of 2 her practice, has based her practice on representing poor 3 people accused of crime and many, many poor people accused of 4 crime are arrested and held until they're bailed or sometimes 5 without any bail at all. 6 And so, you tell a lawyer working in this area 7 representing that client community, boy, that's it for you. 8 That is a career ender because that's your client base. So she 9 has a problem. And on the other hand she could think, well, to 10 heck with my own interest, I have to represent this client. 11 So, what does she say? I will have my lawyer call 12 you. The most ethical, the most precise, the most clear, the 13 most honorable thing she could do -- I will have my lawyer call 14 you. This is not something we need to get into. And she does. 15 And then what happens? As I said before lunch, and 16 you heard it boomed out here so I don't have to play it again, 17 Stanley Cohen -- she hired Stanley Cohen, you have seen 18 correspondence involving Stanley Cohen, he is a lawyer in New 19 York; he steps in and negotiates. 20 And then the question is, well, why didn't we hear 21 "bubble?" Why didn't she say "bubble." 22 Well, I don't know whether Stanley Cohen said "bubble" 23 or whether "bubble" is a magic word. I don't know that 24 "bubble" is a magic word. It is the one Ms. Stewart chose to 25 describe what was going on here. "Bubble" means leeway. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11915 5165SAT4 Summation - Mr. Tigar 1 "Bubble" means we cut each other some slack. "Bubble" means 2 that the government might not agree with your position but by 3 golly they'll give in on this and you will give in on that and 4 we will reach some compromise. "Bubble" means a space in which 5 the work can be done. That's what Lynne Stewart meant by it 6 and that was the space created when Pat Fitzgerald backed down. 7 I said that in opening statement and I stand by it, 8 Pat Fitzgerald backed down. Pat Fitzgerald, on the stand, he 9 says he is the principal person drafting these documents. 10 Now then he went through, we went through, in some 11 detail, how the language got changed and that he had agreed to 12 some changes; this is pages 2356 and 2357, all right? I 13 further specifically understand, so forth and so on, he agrees 14 that he made some compromises. 15 Now, because he made the compromises Lynne Stewart 16 didn't have to sue him. But note what's happening here. And 17 you can read the SAMs. Pat Fitzgerald sends Lynne Stewart a 18 SAM draft that he wants her to sign. 19 Okay, I gave you the wrong page, 2629 is the one that 20 begins. He sent a letter to Mr. Clark. Clark had said he 21 would not sign the affirmation because of three areas of 22 difficulty. There were three particular phrases that bothered 23 him. And what were those phrases? They were the phrases in 24 which Fitzgerald wanted all the lawyers to admit that Luxor had 25 been carried out in his name; that he was affiliated with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11916 5165SAT4 Summation - Mr. Tigar 1 IG and so on; and I will go through those with you. 2 The lawyers insisted that they would not make those 3 admissions. 4 Now this shows you, I suggest to you, several things: 5 First, that Stanley Cohen and Lynne Stewart, working 6 for Lynne Stewart and her representation, that Ramsey Clark and 7 Abdeen Jabara were far from having any kind of disagreement 8 about the SAMs were absolutely in agreement about what language 9 they would and would not agree to because independently of each 10 other they were taking a common position. They all agreed that 11 this language that had been proposed in August was wrong and 12 they couldn't sign it consistent with their interest to their 13 client. 14 And what does that observation do about the 15 government's contention that when Lynne Stewart said no, no, 16 no, I will not talk to Ramsey? That there is something bad 17 about that, that that meant she was disassociating herself from 18 him and didn't care about his view. 19 Ramsey Clark was going to have to negotiate to make an 20 independent decision as to what he would not sign or would 21 sign. It happened that he took the same position as Lynne 22 Stewart but matters are much too critical for one lawyer to 23 simply say, I'll do whatever Ramsey says. Let me call him up 24 and find out, I will do what he says. 25 That's not the way it is supposed to be. And when I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11917 5165SAT4 Summation - Mr. Tigar 1 talk a little more about Lynne Stewart and her approach and 2 some of these ethical conversations, the lawyer's obligation of 3 independent judgment precludes that herd instinct. 4 Doesn't that make sense? I mean, I tell my kids that, 5 right? Well, you know, Louise's dad bought her a car5. Well, 6 if Louise's dad told her jump off a cliff would you jump off a 7 cliff? 8 Independent judgment is one of the things drilled into 9 us from an early age and when matters are as important as this 10 it just makes good common sense. But, in that telephone 11 call -- and I urge you to listen to it -- that August telephone 12 call where Lynne Stewart says no, no, no, no, and makes a deal 13 to get together with Yousry -- I won't take your time by 14 reading it -- but you notice who they exclude? They say that 15 they, Yousry and Lynne, will meet to talk about the situation 16 but they will not get together with Mr. Sattar until 17 afterwards. 18 That's no insult to Mr. Sattar they're doing but 19 Mr. Sattar is not a person who is authorized to see the Sheikh 20 and he's not a person who visits the Sheikh. 21 So, the two of them are going to get together and 22 decide because that's the responsible way to do it. 23 Excuse us just a minute. 24 THE COURT: Would you like a moment? 25 MR. TIGAR: Well, no. Well, let's try if, just 20 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11918 5165SAT4 Summation - Mr. Tigar 1 more seconds and if I can't find it then I will look again, 2 your Honor. 3 THE COURT: Fine. 4 MR. TIGAR: This is a long day and I apologize. 5 All right, here is a version. It is no surprise I 6 can't find it; 2657, which is the one that she, that 7 Ms. Stewart got and then she faxed it to Mr. Sattar, to 8 Mr. Jabara, and to Mr. Yousry. 9 Now, he wanted Ms. Stewart to sign this: I understand 10 that he has been convicted of terrorist offenses and that 11 terrorist actions have been carried out in his name, designated 12 a foreign terrorist group. I understand that a violation can 13 result in violence. 14 Read that paragraph carefully. Just take a minute and 15 do it. 16 Now, Lynne Stewart says I won't sign that. Ramsey 17 Clark independently says I won't sign that. Abdeen Jabara, I 18 won't sign that. 19 Why not? Does it make sense that they wouldn't sign 20 it? What does it show about their approach to things? It 21 shows that they understand that Pat Fitzgerald is trying to get 22 some justification for tightening the SAMs beyond the point 23 that the lawyers would accept. And I'm sorry that I'm not 24 going to get wedded up to some terminological thing. Because 25 the SAMs are based on what? I'm going to pull the regulations SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11919 5165SAT4 Summation - Mr. Tigar 1 out that Lynne Stewart was looking at on the basis on which she 2 was making her decisions here in a minute. 3 The SAMs were imposed for what purpose? They were 4 imposed for the very valid purpose of preventing terrorist 5 violence or any kind of violence. You could impose SAMs on 6 some murder for hire chieftain, for example. And the very 7 first SAM that was ever read to Omar Abdel Rahman that's in 8 evidence contains the words, "least restrictive measures." And 9 you will remember that the translator, when they played the 10 videotape, translated: This is the least they could do. An 11 unfortunate locution perhaps, but that's the idea. 12 The SAMs were designed and had the very valid purpose 13 of accommodating the interest of the inmate with the legitimate 14 interests of the penological system. And the interest of the 15 inmate, as Lynne Stewart understood it, was the interest of the 16 inmate in being able to be visited, to visit with people, deal 17 with the issues that the inmate had to confront as the lawyer 18 defined them and not defined for the lawyer. 