30 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 56 of the trial, May 30, 2001.
See other transcripts: usa-v-ubl-dt.htm
6653
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 May 30, 2001
9:30 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
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6654
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 MICHAEL GARCIA
Assistant United States Attorneys
5
6 FREDRICK H. COHN
DAVID P. BAUGH
7 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
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6660
1 (Trial resumed)
2 (Pages 6655-6659 sealed)
3 (Jury present)
4 THE COURT: Good morning, ladies and gentlemen.
5 JURORS: Good morning, your Honor.
6 THE COURT: And we welcome back the four alternates,
7 who have not been with us in the past several weeks, and we
8 express appreciation and gratitude to you. We understand it
9 is very destructive of one's life to have these periods of
10 time when you are on the jury and when you are not. I assume
11 when you are not, you adhere to all the admonitions that apply
12 to jurors.
13 Let me repeat something that I said yesterday for the
14 benefit of the alternates who were not here, and that is that
15 the verdict which the jury rendered yesterday is a final,
16 complete, definitive verdict, and it is inappropriate to
17 re-question or revisit any of the decisions that were made by
18 the jury. That is a given. As I will explain in a moment,
19 the process which we begin today is a process which follows
20 the verdict rendered by the jury, and whereas the proceedings
21 completed yesterday related solely to the question whether or
22 not guilt had been proven beyond a reasonable doubt, the
23 question which we begin to examine today is a different
24 question.
25 Because the proceedings are relatively new and
6661
1 unfamiliar, I am going to spend a moment or two explaining
2 some of the things that will happen and introduce you to some
3 of the terminology which has developed with respect to this
4 process.
5 I will furnish to you in writing before you begin
6 your deliberations a full, definitive statement of the issues
7 that you are to determine and the verdicts that you are called
8 upon to render. This is simply in the nature of a preliminary
9 introduction, which I think is appropriate because this is the
10 first time in the Southern District of New York that we will
11 engage in this process. So if it is somewhat unfamiliar to
12 you, it is unfamiliar to many of us.
13 Members of the jury, you have unanimously found the
14 defendant Mohamed Rashed Daoud Al-'Owhali guilty of the
15 following counts contained in the indictment: One count of
16 destruction of property of the United States resulting in
17 death, as charged in Count 5; one count of the use of a weapon
18 of mass destruction against a national of the United States
19 resulting in death, as charged in Count 7; 213 counts of
20 murder in the course of an attack on a federal facility
21 involving the use of a dangerous weapon, as charged in Counts
22 9 through 221; 41 counts of murder of officers and employees
23 of the United States on account of their duties, as charged in
24 Counts 233 to 273; and two counts of murder of an
25 internationally protected person; as charged in Counts 278 and
6662
1 279. These are all capital counts, by which I mean that the
2 death penalty is a possible punishment for these offenses.
3 Thus we are about to begin the penalty phase of this trial.
4 We must now consider separately, with regard to each
5 of these counts, whether imposition of a sentence of death is
6 the appropriate sentence or whether the defendant should be
7 sentenced to life imprisonment without the possibility of
8 release. The law leaves this decision exclusively to you the
9 jury. If you determine that defendant Al-'Owhali should be
10 sentenced to death or to life imprisonment without possibility
11 of release, the court is required to impose that sentence.
12 The penalty phase itself amounts to a second trial
13 and in many ways is like the trial you have just completed on
14 the issue of guilt, although now the sole issue for your
15 consideration is punishment. You should note that in making
16 all the determinations you are required to make in this phase
17 of the case, you may consider any evidence that was presented
18 during the guilt phase of the trial as well as information
19 that is presented at this penalty phase of the trial. The
20 term "information" is sometimes used to describe what is
21 presented to you in these proceedings. The statute refers to
22 these proceedings as a hearing, not a trial. But you should
23 understand that for our purposes, the terms "evidence" and
24 "information" have the same meaning, that which is presented
25 before you, and the term "information" is used because some of
6663
1 the rules of evidence applicable at the guilt phase of the
2 case don't apply now. The parties are given greater latitude
3 in what may be presented for your consideration.
4 During the penalty phase there will be opening
5 statements by both sides. There will be witnesses examined
6 and cross-examined. There will be closing arguments and
7 instructions from the court.
8 Please understand that what I am about to tell you is
9 not a substitute for my closing instructions. As I indicated,
10 it is a broad general statement of what will transpire in the
11 next several days.
12 Obviously, it is impossible for me to overstate the
13 importance of the decision before you or the careful and
14 thorough consideration you give to this matter. I remind you
15 that at the time you were selected as jurors, each of you
16 assured me that if this case required a capital punishment
17 hearing you would follow the law as I told you it would apply,
18 and it is imperative that you do that.
19 Although Congress has left to juries the decision
20 whether a defendant in Mr. Al-'Owhali's situation should be
21 sentenced to death or to life imprisonment without possibility
22 of release, it has specifically narrowed and channeled your
23 discretion by requiring with certain findings to be made
24 before the death penalty is even considered. A sentence of
25 death on a particular count may be considered if, but only if,
6664
1 you have made both of the following two findings unanimously
2 and beyond a reasonable doubt with regard to the count you are
3 considering:
4 First, for each of the capital counts you must
5 unanimously and beyond a reasonable doubt find that defendant
6 Al-'Owhali's actions and his intent satisfied one or more of
7 the following four elements, which I refer to as the gateway
8 element or factors. The term "gateway" is sort of
9 self-explanatory. It is the initial threshold which must be
10 crossed unanimously and beyond a reasonable doubt. (1) that
11 the defendant intentionally killed the victim or victims of
12 the particular capital offense charged in the respective count
13 of the indictment; or (2) that the defendant intentionally
14 inflicted serious bodily injury that resulted in the death of
15 the victim or victims of the particular capital offense
16 charged in the particular count of the indictment; or (3) that
17 the defendant intentionally participated in an act
18 contemplating that the life of a person would be taken or
19 intending that lethal force would be used in connection with a
20 person other than one of the participants in the offense and
21 the victim or victims of the particular capital offense
22 charged in the respective count of the indictment died as a
23 result of the act; or (4) that the defendant intentionally and
24 specifically engaged in an act of violence, knowing that the
25 act created a grave risk of death to a person other than one
6665
1 of the participants of the offense, such that participation in
2 the act constituted a reckless disregard for human life, and
3 the victim or victims of the particular capital offense
4 charged in the respective count of the indictment died as a
5 direct result of the act.
6 Those then are the four gateway elements or factors,
7 one of which you must find, unanimously and beyond a
8 reasonable doubt, before the process continues.
9 At this point, let me define for you two terms that
10 you will hear throughout this phase of the case: Aggravating
11 factors and mitigating factors. In general, these factors
12 relate to the circumstances of the crime or the personal
13 traits, character or background of the defendant. The word
14 "aggravate" means to make worse or more offensive, to
15 intensify. The word "mitigate" means to make less severe or
16 to moderate. An aggravating factor, then, is a fact or
17 circumstance that would tend to support imposition of the
18 death penalty. A mitigating factor is any aspect of the
19 defendant's character or background, any circumstances of the
20 offenses or any other relevant fact or circumstance that might
21 indicate that the defendant should not be sentenced to death.
22 The second finding that you must make unanimously and
23 beyond a reasonable doubt, that is, after the gateway factor
24 which we have already described, before you may consider
25 imposition of a death sentence, is that the government has
6666
1 proved the existence of at least one statutory aggravating
2 factor. That's another term. A statutory aggravating factor
3 is one which is specifically set forth in the death penalty
4 statute and which has been explicitly identified by the
5 government for consideration in this case. The government
6 alleges the following statutory aggravating factors with
7 regard to each of the capital counts, and you of course will
8 have the text of these before you during your deliberations:
9 (1) The deaths and injuries resulting in death
10 occurred during the commission of other crimes, namely,
11 certain offenses listed under a provision of the United States
12 Code which we will identify for you in the instructions you
13 will have before your deliberations. So one is that the death
14 and injuries resulting in death occurred during the commission
15 of other crimes which we will identify.
16 (2) The defendant in the commission of the offense
17 knowingly created a grave risk of death to one or more persons
18 in addition to the victims of the offense.
19 (3) The defendant committed the offense after
20 substantial planning and premeditation to cause the death of
21 one or more persons or to commit an act of terrorism.
22 (4) The defendant intentionally killed or attempted
23 to kill more than one person in a single episode.
24 If, after a fair and impartial consideration of all
25 the evidence in the case, you unanimously find that the
6667
1 government has proven beyond a reasonable doubt at least one
2 gateway factor and at least one statutory aggravating factor
3 with regard to a particular capital count, you will then
4 proceed to the balancing or weighing stage of your analysis.
5 If, however, you find with regard to a particular count that
6 no gateway factor has been proved beyond a reasonable doubt or
7 that no statutory aggravating factor has been proved beyond a
8 reasonable doubt, your deliberations will be over as to that
9 count, and as to that count the court will impose on the
10 defendant Al-'Owhali a sentence of life imprisonment without
11 possibility of release. If, but only if, you find the
12 existence of at least one gateway factor and at least one
13 statutory aggravating factor, you will proceed to the
14 balancing stage of the analysis. At that time you will
15 consider whether you unanimously find that the government has
16 proven beyond a reasonable doubt the existence of any
17 nonstatutory aggravating factor, which refers to factors which
18 are not specifically set out in the death penalty statute but
19 which have been specifically identified by the government for
20 consideration in this case.
21 The government alleges the following nonstatutory
22 aggravating factors with regard to each of the capital counts,
23 and, again, you will have the text of these before you during
24 your deliberation:
25 (1) The defendant poses a continuing and serious
6668
1 threat to the lives and safety of others with whom he will
2 come in contact.
3 (2) As demonstrated by the deceased victims' personal
4 characteristics as individual human beings and the impact of
5 the deaths upon the deceased victims' families, the defendant
6 caused injury, harm and loss to those victims and to their
7 families and the defendant caused serious physical and
8 emotional injury and grievous economic hardship to numerous
9 individuals who survived the bombing.
10 (3) The victims and intended victims included
11 high-ranking public officials of the United States serving
12 abroad and the offense was motivated by such status.
13 Again, your finding as to any nonstatutory
14 aggravating factor, that is, whether it exists, must be
15 unanimous and beyond a reasonable doubt.
16 In addition to considering the existence of any
17 nonstatutory aggravating factors, you must determine whether
18 any of you find that the defendant has established the
19 existence of any mitigating factors by a preponderance of the
20 evidence, and there are some important distinctions I want to
21 highlight for you with respect to the proof of mitigating
22 factors. The defendant has the burden of proving any
23 mitigating factors. However, there is a different standard of
24 proof as to mitigating factors. The defendant is not, not
25 required to prove beyond a reasonable doubt the existence of a
6669
1 mitigating factor. He need only establish its existence by a
2 preponderance of the evidence; that is, he need only be
3 convinced that it is more likely true than not true in order
4 to find that the mitigating factor exists.
5 Also, a unanimous finding is not required. Any one
6 of you may individually and independently find the existence
7 of a mitigating factor, regardless of the number of other
8 jurors who may agree, and any juror who so finds may weigh
9 that factor. Thus, if even a single member of the jury finds
10 that a mitigating factor has been proved, that member of the
11 jury is allowed to weigh that factor in making up his or her
12 own mind in weighing whether or not to vote for a death
13 sentence.
