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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 10, 2005
8 9:33 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 A. RUHNKE
23 DAVID STERN
24 Attorneys for Defendant Yousry
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1 (Trial resumed; jury not present)
2 THE COURT: Good morning, all. Let's bring in the
3 jury.
4 MR. TIGAR: Shall I move to the lecturn, your Honor?
5 Thank you. I will take this off here.
6 THE COURT: Mr. Fletcher advises that the jury is
7 going to be a couple of minutes. I would remind the jurors at
8 the beginning of my usual instructions about summations that
9 nothing the lawyers say is evidence. Basically the lawyers
10 submit that they submit the evidence shows or does not show and
11 that all issues of law, they are to follow my instructions on
12 the law.
13 If any lawyer says a principle of law different from
14 what I say it is my instructions that they must follow and they
15 are to continue to apply those instructions throughout all the
16 summations. And we are just waiting now.
17 MR. TIGAR: Your Honor, will you be saying that it is
18 the purpose of summations to argue to the jury what we claim
19 the evidence does or does not show?
20 THE COURT: Right.
21 MR. TIGAR: Will you be giving that part?
22 THE COURT: Yes.
23 MR. TIGAR: Thank you.
24 THE COURT: The lawyers submit what they submit the
25 evidence does or does not show.
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1 MR. TIGAR: Thank you very much.
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1 (Jury present)
2 THE COURT: Good morning, ladies and gentlemen.
3 THE JURY: Good morning, your Honor.
4 THE COURT: It is good to see you all.
5 Ladies and gentlemen, we are going to continue with
6 the summations. Please remember all of my continuing
7 instructions that you are to continue to apply throughout all
8 of the summations even if I don't, as I have told you, repeat
9 them after every break.
10 Remember that nothing the lawyers say is evidence.
11 The lawyers submit to you what they submit the evidence in the
12 case has shown or not shown.
13 On all issues of law, it is my instructions on the law
14 that you must follow. If any lawyer states a principle of law
15 different from what I say that the law is, of course it is my
16 instructions on the law that you must follow.
17 And remember that you are to continue to apply these
18 instructions throughout the summations and I will repeat them
19 again in the course of my final instructions to you.
20 All right, Mr. Tigar, you may proceed.
21 MR. TIGAR: Thank you, your Honor.
22 I will wind this up as expeditiously as I can in
23 talking about what the evidence does and does not show. The
24 "does not show" has to do, in our respectful submission, with
25 this idea of reasonable doubt.
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1 Now, on Thursday when we were last here I had
2 mentioned that really it is one percent of Lynne Stewart's life
3 that is on display here if you look at her caseload and the
4 other matters she was handling.
5 Now, the reason that she took the stand, and you know
6 she was on the witness stand there for you to see for all or
7 part of nine days, the reason was to put all of this into the
8 context of her life because the government didn't tap her
9 phone. She was picked up when she would call people whose
10 phones were tapped or when she wandered into other
11 surveillances.
12 I am not going to take your time by going through her
13 testimony and putting up pieces of transcript. As I said on
14 Thursday, that's at war with the way I learned how to do this.
15 If we were going to try the case based on reading transcript we
16 could have faxed it in and she wouldn't have to be on the
17 witness stand. She was there. You saw her, you observed her
18 demeanor, you watched her on cross-examination and you watched
19 something very important, I submit to you when you evaluate her
20 good faith, which we submit is a key concept.
21 Lynne Stewart achieved success in her profession in
22 the branch of her profession that she chose to work in, not
23 uptown, Wall Street, real estate. There is nothing wrong with
24 all of that branch of the profession, she chose to do her
25 profession in her community. And she chose it because her life
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1 experience, as she worked in the school up in Harlem and down
2 in the East Village, down in the projects, she saw every day
3 what was happening, particularly to young people in her
4 community, and decided she was going to do something about it.
5 She earned her place.
6 Now, you will recall that the government confronted
7 her with her radical politics and the principal thing they
8 confronted her with was a newspaper article that appeared in
9 1995 by a man named Joe Fried in the New York Times while she
10 was trying the Sheikh's case where she talked about her views
11 about violence.