19 Now, the language in here that Pat Fitzgerald proposed 20 was wrong and no lawyer with any sense would agree to it 21 because it raised issues that were harmful both to the lawyer 22 and to the client. That's why Lynne Stewart needed counsel, 23 because they were both involved. 24 Well, how could it affect the client? Because if the 25 client's own lawyer admitted that there were terrorist acts SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11920 5165SAT4 Summation - Mr. Tigar 1 undertaken in his name and that a violation could lead to 2 violence and that he was affiliated with the Islamic Group, the 3 lawyer made those admissions, what's the government going to 4 say? What's any Court ever going to say? 5 Well, I'm sorry, the fellow's own lawyer admitted to 6 that. And then, what is the lawyer going to do? 7 What is the lawyer going to do? Well, maybe she did 8 have a crystal ball, I don't know. The lawyer is not going to 9 say, hey, you know what, the dispute that we've been having 10 about the SAMs and what they mean, well it has got so much at 11 stake here. I admit the United States' concerns are all valid. 12 I admit that. I admit their version of the events as correct. 13 Now, if you're a lawyer in a high-profile case you 14 have got enough tough decisions to make, tough, hard calls to 15 make in your independent judgment without accepting and signing 16 on to the United States Government's version of events. 17 LS-205, this is a version off the computer of the 18 actual SAM regulations as they were adopted, and LS-204. 19 LS-204 is the first version in '96 and LS-205 will be the 20 second version. 21 If you look -- and Lynne Stewart said she read this -- 22 prevent acts of violence and terrorism. That's page 1. Then 23 we can start, and I won't read this to you all but, see: 24 Comments generally expressed concern that the regulation is 25 violative of a person's First Amendment right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11921 5165SAT4 Summation - Mr. Tigar 1 The Bureau of Prisons responds: The U.S. Supreme 2 Court -- in the next paragraph -- held that a prison inmate 3 retains those First Amendment rights that are not inconsistent 4 with his status as a prisoner or with the legitimate 5 penological objectives of the correction system. 6 So, when Lynne Stewart read this -- and I want to be 7 very clear, we are not saying the SAMs are unconstitutional, 8 this proves the SAMs are constitutional, but it also says to 9 the lawyer, you ought to -- says to Lynne Stewart -- you should 10 interpret them in light of this purpose of accommodating these 11 competing considerations. Is that dangerous? Is that 12 troublesome? 13 The most basic thing that human society can do is to 14 figure out the accommodation between the people's felt need for 15 security and the innate right of every person to personal 16 liberty and, when hailed into some court, to be judged fairly 17 according to rules. It is the most basic principle and what is 18 going on right here. 19 That was the light that Lynne Stewart thought was shed 20 by these regulations and it was the light within which the 21 negotiations with Pat Fitzgerald were taking place. 22 So, she did sign. Ramsey Clark finally agreed in 23 January of 2001 and Lynne Stewart, after some delays, agreed to 24 language, the same language and signed at a later time. 25 What is ludicrous is to claim that Lynne Stewart was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11922 5165SAT4 Summation - Mr. Tigar 1 not engaged in seeking the space within which to conduct her 2 business as a lawyer in accordance with her client's rights 3 informed by those regulations and her own interest. 4 And whether she was ever tape recorded as calling it a 5 bubble or not is irrelevant. It's what happened. 6 Is the government saying that if she really thought 7 Pat Fitzgerald was terribly wrong she ought to have sued him? 8 Do you remember what she said about that? That she knew of a 9 case of a prisoner that had sued over some correspondence issue 10 and the lawsuit dragged on for three years. 11 It's a pretty smart lawyer -- no, it's a principled 12 lawyer, it's a lawyer concerned about the client that can back 13 Pat Fitzgerald down to the point where things are acceptable 14 without having to file the lawsuit. I have been under the 15 impression that that's the way to do it if it is at all 16 possible. 17 Here is the one she did sign, this is Government 18 Exhibit 2648, but it exists in several forms. Now, I 19 understand that he has been convicted of terrorism offenses and 20 that terrorist attacks have been carried out by persons using 21 his name. The United States believes Abdel Rahman was 22 affiliated with, and has never disowned... And the United 23 States is concerned that a violation of... 24 Now, in our own lives I think we read every day -- not 25 every day, we read very often about settlement agreements are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11923 5165SAT4 Summation - Mr. Tigar 1 made that both parties agree these are your allegations and 2 these are my allegations and we are just not going to resolve 3 those. They're yours, fine, that's what you will and that's 4 what said she said. 5 But, you know, this document contained something else. 6 It is true she didn't argue about it at the time. Pat 7 Fitzgerald gets up here and says, well, you know I was 8 concerned about violence and I was concerned about this and I 9 was concerned about that; I shall not broadcast messages, 10 directly or indirectly -- is it showing up? No, it's not for 11 heaven's sake. There it is. 12 Including but not limited to messages concerning Abdel 13 Rahman's views -- positive, negative or neutral -- concerning 14 the propriety of violence. Positive, negative or neutral. 15 This is not a SAM, it's an affirmation. This is not 16 approved by the Attorney General. Who better understood the 17 purposes of SAMs, Pat Fitzgerald or Lynne Stewart? Who better 18 understood the purposes of SAMs, Pat Fitzgerald or Lynne 19 Stewart? 20 Lynne Stewart, who carefully said I will not broadcast 21 a message that calls for violence. Would do it, don't believe 22 in it, didn't do it. But I understand that not letting the 23 Sheikh be forgotten could be important. 24 Or, Pat Fitzgerald who says, I don't even want him to 25 say I've become a pacifist. If that should ever happen, I, Pat SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11924 5165SAT4 Summation - Mr. Tigar 1 Fitzgerald, won't interpret the SAMs as saying that I don't 2 want the world to know that. 3 Well at the very least, members of the jury, I suppose 4 that that shows that there is legitimate grounds for dispute 5 about what the legitimate scope of these SAMs is. And I submit 6 to you that Lynne Stewart, in light of what she saw and knew, 7 has the better of the argument. 8 But government counsel says what about paragraph 3? I 9 shall not pass any mail received on to third parties and shall 10 ensure that all mail received is translated by a cleared 11 interpreter and reviewed by me or other cleared counsel. 12 I submit to you that that is an ambiguous statement. 13 Lynne Stewart certainly so interpreted it. 14 All mail received. Do you remember how often 15 government counsel said it was, you smuggled it in, you 16 shouldn't have it there. And I pointed out that the mail that 17 was received was taken into the prison and was translated by a 18 cleared interpreter and he is sitting right over there. 19 Now, I admit Lynne Stewart is going to have, I shall 20 not pass any mail received. Well, a person might legitimately 21 say I didn't receive any mail. It wasn't as though Abdel 22 Rahman sat at his typewriter and typed out messages and sealed 23 them in an envelope and gave them to me to take out. That 24 didn't happen for a lot of reasons. One, he was blind; two, he 25 didn't have a typewriter; three, he didn't have instruments on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11925 5165SAT4 Summation - Mr. Tigar 1 which to write because it wouldn't have done him any good. 2 The only things that went out were things that the 3 lawyers supervised in response to the things that came in. 4 Well, they can get up and attack that all day and all night but 5 it's the lawyer's job, and I will read the ethical 6 considerations, to construe whatever there is to be construed 7 in a way most favorable to the client's interests. 8 Now we get almost done with this part, to January of 9 2001. 