14 Mitigating factors. Defendant Al-'Owhali alleges the
15 following mitigating factors:
16 (1) that other members of the conspiracy previously
17 arrested or presently cooperating with the United States,
18 guilty of or charged with planning and facilitating the
19 bombings of the United States embassies and the killing of
20 United States nationals will not be punished by death;
21 (2) that the defendant is less culpable than those
22 conspirators who planned and facilitated the bombing of the
23 United States Embassy in Nairobi, Kenya, and continue to plan
24 and execute similar acts in the future.
25 (3) that the defendant does not have a prior history
6670
1 of criminal conduct.
2 (4) that although having intentionally participated
3 in an act contemplating that the lives of Americans be taken,
4 the defendant did not intend that the Kenyan victims not
5 employed by the United States Embassy be injured or killed.
6 The fifth has three components: (a) that the
7 defendant intended by the commission of the offenses of which
8 he has been convicted to save members of his Umma, that is,
9 his religious community, regardless of nationality, from
10 imminent death, injury, terrorism and genocide; (b) that the
11 defendant committed the offenses for which he has been
12 convicted based upon his sincere belief, whether or not you
13 agree with that belief, that his conduct was mandated by his
14 religion; (c) that the defendant believed that the United
15 States embassies were legitimate military targets because he
16 had the sincere belief, as proposed by Usama Bin Laden, that
17 embassies fulfilled military and intelligence surveillance
18 functions which furthered the aims of the United States
19 government and opposed the aims and objectives of Usama Bin
20 Laden;
21 (6) that the defendant committed the offenses for
22 which he has been convicted while young in age;
23 (7) that the defendant was indoctrinated in
24 conservative Muslim teachings which promoted jihad and
25 martyrdom during his early and formative years.
6671
1 As you can see, the defense is entitled to present
2 evidence in mitigation of sentence that consists of a broad
3 range of information about the defendant Al-'Owhali's
4 background, record, character and circumstances of defense
5 which may lead a juror to conclude that the defendant should
6 not receive the death penalty but instead should be punished
7 by spending the rest of his life in prison.
8 Once this process of deciding on the existence of
9 aggravating and mitigating factors has been completed, each of
10 you must individually engage in a balancing process in which
11 you will weigh the aggravating factor or factors, statutory
12 and nonstatutory, that all 12 jurors have unanimously and
13 beyond a reasonable doubt found to exist, against any
14 mitigating factor or factors which you, individually or with
15 other jurors, have by a preponderance of the evidence found to
16 exist.
17 The relevant statute then tells us that after
18 weighing the aggravating and any mitigating factors, the jury
19 must "consider whether all the aggravating factor or factors
20 found to exist sufficiently outweigh all the mitigating factor
21 or factors found to exist to justify a sentence of death, or,
22 in the absence of a mitigating factor, whether the aggravating
23 factor or factors alone are sufficient to justify a sentence
24 of death."
25 That's the end of the quotation from the statute.
6672
1 In carrying out this weighing and balancing process,
2 the members of the jury are not mere fact finders. Jurors are
3 called upon to make a unique individualized judgment about the
4 appropriateness of sentencing another human being to death.
5 This is not a mechanical process. Neither is the decision
6 determined by raw numbers. Members of a death penalty jury do
7 not simply count factors. Instead, individual jurors consider
8 such factors qualitatively, assessing the weight and value of
9 each factor. Any one factor proved, if sufficiently serious,
10 may outweigh several mitigating factors. On the other hand, a
11 single mitigating factor may outweigh several aggravating
12 factors.
13 In short, what is called for in weighing the varying
14 factors is not arithmetic but an individual's careful,
15 considered, and mature judgment. Again, whether or not the
16 circumstances in this case justify a sentence of death is a
17 decision the law leaves entirely to you, and you should not
18 take anything I may say or do during this phase of the trial
19 as indicating what I think of the evidence or what I think
20 your verdict should be. That is your responsibility.
21 As I mentioned earlier, you must deliberate and
22 determine the sentence to each of the capital counts
23 separately. You may conclude that aggravating and mitigating
24 factors should receive different weights in conducting the
25 separate weighing of the aggravating and mitigating factors
6673
1 applicable to each of the capital counts.
2 As we begin this process, two final points I wish to
3 make, or perhaps emphasize. The first, which I mentioned
4 briefly before, is that you are never required to return a
5 verdict of death. The law provides you with guidance in
6 making a decision but, as stated earlier, your decision on
7 this question of life or death is a uniquely individual
8 judgment which the law in the final analysis leaves up to each
9 of you.
10 The last thing I wish to explain, to restate, is that
11 in order to impose a sentence of death, all 12 jurors must
12 agree that death is the appropriate sentence. If the jury
13 does not vote for a sentence of death, then I will impose a
14 sentence of life imprisonment without the possibility of
15 release. I have no other sentencing option.
16 I will repeat and elaborate on these points after you
17 have heard all of the evidence and before you begin your
18 deliberations, and, again, as in the prior proceedings, you
19 will have a special verdict form to assist you. As I said
20 earlier, because these procedures are relatively new in our
21 system of justice, I thought it advisable that you have this
22 preliminary explanation. My final and definitive instructions
23 will be in writing and available to you during your
24 deliberations.
25 I thank you for your patience and attention, and we
6674
1 will turn now to the opening statement made in the first
2 instance by the government.
3 MR. FITZGERALD: Good morning.
4 JURORS: Good morning.
5 MR. FITZGERALD: It was about three weeks ago at the
6 end of my closing argument I stood before you and I talked to
7 you about a woman named Roselyn Wanjiku Mwangi, the woman who
8 was buried beneath the rubble of the Ufundi House on August 7,
9 1998, waiting and hoping to be rescued. You learned that,
10 tragically, she was not rescued in time and she died. At that
11 time I reminded you and me and all of us in this room that she
12 was not just a name, not just a count in the indictment, but a
13 person, a human being with a family and a personality, with
14 hopes and with dreams. I asked you at that time to hold the
15 defendant Mohamed Al-'Owhali accountable for her murder,
16 accountable for delivering the bomb that turned the Ufundi
17 House into a heap of rubble beneath which she was buried. By
18 your verdict, you have found the defendant Al-'Owhali guilty
19 of her murder. He brought the bomb that turned a seven-story
20 building into a tomb for Roselyn Wanjiku Mwangi and so many
21 others.
22 But justice is not done yet. You are here today to
23 decide the most serious question a jury can decide, which is,
24 what punishment should Al-'Owhali receive for the horrible
25 crimes he committed that day. I submit to you that based on
6675
1 the evidence you have seen so far at the first phase of the
2 trial and the evidence you will see over the coming days, each
3 of you will be convinced in the end that the only just
4 punishment, the only punishment that does justice for the
5 victims, the only punishment that fits the crime is the death
6 penalty.
7 Judge Sand just explained the process to you and the
8 aggravating factors. I would like to talk to you this morning
9 about just two of the aggravating factors. The first one is
10 future dangerousness. The government will prove to you beyond
11 a reasonable doubt that the defendant Al-'Owhali poses a
12 future danger to anyone he will come in contact with if he is
13 sentenced to spend the rest of his life in jail. The second
14 factor and the most important factor is the impact
15 Al-'Owhali's bombing had on the victims, the horrific impact.
16 Let's talk for a moment about future dangerousness.
17 You have seen already most of the proof of Al-'Owhali's future
18 dangerousness. You learned that he went to Afghanistan,
19 attended a basic terrorist training camp. You learned that
20 after that he went to three more terrorist training camps run
21 by Al Qaeda, was trained in how to kidnap, how to take
22 hostages, how to take over buses and planes. He was trained
23 in how to take over buildings. And you learned that after he
24 fought with the Taliban he took a mission. He took a mission
25 to leave Afghanistan, to go to Africa, to carry out a
6676
1 terrorist attack against Americans. When he got to Nairobi
2 and when he met with Saleh and Harun at 43 Runda Estates, he
3 was briefed on the plan. He knew there were two attacks, the
4 attack on the embassy in Nairobi, and he knew about the attack
5 on the embassy in Dar es Salaam, Tanzania.
6 Most importantly, Al-'Owhali went with others to the
7 scene of the crime two days before the bombing. The defendant
8 Al-'Owhali went to a building in bustling downtown Nairobi in
9 broad daylight, and he saw what it was: A building, a large
10 building with glass windows, with people working inside, with
11 people walking in and people walking out, and a building next
12 door and an even larger building next door to that, in a
13 downtown area where people passed on the street, people drove
14 by in cars, people went by on buses. And he went ahead, and
15 he came back on Friday, August 7, in that bomb truck on a
16 mission of death. And he came there and the bomb went off,
17 and he was at the scene alive. He had to see the carnage he
18 had wrought. There were people lying there dead. There were
19 people badly, badly injured and maimed. And he went to the
20 hospital himself. He went to the hospital with his cuts and
21 his bruises, and he was treated in the same hospital with his
22 victims. And yet after all he did, after killing hundreds,
23 after maiming, injuring and blinding -- and you have heard
24 that the injuries were more than 4,000 -- and seeing it at the
25 scene, and seeing it at the hospital, he posed for that
6677
1 picture, the picture for the reporter. Posed like he was some
2 sort of champion. An utter and total lack of remorse.
3 I submit to you that any person like Al-'Owhali who
4 would do when he did to human beings, who could leave that
5 carnage in a downtown street and pose for that picture poses
6 the ultimate danger to anyone he will come in contact with in
7 the jail system. Because remember, if he is in a jail, he is
8 in a jail of the United States, a sworn enemy, the enemy he
9 wants so badly to kill. To him, the guards in that jail will
10 represent the enemy forever.
11 Let me talk to you now about victim impact, which I
12 submit to you is the most important aggravating factor for you
13 to consider. Words, numbers cannot describe the horror that
14 Al-'Owhali wrought on August 7, 1998. I am going to make an
15 odd statement to you that, sadly, I think you will understand
16 in a couple of days. You as a jury have sat on a bombing
17 trial since early February 2001. After all these months you
18 have heard precious little about what that bombing did to
19 human beings. That was appropriate, because at the first part
20 of the trial your task was to decide whether or not with the
21 defendant Mohamed Al-'Owhali was guilty. This phase of the
22 trial is different. You need to understand the pain, the
23 horror and the agony that that bombing put so many people, so
24 many families through. You need to weigh that in the
25 balancing, in making your reasoned, moral judgment as to the
6678
1 appropriate penalty.
2 Let me give you some examples of what it is at the
3 first phase of the trial you heard and what it is that you
4 will hear and see and experience at this phase of the trial
5 over the course of the next few days when the government calls
6 victims before you.
7 You may remember there was brief testimony at the
8 first part of the trial from a man named Frank Pressley. He
9 probably testified for 10 or 15 minutes. He worked at the
10 embassy, and he had part of his jaw ripped out by the force of
11 the explosion. He was an information management officer. He
12 worked in communications. He told you that on the morning of
13 August 7, shortly before 10:30 in the morning, he went
14 downstairs in the embassy to meet with a woman named Michelle
15 O'Connor. Michelle O'Connor was a colleague in the embassy
16 but she was also a neighbor of Mr. Pressley and a close
17 friend. Frank Pressley had children, Michelle O'Connor had
18 three daughters. The Pressley children and the O'Connor
19 daughters played together. Frank Pressley told you that
20 shortly before 10:30 in the morning he and Michelle O'Connor
21 were talking about a fax machine that Michelle O'Connor could
22 not get to work properly. Obviously, as Frank Pressley and
23 Michelle O'Connor focused on the fax machine as the issue of
24 the day, they had no idea what the defendant Al-'Owhali had in
25 store for them just seconds away, because as they spoke about
6679
1 the fax machine, Al-'Owhali and Azzam were coming in a truck,
2 a truck loaded with a bomb hurtling down Haile Selassie
3 Avenue.
4 Pressley told you something else. As he turned and
5 walked away from his conversation with Michelle O'Connor, he
6 saw some other people in the area. One was Lydia Sparks, whom
7 you will hear from. The other was Jay Bartley, the young,
8 college-aged son of Julian Bartley, the consul general.