12 Now, the Judge is going to instruct you about the
13 rights every American has to embrace dissident views, but isn't
14 it interesting that although those views were ones that she
15 publicly expressed in 1995, apparently whatever her views were
16 and she made no secret of them ever, the government is indeed
17 taxed with that, can you imagine Lynne Stewart making secretive
18 her views?
19 Pat Fitzgerald came here, the only government witness
20 who had a long experience working with Lynne Stewart, and he
21 told you, under oath, that he respected her as a person, that
22 he liked her, that she did a good job, that she was a well
23 respected lawyer back at the time that she was expressing those
24 views as well as trying the Sheikh's case.
25 Now, in talking about Lynne Stewart's approach to what
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1 she did, I submit to you that one of the most significant
2 things was her way of talking about what the media and the
3 government were trying to do to her client. She referred to
4 that as demonization. How do governments justify doing things
5 to people? They justify it by inviting whoever has decided to
6 regard that person as the other, not quite human, not us, the
7 other, different. And then they move from that to justifying
8 whatever else they're asking to you do.
9 Now, make no mistake, members of the jury, Sheikh
10 Abdel Rahman was convicted of very serious crimes. He was
11 being punished and we have seen no proper purpose in retrying
12 him here. But I also ask you to remember that the only
13 witnesses in this case, the live witnesses, the evidence which
14 is your exclusive province, yours to judge, nobody else's; the
15 only witnesses whoever testified they met and talked to Sheikh
16 Abdel Rahman after the SAMs were imposed in 1997 were Ramsey
17 Clark, Larry Schilling, Lynne Stewart, Mohammed Yousry,
18 Dr. Edwardy and the prison clerk Ms. Christiansen. They're the
19 only ones that met him, talked to him. And Mr. Fitzgerald,
20 even though he tried the case for nine months, didn't say he
21 had ever met him. Mr. Sattar never met him after the SAMs were
22 imposed.
23 So, the witnesses, with the exception of Dr. Edwardy
24 and the clerk, the real live people that actually met him and
25 talked to him were defense witnesses and they all told you
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1 about the effort to get him out of the United States so that he
2 would not be a lightning rod for protest.
3 Lynne Stewart Exhibit 1 is a heavily redacted
4 memorandum from the Bureau of Prisons in 1997 and it is a
5 pro-Bureau of Prisons document but it -- from Kathleen Hawk --
6 and it talks about having a meeting to talk, discuss how to
7 best counteract the threat posed should inmate Rahman's health
8 seriously deteriorate or should he die while incarcerated.
9 Of course if he is dead he is not going to be urging
10 people to do violence -- he would be dead. But the government
11 would still fear that others might take advantage of the
12 situation which is exactly what we've been saying.
13 These real live people acting in good faith said that,
14 first, they regarded the SAMs as something that they could work
15 within and that they did in good faith and also that they
16 thought that it was reasonable to try to get him to Egypt. Not
17 to exonerate him.
18 You know, one of the things the evidence in this case
19 abundantly shows is that the Egyptians are very good at
20 punishing people and if the Sheikh chose to go there, that
21 would be a constructive thing to do.
22 And as I reminded you early on, the fact that two
23 government lawyers disagree about what the SAMs said is a
24 powerful, powerful statement.
25 And I don't want to forget and I will even take the
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1 risk of boring you by reminding you again in 1731 where Abdel
2 Rahman says that he doesn't want -- that's that June 23, 2000
3 call -- he doesn't even want Mr. Taha to get back from
4 Afghanistan and be involved in the IG work.
5 Now why is that significant? This part I didn't say.
6 It is significant because the allegation is that Lynne Stewart
7 somehow conspired to provide Abdel Rahman to a conspiracy to
8 kill or kidnap and involve Mr. Taha. Well, if her client
9 didn't want to be provided to Mr. Taha or have Mr. Taha
10 provided, it becomes very difficult to see how the government's
11 case makes any sense.