10 In January 2001 there are two telephone calls that are 11 significant, according to the government. One is where Abdel 12 Rahman's son calls up and they've had a family call. And Abdel 13 Rahman is very upset and is saying that his lawyers are 14 conspiring against him. He is saying that. He is saying it 15 because -- because the lawyers have not called him. Why 16 haven't the lawyers called him? They haven't called him 17 because as a result of the dispute with Pat Fitzgerald 18 apparently there has been some gap in lawyer calls because they 19 wouldn't sign off on the SAMs. That is one of the events, 20 that's the January 2001. 21 Then, in that same time frame we have the October 22 2000, what I have called the fake fatwah, the fatwah that the 23 Sheikh did not issue. Let's take those in that order. 24 As you have heard at some great length, Mr. Taha and 25 Mr. Sattar, in ways that -- I'm not going to evaluate the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11926 5165SAT4 Summation - Mr. Tigar 1 evidence, they were involved in different ways -- in a 2 statement in response to what Ariel Sharon did that called for 3 killing. Lynne Stewart said she thought it was horrific. She 4 would never have done anything like that. We've made so much 5 progress, she said to you right from that stand, and here we 6 were back to square one. Here we were back to square one. 7 And I tie these two things together because you 8 remember that January 2001 is after the son talks to 9 Mr. Sattar, they're talking about whether the Sheikh gets 10 insulin and Lynne Stewart is talking about that. 11 Folks, from August of 2000 clear into 2001 the United 12 States government prevented Lynne Stewart from talking to her 13 client. She could not call him up, she could not deal with 14 him, she could not visit him. She was, for all practical 15 purposes, not his lawyer. 16 In fact, she took the step in September of 2000 of 17 writing to the prison and asking to schedule a visit and then 18 you may recall that they said first, yes, and then they wrote a 19 letter back and said don't come, she wasn't his lawyer. 20 I wish now to underscore something because the 21 prosecutor made much of it with respect to the January episode. 22 He said, well, why didn't she call up the prison and get 23 information about her client's health situation so she could 24 verify whether or not the thing about insulin was true? 25 Members of the jury, that just defies common sense. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11927 5165SAT4 Summation - Mr. Tigar 1 If she is not his lawyer do you think that you or I or the New 2 York Times or the Wall Street Journal or anybody could just 3 call up a prison and say, excuse me, I'm not a lawyer for this 4 person but just tell me what his health records are. Well, I 5 hope not. 6 I mean there is, I think one could reasonably believe 7 that that's not going to work. But, she is cut off from him. 8 What we have here and I want to say at the outset is 9 that the government is complaining about Lynne Stewart's 10 conduct with respect to a situation where they created the 11 problem. They created the problem by cutting her off and now 12 wish to associate some consequences to things that her client 13 either did or did not do that she was not in a position to find 14 out about. 15 Oh well, yes, they say. But when she learned about 16 the fatwah what did she do? If he's for it, well I'm for it 17 too. That's the first statement that was made, that she said 18 that. And I'm not for the substance, I'm for the result. 19 Members of the jury, she didn't say "too", T-O-O, and 20 that makes all the difference and I will show you the 21 transcript. And she didn't say "resolve." She simply didn't 22 say the words that were attributed to her in that summation. 23 Here, by the way, 2650, is the letter from the warden 24 telling her she can't come. 2650. 25 A conversation with Mr. Yousry -- excuse me just a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11928 5165SAT4 Summation - Mr. Tigar 1 minute? 2 Your Honor, may we take a short break? I seem to have 3 lost my record. 4 THE COURT: No problem. Ladies and gentlemen, we will 5 take 10 minutes. 6 Please remember my continuing instructions. Please, 7 don't talk about the case at all, always remember to keep an 8 open mind until I have finally instructed you on the law and 9 you have gone to the jury room to begin your deliberations. 10 Have a good break. See you shortly. 11 All rise, please. Please follow Mr. Fletcher to the 12 jury room. 13 (Jury not present) 14 THE COURT: We will take a break. Have a seat just 15 for a moment. 16 It's the reporter's responsibility to take the 17 transcript as best the court reporter hears it and I take no 18 responsibility for the transcript. I just, I thought I heard 19 and I certainly don't attempt to correct everything in the 20 transcript, I thought I heard a, quote, conversation, rather 21 than a consideration, with Mr. Yousry. 22 I just point that out. 23 MR. TIGAR: Thank you, your Honor. 24 THE COURT: See you shortly. 25 (Recess) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11929 5165SAT4 Summation - Mr. Tigar 1 THE COURT: Be seated, all. 2 All right, let's bring in the jury, please. 3 (Jury present) 4 THE COURT: All right. Ladies and gentlemen, remember 5 to follow my continuing instructions. 6 Mr. Tigar, you may proceed. 7 MR. TIGAR: Thank you very much, your Honor. 8 And I ask your pardon, I lost my place in my notes 9 there for a minute but I tell you, I'm not worried about that 10 because just as I'm not worried about the fact that there will 11 be a rebuttal summation after I'm done. 12 See, we don't have the burden of proof here. I'm like 13 the book review editor of the New York Times, I don't have to 14 be able to write a book, I just have to be able to criticize 15 them and figure out what might be wrong with them that might 16 lead you to want to buy it or not to buy it or whatever. 17 That's my job. 18 I'm like the building inspector, I don't have to be 19 able to build a building, just look for faults. 20 But that's what we do, that's the system, that's what 21 reasonable doubt is about. 22 And so, we were talking about this fatwah. The 23 prosecutor said the fatwah and Abdel Rahman's adopting it has 24 nothing to do with any legal matter. 25 Now, that's right. And here is what Ms. Stewart said SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11930 5165SAT4 Summation - Mr. Tigar 1 about that. She didn't say I'm for it too. She said, if he's 2 for it, I'm for it. That may not be the best of locution 3 but -- and you may think it must mean she agrees. 4 She said, I'm for it, too, I didn't adopt. That was 5 the prosecutor's argument. He added the word "too" because he 6 wanted to have it look like something it's not. 7 Well, why would he do that? She said what she meant 8 in the transcript. She said that it meant that since she was 9 cut off from her client and since he said don't deny it, she 10 was going to have to do something about it and she said, you 11 know what? It's certainly okay. The fact that they weren't to 12 say anything about it was sure a lot better than they if told 13 you you have to defend it and say it was the right thing to say 14 which she didn't say and never would have done. 15 Why should you adopt one interpretation over another? 16 Well, because hers was given on the witness stand under oath 17 and not significantly, I submit to you, cross-examined. 18 And their interpretation is based on doing the 19 absolute impermissible which is adding a word in there that 20 doesn't appear. 21 You know, I was always taught to believe you had such 22 a strong argument you wouldn't need to be monkeying with the 23 evidence. 24 And there is something else. You remember Agent 25 Stone? She was the lady that was, the woman -- that's not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11931 5165SAT4 Summation - Mr. Tigar 1 correct -- she is the professional woman, FBI agent who was 2 responsible for the search of Ms. Stewart's office. And they 3 were in there for hours and they had agents, six, seven, 4 however many they had. They seized the computer hard drives. 