u'j,;l abd al-rahim hussein muhammed aildu al-naslliri ...€¦ · unclassifiediifor public...

$: U'J,;L ABD AL-RAHIM HUSSEIN MUHAMMED AIlDU AL-NASllIRI ...€¦ · unclassifiediifor public release military co;\j:\iiss10ns trial j udiciary guantanamo say unlted states of america$
UNCLASSIFIEDIIfOR PUBLIC RELEASE MILITARY CO;\J:\IISS10NS TRIAL J UDICIARY

GUANTA NAMO SAY

UNlTED STATES OF AMERICA

ABD AL-RAHIM HUSSEIN MUHAMMED AIlDU AL-NASllIRI

AJ,;QS2

OEfENS.: REPl.Y TO GO V}:R.J'IMEI'o'T RESPONS E TO I)J,;Fl£NSJ,; MOTION TO CO,\U'J,;L

lllSCOVJ,;RY O t- t'ROSECUTORIAL RFSOURO :S IN AOl)lTJO N TO

I)ETAIUI) COUNSEL

J JULY 201 2

I. TImcHnl~~: This rep! y is filcd wilhin Ihe timef"""e ~slablislH:<J by Military O ;>mmil'Sk,ns

Trial Judiciary Rules.

2. Reply:

I n. defe"", requeslc"<lthat the JI'=ution disclose the: level of govemn .. m resources

and assistanc~ that it ~i>"Cs in order 10 demonstrale the: disparate Ie"cl of «,Sources allocate<.! to

one side verses the OIhcr. As nOled by Congress. the: fairness a:nd cffeCli"cness <>fth"'"

commissiQ<lS is determined by the adequacy of funding nnd «'wuI"lxs gi\"Cn to the defense.

Military Commissions Act of2009. 12J Stat . 2 190 § 1807 (2009). He",. in order todemonsmlle

the tl"Cmendous inequalily_in.;lI"ms in thi s case. the defense requires this information from the

JIfOSI'<'ution. The JI'=ution has ",ven detaile<.! trinl roun",l.lO include thrN: civilians (two

\"Cry experiellC<'d OOJ allorneys) and a senior prose<:utor who is a eellCral OffICer. COIwersel y.

as of the: filing of Ihis mOlion. the: defen", has th",e delaile<.! counsel and a junior officer with

comparatively limite<.! experience lIS a 5UPfX>rt rounie!. Yel this 1evd of disparity ill government

,eso,,,,,es is ,,·hat exists on the: 'e<:ord. We do nOl kno ... to ... I"u extent the s;u of th e "",,,,,,mion

team is outside of detailed counsel that is !xing supporte<.! by government funds. The defense

argues that the: disclosure of this information will f unher demonstrnte and pm into a frame of

refel"CDCe the lack ofreSQUl'Cu afforded to lhe defense. This ;s espedally important as the

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Commiss;on consider,; the Con,'ening Authority's refusal to allow the defense to hire Ms,

Hollander as a consullant and 10 pay f ......... ork that might be don" by learned counsel's associale

la wyer or paralegal.

1lIe defcnse funher replies as follows:

A, T he " rusIXulion'~ l'urport\'d I)cfinHiun of Rde"3nl Miligalion (::,-idence i~ Unconstitutional a nd Not SUI'J>Ortl'" h,· Ihe I.a .. ',

Relevant miligating evidcllCc is evidence which Icnds logic31l~ to provc .... disprovc wme fact or circumswnce which a fact_finder coold n::as(lllabi y deem to ha,,<, mitigating ,'alue_" Thu_., ~ Stale can,,,,t bar th" con"id"",,'ion of ... e.'idcnce ir Ib~ ""m enL"" coold .... "<;<'oahly find th~t it w"rrnnl~ a sen""",. 1_ than death .

. Tennard v. Dn::tke, ~2 U.S. 274, 284 (2~)(internal citati'MlS omillcd)(cmpha,i, added),

In defining mitigalion evidence, Ihe Supreme Cuurt has sp<.>ken in the "most expansive

lenns." It/. (citing ~kKoy I'. No"!. C"mliml. 494 U.S. 433, 44041 (1m»; ,'"'e "I.", 1(""'l'ili" ,'.

Beard, 545 U.S. 374 (2005). "IAI Stale cann<;>t preclude the sentencer from considering 'an~

relevant miligaling evide ,-.:;c'thal tbe defendanl proffer,; in support of a senlen.;:e I",,, than dealh .

. . . Virtually no limits an.' plll«d on the rck,-ant mitigal ing l".-idcnn: a capital defendant

may int roduce conc~r"inl: hi~ own circurn<.tance<l" I'O}"" ,'. 1i:",,,,.,,,P~. 50 I U.S. 80s,

822( 199 I). Thi ~ lilxrnl view on the swpe of rni~igalion evidence thaI the defense m~~ present is

mimtred in RM C 1()().t(b)(3): '"Thc a.;,u<W shall be given broad lalitude to present evidence in

extenuation and miliption:" Sre (liso Unirrd SUU($ \'. Kreurur, 59 M.J. 773, 783 (A.C.C.A

2()()4) ([ RO.! 1()().t(b)3] allows trial defense counsel a wide range of oplions reganlillg

sentencing e,'idence, C(lllCQl11il~nlly, it imposes a greater burden to discover. investigate,

anal yl.e. evalu.:ue. and present extenuating and miligat iog eviden.;:e on hehalf of a clienl fxing a

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In its rcsl)()l'se. Ihe prosecutio" asks Ihe judge to C<)nl~",]ict Ihe Supreme Coun and the

black letler law in Ibe Manual and bind the defe'N: 10 a narmw a,,,1 cOIl:lliluliOl,ally inlinn

deli" ition of miti!!"t ion, Namely, the Itrosc<;ution asscns tl\m the defense is Ii mited to mitigation

evidence of an "accused's character. backgmlloo. aoo the cireumstanccs of Ihe offense." (Pros .