12 And Lynne Stewart told you that she understood who
13 Mr. Taha was, that he was someone who opposed the cease-fire.
14 And as you look at 1731 you will also see that any --
15 Mr. Yousry is asking, he asks the Sheikh if he wants the Sheikh
16 to have Ms. Stewart call Mr. Taha. And the Sheikh says no.
17 Of course, there is no evidence that Lynne Stewart
18 would even know how to do it even if he wanted to have it done.
19 She didn't speak his language, no evidence she even knows where
20 he is, and indeed no evidence that that was ever translated for
21 Ms. Stewart.
22 Ms. Stewart also told you about the way lawyers do
23 their jobs. She said she never violated any undertaking or
24 promise she made. She said she was bound by the ethical rules
25 that governed lawyer behavior. She never violated any command
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1 or restriction.
2 Now maybe that's hard to see. Maybe the idea that
3 lawyers representing these people that are accused of terrorism
4 makes folks a little nervous so let's take it out of that
5 context if we can as you consider the evidence and let me
6 suggest this to you.
7 In our jobs everybody -- everybody's job -- we're
8 governed by rules and the rules tell us how to do our job so
9 that we can take pride in our work. Don't tell me how to do my
10 job. People say that all the time about their own job. It's a
11 common complaint. And lawyers do have a special set of rules
12 that reinforce their right to say this. Don't tell me how to
13 do my job. Lynne Stewart testified, these are rules, ethical
14 considerations and aspirational rules that are governed by
15 state law. That's the oath you take to be a lawyer, this
16 obligation to use independent judgment, and I thought maybe I
17 could give you an analogy.
18 Do you remember Dr. Edwardy? He's the bald fellow, he
19 is the homeopathic or osteopathic physician that was the
20 medical director, spent his career first as a physician
21 assistant and then as a doctor working in the prison. And I
22 must say that there are some questions that we put to him and
23 arguments that we made that disagree with how he did his job.
24 So, I cross-examined him about the failure to
25 communicate with his patient about religion, about the fact
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1 that his patient was isolated, isolated in a unique way about
2 how they have these special meetings with all these prison
3 officials, a chat with them, administrative people, and so on,
4 in the prison.
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1 MR. TIGAR: That the isolation might have enhanced the
2 other senses. But the doctor gives daily reports, we also
3 brought out. He didn't go into the cell every morning and say:
4 Good morning, you dirty, convicted terrorist, how can we deal
5 with you today? He said: Good morning, you're in fine fetter
6 this morning. He would know, well, the patient is rather surly
7 today. How can I help you? He approached you as a
8 professional.
9 Then right at the end of his testimony, perhaps maybe
10 hoping I would score a point, I pulled out a prison rule about
11 how the Sheikh was to be treated if he had a life-threatening
12 illness. Was there anything different, I ask, about the way
13 that your patient was to be handled in the event of a serious
14 or life-threatening medical emergency as compared to other
15 people under your care? Sir, yes, there was. One of those
16 differences is that he could not be transported from the
17 special housing unit without direct authorization from the
18 warden? Special housing unit is another word for the isolation
19 cell. Bureaucratic talk. That's correct, he says. And that
20 was so even if he had a serious or life-threatening medical
21 emergency, correct? That's correct. And then I asked this:
22 And this was a matter that was decided by the warden consistent
23 with her responsibility, correct? Yes.
24 "Q And that is to say it was not a decision made by the
25 medical staff or the administrative staff, correct?"
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1 And he shot back with an answer: That's correct. But
2 I do not believe that the warden would have ever overruled the
3 medical staff had we said that he was in danger of dying and
4 needed to be transferred.
5 Members of the jury, that is Dr. Edwardy's bubble.
6 That is Dr. Edwardy's supreme confidence that no matter what
7 that regulation said that he, a medical professional, would be
8 given the latitude to do his job by his rights. I submit to
9 you that is an analogy that bears some relationship to this
10 case.