5 She got a Christmas card list of the things that she would send 6 to people in jail. They had the books, they had the records, 7 they are the files, and they came here and introduced in 8 evidence many exhibits, and that includes the file folders that 9 we put them in. 10 There is not a single exhibit in there that reflects 11 that Lynne Stewart is a person who supports, belongs to, says, 12 involved in horrific statements that say, Go out and kill all 13 the Zionists or Israelis or Jews or whatever. 14 What there is, in her testimony -- and she said that, 15 and I suppose they could get books is -- is that she does 16 believe that the Israel/Palestine situation must be resolved 17 along certain lines that she identified as consistent with 18 international law and with the status of the West Bank. 19 (Continued next page) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11932 516MSAT5 Summation - Mr. Tigar 1 MR. TIGAR: As bad as it is, as bad as I thought it 2 would be for his case, I'm not allowed to substitute my 3 decision making for him in this way and that's what I meant. I 4 felt this obligation to represent my client's interests. If he 5 is for it and I'm for it, not obviously for the substance of 6 this statement, but for the reaction to it, which in that 7 paragraph that the 7895 means his reaction to it, that is, 8 don't say anything about it. That's what I have to do, is not 9 say anything about it. That's an acceptable way to deal with 10 it. 11 You know, one of the problems with representing people 12 accused of crime is that you represent people who have 13 committed crimes. And one of the problems of representing 14 people who have committed crimes or been convicted of 15 committing crimes, sometimes even after they have been 16 adjudicated of doing them, they do another one. And so if a 17 lawyer gets hired for somebody and they get charged with a 18 crime, they get probation. Or they will have conditions of 19 probation, or they will serve some time and they will have 20 parole and they will have conditions of parole, don't hang out 21 with bad people, don't get involved in narcotics, you got to 22 have tests and so on. And don't do any more crimes, all the 23 rest of it. And then some of these people, they go do it 24 again, or they use drugs or they hang out with their own 25 people. It makes sense. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11933 516MSAT5 Summation - Mr. Tigar 1 What do you want the lawyer to do? Oh, my goodness 2 gracious, I will never have anything more to do with you, get 3 out of my sight. You're hopeless. Well, sometimes lawyers may 4 believe clients are hopeless. I don't know. I suppose that 5 happens. You can figure as a matter of common sense that it 6 does. But a responsible lawyer says that somebody in that 7 situation now needs counsel perhaps more than they did before 8 so that they can deal with the system because now the system is 9 going to come down on them. 10 This is, I suggest to you, members of the jury, a part 11 of what lawyers do, the effect, the assistance of counsel for 12 their defense. It says in our Constitution. What an 13 interesting idea. It is not an idea that we inherited from 14 England. England didn't give counsel to people in felony cases 15 until 1802, ten years after the Bill of Rights was ratified. 16 The colonists who had that experience did it. As we said 17 before, there are all kinds of lawyers exercising all kinds of 18 judgments about how they ought and ought not to do their 19 business. 20 The hallmark, of course, is that the client is 21 entitled to a lawyer's independent judgment and not a judgment 22 based on what the prosecutor thinks is the right way to go. 23 But the other part, members of the jury -- and I suggest this 24 to you is -- that the very best lawyers are the ones who 25 recognize for their clients that they are better than the worst SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11934 516MSAT5 Summation - Mr. Tigar 1 thing they ever did, that they had this idea. Thomas Merton 2 said, to see the eagle in the egg, the butterfly in the 3 chrysalis and the spark of decency in the heart of every 4 center. And even if he didn't put it that way, let's come down 5 out of Thomas Merton and the poet and the monks in the 6 monastery and talk about practicalities and what the evidence 7 is here. 8 The evidence is that she didn't -- that despite the 9 fact she had been blockaded, she couldn't see her client, she 10 didn't jump to the conclusion that her client had issued the 11 statement. She had no way to verify it one way or the other. 12 She had confidence that the thing would work itself out, even 13 though she heard from Mr. Yousry that the client had said none 14 of your business, and she sat back and waited. 15 Members of the jury, I don't know how her conduct 16 could possibly be a bad reflection on her in any -- in 17 connection with any count, any element, any charge in this 18 case. She sat back and waited. And in the end nobody ever got 19 a letter from Pat Fitzgerald that said, how did you smuggle 20 this out? Pat Fitzgerald had his word processor cranked up 21 over there. He might have had many reasons for that. At least 22 she sat back and waited and that's what happened. 23 Now, this isolation from her client continues. All 24 during this fall 2000 period or during part of the fall 2000 25 period there are conversations. This is Atia evidence. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11935 516MSAT5 Summation - Mr. Tigar 1 the prosecutor told you that this is not offered with respect 2 to Ms. Stewart, so I am not going to talk about it. It is not 3 offered with respect to Ms. Stewart. There is no evidence that 4 she knew about it, certainly that she participated in it or 5 anything else, or that she knew that Atia got shot or didn't 6 get shot or if there weapons or there weren't weapons, or 7 whatever. 8 But now we can come then unimpeded to the second thing 9 that happened during this time she was separated from her 10 client. Oh, by the way, the conversation where she talks about 11 her reaction to the fatwah is 1193X. And the -- that is the 12 same one where they are talking about Stanley Cohen negotiating 13 with Pat Fitzgerald. And what they say is, so now Stanley is 14 free, Lynne Stewart says, so I am sure he will bother Pat 15 constantly to get it straight. And if he can't get it 16 straight, then we will file, what I said before. They were 17 perfectly prepared to sue to create this leeway with Pat 18 Fitzgerald. 19 Now, January, the insulin conversation. Dr. Edwardy 20 and I had a discussion, and I have conceded to you for Lynne 21 Stewart -- on Lynne Stewart's behalf that the Sheikh had better 22 medical care in that prison than most Americans can afford. 23 That is not to say that he was not isolated. Ramsey Clark 24 thought his conditions were deplorable because of that 25 isolation and the effect it was having on him. Ramsey Clark SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11936 516MSAT5 Summation - Mr. Tigar 1 thought that the fact that he was isolated was contributing to 2 the difficulty. Ms. Stewart talked about that. 3 At MCC people would wash his feet and help him and so 4 on. After they washed his feet, they made sure he was dry. 5 You have to wash yourself before prayer. That's what the 6 evidence shows. If the man is diabetic and he put on socks and 7 has wet feet, he would develop these other problems. For 8 various reasons, the folks thought the isolation was a problem. 9 That's not an element of the defense, it is not a 10 defense to these charges. It just happens to be something. 11 And Dr. Edwardy said he doesn't know -- he knows that Muslims 12 have some kind of dietary restrictions, but he is not really 13 familiar with them. It might be more reasonable. I'm not 14 criticizing to have a physician in a facility that houses 15 devout Muslims to have someone who was familiar because there 16 would be better conditions then and maybe problems wouldn't 17 arise. 18 Dr. Edwardy also said he called his patient, 19 Mr. Rahman, which must have bothered the Sheikh some. We don't 20 have any evidence that the Sheikh ever said anything. But 21 Rahman means God. So he could be Mr. Abdel Rahman, the servant 22 of God, he could be Sheikh Rahman, which is okay, or the Sheikh 23 or Sheikh Omar, but not Mr. God. 24 And then the prison logs, which you're free to look 25 at, there are a number of them in evidence, will show the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11937 516MSAT5 Summation - Mr. Tigar 1 degree of isolation. And therefore -- there is some room for 2 misunderstanding about the medical situation. But Ms. Stewart 3 was candid with you. She said she didn't really have any hard 4 evidence that he was being deprived of his insulin. She didn't 5 know that he was. She didn't really believe that he was. 6 So what happens? She gets a call from Mr. Sattar who 7 says that the Sheikh's son wants to issue a press statement. 