9 Frank Pressley heard a noise, a small explosion, an
10 explosion you now know was one of Al-'Owhali's stun grenades.
11 He didn't go to the window, which is probably why he is alive
12 and able to come before you and testify.
13 But thereafter, a huge explosion went off. It threw
14 Frank Pressley into the air. He picked himself up with part
15 of his jaw missing, and through the darkness and the dust he
16 started walking down the embassy hall. He walked past with
17 Michelle O'Connor, that friend, that colleague, the mother he
18 had just been speaking with. And you heard from Dr. Gretchen
19 McCall. Michelle O'Connor had basically been decapitated.
20 Frank Pressley also told you that when he walked down
21 the hall he walked past the legs of an unidentified man.
22 Gretchen McCall also told you that young Jay Bartley, his legs
23 were thrown off by the force of the blast, the blast of
24 Al-'Owhali's bomb.
25 At that moment, when young Jay Bartley had his life
6680
1 stolen from him by the defendant Al-'Owhali, elsewhere in the
2 same building his father Julian Bartley was also killed by
3 that same blast. Later today, the government's first witness
4 from that witness stand will be Susan Bartley. She will tell
5 you what Julian Bartley was like as a man, as a human being,
6 as a husband, as a father. She will tell you about her son
7 Jay Bartley, what he was like. She will tell you the pain she
8 has suffered with her daughter Edith, to have both of them
9 stolen from her in the same instant. You need to know that.
10 Frank Pressley told you something else. He told you
11 that after he walked past Michelle O'Connor and Jay Bartley,
12 he walked out of the embassy building and he went to look for
13 his own wife, because Frank Pressley's wife worked at the
14 embassy that day. She was fortunate enough to live through
15 the bombing, but when he went outside he didn't know that.
16 And he saw a man by the name of Howard Kavaler. Kavaler was
17 his wife's boss. He went to Howard Kavaler and he said do you
18 know where my wife is? Mr. Kavaler didn't know. Frank
19 Pressley told you one thing. He said Kavaler was standing
20 there, nervous and crying. You will learn from Howard Kavaler
21 when he takes the witness stand what happened to him that day,
22 because Howard Kavaler's wife also worked in the embassy, and
23 on August 7, 1998, his worst nightmare came true. He lived
24 through that bombing but his wife was killed. Howard Kavaler
25 will tell you what a hole that left in his life and the void
6681
1 it left in the lives of the two young daughters, Tara and
2 Maia, that lost their mother that day.
3 The first phase of the trial you heard from Staff
4 Sergeant Daniel Briehl, a United States marine who was off
5 duty. Yet he came by the embassy that morning to drop off
6 someone whose name you saw in the indictment. It was Jessie
7 Nathaniel Aliganga. Sergeant Aliganga went in to cash a
8 check. When he went in to cash a check, that's the last time
9 he ever cashed a check, because he was killed. But you heard
10 nothing about Jessie Nathaniel Aliganga as a person. In fact,
11 you learned that he liked to be called Nathan. He was a good
12 marine. He was a great man. You will hear about him as a
13 person, as a human being, as a person with a great smile, a
14 wonderful personality, hopes, dreams and accomplishment, when
15 his mother Clara comes to tell you about her loss.
16 You need to know about the loss not only of the
17 people in the embassy building but the people next door.
18 Remember that Ufundi House, that many-storied structure just
19 flattened. And think about the pain and suffering of the
20 people who had loved ones, spouses, daughters, friends,
21 relatives who worked in that building and showed up on the day
22 of the bombing and just saw that it was gone. You will learn
23 that there were a hundred bodies of human beings buried in the
24 rubble of the Ufundi House. You heard at the first phase from
25 Sammy Nganga who told you about his two days buried beneath
6682
1 the rubble. But he lived. And he told you about his pain,
2 and how he was talking to Rosie Wanjiku during those two days,
3 hoping that she would survive. You heard that she did not.
4 But her husband has come to testify, to tell you what Rosie
5 was like as a human being, as a person, as a mother.
6 The pain didn't stop at those buildings, because you
7 saw that tall structure, the Kenyan Cooperative Bank Building.
8 Think about the force of the blast in this way. Ambassador
9 Bushnell was on the top floor, some 23 stories up. The bomb
10 was in the parking lot down at the basement level. When the
11 bomb went off, the ceiling of the top floor of that giant
12 structure collapsed. Ambassador Bushnell was lucky enough to
13 escape without permanent serious physical injury, but many
14 others were not.
15 You will hear from a woman named Teresia Karanja, who
16 will come here and testify. For her, August 7, 1998 began
17 like any other day. She went to work, she walked in the
18 building, she went up to her office, and she began her day.
19 But by the end of the day she could not walk. She was carried
20 out of the building as a paraplegic. She will come before
21 you. She will testify and she will tell you about her pain.
22 She will testify from a wheelchair she did not need before
23 that day. When she walks in, the first thing that may strike
24 you is that she was reduced to a wheelchair by Al-'Owhali's
25 bomb. But when she leaves, you will be overwhelmed by her
6683
1 dignity and her strength. She is a profile in courage that
2 you need to hear from.
3 And the buses. You heard at the first phase of the
4 trial about the people you ever unfortunate enough to be
5 traveling in the buses down Haile Salassie Avenue. You may
6 hear about Minna Hopje, who when she looked out the bus with
7 the stun grenades and the blast came threw she lost her
8 eyesight. Al-'Owhali, one of the few people who knew about
9 the bomb that was about to go off, turned and ran to save his
10 own life. He ran south to Haile Salassie Avenue, south to
11 where the buses were going by.
12 (Continued on next page)
13
14
15
16
17
18
19
20
21
22
23
24
25
6684
1 You're going to hear from someone else who was on one
2 of those buses that day. You'll hear from Sandeep Patel
3 Jadava, a 12 year old boy that day coming home from his last
4 day of school, and he played at school having gotten his
5 grades, and was on the bus with his two brothers and when the
6 bomb went off the glass ripped through one of Sandeep's eyes
7 and stole from him his sight in his right eye and badly
8 damaged his left eye.
9 When you see him testifying, you will now see a 15
10 year old boy forced to become a man way ahead of his time.
11 You will learn that the defendant 'Owhali stole the sight from
12 one of his eyes and stole his youth.
13 You will learn something else. August 7, 1998 when
14 Sandeep was taken to the hospital and they saw what had
15 happened to one of his eyes, they had to take him to another
16 hospital to operate on. Sandeep Patel does not know this, but
17 when he was taken to MP Sha Hospital to be operated on that
18 was the same hospital that Al-'Owhali went to for his cuts and
19 bruises. Sandeep Patel was being treated in the same hospital
20 as his bomber.
21 A word about people being blinded. We have to
22 understand that you're gong to hear a lot about flying glass
23 in the course of the next few days, and what happens in a
24 downtown bustling area with buildings with windows, surrounded
25 by buildings with more windows, and cars and buses with glass
6685
1 is that when a bomb goes off all those windows turn into
2 thousands and tens of thousands of little swords, fly through
3 the air and cut and rip, and tear and maim and blind and kill.
4 You will have to know what that pain caused. You'll
5 hear from a woman named Ellen Bomer who was working at the
6 American Embassy. She heard Al-'Owhali's stun grenades. She
7 made the mistake of going to the window to see what happened.
8 Now she's completely and totally blind.
9 Let's talk for a minute about photographs. You will
10 see a limited number of photographs during this part of the
11 trial. Some of the photographs will show you the victims who
12 were killed while they were alive so you have a sense that
13 it's not just a name, but a person and a personality, so you
14 can know that it was a human being that was stolen from all of
15 us.
16 You will see some photographs of injuries, and when
17 you see that recognize that as painful as it is to look at
18 some of those photographs for the people that were there on
19 August 7, 1998 they had to live through that pain or die
20 through that pain, and for those that survived, they did not
21 see a photograph, they saw a running unending horror, a
22 picture that they could not stop and for some it may have been
23 the last thing this saw.
24 For others it's a nightmare that does not end. And
25 remember when you see the witnesses that you're seeing them
6686
1 almost three years later, and you can still feel their pain.
2 A word about the witnesses. You will not hear from a relative
3 of every victim who was killed. You cannot. It's so great
4 the atrocity that al'Owhali committed that we can't bring
5 before you a relative of each 213 people who were murdered.
6 We are going to bring before you a cross section, but remember
7 when you see someone testify before you and tell you how they
8 lost their wife, their husband, their daughter, or their son,
9 that there are a dozen more or dozens more behind them that
10 suffered a similar fate.
11 A word about the injuries. The frightening thing in
12 this case is to think about how many people were killed, 213,
13 and how to get a sense that all those people are human beings
14 that for everyone killed there is a family torn asunder. You
15 can also forget that there are injuries.
16 You heard at the first part of the trial by
17 stipulation that there were more than four thousand injuries.
18 There are no counts for specific injuries. If we read the
19 individual count for each person injured you'd still be here
20 today, if we if we had a count for every person who is harmed,
21 injured or maimed in that blast. Remember when you see
22 Teresia Karanja, reduced to being a paraplegic, when you see
23 Ellen Bomer who can see no more, that they are just one and
24 two out of more than four thousand injuries.
25 Let me talk to you a moment about the pain, about the
6687
1 emotion. It will not be easy to call before you the people
2 who suffered through this grievous atrocity. It will not be
3 easy to ask questions. It certainly will not be easy for them
4 to answer questions.
5 It's not going to be easy for you to sit there and
6 listen and hear and feel that pain. That's only natural that
7 you may sit there and say to yourself at some point, do I
8 really need to hear this? Did I really need to see this? Do
9 I need to see one who has lost their sight? Do I need to hear
10 from a woman who lost her husband and her son in the same
11 instance.
12 Make no mistake about it, you do. You are sitting
13 here to make the most serious moral judgment. You're entitled
14 to the most serious information and you must weigh the pain of
15 that horror that the defendant Al'-Owhali caused by his bomb
16 in making your decision, and remember when you see a
17 crosssection, a glimpse of the pain and suffering that it is
18 the defendant who brought that horror into this world. It's
19 the defendant Al-'Owhali who is responsible for that snapshot
20 of horror and pain that you will see.
21 You will have your emotions affected. We are not
22 asking you to make any decision based upon emotion. We're
23 asking you to make decisions based upon hard horrible facts
24 that you need to be aware of. I will close by reminding you
25 of your oath. Each of you at the beginning of the trial took
6688
1 an oath that said if you found the defendant Al'-Owhali guilty
2 of the murders he was charged with you would fairly, honestly
3 and carefully deliberate at the penalty phase. And we know
4 you will.
5 You knew at the beginning that the law provides that
6 for murder a person can be punished by death, that there are
7 some cases for which the death penalty is the appropriate
8 punishment.
9 I submit to you based upon the evidence you have
10 heard to date from the first part of the trial, and based upon
11 what you will see of the horrible indescribable pain and
12 suffering the defendant caused, at the end of this proceeding
13 each of you will be convinced that the only just punishment
14 for this crime, the only punishment that does justice for the
15 victims is the death penalty.
16 Thank you.
17 THE COURT: Thank you, Mr. Fitzgerald. Mr. Baugh.
18 MR. BAUGH: Good morning. It's been weeks since I
19 spoke with you. Your Honor. You've already heard now, this
20 is your third opening. You heard openings during the guilt
21 phase and now you're hearing an opening during the punishment
22 phase.