Resp. "' 7). TI" defense <'un sec wby 'he Itrosc<;ution would want the <"Oun '0 ad<,f'I such a

limiled definilion. Under its definiliOl'. 'he llefense would be flr"\'luded f mm "",senting any

evideno.><: that the ",-",used W;l$ waterbourded, threatened with a gun by US agents. or Otherwise

1000ured. See CIA h"l~tor General's Report. datc,] 7 May 2004 (unclassified version).

Howe>,er, tbis evidence is dearly rcic"am miligatiOl' insofar as the mrluruus treatment of IllC

accused by members of our gO"enHnent is a reason for a member not to I,,:emil thai same

g<)\'cmmcnt to kill him.

TI...., prosc<:ulion ciles to uJ{'tell ", 01,;0,438 U.s. 586 ( 197S), in suppor1. Ilowe''er, its

reading of I ... ,,·tell is i'lCOrrttt. V",kOl docs 'lOt Sland for Ihe proposition tbat mitigation

evidence i, limited toa narmw cia". In'tead,the prillCipal e->poused in uJ{;tell is that evide.-..;e

of a defendant' s d~"acler. prior record. or the cin,,,,,n,,,a"l"CS of IllC offense must be permilled in

a capital case. The Con",iluti"" dictales thai '"a Slate could not, COl,si"enl " 'ilb the Eighlb and

Fourteenth Ame,ldnlC"ts. prevent the sentencer fnHn <'..,nsidering and gi"i"g effeet to cviden<"C

relevant 10 the lk:fe,wtant"s backgmmld or character or 10 the cireurnSiance< of Ihe offense that

mitigate againSt imposinllthc death re,,,,lty. I'PIJry' , '. tY''''''Xh, 492 U.S. 302. 318 ( 19R9)(citcd in

Pros. Resp. at 7). More to the point. mitigatiOll evidcnce that relatcs 10 this category of

infonnat ion. "in all but the ~~re.<l kind of capital case" is I'''' _<P rele"arn cviden"c and the

Conititution requires that the defen!>C be allowed to introduce it as mitigating . Lockm. 438 U.S.

at 604. "[ I In capital e;lses the fundamental re<pcc< for bumanity underlyin~ the Eighth

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Amendmcnl ... requires ~'onsidcr"lion of Ihc char.><;lcr alld record of Ihe individual offClwlcr :!Iwl

the circum:;lall(:CS of Ihe panicular offell).C a< a co,,~itut ionally indispensable pan of Ihe proces.<

IIf infliCling IIIe pel\3hy of demh." IVII"'!""" I'. Nllnn C,,,,Jin(l. 428 U.S. 280. 304 (1976).

1lIc SO"cmmem's incom:ct application of Lnckell is funhe:r evidenced by the: Supreme

Coun's definilion of miligation e\-idence laid OUI more nx-cntly in 2(l(1.t in '/"P",,,,,,/,,. i),nIp.

542 U.S. 274 , 284 (2004), In 1"p",,,,n/, the Supreme Coun >laled that 'letermining the relevallCy

of mitigation cvidellCc in capi!al co!,!:s rollows !he same analysis 3S basic relc"aIICY

,leterminat ion,

We CSlablisl1C<J !1\3t the "meaning of relevance is 00 different in the ~Wlte" of mil ig;lling evidence introduced in a capiml senleocing proceeding" than in any other context, and thus the ge neral evide ntiary :;Iandard II arl'lies. , .. " Relevant mitigating evidence is evidence which ttrod, logically to pro'~ or disprove some fact or cin::umstaocc " 'hich a fa..., _finder ~~)uld reasonahly decm 10 havc mil iga,ing valoc'" Thu s.. a StOIC cannot bar "'hc cUllsidemtion of ... evidence if th e ",nleocer could "''''UIlably rtnd that it wamlnts a sentence less than death .... Once this low threshold for relevance is R1Ct . the: "Eighth AmcndmenC requires that the jury be able to consider and give effect to" a capital defend-1n"s mitigating cvidcII,:C,

Id. (internal citations omined).

l ',usly. in making a relc"aIICY dc!crmi!lal ion. 'he military jo;dgc--<lr an Artkle III

judge-is 001 limited 10 Ihe narrow catcgory laid OUt by Ihe gO"ernmcnt: instead. the judgc

'krcrmincs .... hcthcr a mcmocr could rcaS(M,ably find thatille cviden~'C warrantS a senlCllCe less

than dealh. r-or example. lhe: governmcm repea!edly points 10 Vlliltd States 1'. MOl<ssa<>IIi as a

nlOlkl for lhese ~api!al ~a!,!:s. In MOI'_'_"N"';. the defcnse .... os permiucd '0 intn"lu,:c ICSlimon~

from victim family members in 5lJppon for a sentencc less than dcath. (Su An3Chmcm A). Bul

if left up to !he 1'1'I):;I.:<:ulion_ Ihis olherwise pennissible miligation cvidc, .. 'C .... ""Id be c~cluded.

In its response. the government cites!o cases as alleged suppon for its assenion !hal

mitigation c"idcroce is only limited 10 0 nam)w class ofcvidencc. H"",·c'·er. thc factS of those

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casc~ e"en undermine Ihe governmenl'S o,,'n l)C)Silioo' For instance, in some of Ihose cases, Ihe

judge pennilled miligalion e"idence Ihat fell outside of the govennne"!'s "w" narmw definition.