11 Lynne Stewart got even more precise. First she talked
12 about the lawyer-client privilege. You remember the prosecutor
13 tried to cross-examine her with a Court of Appeals case. And
14 she made clear that the lawyer-client privilege, that's what
15 happens if a lawyer is talking directly to the client. That's
16 a privileged conversation. And that's narrower than the
17 lawyer-client relationship. How does the lawyer find out what
18 to talk to the client about? Well, by doing legal and factual
19 research, by going and finding facts. And she told you that
20 these principles about how doing that are matters of the
21 ethical considerations that are issued by the state bar where
22 she is a member.
23 And I asked her one at a time about those and read
24 them. They are not in evidence as exhibits, but I am going to
25 put up the text of them because they provide the framework for
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1 what she did.
2 History is replete of instances of distinguished
3 sacrificial services by lawyers who have represented unpopular
4 clients and causes. I'll skip down. A lawyer's representation
5 of a client, including representation by appointment, does not
6 constitute an endorsement of the client's political, economic,
7 social, or moral views or activities. That's an aspirational
8 standard of this profession. A lawyer is under no obligation
9 to act as advisor or advocate for every person who may wish to
10 become a client, but in furtherance of the objective of the bar
11 to make legal services fully available, a lawyer should not
12 lightly decline proffered employment. I submit to you that's
13 what Ramsey Clark said.
14 It is important that the world see that this case is
15 aggressively defended. The fulfillment of this objective
16 requires acceptance by a lawyer of a fair share of tendered
17 employment which may be unattractive both to the lawyer and the
18 bar generally. Given the consequences of Lynne Stewart doing
19 her job, coupled with the extremely modest fee that she
20 received, that consideration has a kind of an ironic aspect as
21 well as being relevant.
22 Then both the fiduciary relationship existing between
23 the lawyer and client and the proper function of the legal
24 system require the preservation by the lawyer of confidences
25 and secrets of one who has employed or sought to employ the
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1 lawyer. A client must feel free to discuss anything with his
2 or her lawyer and a lawyer must be equally free to obtain
3 information beyond that volunteered by the client. A lawyer
4 should be fully informed of all the facts of the matter being
5 handled in order for the client to obtain the full advantage of
6 our legal system. It is for the lawyer in the exercise of
7 independent professional judgment to separate the relevant and
8 important from the irrelevant and unimportant. The observance
9 of the ethical obligation of a lawyer to hold inviolate the
10 confidences and secrets of a client not only facilitates the
11 full development of facts essential to proper representation of
12 the client, but also encouraged nonlawyers to seek early legal
13 assistance.
14 Independent professional judgment, members of the
15 jury. And, of course, there will be many times when
16 prosecutors disagree. That's why it is called the adversary
17 system, not the do what the prosecutor wants system, not the
18 let the government make the final decision system. It is
19 called the adversary system and it is called independent
20 professional judgment.
21 A lawyer should exert best efforts to insure that
22 decisions of the client are made only after the client has been
23 informed of relevant considerations.
24 I won't read the whole thing. The testimony is there.
25 The duty of a lawyer, both to the client and to the
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1 legal system, is to represent the client zealously within the
2 bounds of the law, which includes disciplinary rules and
3 enforceable professional regulations, the professional
4 responsibility, to seek any lawful objective through legally
5 permissible means. And then: The bounds of the law in a given
6 case are often difficult to ascertain. I won't read it out.
7 It is there. Let me leave it on the board for a minute.
8 Those are the principles that Lynne Stewart was guided
9 by and that's what she testified to. She took the stand and
10 she testified about her understanding, not just of some
11 abstract general principles, but of these ideas that are
12 central to the functioning of the democratic society.
13 In this argument I began by talking about the
14 elements. I arraigned as best I could the prosecutor's
15 summation, what the evidence will show. They will get a
16 rebuttal summation. That's why I use my analogy, it wasn't my
17 obligation to build you a building. I was like the building
18 inspector that pointed out that there are reasonable doubts
19 whether this building they have tried to construct holds
20 together. I want to go back for a minute. The judge has told
21 you over and over again that he will instruct you on the law.