23 And you've heard from Mr. Fitzgerald. Just like with
24 the first part of the trial, the purpose of an opening
25 statement is to give you an idea of where we plan to go with
6689
1 the information we're going to present so you'll know to
2 analyze it as it comes in.
3 When I used to teach law students I would tell them
4 that a trial is like a puzzle, and the purpose of the opening
5 statement is to show you the puzzle box, show you the top so
6 you know what the picture is going to look like so you can
7 understand where these pieces go.
8 During this phase of the case the government will be
9 putting on evidence of its aggravators and the Court has
10 defined those for you. The defense will be putting on
11 evidence of its mitigators and the defense has defined that
12 for you. But I want you to understand is that mitigators are
13 not an excuse, and I don't think that anyone can make an
14 excuse for what happened in this case.
15 The purpose of mitigators is not to offer you a
16 justification for what the defendant has done because there
17 can be no justification. However, there can be for whatever
18 purpose it should be used, an explanation because you see
19 first, as we go through this part of the trial there are
20 certain issues that are no longer in controversy. The
21 defendant has been convicted beyond a reasonable doubt by you
22 of doing certain things. He is guilty of this charge under
23 the law. You have found that he did the acts that were
24 alleged. You found that the statement he gave to Special
25 Agent Gaudin by your verdict you have found that that
6690
1 statement was voluntary, and that you can consider it in
2 determining what should be the appropriate sentence.
3 Additionally, something that has been resolved is
4 that no matter what happens from this point forward in this
5 case, that young man right there will either be killed by you
6 or he will spend the rest of his life in prison in a country
7 that is not his own, and that is it. Those are the only two
8 options available. So to a certain extent many options are
9 gone, and that is the only thing that remains.
10 If all 12 of you vote that he will die, he will die,
11 and no one can stop it, not that judge, and not any of us.
12 I'm serious. The Judge has a duty to, if you vote it, he has
13 to sign the order.
14 Now, the mitigators that we're going to offer, and
15 the Judge has told you what they are, they can be
16 circumstances of the defendant's life or they can
17 circumstances of the offense, the purpose of the defense in
18 this portion of the case is for the past four months you've
19 heard a lot of evidence about who was killed, and who did the
20 killing. You've heard about where it happened. You've
21 learned about how it happened. And you know when it happened.
22 August 7, 1998 will never be the same.
23 But you've heard precious little of why, and to
24 understand the importance of this some day if you vote for
25 death, you'll pick up the paper, and you'll see that that
6691
1 young man over there is going to be killed. And when you read
2 that, you should know as much about the circumstances of this
3 case so that when you read it you will say: I know today just
4 like I knew the day that I said that he should die, I know
5 that was the only appropriate sentence.
6 You are going to sign a piece of paper saying that if
7 you give him death that you would have given him death even if
8 he were not Muslim, if he were not Arab, if he were a
9 American, if he lived in Indiana, the decision would have been
10 the same. And you are going to be, by understanding the
11 circumstances, you will be confident of the decision.
12 Why does a young man agree to die? Why does Usama
13 Bin Laden hate America so? Why is it that so many young
14 people, people who should be worried about, am I going to meet
15 a girl? Am I going to grow up? Am I going to have children?
16 Am I going to find a job? Why is it these people are willing
17 to kill themselves to strike at America? Why is it, as
18 al-Fadl testified, why is it that Mr. Bin Laden and al Qaeda
19 have more people, more young people who are willing to die
20 than they have projects for them to do? Why is that?
21 Now, there has been some testimony that Mr. Bin Laden
22 hates America, calls it the great Satan. Is that the
23 explanation? No.
24 To understand the circumstances of this you have to
25 understand all of what went on and what has gone on that led
6692
1 up to this, because then and only then can you determine, only
2 by understanding as much as possible can you determine is
3 death the only appropriate sentence. Appropriate to what?
4 And that's the key, and you're going to have to define what
5 that is.
6 Now, I will tell you, and I will agree with the
7 United States, you should not forget about the victims in this
8 case. I want you when you're deliberating in this case to
9 remember the human beings that were killed, the human beings
10 that have been maimed and injured, not just the Americans who
11 there has been testimony about, in fact, because it's going to
12 be hard and it should be hard.
13 It should be hard. You should work with this, with
14 the same dedication and intensity you worked for your
15 deliberations on the guilty phase, because each of you is
16 going to have to be convinced beyond a reasonable doubt, each
17 of you as individuals, that death is the only appropriate
18 sentence.
19 You'll be seeing these pictures at the close of the
20 government's case and you'll be reading these names. These
21 are the people that died that day. And I'm going to try and
22 pronounce their names to you. Never forget them, and I don't
23 forget them. Bonita Achola is dead. Samson Odour Ahomo,
24 Margaret Akinyi, Jessie Nathaniel Aliganga, Emma Anulo,
25 Elizabeth Anyango, Monicah Apondi, Rosetta Barasa, Julian
6693
1 Leotis Bartley, Julian Leotis Bartley Sr..
2 Chrispine Bonyo, Daniel Cheruiyot, Jean Rose Dalizu,
3 Eva Gacheru, Alice Nduta Gachiri, Jame Wangui Gakuru, Ralph
4 Johnstone Gathumbi, Justus Njeru Geoffrey, Agne Wanjiku Gitau,
5 Lawrence Ambrose Gitau, Benard Mugambi Gitonga, Susan Gitu,
6 Rosemary Njery Gituma, Hassan Guracha, Burhan Aden Hanshi.
7 Molly Hardy, Kenneth Hobson, HIndu Omar Iddi.
8 Tony Irungu, George Irungu, Jane Wangari Itutia,
9 Dorine Aluoch Jow, Gilbert Mugo Kahindi, John Kahuthu,
10 Geoffrey Mulu Kalio, Joel Kamau, Francis Kamiti, Margaret
11 Kangi, Rachel Kraba, Charles Karanja, Lucy Karigi, Beatyrice
12 Kariuki, Moses Kariuki, Kristein Karumba, Prabhi Kavaler,
13 Thomas Khahenzi, Francis Kibathi;
14 Jackline Kibera, Rael Biiri Kimami, Felistas Njeri
15 Kimani, Stephen Kimani, Philip Kioko, Joseph Kiongo, Teresa
16 Kiongo, Arlene Bradley Kirk, David Koimburi, Naftali Kuria,
17 Juliana Kwali, Peter Kyalo, Moses Kyule, Tirus Macharia.
18 Dennis Evans Radcliffe Madegwa, Francis Maina, Linda
19 Maingi, Fred Maloba, Cecilia Mamboleo, Mary Martin, James
20 Masea, Anne Mathenge, James Mathenge, Pity Mathenge, Simon
21 Peter Matu, Daniel Maundu, June Mary Maweu, Lydia Mayaka.
22 Allan Mbandu, Doreen Mbayaki, Pamela Mobya, Rachael
23 Mobya, Francis Mboya, Lucy Mbunja, Stephen Mburu, Catherine
24 Mibere, Elizabeth NMito, Ahmed Mohammed, Edward Mokaya, Lucian
25 Mugambi, Sharon Mugo, Josephat Muia.
6694
1 Emmanuel Mujyambere, Samuel Mulalya, Francis Mulehi,
2 Edward Mungai, John Mugai, Domi Munzala, Tommy Munzala,
3 Caroline Muraguir, Fiddes Muritu, Alice Muriuki, Mary Muriuki,
4 Frobert Murijuki, Dominic Musyoka, Ruth Musyoka;
5 Wilson Mutahi, Florence Muthama, Josephine Mutinda,
6 Emmanuel Mutiira, Catherine Mutua, Patrick Mutui, Caroline
7 Mutuiri, Gloria Mutuiri, Gabriel Mwadime, Harrison Mwangi,
8 Roselyn Mwangi, Samuel Githua Mwangi, Moses Aston Mwani, Anna
9 Mwaniki;
10 Isaac Mwaria, Abdalla Mwilu, Eliabeth Nakhale,
11 Geoffrey Namai, Moses Namayi, Mary Ndirangu, Simon Ndirangu,
12 Caroline Ndolo, Martin Nduati, Julius Ndulu, Edwin Ndumbi,
13 Peter Ndungu, Ephraim Ndunu, Joyce Ng'ang'a.
14 Loice Nganga, John Ngaragari, Peter Ngugi, Jacinta
15 Njau, Siomon Njiima, Abel Njiru, Agatha Njoki, Catherine
16 Njoroge, Francis Njoroge, Grace Njoroge, William Njoroge,
17 Francis Njuguna, Godfrey Njuguna, Patrick Njuguna.
18 Francis Njuige, Michael Nyademba, Vincent Nyoike,
19 Janet Nzioka, Johnson Nzioka, Magdaline Nzoka, Joseph Nzwili,
20 Aineah Obonyo, Frederick Ochieng, Francis Ochito, Lawrence
21 Ochola, Ann O'Connor, Duncan Odhiambo, John Odhiambo.
22 Patricia Ogol, Maurice Ogola, Michael Okieyo, Simon
23 Olang, Dominic Olango, Sherry Olds, Lepeine Olotono, Hanson
24 Omar, Margaret Ombunya, Edwin Omori, Enoch Omweno, Lucy Onono,
25 Evans Onsongo, Eric Onyango.
6695
1 John Onyango, Caroline Opati, Sylvia Oriedo, Godfrey
2 Orono, Elizabeth Orwa, Joseph Osamba, Elias Osir, Julius
3 Otieno, Mathews Otieno, Rogers Otolo, Elijah Owino, Josiah
4 Iowuor, Margaret Rading.
5 Peter Evans Rungu, Ruth Rungu, Timothy Sande, Uttamal
6 Shah, Fahat Sheikh, Hassan Soka, Shadrack Thitu, Samuel Thuo,
7 Maedra Vrontamis, Gloria Wachia, Shadrack Wagaiyu, James
8 Wainaina, Adams Wami, Anne Wambugu.
9 John Wamutwe, Margaret Wangethi, Gladys Wangui, Mercy
10 Wanjiku, John Wanyoike, Margaret Wasike, Sabina Wateri, Benson
11 Wathigo, Margaret Waweru, Ann Zakayo.
12 Everyone one of these people died as an innocent, and
13 that is conceded. By an innocent I mean that they died for
14 reasons totally unrelated to who they were as human beings.
15 They didn't die because they were bad. They didn't die
16 because they were good. They didn't die because of their
17 political affiliation. They died because they were Americans
18 or they worked for Americans, or they happened to be standing
19 close to Americans when this attack took place.
20 Do not forget this because this is part of the sorrow
21 and this is part of the circumstance and the question is what
22 must be done. You're also going to hear me use words like
23 terrorism and genocide. They'll be defined.
24 There will be no evidence presented in this case that
25 anyone who lost a loved one or a father or a mother or a child
6696
1 or a sister is not suffering. I will not offer any
2 information, nor does any exist that will lessen that degree
3 of suffering.
4 People who have suffered can tell you that sometimes
5 you think you're doing fine, and then you come to a holiday,
6 or a birthday or an outing, or you hear a certain song, and
7 you start to hurt all over again, and that suffering
8 continues, even though the loss was three years ago, and no
9 one is going to tell you that there is anything you can do to
10 make that loss go away because it's going to have to run its
11 course.