!Xt', "_g_, Uniud S,mp_, ", F,I/, 531 1'_3d 197 (2<1 Cir_ 2008)(lhe defensc was allowed durill~

scntencing to introducc "execution impact" teSlimonY-Iestimony front Ihe defendant's family

,M' how Ihe e'cculion would affecl Ihen>-as mitigation evidence); I .• r" ,,/.'" Uno'ir" SIIl/P" ,._

Lighty, 616 F.3d 32 1, 345 (41h Cir. 20 10)(lhe defendanl was allowed 10 I"escnl e"idence in

mitigation 10 supporl his thcory Ihal an equally culpable defendam was '101 going 10 receive Ihe

dealh M'ntence). Ove.-.. ll. these cases do 1101 hold Ihat mitigali(lrl evidence is limiled 10 a narmw

elas.<_ However, they do "-'1'P'l'1 the 1""f"lSilion Ihal the judge is required to admil c"ide""c

",hiel' fall_, under /4H:lpll. s.", P.g" U"ileti Slalp,' ". Ch",,,lIr ,. 9% F.2d 1073. 10&6 (I Ilh Cir.

1993)( The mnge of possible SClllel\(.'CS Ihal Chandler might receivc in the ","enl Ihe jury did no.

te<:ommend death does nOi fall wilhin Ihis def)nili(lrl [in Locke"]' Accordingly. Ihe disirici cow,

was '101 required 10 inform the jury of the 1>Os.<iblc sentences Ola,ldler might f""c),

R. TI,e o.,rense b NIII ,\declualely Sl.3rr",d ~I thi~ Time.

Fu"her. Ihe proseculion a,;.,sc"s. as il has in the I"'Si Ihal. "[!Jhe defense has acee.« to all

of the I"<'Wurccs affonkd the O ffice of the Chief Oefcn~e CQun~I, including paralegal~, an~l yscs.

inle'l"':lers. and informalion_lechnology speciaTists." (Pro.<, Resp. al 12).l flut Ihis 'talen...,"t

A ,n",p'x," rae. " ;, ""'rly.n ".",,,,,.,i"i r,,,, "" ... <ler.,.I' .. ·• I' fo ,,' """, ... ~ .... or , "' ..... ,he " """",,,.,,,:c> >UrTWn<I,nl lhe m..-.J«. or .u)'thing.l>e .-.1'0'",,1 ,hat Mould ""IIg<>1 tba, • ....c."", 01 lir. in p.-iwu ~ it""'" th. """;bility 01 ........ ;". n~ .p","opn.,. "" .. >ion .... ' th"" a ... " ...... of

" ... tho

If, he"' .... ..-.y """h ,,'" 'P' ,n, rae. ",. .• \ en """" ... _"""" r ",ally ' 'i""d hy 'he der"""" -. -}')U '''' permi"od by I . .. , "' ", ... ide, lhem in )"" <lehbor.,"'n.

Un;ItJ $1",,, 0', Fell. :!OIlr> U.S. Di ... t.EX IS l 4707. °16 (Ap'il 24. :!OIlr»

' Only ,n ,1\0 h_"" ,,',okl of ,.., mil"",}, c""''''~'.'" " th. r"""""'.'" ",m or -SC"en M,,;1I,ol ",""",1 'I~ .. 'cd .> oommc .. "pon Of "'¥'"' 1h>.1 • def."", "' ... of 1M:<: <le .. iIcd '''WI><I ,. ad"""al<:ly ... fkd.

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eannOlix: viewed in a ,,:>cuom, Namcl~, Mr. Na,hiri's capilal ea<e is nOi Ihe only ea",! Ihal Ihe

OCDC mu:\l resource. In f:>cl, Ihi< case is nO! lhe on ly capilal ca,e Ihal lhe OCDC mu<l resource.

h.,lead, Ihe OCDC mUSt also provi,Lc ]l"ra\cgal, analyst, inlerprcters and informalion .{(:<;h"nlngy

""I'l""l 10 lhe Ii"e 911 I co.,ldendants, which is arguahly Ihe most high profile dealh penally case

in America ll'ercfore, in ,hal comC-'I, Ihc I"oscculion' s claim Ihat thc dcfense can f reel y pu \!

from the personnel al the OCDC i< enlirely inc<>treCl. Unli ke the proseculion. lhe defen<e must

scparale it, resources imo Icams " 'hieh may prcvem the uSC or exchange of lhose resources witl,

OIher leams due to lhe nOlioo,s of confliCI" of inlereH',

'n le Il')\'emment points to Ihc translalioo <erviecs Ihal the :>e<:uscd has i:lCcn providcd

However. the Convening Aulhorit y has repeatedly d('1l i",l tile defense '< ""Iue:\l for translalion

scr\'i,:cs and \>c<;ausc of this, the transla"'r.l ha"c hcen unahle to e,'cn finish Ihe job of translating

lhe 1.200 ]l"gt:s Ihal constilules the referral bi ,~ler. a job Ihal the (~::fense infon"",l the COOl1

aOOOI o"er Ihrec momh, ago. (Su Attachment R),

Simply put. as the defen<e has repeatedly a'<.<erled, it i< nO! adequately siaffed. Should

this commission require thc prosecution 10 re"calthc troc scope of ils pc,...-,nnc1, the fu\!

diS]l"rity in resoorces wi\! he readi ly "p]l"renl. Thi< is tile rea....,n die prost:Culion "I'poses Ihi<

mOlioOl, Whi\c suggeSling ,n Ihe world Ihal Ihe defcnse has adcqualC or abundant rcsoun.'CS,

which i< not true il seeks to) hid tile fu\! diSI);Irity of resources from lhe defen<e. Ihe commi<sio"

and the public

3, Attachments:

(R) Defense Translat ions RequeSI Forms a,1d Con venin g Authorily Denials,

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IIsll RICHARD KAMMEN Ci.·ili(m I","med C'H'IL,d

IIsll SfEPHEN C. REYES LCDR, JAGe, USN /)(/(lil('d De/('nu Co;"'.J('1

IIsll ALUSON C. DANEL$, Maj. USAF Assis/(llll Dr/IIi/I'd /)(/ellse Co;msrl

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O : RTIHCA n : Ot· SERVICE

I certiry lhal on July), 20 12. I eleclroo' icall y f,led Ihe forgoing documenl wilh the Clerk <Jf the Court and serve<.! lhe forgoillg Qn all COIlnid <Jf ~ by e·mail.

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/lsli STEPHEN C. REYES Licuicnam Commandcr JAGC. US Navy [)elai led [)efense Cwnsel

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ATTACHMENT

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A

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UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNITED STATES DISTRICT COURT FOR THE EASTERN DtSTRtCt OF V!RGtNtA

ALEXANDRIA DIVISION

UNITED StAtES OF AMERICA, Crimi ... al NO . 1 ; 01cr455

ZACARIAS MOUSSAOUI , a/k/a Shagil , a/k/a Abu Khalid al Sahrawi ,

Defendant .

Alexandria , Virginia April 19 , 2006 1 : 30 p . m.

SEALED

TRANSCRIPt OF JURY TRIAL BEFORE THE HONORABLE LEONIE M. BRINKEMA

UNitED StAtES DISTRICT JUDGE

APPEARANCES :

FOR THE GOVERNMENT :

FOR THE DEFENDANT ;

VOLLIME XXll - A

ROBERT A. SPENCER, AUSA DAVID J . NOVAK , AUSA DAVtD RASKIN , AUSA United States Attorney ' s Office 2100 Jamieson Avenue Alexandria , VA 22314

GERALD THOMAS ZERKIN KENNETH P. TROCCOLI ANNE M. CHAPMAN

4230

Assistant Federal Public Defenders OHice of the Federal Public Defender 1650 King Street Alexandria , VA 22314

COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES

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1 APPEARANCES : (Cont · d . 1

2 FOR THE DEFENDANT:

, , , , , COURT REPORTERS :

, ,

'" " " " 14

" " " " 19

20

" " " 24

"

EDWARD B. r-'.AC MAHON . JR • • ESQ. P.O . BOx 903 107 East Washington Street Middleburg , VA 20118

'"' ALAN H . YAMAMOIO. ESQ. 643 South washinqton Street Alexandria . VA 22314-3032

ANNELIESE J . THOMSON. RllR . CRR NORMAN B. LINNELL. CRR U.S . District Court 401 Courthouse Square Alexandria . VA 22314 (703)299-8595

4231

UNCLASSIFIEDIIFOR PUBLIC RELEASE 4307

, MR. ZERKIN , No , Your Honor, he may be e x cused .

2 THE COURT: All right , thank you , Doctor , you are

, excused .

, NOTE : The witness stood down .

, THE COURT , All right your next witness . Ms . Chapman .

, MS. CHAPMAN : Your Honor , the defense calls Marilynn

, RoSentohal .

S MARILYNN ROSENTHAL , DEFENDANT ' S WITNESS , AFFIRMED

9 DIRECT EXAMINATION

10 BY MS . CAAPMAN :

11 O. Mrs . Rosenthal , would you please state your name and spell it

12 tor the record .

I 3 /; .

15 Q.

16 A.

11 Q .

18 A.

Certainly . Madly,,,, Rosenthal . M-a-r-l - l - y- n- n

And where do you live , Ms . Rosenthal?

1 live in Ann Arbor , Michigan .

And you are a professor in an Ann Arbor , is that right?

Yes , tha t ' s right. I 11m sn adjunct professor in >ohe medical

19 school at the University of Michigan .

20 O. And can you t ell the jury about sOme of the classes that you

21 teach there .

22 A. Yes . I am a social scientist . I am a medical sociologist.

2) And 1 have been teaching courses about the American health care

2 4 system, comparative health care systems , the medical profession .

2S And most recently 1 have been teaching medical students and

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1 residents about research on medical mistakes.

2 Q . And let ' s talk a little bit , move on to talking about your

3 son Josh . Your son Josh was killed on September II ; is that

4 right?

, A. That ' s co.-rect .

, Q. And Josh worked "' '0" World Trade Center; is that right?

, A. Right .

, Q. What '" Josh do? What did he '0 for work?

, A. He worked , 0" . .. io '0" world of finance. He was senior

10 vice-president at a company called Fiduciary Trust International ,

II which specializes in pension funds and endowments allover the

12 world .

13 Q. lind did the family have a memorial service for Josh after

14 9/ll?

15 A. We did . There were several memorial services. One memorial

16 service was held in Michigan where he spent the first part of his

11 life . And the second memorial service was held in New York where

18 he spent the second part of his life .

19 Q. lind can you tell the jury what the effect of Josh ' s death has

20 been on you ",nd your family:

21 A. That ' S, that ' S a tough question . It ' S , it's-- It ' S very

22 difficult to find the right words that describe the horror and the

2) shOCk and the frustration of , of 9U .

L L I ' m a woman of words. I lecture to students all

2S the time. And it ' s , it ' s hard to find the adjectives that e xplain

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1 how you fel t. There is a tremendous sense of disbelief, this just

2 couldn ' t be happenin9 . couldn ' t be happening to my son , it

3 couldn ' t be happening to my family , couldn ' t be happening to my

4 country . So , there is II great sense of , of disbelief .