8 And the press statement is going to be the Sheikh doesn't like 9 his lawyers anymore and he is not getting his insulin. Well, 10 the first part of that would not be very good. It would 11 certainly harm the lawyer's credibility in attempting to get 12 the Sheikh released. And the pages of the Yousry notebook that 13 I referred to this morning had the Sheikh cussing Ramsey Clark. 14 When I say cussing Ramsey Clark now, I don't mean bad words. 15 It was, I will condemn you. I will never forgive you. It was 16 a real Jeremiah, we might call it, a real speech because the 17 Sheikh was upset that not enough was being done for him. 18 People in professional businesses of any kind, doesn't matter 19 what you are, have folks that are like that and complain even 20 though you think you're doing a good job for them. So that 21 would not have been a good thing. 22 Now what does she know? That probably should be 23 headed up. What she knows is, she can't call the prison to see 24 whether or not it is true because there is no reasonable chance 25 that the prison is going to release that information to her. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11938 516MSAT5 Summation - Mr. Tigar 1 She is cut off. But when the prosecutor summed this up for you 2 he did not even claim that it was an element of any of the 3 offenses. He did not even claim that it is a crime to issue a 4 false statement to the press and, therefore, certainly could 5 not be a crime to say that the son of a man being held in 6 solitary confinement for his life who gets very angry and wants 7 to issue a false statement to the press in another country 8 could possibly be a crime. Or that all of that was true plus 9 the fact that you don't represent the son. He is not your 10 client. You have never spoken to him directly and you have no 11 idea about what exactly he plans that's being filtered through 12 Mr. Sattar in good faith, but you don't speak the son's 13 language. 14 There is no evidence you even have his telephone 15 number. And there is no evidence that this news is even going 16 to get out in the United States. So why is Lynne Stewart being 17 judged by this standard? One of the other counsel referred to 18 the need for more jails if certain things were made crimes. 19 Members of the jury, if false or misleading statements to the 20 press was made a crime, then the jail population would greatly 21 increase, even if you just restricted it to public officials. 22 THE COURT: Ladies and gentlemen, please don't 23 interrupt the summations. 24 MR. TIGAR: I'm not making that as a joke, members of 25 the jury. It is not a joke. This is serious for Ms. Stewart. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11939 516MSAT5 Summation - Mr. Tigar 1 And this is nonsense, that the idea that you would in this 2 trial spend that time to talk about a woman who third hand 3 hears about something that somebody who is not her client is 4 going to do because he cares about his daddy and he is going to 5 talk to the press. 6 We are almost done with this part. I said I wasn't 7 going to talk about Atia and I'm not. The government saved for 8 the end a videotape of a program with Greta Van Susterin. Not 9 only did the government play the tape or portion -- only 10 portions. I am going to read only portions and I am going to 11 look at that. After they were done reading or after he was 12 done reading, this prosecutor says -- characterizes what she 13 says. Is that not what she is saying? Saying about the 14 Egyptian government? She is saying it with careful language 15 because she can't say I issued the press release. Then he says 16 that's why she issued the press release. 17 And then he says that Ms. Stewart apparently was 18 wanting the Islamic Group to take Americans hostage and trade 19 them for Abdel Rahman. That's the exchange she is talking 20 about. But she can't be explicit. She is on national 21 television. 22 Members of the jury, I used to have a nightmare. I 23 would be charged with a felony and get tried on Fox television, 24 but then I have another one and that is that after I get done 25 being tried on Fox television, some prosecutor is going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11940 516MSAT5 Summation - Mr. Tigar 1 stand up and say, you know what, what he said on Fox television 2 in response to that hostile question was bad enough, but let me 3 tell you what he was really thinking. I turned around and 4 looked, I said, they put some neon sign up in the window that 5 says psycho advisor. Ladies and gentlemen, that's just 6 outrageous. If their case is so good, why are they doing it? 7 Ms. Stewart told you that why she went on that program 8 and maybe she shouldn't have. Greta Van Susterin used to have 9 a program, Ms. Stewart explained. I think it was on CNN where 10 there would be half an hour and Ms. Van Susterin and another 11 fellow would have a conversation and it was a real discussion. 12 And then she moved over to Fox television and now it is the Fox 13 television format with the hard-hitting questions and the logos 14 and all the rest of it. 15 And Lynne Stewart says she was somewhat taken aback 16 because the new Greta Van Susterin was different than the old 17 Greta Van Susterin. And Greta Van Susterin is a lawyer. She 18 is a pretty good lawyer when she was in practice. And here is 19 what she said. She started right off with saying, I'm a 20 lawyer. I acted as a lawyer and I believe I never betrayed the 21 trust that my client had in me or, for that matter, that my 22 country had in me. That's pretty good. I never betrayed the 23 trust? What else was she -- was she supposed to -- I call that 24 bubble. That's what she is talking about. She never betrayed 25 the trust. I was very surprised. I had no idea whatsoever. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11941 516MSAT5 Summation - Mr. Tigar 1 She didn't think what she had done was a crime. She did not 2 think that she had violated a legal duty. I felt the worst 3 that was happening, et cetera, et cetera. 4 Then they talk about the press release, talk about 5 that. Had you signed an agreement? Not to me. She says I 6 had. If you listen to the tape -- I invite you to -- it is an 7 incomplete thought. It is not adopting the question. She goes 8 on to say, I signed it once, they called me up, I signed it 9 again, I went back to Minnesota. 10 We had agreed not to do that, members of the jury. I 11 am going to suggest to you, when she says simply picks up, you 12 had agreed not do that, we had agreed not to do that, but I 13 represent a client. She did what I think is the -- I am not 14 going to say it. It is not a good thing to do if you're being 15 interviewed by somebody that's firing the questions at you and 16 you're trying to think of the answer. She picked up the last 17 words of the question and then said her words. Because every 18 positive statement that she made was that she didn't violate 19 the law and she was serving her client. 20 In the end, ladies and gentlemen, she stood on that -- 21 sat on that witness stand for days and days and days and had 22 the SAMs in front of her and talked about those things and had 23 everything to review. We look at the case as a whole. We look 24 at people as a whole. And I come back to what I started with 25 on this and that is, you know, if they think that Greta Van SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11942 516MSAT5 Summation - Mr. Tigar 1 Susterin on Fox television proves their case, then why did the 2 prosecutor have to stand up here and make stuff up that isn't 3 in there? Let them answer that. 4 The one final thing I want to talk about on this 5 prosecutor's summation. Lynne Stewart's politics, her 6 statement. She believes that some day in the distant future, 7 if a majority of Americans get with it, then the system needs 8 to be replaced. That said, she is a real political radical. 