12 I can tell you something else you're not going to
13 hear. You're not going to hear the usual stuff in a death
14 case about the defendant's life other what you've heard. I
15 can tell that you no family members are going to come from
16 Saudi Arabia and testify as to what he was like when he was
17 growing up. No family members are going to tell you about his
18 schooling or his nurturing. I mean you've heard that he was
19 raised and he learned the fundamental Islamic issues when he
20 was young. You heard that from the statement he made to Agent
21 Gaudin. I believe he talked about his influences. But other
22 than that, you're not going to hear anything.
23 You know that he was present when Usama Bin Laden
24 made some of his statements according to the indictment. And
25 Amnesty International provided a brochure of the Saudi
6697
1 government and Saudi life. Perhaps we ought to offer that and
2 perhaps explain why the family is not here.
3 We're also going to introduce some correspondence
4 from my co-counsel just trying to get authorization for
5 letters to go back and forth between my client and jail and
6 his family in Saudi Arabia.
7 You are not going to hear about the defendant's
8 childhood where he was subjected to abuse or did anybody beat
9 him or that his parents were uncaring or unloving. No, none
10 of that.
11 No one is going to come in here and say he's not
12 responsible for what he did, or that he had a choice to make
13 and his actions were a consequence of that choice. No. The
14 reason surrounding this case are very, very complex and
15 literally grow back hundreds of years. The atmosphere over in
16 that part of the world is amazing.
17 I can tell that you in the past few months we, and I
18 say "we" because Ms. Davis from my office in Virginia is
19 working, soon to be Mrs. Robert Harmon; Mrs. Brown from my
20 office in Virginia, and Mrs. Donna Moralez, had been reading,
21 we have spent hours talking to professors, talking to clerics,
22 talking to historians, talking to economists, trying to figure
23 out what is going on over there so we can explain it to you,
24 so that you can understand all the circumstances of this
25 offense.
6698
1 I don't want to bore you, but I can tell you that to
2 avoid weeks of academic testimony and I mean literally weeks
3 if we were to put those people on the stand, even those who
4 would come, because no one wants to be associated with
5 terrorists, to put those people on the stand it would be like
6 you're going back to school. You'd have to sit there and take
7 notes like you're having an exam.
8 So what we've decided to do so that you can
9 understand this there will be some live testimony about the
10 Middle East and Islam and Usama Bin Laden and believe me those
11 are going to show them here in court will save you many, many
12 hours of testimony if you want to understand the circumstances
13 surrounding why this happened. And now of course if you were
14 to put the witnesses on the stand you could listen to them and
15 decide whether or not you wish to believe them, and you could
16 decide what part of the testimony you wanted to keep and what
17 part you wanted to disregard.
18 Well, the same thing with the tape. You can listen
19 to the tape and if you believe it's accurate you can keep that
20 part, and if you believe it's inaccurate, you can leave it
21 out. We're not offering the tapes to lessen the importance of
22 what must be taught. We're actually trying to increase the
23 likelihood that you can understand all the circumstances.
24 I'm also going to ask you to read some information.
25 Remember Mr. Al Fadl said you can't understand al Qaeda unless
6699
1 you really understand Islam. You have to understand what
2 their motivation is, and when I crossed and I pulled out my
3 little pinch yourself Islam book I tell you this is not the
4 Koran, and it's not the definitive statement on Islam, but it
5 is a resource type and during the deliberations I believe if
6 you just read a few pages you might understand the perspective
7 of these people who hate America so.
8 Now I can tell you some of these things in here.
9 There is a section here that I've tabbed about what jihad is
10 and what it can be used for. And I can tell you this is in
11 disagreement with many of the things you've heard, many
12 assertions that have been made. It can only be used in the
13 sense of Allah, not for armed conquest. Use it for the
14 freedom of, only when led by spiritual leaders. You can hear
15 it and I'm thinking why would I want to give them things in
16 there with which I will disagree, but then I'm reminded that
17 my Bible with its peace has also been used in the past to
18 justify colonialism, and slavery, and the crusades and the
19 inquisition. So this will be offered as a resource so you can
20 use it as you wish.
21 I'm also telling you and I've learned this in
22 understanding this philosophy I have been told by some really
23 smart professors that you really can't understand Islam unless
24 you read the Koran, which I've not read, and you can't really
25 understand the Koran unless you can read it in Arabic. Yes,
6700
1 because you heard Bin Laden on the interview talking. This is
2 The World's Religious by Huston Smith. You don't have to read
3 this. I did. And the quote is: "The language in which it
4 was proclaimed, Arabic, provides an initial clue. No people
5 in the world, writes Philip Hitti, are so moved by the word,
6 spoken or written as the Arabs. Hardly any language seems
7 capable of exercising over the minds of its users such
8 irresistible influence as Arabic. Crowds in Cairo, Damascus,
9 or Baghdad can be stirred to the highest emotional pitch by
10 statements that, when translated, seem banal. The rhythm,
11 melodic cadence, the rhyme produce a powerful hypnotic effect.
12 Thus the power of the Koranic revelation lies not only in the
13 literal meaning of its words but also in the language in which
14 this meaning incorporated, including its sound.
15 I want you to think about that when you think about
16 Bin Laden up here on these tapes talking, the things you've
17 seen already, how he sat there, how he communicated. I will
18 tell you that's the first time I've ever heard him speak. I
19 expected some great orator, somebody like attorney Rico,
20 somebody who speaks forcefully, a Louis Farakhan, a Malcolm X,
21 a Martin Luther King, and I didn't. I heard somebody who was
22 very calmly speaking. And when you first listen, listen to
23 the English translation, but then listen to what he is saying
24 in his tone of voi8ce, and you could see how some young people
25 might be stirred by that.
6701
1 I want you to remember what Mr. Bin Laden said.
2 You've heard inumerable fatwas. You heard him say that he is
3 an enemy of the United States. You've heard him say he's
4 mentioned why, you've heard him, and some of you will remember
5 this and some of you won't, Q-A-N-A he mentioned Satila, he
6 mentioned Palestine, he mentioned the death of the children in
7 Iraq, he mentioned Israel, the occupation of the land of the
8 two shrines, all of these are political and religious issues
9 as to why this animosity exists.
10 I know what Qana is. I know what Satila is. They
11 are very complicated issues. So we're going to zero in on
12 then Iraq, and we're going to talk about that because it is
13 important, because that is one of the motivations.
14 Briefly I will tell you this. That since 1991
15 because, and you'd be amazed the number of Arab people who
16 know this, because of the sanctions and the bombings between
17 one million and one and a half million Iraqis have died
18 directly as a consequence of the sanction. In fact, they die
19 at the rate of 250 a day, most of them under the age of 5
20 because we destroyed their water purification system and we've
21 not allowed them to rebuild it and other things.
22 As to the aggravators, during this case there is
23 going to be very little factual disagreement. When the United
24 States says as their statutory aggravator number that the
25 deaths and injuries resulting in death occurred during the
6702
1 commission or attempted commission of an offense under Title
2 18 United States Code and then there are other offenses like
3 two offenses that occurred at the same time, by your verdict
4 you found that to be true. Now, perhaps to lessen the weight
5 of that aggravator we plan to offer evidence that we have done
6 that to other countries as well, and that's why they hate us,
7 and they do.
8 Where it says defendant in the commission of his
9 offense knowingly created a grave risk of death to one or more
10 persons, let me tell you we issued subpoenas to the military
11 trying to find out how bombs what kind of bombings they used
12 and they said they can't tell us, so we don't know, we don't
13 keep track of them.
14 And we will hold up some pictures.
15 MR. FITZGERALD: Objection, your Honor. None of this
16 has been shown. I think it's improper.
17 MR. BAUGH: I'll withdraw.
18 I'll show you a picture of a six year old girl that
19 died January 23, 1999 when a two thousand pound American bomb
20 antiaircraft site was one mile on target,. because I can pull
21 out the Associated Press for that day and the military
22 acknowledge the bomb missed by a mile.
23 We create grave risk to others also and that has to
24 stop. On the mitigators I don't believe there is going to
25 be -- oh, on the continuing and serious threat the future
6703
1 dangerousness of Mr. Al-'Owhali the only evidence we plan to
2 introduce is the law and the law contained in the Code of
3 Federal Regulations is that if the Bureau of Prisons, and he's
4 either going to die or he's going to go to prison for the rest
5 of his life, if the Bureau of Prisons the day you sentence him
6 think that he poses a threat to others, they have the power to
7 put him in a room by himself and leave him there for 120 days.
8 However, at the end of 120 days if the Bureau of
9 Prisons or the Attorney General of United States or the head
10 of any federal law enforcement agency, or the head of any
11 government intelligence agency feels that he poses a threat
12 they can write a letter and they can keep him there 120 days
13 and at the end of 120 days they can do it again. That's
14 right. That's the law and no one is going to say that's not
15 the law. And that's true.
16 The victim impact, I'll tell you why, we'll come back
17 to that. They say that Mr. Al-'Owhali in his attack wasn't
18 concerned about the people who died and you know he went away
19 and had the exact opposite effect. You know that testimony
20 was that they suggested the bomb the place closer so they can
21 kill more people, but I will tell you that when the United
22 States flew to Panama to arrest Mr. Noriega we killed between
23 two and four thousand Panamanians. Imagine what would happen
24 in your city if the police went to arrest somebody in Brooklyn
25 and killed four thousand people doing it?
6704
1 So you're going to here all the aggravators and all
2 the mitigators. I want you to understand this information so
3 you can figure out what weight to be given to the case, and
4 where do we want to go what, do I want you to learn.
5 I trust at the conclusion of this penalty phase you
6 will find the killings never fixes anything. It just makes
7 more people more angry and this gives more reason for killing.
8 Mr. Bin Laden says that we should, his people should kill
9 people because our people killed their people. The government
10 says you people can kill him because he killed us.
11 Everybody's got a reason for killing.
12 I hope you will find at the conclusion of this
13 penalty phase too many people have died, too many mothers, not
14 just American mothers, not just Tanzanian mothers, not just
15 Iraqui mothers, too many people have suffered and are
16 suffering. And I will tell you this, if in the discharge of
17 your duties you find beyond a reasonable doubt that killing
18 him will stop then, that's the appropriate sentence and I will
19 concede that point.
20 That young man over there if he's lucky will spend
21 the rest of his life and that's going to be forty to fifty
22 years in prison in a country where people think an Arab first
23 word in the common liar where people think of Muslims the
24 first word that comes to mind is fundamentalists or
25 extremists.
6705
1 Read these books, look at this information because
2 you're going to have to sign an oath when you finished that
3 you would have given the same verdict regardless of his race,
4 regardless of his ethnicity. I will submit to you that you
5 will have enough information to rely on your faith, your faith
6 that doing what is right, even if it's hard, even if it
7 resists or it goes against your emotion, is the appropriate
8 thing to do.
9 Thank you.
10 THE COURT: Thank you. We'll take our mid-morning
11 recess.
12 (Recess)
13 (Continued on next page)
14
15
16
17
18
19
20
21
22
23
24
25
6706
1 THE COURT: Mr. Fitzgerald?
2 MR. FITZGERALD: Yes. I have a number of objections
3 from things that transpired at Mr. Baugh's opening. I feel
4 very strongly about them but I also don't want to waste the
5 jurors' time. Perhaps we can proceed and put them on the
6 record after the jurors' lunch.
7 THE COURT: Mr. Baugh, did you say that you were
8 going to give the jurors copies of the book?
9 MR. BAUGH: Yes, sir, 12 copies.
10 THE COURT: How many pages are in the book?
11 MR. BAUGH: Total is, reading from Teach Yourself
12 Islam, the total number of pages of the book is 211. However,
13 the pages that we will probably argue from are pages 44
14 through 87, which are the Pillars of Islam.