, And t;hen slowly you , you have t;0 COme t o terms wit;h t;he

6 fact that in this horrendous historic event , okay , you lost

7 someone who was central to your life .

" Q. And let ' s tell the jury a little bit about Josh . Can we

9 please show VW026.

10 Is that a picture of Josh as a , as a young child?

11 A. Thet ' s Josh . I think thet ' s Josh on his third birthdey .

12 Q . Can you t ell t he jury what; Josh was like growing uP?

I 3 /; . AS he was growing up?

14 Q . Yes .

15 A. Yeah . He was , there was a lot of sunshine in that child .

16 And he was very friendly and liked people a lot . lie was a little

17 too adventuresome and very curious . And he had a very good sense

18 ot humor and there wlls II certain whimsy about him always .

" As a little boy , I think he wanted to be a fireman . And

20 that ' s what you are seeing In that photo9raph.

21 Q . And can we also show the wit;ness VW032 .

" THE COURT , I am assuming there is no objection to these

2) e xhibits?

MR. RAS KIN : No objection .

THE COURT: All right.

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1 (Defendant's Exhibit VW032 and VW028 were received in

2 evidence.

3 BY MS . CHAPMAN :

, Q . lind is this "Iso II picture Josh?

, A . This is Josh , he is nOt a little boy anymore , he is a grown

6 man , but that sense of fun and whimsy stayed with him . hnd I

7 think he is ent ertaining his twO nie~s , whom he loved very mUCh ,

8 by making a circle of straws and making a funny face . Typical

9 Josh .

10 Q . What W"5 Josh like "s "n "dult?

11 II . JOSh Wll5 II guy who was very much shaped , ! think , by an

12 e xperience he had in high school . May , may I tall: about t ha t?

13 Q. Yes .

14 A. Okay , I t hink t hat will tell you a lot about Josh . When he

15 was in middle school , he was a little too curious and a little too

16 adventuresome , and he WillS st"rting to hang out in pool rooms . And

17 he wanted to be in a rock band , "nd that didn ' t quite fit our

18 family style .

" So, when he w"s "bout to go to high school , I called his

20 debate coach "nd ! sllid , " Ple"se w"tch for this guy, 1 think he ' s

21 going to be just wh a t you want on the debate team . "

" And sure enough , he got on the debate team. And he had

23 absolutely a marvelous e xperience because he learned how to search

24 for fact" , he le"rned that there were many opinions on every

2S issue , and he learned that you have to put issues into a context.

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, And I think he carried that frame of mind .. ith him into

2 his adult life and into his adult work. And that ' s something that

3 the fami Iy and I are very proud of .

4 I thought he was going to be a lawyer , as a matter of

5 !l!.CfO .

, Q. And you mentioned that you at one point .. ere surprised that

7 Josh had gone into finance ; is that right?

, A. Yes , yes. It was a surprise to everybody , I think including

9 Josh . lie was very much interested in public policy and he wanted

10 to do government serVlce .

11 At the University of Michigan he was a student in the

12 school of Public policy and was a political science and economic

13 major. And then he went to the Woodrow Wilson School fOO study

14 publiC policy and internafOional affairs .

15 And when he graduated, he did have a job in Washington ,

16 but even in those days there was budget cutting , and at the last

11 minute hi.s job got e1i.minllted . And he "liS stuck ",ithout 11 job .

18 And SOmeOne called the Woodrow Wilson School who hlld

19 grlldullted from there lind silid he "'liS IIbout to become president of

20 the New York Mercantile Exchange and he wanted an assin4nt _ And

21 he was also somebody who was very interested in publiC policy .

22 So Josh, desperate not to be on the dole , took that job .

23 And it started him on a career that , that nobody expected . And

24 perhllps he didn ' t himself .

2S Q. And was Josh also interested in sailing?

, .... ",----------....... 2012 POlIO· "" POlIO'·""" •


, A. Josh had several different hobbies . He was very interested

2 in mountain hikin<;l. He liked to travel , he traveled all over the

3 world . ~e was very interested in finding out about other

4 countries and other places .

5 And he had a knee injury and couldn ' t hike anymore , so

6 he , he took up sailin<;l. I'.nd he didn ' t start in a very promisin<;l

7 way . He would cOOle back and say , oh , god, the spinnaker fell into

S the water and , it was so embarrassin<;l , they had to come out an tow

9 us in . But he did become a <;Iood sailor.

10 And he got interested in scuba diving, and he did a lot

11 of tha>o >000 .

12 Q . May we show the whness VW031 .

THE COURT , All right . that is also in evidence .

14 (Defendant ' s Exhibh VW031 received in evidence .

15 BY MS . CHAPMAN ,

16 Q. Who is with Josh in that picture?

11 A . That ' s Josh with his oldest niece, his sister ' s daughter ,

18 Madi . Madi, that beautiful. curly- headed little girl is about

19 three there, And Josh just adored Madi and then her sister Ali ,

20 Ale~andra .

21 And as busy as he was , he would baby-sit occasionally

22 and play with the <;Iirls . And he traveled a lot on his work and he

23 always brou<;lht them back <;lifts from wherever he was.

24 Q. Can you tell the jury about ho,", your family is doing . doing

2S now .

Paoo 11 or,,",


, A. How the family is doing no,,? Well , we have all , we all have

2 a very strong feeling that we are not going to get caught up in

3 bnd of a whirlpool of frustration and sadness and anger .

4 ! would say everybody in the family , and! believe this

5 very strong in myself. wantS something good Or pOSitive to COme

6 out of what happened, what happened to Josh , what happened to all

7 the other sons and daughters and what happened to Our country . we

S feel that something good has to come out of it .