9 Every American has the right to believe that our form of 10 government is unjust and corrupt and wrong and greedy and bad 11 and that some day, but only when a majority of Americans want 12 it. 13 If they can't get their way at the ballot box it is 14 going to have to be changed in some other way than the ballot 15 box. You might not agree with that, but it is what everybody 16 is entitled to believe in our great country. And I submit to 17 you it has nothing whatever to do, nothing whatever to do with 18 whether or not a person can be and is an effective, honorable, 19 decent lawyer. 20 There is a few things you know about me. You might be 21 able to guess something about my origins. You might be able to 22 guess something about what I do for a living. You certainly 23 can't guess what my politics are, whether I believe in the 24 overthrow of the government, or, I don't know, what my other 25 parts of my private life are about. You know why you don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11943 516MSAT5 Summation - Mr. Tigar 1 know anything about it, I am going to suggest to you? It is 2 none of your business. Because it doesn't have anything to do 3 with my being a good job being a lawyer here. Whether I asked 4 questions that got objected to and the objections got sustained 5 or overruled, whether I made objections that got sustained or 6 overruled, or whether I know how to argue or defend somebody or 7 whatever, I want to be judged by the content of my character, 8 not my politics. Ms. Stewart does, too. 9 That's the longest part of the summation and the other 10 two parts aren't nearly as long, so let me start and I won't 11 quite get through this afternoon, but almost. I want to talk 12 about some of the exhibits in this case. Let me put this down. 13 I am going to start with these tapes and taps and so on, 14 because I owe you an explanation. I stood up. 15 Excuse me just a moment, please. Every time one of 16 these FBI people came in with their wiretap evidence I stood up 17 and asked questions. And then eventually after we had some 18 hearings the judge said to you that, of course, these tapes 19 were lawfully obtained, that enough had been said that they 20 could be played for you, but that you should receive them with 21 caution, whatever his language is, and I don't want to quote 22 it. It will be quoted in his final summation. He will do it. 23 But the weight of any of them is for you. I'm not talking 24 about the prison visits. Those were recorded with a TV camera 25 and we might have wished that the camera was not up in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11944 516MSAT5 Summation - Mr. Tigar 1 ceiling. Of course, they would have found it if it was. I 2 would have enjoyed seeing the facial expressions of the people. 3 I think that particularly Ms. Stewart's facial expressions and 4 Mr. Yousry's and even the Sheikh's facial expressions I would 5 have thought. But that's the government's decision. 6 But I'm not talking about those because we have agreed 7 and did agree that the way those were done was very 8 responsible, the way they handled those and put them on the 9 DVDs and then the excerpting process that was done was 10 negotiations with the parties. I'm talking about these tapes 11 of the 90,000 telephone intercepts. And I want to talk about 12 why we made so much trouble about it. After all, Ms. Stewart 13 isn't on but a handful of them. Many of them are not even 14 admitted as to Ms. Stewart. The overwhelming majority are in a 15 language that she does not speak, Arabic. And as to the 16 overwhelming majority, the evidence is that there is no 17 evidence that she knew about them. 18 So what's the issue here? The issue is, in part, the 19 one that I raised when I pointed out that the government had 20 not -- that the only witness called in this case by the 21 government who had ever seen a weapon in Egypt was Mr. Ekkehart 22 Hassels-Weiler, who was at Luxor, which is not a charge in the 23 case. The government, they want to rely on these tapes, the 24 weight, if any, which is for you. When the tapes are 25 presented, if they are in Arabic, then, of course, a translator SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11945 516MSAT5 Summation - Mr. Tigar 1 would translate them and the English language thing would 2 become evidence. 3 And, of course, it is -- I know you won't make the 4 mistake of thinking just because the translation was in English 5 that must mean that Lynne Stewart must possibly know what's in 6 there because the original was in Arabic. But my concern was a 7 different one. And that is that please be careful in reviewing 8 the evidence on these tape recordings. As to some of them, a 9 party that actually spoke says, yes, that's my voice, that part 10 I did. I said that. As to others, lawyers here have said, 11 wait a minute. There is gaps of days and days when they didn't 12 tape at crucial times. 13 One of those gaps, as I recall, was right around the 14 time of the verdict in the Sheikh's case, when if there were 15 plan afoot to do something, one might expect that they would be 16 there. Now, the problem is that Agent Kerns and Agent Elliott 17 testified that neither you nor I nor the FBI, I respectfully 18 suggest to you, can come in here and tell you what's missing. 19 That's right. You remember I asked Agent Kerns and we 20 established that. They don't have an external index. The 21 index to what they have is internal to the tapes, many of which 22 got degraded and had to be taken off to try to be restored with 23 not 100 percent success. 24 And although I certainly would concede to you that I 25 cannot prove tampering, when you look at the weight of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11946 516MSAT5 Summation - Mr. Tigar 1 evidence you should ask yourself, why didn't they have the 2 simple program that the cart agent who testified to the Sattar 3 search testified about? That cart agent, if you will recall, 4 says that the FBI had a program that could tell when a person 5 last accessed a file. So you would know, did somebody -- 6 that's a routine sort of thing. They didn't have that for 7 these files. If you had a password for all security and so on, 8 yes. But if someone who was in the security system had access 9 to have done something improper, I don't say change it 10 necessarily, but cause something to be degraded. You wouldn't 11 know who that was. You wouldn't know who accessed the 12 particular time. You would simply know who was in the room, 13 who was a potential. 14 Then, of course, we had Agent Elliott or Mr. Elliott. 15 And he described the goals of the system, to accurately and 16 completely record the calls that were designed to be overheard, 17 accurately determine whether a call was incoming or outgoing, 18 accurately determine the telephone number of the calling party. 19 Would not break the recorded calls into multiple parts. A goal 20 to record -- that's not necessarily true, but he does want to 21 record a call without gaps in the recording is what I meant by 22 the question, without gaps. 23 You may remember Agent Sorrells gets on the stand and 24 they are still looking for the 58 seconds, members of the jury, 25 on that one call that got broken up. Then he talked about the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11947 516MSAT5 Summation - Mr. Tigar 1 tone and the loop and so on. We talked about the fact that the 2 FBI system that existed was one where the stop and start of the 3 recording was based on depressing what we used to call the 4 switch hook. It is the thing -- if you have three-way calling 5 or caller ID, you click once, you get the call that's coming 6 in. That caused that little voltage drop and that would cause 7 that old Lockheed Martin system to think, it is another call, 8 or the call is over. And that Agent Elliott was saying was one 9 reason why these calls kept getting broken up, which wouldn't 10 be so bad except that the machine wouldn't start picking up 11 again until several seconds had gone by. 12 Then when you look at these tape recordings, when you 13 look -- not at the tape recordings, the transcripts, 14 particularly the Arabic language ones, look for unintelligible. 15 You have heard some of the calls that were played here, buzz, 16 buzz, buzz, buzz when it is inferrible that the original 17 call -- who would have a telephone that would have that kind of 18 noise on it. You would have the phone company over in a 19 heartbeat if that's all you could hear. And the technical 20 problems. 