15 THE COURT: Do you anticipate the jury reading the
16 book in its entirety?
17 MR. BAUGH: No, your Honor. I offer it to them to
18 use -- I am sorry. I offer it to them as a resource. It has
19 an excellent index in the back. If there are issues about
20 Islam that they feel they need to look up -- because remember,
21 they can also insert mitigators that we have not drafted on
22 the mitigation side.
23 THE COURT: Obviously the rules of evidence that
24 apply to what will be permissible.
25 MR. BAUGH: Obviously.
6707
1 THE COURT: My concern is that this already very
2 burdened jury not be told that they have to read a 211-page
3 book, which may, depending on the rate that one reads, prolong
4 deliberations unnecessarily and inappropriately. But you are
5 going to flag for them particular portions?
6 MR. BAUGH: Yes, your Honor.
7 THE COURT: Very well. Let's bring the jury back
8 then.
9 MR. FITZGERALD: For the record, your Honor, although
10 the jury was advised that the government would be getting a
11 copy we have never received a copy, as I understand it. We
12 did not receive discovery of the many items offered by Mr.
13 Baugh including what was displayed to the jury. I think it is
14 a blatant violation of discovery rules. There are other
15 things that Mr. Baugh said --
16 THE COURT: If it happens again, ask for a sidebar
17 and ask in the sidebar that they be excluded.
18 MR. FITZGERALD: I am asking that all of them be
19 excluded now from the trial. We haven't been provided them.
20 There was reference to an Amnesty International report that we
21 were never provided.
22 Mr. Baugh's response to Rule 16 is to stand up and
23 tell us in opening and display photographs. It is blatantly
24 improper. Obviously the government -- I think it is
25 outrageous, for him to tell the jury and testify to them about
6708
1 conversations that he had with the Defense Department. I
2 think Mr. Baugh needs to understand that the rules apply here
3 and that he has to follow them.
4 MR. BAUGH: Your Honor, first, we were given 3500
5 material last night. We are dependent on Kinko's to run off
6 the materials. We had extra copies made. Concerning the
7 military, you know the changes we have gone through trying to
8 get through to the military. Last night I was able to find
9 some of the information that the military says they were not
10 able to give us. Now we find it last night on the Internet.
11 THE COURT: You know, that is a non sequitur. The
12 fact that it is available on the Internet doesn't mean that it
13 is available from the military. There is a great deal of
14 difference. On the Internet furnished by the military?
15 I think Mr. Fitzgerald's point about not wasting jury
16 time is appropriate and we will take this all up at 4:30.
17 MR. BAUGH: All right.
18 THE COURT: Who is the government's first witness?
19 MR. GARCIA: Susan Bartley, Judge.
20 MR. FITZGERALD: Mr. Brady has her available. Do you
21 want her in before the jury?
22 MR. COHN: Your Honor, just as a technical matter,
23 perhaps because some of these witnesses are going to be
24 emotional, rather than send for water and tissues they ought
25 to be readily available during their testimony, and in place.
6709
1 (Jury present)
2 COURTROOM ARTIST: Is there any problem with any
3 witnesses, in terms of who I draw?
4 MR. FITZGERALD: Not with regard to Ms. Bartley, and
5 we will check witness by witness. Thank you for asking.
6 (Jury present)
7 THE COURT: The government may call its first
8 witness.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6710
1 MR. GARCIA: Your Honor, the government calls Susan
2 Bartley.
3 SUSAN BARTLEY,
4 called as a witness by the government,
5 having been duly sworn, testified as follows:
6 MR. GARCIA: May I proceed, Judge?
7 THE COURT: Yes.
8 DIRECT EXAMINATION
9 BY MR. GARCIA:
10 Q Good morning, Miss Bartley.
11 A Good morning.
12 Q In August of 1998, were you living in Nairobi?
13 A Yes, I was.
14 Q Was your husband Julian and your son Jay living with you
15 at that time?
16 A Yes, they were.
17 Q What was your husband Julian's position with the embassy?
18 A He was the consul general.
19 Q And your son Jay, was he working in Nairobi at that time?
20 A Yes, he was.
21 Q What was he doing?
22 A He was a summer intern.
23 Q Ms. Bartley, did you lose both your husband and Julian and
24 your son Jay in the August 7, 1998 bombing?
25 A Yes, I did.
6711
1 Q Miss Bartley, have you provided us with some photographs
2 of your family?
3 A Yes, I have.
4 MR. GARCIA: Your Honor, may I approach?
5 THE COURT: Yes.
6 Q I am showing the witness what has been marked Government's
7 Exhibits 2018A through G.
8 Are those the photographs you provided, Miss Bartley?
9 A Yes, they are.
10 MR. GARCIA: Your Honor, at this time I would offer
11 Government's Exhibits 2018A through G.
12 MR. BAUGH: No objection.
13 THE COURT: Received.
14 (Government Exhibits 2018A through G received in
15 evidence)
16 MR. GARCIA: If we could have displayed for everyone
17 Government's Exhibit 2018A.
18 Q Is that a photograph of your family, Ms. Bartley?
19 A Yes, it is.
20 Q Could you show us who everyone is in the photo.
21 JUROR: It is not on our screens.
22 (Pause)
23 MR. FITZGERALD: Your Honor, the machine would
24 indicate they are on. Something must have happened and we
25 will check it at the break. Perhaps we can substitute for the
6712
1 moment.
2 THE COURT: Perhaps somebody could lift this from
3 there -- not me. It's heavy.
4 Q I apologize, Miss Bartley. If you could explain to us who
5 the people are in that photograph, 2018A.
6 A Jay is sitting with the navy blue T-shirt on. His sister
7 Edith is across the table in the dark navy blue. My husband
8 is sitting at the head of the table. You can see the top of
9 my head in back of Jay.
10 Q Ms. Bartley, did you prepare a statement about the impact
11 of the loss of that your son and husband has had on your
12 family?
13 A Yes, I did.
14 Q For the record that is marked Government's Exhibit
15 35118-C. Ms. Bartley, if you would read us that statement.
16 A On August 7, 1998, is a day that I will never forget. I
17 lost my husband and my son that tragic day. That was half of
18 my family.
19 I wish all of you had had an opportunity to know them
20 personally, but since that is not possible, I would like to
21 take a few minutes to tell you about them.
22 Julian was an only child, born in Jacksonville,
23 Florida. He spent his formative years in Queens, New York.
24 We met while we were attending Tennessee State University.
25 After completing his undergraduate studies, Julian entered the
6713
1 Peace Corps. We corresponded weekly through letters and
2 cards, which I still possess. We knew each other six years
3 before marrying, and we were married for almost 28 years,
4 which is more than half of my life. And we were blessed with
5 one daughter and one son.
6 Our experiences with living and traveling in foreign
7 countries can be measured by the friends that we have made,
8 the cross-cultural exchanges that we made, and our commitment
9 to being the best representatives of the United States that we
10 could be.
11 To lose a spouse in the manner that I did has been
12 excruciatingly painful. There was no time to prepare, and in
13 the aftermath what remains is a lingering unsettling feeling
14 that is compounded with deep sadness and anger. This pain is
15 with me every day. Oftentimes it is unthinkable. There is no
16 written formula for me to use to begin a life without my
17 husband. When you know someone, when you have known someone
18 as long as I knew my husband and then they are no longer
19 there, what is left is raw emptiness. A part of me is
20 missing. The love we had for each other was unconditional and
21 the life we shared together was solid.
22 About a year ago a friend asked, what do you miss the
23 most about them? I found the question to be odd, because I
24 miss everything about them. With my husband, some of my
25 fondest memories that come to mind would include his snoring
6714
1 while sleeping. I miss hearing the sound of his snoring each
2 night and the teasing about who snored the loudest. I miss
3 his laughter. Julian had a hardy laugh. I miss hearing his
4 latest joke. He wanted people around him to feel comfortable
5 and at ease, so he would often warm the setting by telling a
6 joke. I miss his good-bye kiss in the morning and the hello
7 kiss when he returned each evening. I miss the hugs. Just
8 because. And the winks and special looks that we passed back
9 and forth to each other. And the phone calls during the day.
10 Julian was sometimes spontaneous. It was not unusual for us
11 to have dinner guests with very little advance notice. It was
12 not unusual for him to awake at 5 a.m. and suddenly decide for
13 us to take a trip to the Nairobi game park. It was not out of
14 the ordinary for Julian to stop at our neighbor's house across
15 the street for a drink and dinner, and then come home and eat
16 dinner.
17 Whenever either of us read something we thought would
18 be of interest to the other, we would make a point to share it
19 with one another. I miss those quiet times when we would go
20 for a walk and sit in the evenings, Julian with one of his
21 favorite cigars and a cognac and me with a glass of wine, just
22 talking and reflecting upon the day.
23 Beyond the fact that Julian was successful
24 professionally, his devotion to family was paramount. While
25 Julian walked with dignitaries and heads of state, throughout
6715
1 his brief tenure on this earth he held fast to the belief that
2 regardless of your economic status, job title or position,
3 everyone should be treated with respect and dignity.
4 As the first African American consul general to
5 Nairobi, Julian brought a new sensitivity to consular work
6 that had been missing. He loved his work and always commented
7 on how some people spend a lifetime in search of the perfect
8 position while going through the motions of unsatisfying jobs.
9 Be assured that my husband loved his work and knew that his
10 was a special calling. He always said there was not a day
11 that he didn't enjoy getting up and going to work.
12 He left us with a challenge, to always look for the
13 good in everyone. There is where our true blessings lie.
14 My son Jay was 20 years old. He was a student at the
15 United States International University in Nairobi, Kenya. I
16 will never understand the reason for Jay's death. As a
17 parent -- as parents Julian and I knew how important building
18 self-esteem in our children was. We constantly encouraged Jay
19 to participate in extracurricular activities.
20 Jay was an adventurous young man. He learned to
21 horseback ride at an early age in very well. As a teenager he
22 taught horseback riding at the YMCA.
23 Jay's interests were varied and his intellect
24 reflected signs of a person who was mature beyond his age.
25 During his first year at the United States International
6716
1 University, Jay coached junior high basketball at his former
2 high school. He earned the respect of other coaches. On game
3 days he always wore a white shirt and tie, while the coaches
4 from the opposing teams wore T-shirts and shorts. His team
5 finished the season as number one in their division.
6 Jay blossomed at the university. Any parent would
7 have been proud. Jay had an uncanny sense of humor. He was a
8 good friend and he had good friends. Jay had a positive,
9 determined mindset, cheerful disposition, and he was a
10 terrific young man. He was respectful and had a deep respect
11 for his peers, and an abiding belief in the goodness of
12 people.
13 There isn't a day that goes by that I don't think
14 about my losses and the losses of others. Our lives have been
15 catalogued in photo albums. Julian loved to take photographs.
16 He used to photograph each of our moves to the next country.
17 He used to photograph everything, from our parties to holidays
18 and trips. Our entire lives in the foreign service, including
19 when our children were infants, are documented. Last week our
20 daughter graduated from law school. Although it was a joyous
21 occasion, it was also sad. Julian was not there to photograph
22 and document the moment. It is in moments such as
23 graduations, holidays and birthdays when I am reminded not
24 only of my loss but that of my daughter. More importantly, I
25 am reminded of what those who were killed were robbed of. My
6717
1 son will never have the opportunity to complete college,
2 pursue a career or raise a family of his own. As a mother, I
3 was looking forward to witnessing what was in store for Jay's
4 future. Now he has no future. My husband will never have the
5 opportunity to retire, walk his daughter down the aisle on her
6 wedding day or enjoy the laughter of his grandchildren.