9 So, we have tried to move forward , getting back to our

10 0"1'1 lives and yet finding a way to , also to understand what

11 happened . And for me that meant finding out everything , finding

12 Out where Josh was that morning and why he didn ' t get out .

13 Finding out who al Qaeda was and why they e x isted and what they

14 were aftec. And finding out about the man , the hijacker , the

15 hijacker pilot who flew the plane into the South Tower where Josh

16 was.

17 So for me , I have spent the last four years dOing

18 research for a book that represents understanding , my

19 understanding of the answers to all those questions , And I am not

20 quite finished with that book , but t hope it will contribute to

21 other people ' S understanding as well .

22 Q. And your family has done something at the university to honor

23 Josh; is that right?

24 A. Th!lt ' s right , that ' s right . We set up !In !lnnual lecture

2S series in Josh ' s n!lme !It the Gerald R. Ford School of Public

Pog.o 10 01 ,. P og.o 1001'"


1 Policy at the University of Michigan . So for the last four years

2 and at this anniversary in September and from here on in there is

3 a lecture given by an expert on SOme aspect of the issues around

4 9/11 .

5 The first speaker in 2002 was Retired General Brent

6 5cowcroft , a former national security advisor in the first , in the

7 father Bush administration .

S And the second speaker was Robin Wright , who is a

9 foreign correspondent and an expert on the Middle East for the

10 Washington Post .

11 lind the third speeker wes Jessica Stern , an e xpert from

12 the Kennedy school at Harvard who has written extensively about

13 how religiOUS tenorists think , terrorists in all the

14 monotheistic , all the major religiOUS .

15 And then our speaker last year talking about national

16 security issues was U.S . Senator Carl Levine. And that series

17 .. il\ go on , I think it is appropriate that a university do this so

18 that we continue to examine from as rnany different pOints of view

19 as possible what 9/11 was all about.

20 O. lind in addition to the speaking series , did your family also

21 name a cookie after Josh?

22 A. Every time there is a family event , one of , my greatniece ,

23 Pam, brings Josh's favorite cookie . His initials were JAR, Josh

24 Alan Rosenthal, so she this calls it the JAR Bar. And so Josh is

2S .. ith us at Thanksgiving , on passover , on summer holidays , whenever

Paoo ,. "'OJ


1 the whole family gets together . I should have brought some , they

2 are incredibly good.

MS . C~APMAN : Thank you , Mrs . Rosenthal . Thank you for

4 your time .

, THE WITNESS : Okay . Thank you .

, THE COURT , Mr. Raskin?

, MR . RASKIN : No questions , Your Honor.

, THE COURT , Thank you , ma ' anI . You are e xcused as a

, witness.

'" NOTE : The w; tness stood down .

" THE COURT , Call your next witness .

" MR . YAMAMOTO : call Robin Therkauf , Your Honor .

" THE COURT , All right.

" ROBIN THEURKAUF , DEFENDANT ' S WITNESS , AFFIRMED

" DIRECT EXAMINATION

16 BY MR . YAMAMOTO,

11 Q . Good afternoon , MS . Theurkauf . Can you g;ve us your name ,

18 and spell your last name , please .

19 A. Rob;n Theurkauf . And the last full name ;s spelled

20 T-h-e-u -r-k-a-u - f.

21 O. And Robin , I presume is Robin?

22 A. Correct .

TilE COURT , Ma ' am, Can you just speak a little closer to

24 that m;crophone. We want to be able to hear you . Thank you .

25 BY MR . YAMAMOTO,


, Q . Ms. Theurkauf , you lost your husband Tom in the World Trade

2 Center?

, , . Yes .

, Q. lind who did he work for?

, A. " worked '0< Keefe , Bruyette , woods .

, Q. '" Tower 27

, A. '" the South Tower , yes .

, Q. Can you tell "" . little ", about your marriage to Tom .

, A. Well , we were married almost ,. years. w, have three sons.

10 My husband was a joyful , joyful person. When he was home from

11 wo rk , it was all about fun . The boys adored him .

I was the parent that took Care of the logistics , the

13 homework, the pediatrician , those sorts of things , but my husband

14 was the , was the parent wh o brought joy into , into the house . And

15 when dad came home , it was party time.

16 Q . Can we have VW039, please .

MIL RASKIN : No objection .

THE COURT : 1111 right , Mr. Raskin . It ' s In.

19 (Defendant ' s E"hibi t VW039 was received in evidence . >

20 BY MR . YAMAMOTO :

21 Q . can you tell uS what the top photograph there is?

22 A. The top photograph is the five of us . We are in Maine .

23 Every summer for several weeks in August we would go with my

24 in-laws and my in-law family , we would all gather in Maine . And

2S we are standing on a dock which is about ten feet off the water.

Paoo 21 or",


1 And I don ' t know if you are aware , the water is extraordinarily

2 cold . And every year at least one time We would walk down to that

3 dock and as a family , jump into the water and swim as quickly as

4 possible to the ladder .

5 so we have jus t , in this photograph just emerged .

, Q. And the second photo, please .

, A . Ihis photograph is , was also taken in Maine . We are on a

S whale watch , which we would do every other year or so . Again , the

9 water is very cold, sO We are aU bundled up. My husband is on

10 the left . Ne"t to his to him is his brother Bill . And Bill is

11 holding h is daughter Sarah . And the wOman who is ho ldi ng my sOn

12 Tom is IOm ' ! sister Patti . so--

13 Q. And the las t photO.

14 A. Ihe last photo is a picture of Tom and he is holding a baby ,

15 looks to be Ted . My children are very close in age , so for many

16 years one of U3 or both of U3 Wa3 carrying a baby on our back .