21 And between the gaps and the unintelligibles and the 22 technical problems, members of the jury, the reason we spent so 23 much time is, I was trying to ask that, as you look at this 24 evidence, in light of the government's heavy burden, that you 25 ask yourself why, when there was a choice, which the government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11948 516MSAT5 Summation - Mr. Tigar 1 had to make, them having the burden of proof, between listening 2 on somebody's phone and going and finding a live witness, why 3 not take the extra energy to go find the live witness? And I 4 used the example of Mr. Atia, who was allegedly, according to 5 the government's theory of the case, killed in an encounter 6 with Egyptian security forces because in some kind of a deal 7 that involved there being weapons. And I pointed out that the 8 government chose not to try to support this theory that there 9 was a conspiracy involving weapons in this Middle East country 10 with Mr. Atia with live witnesses that could be cross-examined, 11 so that was the reason for that. 12 A few minutes ago I took out the exhibits from Lynne 13 Stewart's office. Folks, we all have lives and we all, I 14 guess -- I don't know -- most people do, we keep records. And 15 from the search information we can understand how a lawyer 16 keeps records. For example, members of the jury, there were a 17 series of photographs, 2689 and following, photographs of desks 18 and filing cabinets and book shelves and books with files in 19 it. And I told you that the FBI spent or reminded you spent 20 many hours with many agents. How many person hours does that 21 wind up to be? And yet this is what they come with, that's it 22 right here, you look at them all. They begin with 2600 and 23 they go through 2699. 24 The first thing I would like to point out is that 25 Lynne Stewart told you she had 60 or 65 active cases pending at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11949 516MSAT5 Summation - Mr. Tigar 1 any one time. Can you imagine that? Going back and forth to 2 court waiting for the calendar calls, oh, we will try this one 3 next week, just a minute, prosecutor, Lynne Stewart, let's 4 negotiate a deal, let's do this, let's do that. That's a lot 5 of cases going on at once. Of course, if you have a 6 high-volume practice where you're not making a lot of money on 7 every case, that's what keeps her office going. 8 By the way, it is not a huge number. There are people 9 that do more than that, because they deal with more cases. But 10 that's her case load. Sheikh Omar Abdel Rahman is a client in 11 a jail in Minnesota and, therefore, on a 60 to 65 -- and it is 12 a pro bono case. She is not being paid. Therefore, this is 13 less than two percent of her entire case load. Yes. Which one 14 of us would care to have that scrutiny of one and a half 15 percent of our lives? 16 When you look at the evidence in this case, please 17 consider that we have been here seven months to inquire about 18 one and one half percent of Lynne Stewart's professional life. 19 If she works a ten-hour day and sleeps eight -- I can't do the 20 arithmetic. I can't even find the files, folks. But we are 21 talking about less than one percent of the life load of a 22 person. 23 And so to magnify every word, to magnify every 24 gesture, to attach significance to every little thing that she 25 does and not to understand that sometimes she spoke quickly, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11950 516MSAT5 Summation - Mr. Tigar 1 blew off people that were calling her and trying to get her 2 attention, didn't pay full attention, spent time, made these 3 judgments, that would not be a correct way, it seems to me, to 4 understand. It would not be right because it would be 5 attributing motives to people based on such a small slice of 6 who they are and what they are about. 7 There was a French statesman named Talleyrand and he 8 died when Napoleon was the emperor of France, and he had been a 9 crafty fellow. And somebody came in and said: Talleyrand is 10 dead, Sire. Napoleon said: What? Are you sure? He said: 11 Yes. I just came from his bed chamber. And Napoleon was 12 purported to have said: I was asking myself these last 24 13 hours: What possible reason could he have for going at this 14 time? 15 We attribute motives to people and it is important to 16 see them. But I will accept the challenge because the 17 prosecutor threw the gauntlet down. 18 The exhibits, many of them are newspaper articles. 19 And the prosecutor had the effrontery to say, what was 20 Ms. Stewart's intent? Well, she knew, she knew, she knew, she 21 knew, they said, referring to newspaper articles about attacks 22 on a Cairo hotel, a bombing in Islamabad, this, that, and the 23 other thing, all newspaper articles that Ms. Stewart said she 24 collected in connection with cases. Many of them were clipped 25 out and put in cases and some even had exhibit numbers. I am SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11951 516MSAT5 Summation - Mr. Tigar 1 not going to bore you by going through them, but certainly it 2 does relate to her intent. That when she is involved in a case 3 that involves issues about the Middle East, she collects 4 newspaper articles about the Middle East. 5 But to them, leap to saying she knew, she knew, she 6 knew, despite the judge's instructions that these newspaper 7 articles are, after all, not offered for their truth, it seems 8 to me to commit some kind of impropriety. It is not to see and 9 apply the rules of evidence in a correct way. It is to 10 overvalue the evidence. It is to suggest to you that the 11 evidence has value that you in your exclusive consideration of 12 it may legitimately decide that it is not, that it does not. 13 Then there is a notebook page. Every so often 14 interrupt to give an English translation in Ms. Stewart's 15 handwriting. That's probably one of the ones she wrote when 16 she was trying to keep the guards from coming in. 17 Then there is an electronic printout of the SAM 18 regulation, including these provisions that show that the SAMs 19 are designed to accommodate these conflicting interests between 20 security and liberty. That would be -- I would suggest you 21 would want your lawyer to have that. She testified that she 22 considered it, Taha, that that was a part of her consideration. 23 And lo and behold, the FBI had one and brought it to you. 24 There are various attorney affirmations. 25 Then there is that statement, the sink their ship SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11952 516MSAT5 Summation - Mr. Tigar 1 statement, a copy of that that the press had asked her about. 2 Two different vectors or ways that that gets there. One is, 3 because it was a part of Nasser Ahmed's case when the question 4 was, was it Nasser Ahmed that got it out? Was he the one that 5 sent it out and, therefore, should he be disqualified from 6 being in the United States? And the immigration judge finding 7 in Exhibit 2666 that, no, there was not evidence from that. 8 There are SAMs and SAMs and SAMs and SAMs, information about 9 SAMs. 10 Members of the jury, there are the records of the 11 Nasser Ahmed case, the testimony in that case, the pleadings in 12 that case. And there is that long decision of the immigration 13 law judge, 2666, that was a decisive refutation of the 14 government's position in that case, a denunciation of secret 15 evidence. You heard it read to you by the prosecutor. He read 16 it fast. 17 But I suggest to you that that decision says more 18 about what lawyers do than many of the exhibits you have seen. 19 It shows the wonder working power of the lawyer being able to 20 question the validity of what the government has said. Because 21 as soon as the evidentiary basis for denying Nasser Ahmed the 22 right to live in our great country was disclosed, it could be 23 attacked and challenged and refuted. 