7 People's lives have been changed forever, but what makes it
8 possible for me to continue to live each day to the fullest,
9 to do what I have to do, is knowing that Julian and Jay left
10 rich legacies of commitment, dedication and service. Our
11 daughter is left with a challenge to do more than just
12 succeed. She is left with the challenge to carry on and excel
13 in the spirit of both her father and her brother.
14 Finally, I would like to share with you an African
15 proverb which I believe represents a portion of the essence
16 that is Julian and Jay: I am because you are. Therefore, you
17 are because of me.
18 Q Thank you, Miss Bartley. In addition, before coming to
19 court, did you also review a videotape that was made of
20 statements of other families of victims, American victims who
21 were killed at the American Embassy?
22 A Yes, I did.
23 MR. GARCIA: For the record, that is Government's
24 Exhibit 2001, and, your Honor, with the court's permission and
25 no objection, the government would like to play it at this
6718
1 time.
2 THE COURT: Yes.
3 (Videotape played)
4 MR. GARCIA: Your Honor, I have nothing further.
5 MR. BAUGH: No questions of this lady.
6 THE COURT: Thank you. You may step down.
7 (Witness excused)
8 MR. FITZGERALD: The government calls Teresia
9 Karanja.
10 THE COURT: You were sworn earlier in these
11 proceedings, were you not?
12 THE INTERPRETER: Yes, I was.
13 TERESIA KARANJA,
14 called as a witness by the government,
15 having been duly sworn, testified as follows:
16 (Witness testifies in English)
17 DIRECT EXAMINATION
18 BY MR. FITZGERALD:
19 Q Good morning, Miss Karanja. Good afternoon. If you wish,
20 you can speak in English. I will try to talk slowly. Slow me
21 down if I talk too fast.
22 If you could just tell the jury what you did for a
23 living in the Cooperative Bank Building.
24 A My name is Teresia Karanja. The last name is
25 K-A-R-A-N-J-A.
6719
1 Before the bomb I was working with Teachers Service
2 Commission in Kenya. On that fateful August 7, 1989, I was in
3 the office in the Cooperative Building just next to the
4 American Embassy. I was in the office, busy working. It was
5 around exactly 10:30 when I heard a blast from outside. I was
6 just near the window. I just looked through the window. I
7 didn't know what it was because we are not used with those
8 blasts. I thought it was a tire burst or a gunshot. So I
9 just looked through the window. I saw people coming to the
10 building and others going away from the building. I just saw
11 the coworkers. I said I don't know what is happening now, can
12 we just go down and check what is going on. So everybody
13 started walking towards the door. I hesitated because I
14 didn't know what it was, and now everybody was walking down.
15 I had the thought when we reach down, what I am going to tell
16 them. So I hesitated, and the second blast went up, which was
17 the loudest, and I just saw glasses landing, a lot of dust,
18 and I was just near the door, and something hit me at the
19 back. Something hurt. I didn't know what it was. There was
20 a lot of dust. I couldn't see properly. I just walked steps
21 and then I fell down. I tried to stand and I couldn't. I had
22 a severe pain at the back, so what I could do is just to lie
23 down because I was helpless.
24 Within no time I saw people landing. Some were
25 seriously hurt. And there was another lady who just came
6720
1 where I was. She had a broken leg and she was unable to walk.
2 We just lied there with no hope of life because everybody was
3 asking after his or her life. There was no one to help you.
4 So all what we could do was just to pray our last prayer.
5 After four and a half hours, that's when we saw some
6 ambulance came in. They had no rescue equipments. They had
7 only a sheet. They couldn't lift me because it was -- I had a
8 lot of pain. So what they did, they lifted the other lady.
9 They told me to stay there, they will try all their best to
10 come back for me. So immediately later another group came in
11 with a straight chair. They took me out of the building.
12 They took me in an ambulance where I also met another man, who
13 had a very deep cut at her neck. So they rescued all to take
14 us to the hospital in Nairobi.
15 We met the hospital team, and they first took the man
16 out and I heard them saying that the man is already dead, and
17 they took me out, and I heard a sister saying that this one is
18 already paralyzed but I didn't take much consideration of that
19 because I had severe pains. And I had deep cuts in my legs.
20 They took me to emergency room where they tried to control my
21 temperature because it was very low. They had a hard time but
22 by the grace of God it was stable. And then I was taken to
23 theater where they stitched the legs. They didn't have time
24 to take much consideration on my back because there were so
25 many people who needed emergency attention.
6721
1 So the doctor ordered them to take me to the ward
2 where he requested for surgery. The doctor found that I have
3 a spinal injury, T12 and L1, and because the T12 was
4 completely broken, he said that he must do a surgery. He did
5 a surgery after one week. I can't say it was successful,
6 though I didn't regain my consciousness after surgery. They
7 had to take me to ICU in life-supporting machine, where I
8 stayed for three days. After three days they took me back to
9 ward.
10 I stayed in hospital for four months Nairobi, and
11 there was nothing better coming. So the doctor decided we
12 seek for medication outside the country, and since we didn't
13 have enough, the cheapest country to get medication is South
14 Africa. I went in South Africa in December 7. I stayed there
15 up to April. I got medication, I got rehabilitation.
16 Then I went back to my own country, where I had to
17 start from zero because we had only a small rented house. We
18 couldn't accommodate the wheelchair. We didn't have a car.
19 So everything was from zero. We started from zero. But when
20 we got grace, we did what we could.
21 After 10 months, because my husband had a hard time
22 to keep me and the children, I decided to go back to work. I
23 went back to work, but till now I can't be able to work for
24 long hours. I can't go a full week. So it has affected our
25 lives financially, and even now our kids. Up to today we are
6722
1 struggling to live day and day life. I have to reduce my
2 hours of working because of health. My husband has to reduce
3 working hours because he has to take care of me. It has
4 affected our live up to today. But thank Lord I am alive. I
5 thank you.
6 MR. FITZGERALD: Nothing further.
7 MR. BAUGH: No questions.
8 THE COURT: Thank you very much.
9 (Witness excused)
10 MR. GARCIA: The government calls Mary Khahenzi.
11 MARY KHAHENZI,
12 called as a witness by the government,
13 having been duly sworn, testified as follows:
14 MR. GARCIA: May I proceed, Judge?
15 THE COURT: Yes.
16 DIRECT EXAMINATION
17 BY MR. GARCIA:
18 Q Miss Khahenzi, were you born in Kenya?
19 A Yes.
20 Q Was your husband killed in the August 7, 1998 bomb?
21 A Yes.
22 Q What was his name?
23 A His names were Thomas Mudanyi Khahenzi.
24 Q When did you get married to Thomas?
25 A I was married by custom in 1989 and by judge in 1995.
6723
1 Q Did you and Thomas have children?
2 A Yes.
3 Q How many?
4 A We had five children of my own and he had six children
5 from his previous marriage.
6 Q Did you have a child with Thomas?
7 A Yes.
8 Q How many?
9 A One.
10 Q Did you provide a photo of your husband?
11 A Yes, I did.
12 MR. GARCIA: The government would offer at this time
13 Government's Exhibit 2055.
14 THE COURT: Yes, received.
15 (Government Exhibit 2055 received in evidence)
16 Q Is that the photograph of your husband?
17 A Yes.
18 Q Where did your husband work in Kenya?
19 A My husband worked at -- he was the general manager of a
20 restaurant in town, 800 kilometers from.
21 Q From town?
22 A Yes.
23 Q Where were you working?
24 A I was working Cooperative House next to the U.S. Embassy.
25 Q Could you just describe your husband for us.
6724
1 A Thomas was a very loving, kind husband. He was the best
2 thing that happened to me. He gave me a lot of happiness. He
3 was very good with children. We had 11 children between us,
4 and there were never problems, because he knew how to handle
5 each of them. He was the sole breadwinner, and he toiled very
6 much for us, to see that we were very comfortable. He kept in
7 touch with me the best part of the day, and any time he had
8 time off he would come to my office just to be with me, and to
9 help me around the office.
10 Q Do you recall seeing Thomas the morning of August 7?
11 A Yes.
12 Q Do you recall what he was wearing that morning?
13 A Pardon?
14 Q Do you recall what he was wearing that morning?
15 A Yes.
16 Q What was that?
17 A We woke up in the morning and my husband made a rather
18 unusual request. There is a T-shirt I bought for him as a
19 present, one of Moez memorable occasions. It was a white
20 T-shirt and it had a message across, "I'm a Catholic, and
21 Jesus loves me." He requested that I give that shirt to him
22 to wear that morning. The T-shirt had been washed the
23 previous night. It was not dry, and he insisted he wanted to
24 wear it. I did not argue with him because I never wanted to
25 enter into arguments. I gave him the T-shirt and I left him
6725
1 dressing up. I went to church, as was our practice. I went
2 to church for the morning service and I went to my place of
3 work.
4 Q Could you tell us what happened when the bomb went off
5 that day.
6 A When the bomb went off, I was in my office reading the
7 morning daily. My son who was with me in the building had
8 just gone off to driving school. When I heard the first blast
9 I got out of the building, out of my office, and as I opened
10 the door to leave the office I heard people coming -- my
11 office was the ninth floor, and they were praying, Hail Mary
12 full of grace, the Lord be with you. And I joined them in
13 prayer. I did not know what they were praying about. I just
14 thought that a tire burst, and I was waiting out of curiosity.
15 Before I went far I heard the second blast. There was
16 darkness, fumes, and falling objects from upper floors. I
17 remember what I said. I said God, whatever it is, cover us
18 with the blood of Jesus, and for those who will not be able to
19 make it, forgive them their sins and give them eternal rest.
20 Through the darkness I made my way out of the
21 building. I knew which way to go. As I got out of the
22 building I saw people running from the direction of the
23 embassy in the opposite way. They were bleeding and crying.
24 Nobody was able to explain what had happened. I went down on
25 my knees and prayed again. I thanked God for saving my life.
6726
1 I did not know that I was praying for my husband. I did not
2 know that moment in time that he was dead.
3 Q How did you learn that your husband had died that day?
4 A It took me more than four days to know that my husband was
5 dead because we expected him to be there at that moment in
6 time, because he had gone to his place of duty and by the time
7 I was leaving the scene he had not shown up. So I went home,
8 hoping to hear from him or find him at home, or even get a
9 telephone call. Thomas was not at home. That was not like
10 him. He always checked on us. He always got in touch with
11 anybody, a member of the family, to let them know that all was
12 well. We sat up the whole night, expecting him to come home,
13 and he did not come home.
14 That was the beginning of the search. We went to all
15 hospitals. We did the city of Nairobi. We went to the city
16 mortuary and the mortuaries of the neighborhood, four, five
17 times a day, finding bodies and checking and checking, for
18 five days, with no success. My husband's body was found among
19 the last people to be retrieved in front of the Ufundi
20 building, which had collapsed. I got the message that the
21 body has been found when I was in church, and I went down to
22 the mortuary, not knowing what to expect. I found him laying
23 on the mortuary floor. The T-shirt he had insisted on wearing
24 was my means of identifying him. Yes, he was wearing, "I am a
25 Catholic and Jesus loves me." He was very broken, but we
6727
1 identified him by the T-shirt he was wearing.
2 MR. GARCIA: Your Honor, I have nothing further.
3 MR. BAUGH: No questions of this witness, your Honor.
4 THE COURT: Thank you. You may step down.
5 (Witness excused)
6 MR. FITZGERALD: The government now calls Amos
7 Murithi Karimi.
8 AMOS MURITHI KARIMI,
9 called as a witness by the government,
10 having been duly sworn, testified as follows:
11 DIRECT EXAMINATION
12 BY MR. FITZGERALD:
13 Q Sir, did you lose your wife in the bombing of August 7,
14 1998?