17 Q . No"" waS your husband demOnstrative in his affection toward

18 you?

19 11 . He was , yes , I would say that he was .

20 Q . Wou ld he give you presents?

21 A. He spent a lot , a fair amount of time traveling . so when he

22 was home , he was completely home , often showing up with flowers ,

2) gifu of one 30rt or another . Clothe3 , he would buy me clothe3.

24 Q.

2S A.

Ho", about flowers , how often wou ld you get flowers?

Oh , at least monthly , usually as a 3urprise.

, .... ",----------....... 2012

•


, Q .

2 A.

And did you ever receive something in a brown paper bag?

Indeed . He , again while we were in Maine , we had been just

3 window shopping in Cilmden , Maine and 1 had admired ill piece of

4 jewelry, diamond jewelry in the window . And! wes On the beach

5 and he was coming dOwn the nairs . And he bad 11 paper bag in his

6 hand which I thought was hors d ' oeuvres or cheese or something ,

7 and it; was the diamond ring .

" Q.

, A.

10 Q.

Now, what did Tom teach you about receiving gifts?

TO be gracious and accept them with all my heart.

What was your horne like with Tom around?

11 A. Well, as you can im3g!ne , with three small boys and one large

12 boy, it; was often it wail full of fun. But it was also messy

13 and there was always something cook ing in t he k itchen . He was an

14 amat;eur gourmet . so we were always baking bread Or making

15 something and chopping . So it was usually pretty messy .

16 Q. Now on weekends , did he do the breakfast cooking7

11 A . He ,"ould do pretty much all the cooking " hen he ",as home . , 18 am not much of a cook , so he would pretty much cook everyth ing .

19 Q. Now, he worked at the World Trade Center . Was there-- Were

20 there plans for him to move f rom the Trade Cent;er7

21 A. Yes . we had been t;hrough t;he 1993 bombing , and I was not

22 very fond of the offices in the World Trade Center . And there was

23 always talk about moving the firm to midtown. But when their

24 lease e "pired , rather than mOve the firm to midto",n , they moved up

2S the building , they moved up to the 89th floor .


, And, you know, the commute was terrible. And I was just

2 very feartul of the building . 1 did not let my children go in to

3 see his office . If we went into New York , he would COme down .

4 And about the turn of the year 2001 . we had agreed that it was

5 time tor him to spend mOre time at home . And he arranged to qet

6 an office In Stanford, it would just have been him and his staff

7 and his analyst and 50 forth . And that office was supposed to

S open September 1 .

, Q. Did it open?

lOA . It did not open . There ""s problems with t he

11 telecommunlcatlof'\s , and then it was rescheduled to open I believe

12 the 18th of Sept ember .

13 Q. Do you know wha t he did for a living , what k ind of work he

14 did?

15 A. He was an analyst .

16 Q. What kind of analyst?

11 A . !lBW speciali"es in financial firms , and my husband

18 specialized In regional banks. So he was a regional bank analyst.

19 Q. Do you know what his reputation was as an analyst?

20 /; . He worked a t the firm nine years and had made a name for

21 himself as , it you wanted to taU about regional banks , he would

22 have been the guy you would have talked to.

2) Q. Now, on September 11 of 2001 , what were you doing?

2 4 A. I was driving in my car to New Haven , Connecticut. I had

2S begun working as a , as a lecturer at "tale University in the

Pog.o , . 0/,.


1 Political Science Department . And I had had my first class

2 September 10. And the seminar was oversubscribed, so 1 had

3 developed a Jist of the 15 students or so r was going to admit to

4 the seminar and was driving to New Haven t.o post the list in the

5 Polit.ical science Department .

, And the radio station , the NPR station , I can get the hM

7 version of it all t.he way from New York t.o New Haven , So I was , I

S was listening to the radio .

9 Q. A.nd <IS you were driving , did you receive a call?

10 A. My nanny called to tell me that she had spoken to Tom, that

11 there was a problem at the , at the other tower , and they were

12 leaving . That was the laSt I heard .

I) Q. I\nd what , what did you hear ne~t? What did you learn ne~t?

14 I am sorry .

15 A. The story was unfolding on the radio . And I heard that the

16 plane had flown into the South Tower .

11 Q . What did you do?

1 8 1\ • Well, t was , as you might e ~pect . quite fran tic . t was stuck

19 ~n a traffic jam very close to where I was gOlng . So!, when I

20 arrived, I dashed into the political Science Department ' s office

21 and I threw the notes at the secretary and said that I had to go ,

22 that there was a problem at the Trade Center and my husband worked

2) there .

24 It was one of those odd feelings that when 1 heard that

25 the South Tower had , had been , a plane had flown into it , right in


1 that moment I was certain that my husband would not survive .

2 And so 1 was , I drove home as quickly as possible . And

3 as I pulled into the driveway, the gravel under the tires made

4 this sort of electrifying noise . and I wes . I was stunned to

5 notice t;hat my family had not yet arrived because I assumed they .

6 they knew this and they would be arriving , but of COUlse I was

7 already in my car driving . And they did arrive shonly

S thereafter.

, Q. "tour other family members for both sides of the family lived

10 in Connecticut?

11 A. Both sides of the fllmily lived In Connecticut. My parents

12 live in Cheshi1"e , Connecticut . And , and my in-laws lived in

13 Glastonbery , Connecticut .

14 Q . Your subsequently learned lOhat your husband .. as k illed in t he

15 collapse of the towers?