22 The judge has told you over and over again not to single out
23 any particular instruction. His instructions on the law will
24 cover several hours and you will have a copy of them in the
25 jury room.
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1 So maybe, maybe you will say, you know what, all this
2 lawyer talk, this lawyer rhetoric doesn't move me, defense
3 rhetoric, prosecution rhetoric. And I don't use the word
4 rhetoric as an insult. Rhetoric, which is the science of
5 argument. There are books on it. Go back 600 years B.C.
6 That's fine. It is an old honorable tradition. But maybe
7 that's not the way you choose to decide. Well, fine. You will
8 have the judge's instructions. Don't single out any one
9 instruction.
10 There are principles there, principles that are basic
11 to our system so that you could say, look, overall, I think
12 that Ms. Stewart was negligent, not guilty. I think she was
13 mistaken, but in good faith not guilty. I think she did the
14 conduct, but she didn't have the specific -- the intent that's
15 described in the judge's instructions not guilty. So many
16 roads to not guilty. And if you look at the matter that way,
17 which you may decide to do because it is your province to
18 figure out the case, you may see that this case is a great deal
19 less than the government has claimed, but also, members of the
20 jury, I am going to say this in a concluding bit in just a
21 little while. It involves a great deal more than they have
22 admitted.
23 You're going to have the indictment also. Members of
24 the jury, the judge will tell you that's just a charge. We
25 didn't draft it. It contains many, many allegations. The
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1 essential matters I submit to you are the elements of the
2 offenses. And if there is any one element of any offense there
3 is a reasonable doubt on that charge as to Lynne Stewart, it is
4 your duty to vote not guilty.
5 You might even at the end of the day say, well, I
6 wouldn't hire Lynne Stewart. Not guilty. The bar should look
7 at Lynne Stewart by some lesser standard than beyond a
8 reasonable doubt. Not guilty. Or good faith. And when the
9 prosecutor puts up exhibits and asks you to look at them, I ask
10 you to look back at the context of this case, remembering each
11 time who it was that brought the live witnesses who really knew
12 something and who was offered evidence that was subject to
13 cross-examination and how the context was of particular things.
14 Of course, if they want to do more about Lynne
15 Stewart's politics, although the prosecutor summed up first and
16 said no more needs to be said, I think more will be said.
17 That's fine. Those who wrote the bill of rights were not
18 cowards. We have a society based on the bill of rights,
19 members of the jury. There are risks. There are risks from
20 people expressing unpopular ideas, risks that those who might
21 be guilty will be freed because there is not lawful evidence
22 beyond a reasonable doubt, risks that wild religious doctrine
23 will get loose and have a bad influence. And we take those
24 risks because with the decades of our freedom piled so high,
25 they are what makes a society great.
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1 And members of the jury, I concede to you that I am
2 afraid. I'm afraid that the Islamic fundamentalists or some
3 other kinds of fundamentalists are going to win. Suppose we
4 got so worked up, so incited by the rhetoric of government that
5 we decided to punish people for their radical politics, because
6 their politics scared us or their religious doctrine appalled
7 us, or we decided to skip over reasonable doubt and do things
8 based on suspicion, decided to cast aside the presumption of
9 innocence and start accepting critically what government agents
10 tell us.
11 If all of that happened, members of the jury, the
12 fundamentalists would have won. They would have seen
13 extinguished the light of this last hope of earth, which is not
14 some particular country, but it is the very ideology of human
15 rights. Then the Islamic fundamentalists and all the
16 fundamentalists can have a big celebration. This is not the
17 time and place to make a cosmic decision about that.
18 But right now, you, once the judge instructs you on
19 the law, you are we, the people. Your power is as that of the
20 ancient kings. I'm not ashamed that knowing that to plead with
21 you to suggest that in shouldering the responsibilities and
22 accepting the risks of freedom, the next right thing to do is
23 very clear indeed.
24 Members of the jury, Lynne Stewart is in your hands.
25 She is not guilty. Thank you.