15 A Yes, I did.
16 Q Can you tell the jury her name.
17 A Mary Nyaguthi Ndirangu.
18 Q Is that spelled Mary and N-Y-A-G-U-T-H-I?
19 A Mary is M-A-R-Y. Ndirangu is N-D-I-R-A-N-G-U.
20 Q Can you tell us how long you were married to Mary as of
21 August 7, 1998.
22 A I was married to her for about 10 years.
23 Q Did you have any children?
24 A Yes. I have two boys.
25 Q Can you tell the jury how old the boys were in 1998.
6728
1 A The first one was five years old. The second one was two
2 years old.
3 Q What did your wife Mary do for work?
4 A She was working at Cooperative, Ufundi House.
5 Q Was she a secretary, Mr. Karimi?
6 A Yes, she was.
7 MR. FITZGERALD: Your Honor, I would offer at this
8 time a photograph, Government's Exhibit 2132.
9 THE COURT: Yes, received.
10 (Government Exhibit 2132 received in evidence)
11 Q Mr. Karimi, I am going to display a photograph to your
12 left on the TV screen. Is your wife one of the ladies
13 depicted in that photograph?
14 A Yes. From the left she is second, wearing spotted red
15 skirt and red shoes.
16 Q Can you tell us where and when that photograph was taken?
17 A This photograph was taken near Silver Spoons Hotel.
18 Q In what year?
19 A Yes.
20 Q Do you know what year that was taken?
21 A Yes, it was taken around 1997.
22 Q Can you tell us who the other ladies in the photograph
23 are?
24 A These were her working colleagues.
25 Q Do you know how many of those five women survived the
6729
1 bombing?
2 A Is only the one to the very left.
3 Q And the other four were killed?
4 A Yes, they were killed.
5 Q Can you tell us what happened on August 7, 1998, what you
6 and your wife did that day.
7 A I remember that Friday, it was about some five days since
8 I had arrived from South Africa. I had come with a car which
9 I had deposited at Lombaga border post. It is border post
10 between Kenya and Tanzania. So for this particular day it was
11 in the morning. We woke up in the morning like usual, and we
12 proceeded to work. We had some assignment. I was clearing
13 the car through customs and I did not have enough money. I
14 had asked my wife to fetch some money for me from a friend, to
15 enable me to clear the car.
16 So this Friday morning in our country, by that time
17 there was bank strike, and only clerical staff were working at
18 the bank. So I wanted to go and withdraw some money from the
19 bank and I had to do it very early. This bank was near her
20 place of work, where she was working. By about 8:30 I was
21 waiting up near the bank so I could be among the first people
22 who attended at 9:00. So we went with my wife and I left her.
23 We just parted ways just near there. I went and I lined up
24 and she was supposed to collect the money by 9:30, from a
25 friend who was staying about seven kilometers away from town.
6730
1 So after lining up, I collected the money from the
2 bank by about 9:15, and I proceeded to customs offices, which
3 are situated some kilometers from the city. The offices are
4 situated in a heightened part from the city, overlooking the
5 city. You could see the city from that position.
6 So I went about processing the documents for clearing
7 the vehicle, but I had a problem with the documents which
8 occurred on the third floor of the building, and I was
9 referred to a senior officer who was situated at the ninth
10 floor of that building. It was when he was attending me that
11 we heard a very loud explosion, and he said maybe that could
12 be a transformer down here. And everybody was running out.
13 That was about, it was, about some minutes passed, about
14 10-ish. So we went and when we viewed from the windows --
15 which were a bridge, a small bridge which was connecting two
16 buildings. We viewed the town. We could not see the
17 transformer, but we saw a very huge black smoke enveloping the
18 Cooperative Building or nearby buildings. So people started
19 suggesting that could have been a bomb, and people started
20 climbing down, and I joined them. We did not continue
21 processing the papers. Everybody was running out of the
22 building. We headed to town. It is a distance that we
23 walked, or literally we ran.
24 On our way to town, we could hear sirens of
25 ambulances. We could see people running here and there. Most
6731
1 of them are on the way. There were a lot of broken panes.
2 When we were about near where the incident had taken place, we
3 saw several people who are bleeding, and there was a lot of
4 confusion.
5 It was when I went near where she was working, past
6 the bank building where I had gone that morning to withdraw
7 the cash, I saw the building that used to be the building, the
8 offices, it was leaning. What came to my mind, I remembered
9 immediately that my wife had gone to get money for me and she
10 was supposed to maybe have brought the money back there,
11 because we had agreed that I was to collect the money from
12 her. So I went nearest the coin booth, that is phone booth.
13 I made a phone, inquiring about my wife, and I was told by the
14 gentleman who had given her the money that your wife was here
15 and she left, I give her the money, and we are just as worried
16 because of what has happened in town.
17 Now from there I -- you know, there was a lot of
18 confusion, and for about maybe some 30 minutes or one hour, I
19 did not know exactly what I was doing. It was then that we
20 decided with some other people to start looking for these
21 people from the hospital. So we started going throughout the
22 hospitals which were near the city. We went searching,
23 searching, searching, until it was very late. It was about 4
24 in the night -- I mean, sorry, it was about 10, 10:00 in the
25 night. Then we had to retire. I went home, hoping that my
6732
1 wife could have just gone home. Very unfortunately I did not
2 find her. What I found were some people who had brought to
3 our place because they had already learned that that bomb had
4 taken place at the place of work and that the building had
5 collapsed.
6 And then the next morning I woke up. With some
7 friends, some of my neighbors, we joined those who had
8 survived, who were not hurt, and we searched alongside. We
9 searched for the whole day without getting anywhere, until
10 also about 10-ish. Then we had to retire.
11 Now the following day of that day we woke up. We had
12 to now look where we dared. We had to start with the
13 mortuary. It was about 9:30 in the morning that we went to a
14 mortuary which is known as City Mortuary, and first I stayed
15 outside the mortuary. My parents were there. My relatives
16 and her colleagues. They went inside, but after viewing the
17 bodies they could not identify her body. So they came out,
18 and I asked whether they have seen anything. They told me no.
19 So I decided I had to go inside. When I passed through the
20 mortuary, there was a passage in between. It was two-sided.
21 On one side there were those bodies which you would be able to
22 identify. On the other side there were parts of bodies --
23 heads, other body parts which were not together, some which
24 were beyond recognition, you could not identify. So me, I
25 started with the bodies which I could identify, and it was a
6733
1 long line where they were. We were scrutinizing one by one.
2 When I was just about to go out, I met my wife. That is where
3 I met my wife.
4 Q What did you do then?
5 A After meeting my wife, the body of my wife, that is, I
6 went out, and I went and got my father, and I told him to send
7 two or three people to go and confirm whether what I see,
8 whether I had seen it correctly.
9 Q Did there come a time when you went home to your house, to
10 your children?
11 A When I gone to my house? No, by that time I had not
12 called my house. It was after a while that I went home. I
13 was not able to tell my children. I heard my sister take them
14 to their places and after a while they came to learn about it.
15 MR. FITZGERALD: I have nothing further.
16 MR. BAUGH: No questions of this witness.
17 THE COURT: Thank you. You may step down.
18 (Witness excused)
19 MR. GARCIA: The government calls Tabassum Butt.
20 TABASSUM BUTT,
21 called as a witness by the government,
22 having been duly sworn, testified as follows:
23 MR. GARCIA: May I, Judge?
24 DIRECT EXAMINATION
25 BY MR. GARCIA:
6734
1 Q Were you born in Kenya, ma'am?
2 A Yes, I am born in Kenya.
3 Q Was your brother Fahat Sheikh killed in the bombing in
4 Kenya on August 7, 1998?
5 A Yes, he was killed in the bomb blast.
6 Q Where did your brother work?
7 A He worked for the American Embassy in Nairobi.
8 Q What did he do, ma'am?
9 A He was the main cashier for the embassy.
10 Q How long had he been working at the embassy?
11 A He worked for about 26 years.
12 Q How old was he when he died?
13 A About 46.
14 MR. GARCIA: Your Honor, at this time the government
15 would offer Government's Exhibit 2201.
16 THE COURT: Yes, received.
17 (Government Exhibit 2201 received in evidence)
18 Q Could you tell us who is in that photograph.
19 A That's my brother Fahat. His oldest son Faraz, the
20 younger one Farin. That is his wife, Nasrin. And that is me
21 standing next to them.
22 Q Did your brother also have a daughter?
23 A Yes, he had a daughter. She wasn't with us on that day
24 because she had exams at the school.
25 Q Could you tell us something about your brother.
6735
1 A My brother was a very hard working. He was the backbone
2 of our family and he was a social worker for the neighborhood.
3 He helped the old, he helped the sick. In fact, on the day of
4 the bomb blast he had a letter to write for an old woman down
5 the road, and she was waiting for him on that Friday. He
6 never came home.
7 Q On that Friday, how did you learn that your brother had
8 been killed?
9 A I was in my office, and this was about 10:30 in the
10 morning, and we heard a big blast, although my office is about
11 two miles away from the embassy. We heard a big blast and it
12 was too loud, and I felt as if something landed on the roof of
13 our office. So I was just joking with one of my colleagues
14 and I said go outside and check, I think that airplanes landed
15 on the roof. So he said stop joking, I don't think it's an
16 airplane.
17 The next thing we heard, we got a call at the office
18 and we were told that there is a blast in the town. When we
19 tried to find out where it was, they said it's the Cooperative
20 House. We thought somebody was just trying to scare the
21 ministry for education there. So I switched on the TV in my
22 office, and I had the screen in front of me right there, and
23 the news flash started coming on, and the scene I saw was the
24 embassy, and all we could see was fire and smoke and people
25 running in all directions screaming, and blood all over.
6736
1 I knew where his office was because I had seen the
2 windows of his office many times. So I said that's it, that's
3 his office. And like a fool I started dialing his number, the
4 embassy number, and I asked my colleagues to try and phone
5 this number, and I didn't realize everything was dead. Our
6 phones went dead. I mean, there was no way we could reach the
7 embassy. There was nobody there.
8 Q Did you spend that night with your brother's family?
9 A Yes. I went home. I tried to ring home but something
10 went wrong with all the Nairobi phones and we couldn't reach
11 anyone. So I had to go out of the office and look for a
12 phone. I tried to ring home, and the daughter told me that
13 her mother wasn't at home. She was in town as well. So I
14 said do you know anything, have you had a call from your
15 father? She said no, I haven't. And I said look, if your
16 mother rings you from town, tell her to come home as fast as
17 you can because something very bad has happened. I didn't
18 tell her that it was the embassy that was bombed. And she
19 said please come home, I'm scared, I'm scared.
20 So by the time I reached home, it was like 5 in the
21 evening, and by then everybody had gathered up at the house
22 and people were going in all directions. Everybody started
23 going in all different directions to look for him. We thought
24 maybe he's in the hospital or maybe he is still stuck in the
25 embassy somewhere. But the whole night we looked for him and
6737
1 the whole night we were making calls all over the place. We
2 couldn't find him.
3 My husband went to the embassy in the morning. I
4 rang him and I said please come, there is something terrible
5 happened. So he came running to my office. The traffic was
6 at a standstill, so he had to walk. He had to walk almost
7 four miles to get to the embassy. He was there from morning
8 till evening, and there was no trace of my brother or any
9 news. So when I met him in the evening he told me look, I
10 have seen the scene, I was at the scene the whole day, and
11 things look very bad, and in