24 That's what the files in Lynne Stewart's office show, 25 that here is a lawyer doing what might be the most important SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11953 516MSAT5 Summation - Mr. Tigar 1 thing that a lawyer can do because government, every 2 government, democratic governments, autocratic governments, 3 they are tempted to do things to people to put them in cells 4 and keep them there and things happen to them there that 5 shouldn't. And it is the lawyers who uniquely and responsibly 6 have this responsibility if they are shoulder it, to be brave 7 enough and heedless enough for financial reward because this is 8 not the kind of work that makes you rich, to simply go there, 9 not to win always, but simply to redress the imbalance that 10 will inevitably be there if the government is free to behave 11 without that kind of testing and examination. Members of the 12 jury, that's what the files in Lynne Stewart's office show. 13 And if there were files there that showed something 14 disreputable, something that deported in some unlawful way from 15 the high standards of the profession that she has chosen to 16 follow, you're deceived. 17 Your Honor, may I request that we break for the day? 18 THE COURT: Sure. 19 Ladies and gentlemen, we are going to break for the 20 day and we will resume Monday at 9:30. 21 It is very important, as I've said, that you follow 22 all of my instructions. And I explained earlier today how the 23 instructions all fit together and are important and are part of 24 a piece. 25 It is very important that you not talk about this case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11954 516MSAT5 1 at all among yourselves or with anyone else when you go home 2 over the weekend. It is important that when you return on 3 Monday, again, you not talk about the case at all. It is very 4 important that you not look at or listen to or read anything to 5 do with the case. If you should see or hear something, please 6 simply turn away. 7 It is important that you continue to keep an open mind 8 until I have instructed you on the law and you've gone to the 9 jury room to begin your deliberations. As I have explained to 10 you on several occasions, the reasons for -- among others, the 11 reasons for these rules are so that all of you can provide a 12 fair and impartial trial for all of the parties. It is so that 13 you can wait until you have heard my instructions on the law 14 and that you can then go to the jury room to begin your 15 deliberations and that you can then talk among yourselves with 16 respect at that point, when you've had the entire case and my 17 instructions on the law, and only then. So that's why I have 18 explained, among other reasons, all of this to you. 19 So have a very good weekend and I look forward to 20 seeing you on Monday morning at 9:30. Have a good weekend. 21 All rise, please. Please follow Mr. Fletcher to the 22 jury room. 23 (Jury not present) 24 THE COURT: I'll talk to the lawyers. 25 (At the side bar) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11955 516MSAT5 1 THE COURT: First, could I get an estimate about where 2 we are? 3 MR. TIGAR: I'm sorry, your Honor. I have about 4 another hour, hour and 15, your Honor. I will be done. 5 MR. BARKOW: Your Honor, I do not expect to speak for 6 more than four hours. 7 THE COURT: I won't be instructing on Monday. 8 MR. BARKOW: I don't think so. If Mr. Tigar goes for 9 an hour and 15 minutes, then I think -- I don't think so. 10 Although, I am going to say, I am going to try to cut, try to 11 shorten, but I would guess not, but it is not impossible. 12 Since the Court said more than three hours and we end at 4:00, 13 I don't think that's possible. It's not even close to 14 possible, the math. 15 THE COURT: I'm sorry. 16 MR. BARKOW: I was miscounting. It is not even close 17 to being possible. 18 MR. TIGAR: To instruct. 19 THE COURT: This is what I have given out to you 20 before, except for the last page which is: On another matter I 21 advise you that the pace of jury deliberations is up to you. 22 You can deliberate as long as you wish on any day, and you can 23 deliberate on Fridays, if you wish. However, it would be 24 helpful to us if you give us some advance notice whether you 25 wish to deliberate later on any given day and whether you wish SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11956 516MSAT5 1 to deliberate on Friday. I remind you between that no notes 2 should give me any indication of your present state of thinking 3 on any disputed issue or your vote count on any issue, and that 4 would be given after the robing room conference. 5 That's satisfactory with everyone? 6 There are a couple of other things. 7 MS. BAKER: Your Honor, could the gallery perhaps be 8 asked to hold it down. It is very hard to hear, your Honor. 9 THE COURT: Mr. Fletcher. 10 Beginning next week I am scheduled to teach on 11 Wednesdays and that's usually not a problem because it is at 12 the courthouse and it begins at 5:00. However, next week I'm 13 supposed to be for the first class, along with a colleague of 14 mine, I'm supposed to be somewhat uptown. 15 So if the parties agree -- and really, only if you 16 agree -- I would tell the jurors as part of what I have said to 17 you, I would add a sentence which says: On Wednesday, however, 18 I ask that you adjourn for the day at 4 p.m. The case would go 19 to the jury on Tuesday and I can't conceive that it is a 20 problem to tell the jury that they can only deliberate until 21 4:00, but this is a matter that is of such importance to me, 22 this case. Any case is of such importance that I wouldn't say 23 that to the jurors unless the parties agreed that I could say 24 that. 25 MR. TIGAR: No objection on behalf of Ms. Stewart. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11957 516MSAT5 1 MR. PAUL: No objection. 2 MR. RUHNKE: No objection. 3 MS. BAKER: No objection. 4 THE COURT: On the charge, is the government at this 5 point going to ask that I give the instruction on law 6 enforcement techniques? 7 MS. BAKER: Your Honor, if we could consider that and 8 let your Honor know perhaps some time tomorrow, I'd like an 9 opportunity for us to discuss it among ourselves in light of 10 what Mr. Tigar has argued today and everything that has 11 happened up to this point. 12 THE COURT: Sure. You can send me a note, copies to 13 everyone. 14 MR. TIGAR: I'd like to know whether the Court is 15 going to do it before I conclude. Quite frankly, if they want 16 it, I don't have any objection. If they write you a letter, 17 that's fine with me. I would like to know because I have tried 18 very carefully to say that this is not their business, but I 19 don't want to -- I would just like to know. 20 THE COURT: That's the state of the record. If the 21 government wants it, the government can have it, as the charge. 22 Can the government tell me tomorrow? 23 MS. BAKER: We will tell you, tomorrow, although I 24 would say that it was my understanding previously that the 25 posture was -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11958 516MSAT5 1 THE COURT: You're right. You are going to say that I 2 said the government can consider all of the defense summations 3 and then ask me at the end of the defense summations whether 4 the government wants to give it. That is right. 5 MS. BAKER: In light of that, I would say I'm happy to 6 advise the Court tomorrow what our current thinking is if our 7 current thinking as of tomorrow is no. And then if Mr. Tigar 8 says something new and surprising on Monday morning, of course, 9 we would request the opportunity to reconsider. The whole 10 point is, we were going to decide based on what the defense 11 arguments were. So we can decide based on what the arguments 12 have been up to this point in time. If there was a new and 13 different argument, that could affect things. 14 THE COURT: That's fair. 15 Finally, everyone can observe the jurors and I don't 16 like commenting on it unless the parties want me to. After I 17 gave my talk this morning, at least one, maybe more jurors 18 nodded and smiled. Later on in the day one juror, I think, 19 looked over to another juror. Whether the juror was looking at 20 someone else's notes or not, I don't know. You're in a better 21 position than I am to see that. 22 MR. TIGAR: I caught a two-hop lozenge pass. 23 THE COURT: Do you not want me to comment on any of 24 this? All of you can watch as well as I can. 25 MR. RUHNKE: I think that's correct, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11959 516MSAT5 1 THE COURT: I'll see you all at 9:15 on Monday 2 morning. 3 Sorry to call you back. The reporter raised a 4 question whether this is sealed at the side bar. 5 MS. BAKER: If it was only about jury instructions and 6 such matters, I don't think there was any reason to seal it. 7 (Adjourned to Monday, January 10, 2005, at 9:15 a.m.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300