16 A. I don ' t think any of us officially learned that . But after

11 waiting through that week on friday , I knew in my heart he had

18 died . And it was 1\ matter of waiting for the rest of fOhe family

19 members to stop this frantic search and accept this with me . And

20 then we dec:ided thllt we would tell the children . I>.nd lit lOhat

21 mOment we had to be Sure that we knew he .. as dead . BulO I don ' t

22 think anybody actually knew that--

2) Q. At what point did you become sure?

24 A. In the empirical sense of sure?

2S Q. Ri qht .

, .... ",----------....... 2012 Pog.o ,. 0/ ,.

•


, A. 1 am one of the fortunate family members to have received my

2 husband ' s remains intact . So 1 believe it was in October the

3 police came to my house lind notified me thllt my husband ' s remains

4 had been identified . ~nd so he is buried in Gillstonbery with his

5 parent;s .

, Q. Did you have a memorial service?

, A . Yes , we had a memorial service before we had recovered t;he

S body . And that was also in Glastonbery. Actually it was in

9 Hartford at my in- law ' s , the church in Hartford, Connecticut .

10 Q. What was the reaction of the kids to the loss of their

11 fa.ther?

12 A. They were heartbroken .

I) Q. Did they understand that their dad wasn ' t 90in9 to Come home

14 ever again?

15 A. Yes . They were ages 12 , 11 and nine at the time . And when I

16 told them that their hther had died , I wanted them to be sure and

11 not worry or have some sort of glimmer of hope that would eat away

18 at; t;hem . So when we told them , we made quite Sure that; we were

19 all certain .

20 Q . How is it for you after the events of 91l1?

21 A. Well , we had , we had a few difficult years . 1t; ' 5 a hard

22 thing to come to accept and to figure out how to manage , how to

2) take steps in the direction of forward , how to figure out who you

24 are and what your life is supposed to be after something like

25 that .

Pog.o , . 0/ ,.


Immediately after, did you go back and teach? , Q .

2 A. I did . And 1 sent my children back to school. 1 had no idea

3 .. hat to do , and we had spent a week at home "o.-rying and staring

4 at One another . ! hlld nO idea how to start moving forward e)[Cept

5 by moving forward . And the boys went; back to school .

6 And for that very first year we kept e x tremely busy ,

7 e x tremely busy So that; we gave ourselves a little bit ot time to

S think and process through what had happened to us .

, Q. Eventually did you uke some time oft?

lOA . The second year 1-- I tau9ht the first year. And the second

11 year t took time to, where t was not teaching , to sort ot

12 reassemble my lite and to process through sOme depression , I

13 think . 1 spent a lot of time resting On the couch.

14 Q . Let me back up for a ~econd . Did you go down to the World

15 Trade Center site?

16 A. re~ .

11 Q . When waS that?

1 8 1\ • It was , it was the day when-- Because nO One had any remains

19 ~n the early days . Paperwork had to be processed, for people to

20 get life insurance and sO forth . So they were taking affidavits

21 on the peer . so , many family members had COme in to speak to

22 lawyers that had been assembled for us so that we could begin the

2) process of getting a death certificate and doing legal thing3 and

24 so forth .

2S And that wa3 the first day that they had a boat that


, they were taking family melMers '0 ,~ "" Trade Center site. '0

2 , went 00 ,,- first boat ",., went d~o '0 see, '0 ,-- <h_

, disaster. " was st;'l1 00 fire . '" " ." shocking .

, M " ." such a stunning thing '0 have happened, that

, , needed ' 0 see , to make myself -- to make rn, mind ,-- something

, '0 , could begin ,,- process 0' grasping what '_d happened.

, o. Have the kids ever been down to the site?

, ,. The kids have not . We have not been to any of the memorials .

9 'lou know, We have sort of been healing ourselves in our own house

10 and , you know . with Our family and friends and sO forth .

II And occasionally! ask them if they are ready to go see

12 the Trade center site , and up until today so far they have not

13 wanted to go.

14 Q . Okay . HOw are they coping?

15 A. They are , they are doing very well now. It· S hard for me to

16 remember e xactly what that first year was like. 1 do know that

11 children process things very differently than adults do . Children

18 deal with what ' s right in front of them . And if that ' s a very sad

19 thing , they are very sad . But if it is a very funny think . they

20 can be full of laughter .

21 so we did as many really fun things as we could in Our

22 efforts to keep ourselves together .

23 r feel blessed that they were old enough to remember

24 their father . r know family members whose children were young and

2S they don ' t feel the pain of los~ of their father ' s death. but they


1 also don ' t have any memories of their father either .

2 And although my children have to live "ith that loss ,

3 they , they have memories that they will ta~ e forward with them

4 forever.

, Q . DO you-all t alk about their dad?

, A. They do , mostly after remembering very silly things that he

7 had done .

Like what? , Q.

, A. He-- Oh, we had to -- one incident with a fishing hook . He

10 took, we have a little pond near the backyard , and he took my

11 youngest fishing and somehow managed to, It was a lure with two

12 hooks on one end , and hooked a fish on one , brought it in t he boat

13 and the fish is flopping around , and It hoo ked him in the hand so

14 now he is a tt ached to the fish . My young son had to row back in .

Who took the hook out? 15 Q .

16 A. The hook was taken out in the emergency room, but 1 had to

17 cut the fish off the lure .

18 Q. Do you see your husbllnd in your kids?

19 A. Of cOUl"se . Their-- Each of them is very much, very much a

20 part of him. In my oldest , T see the fierce competition . 1 see

21 his love of family , his joy for living .

22 My, my middle boy looks very much like , like my husband

2) did . They have the Same hair . And the back of their head is sort

24 of identical . And my middle boy , Ted, is very empathetic and very

25 "arm and has great concern for others.

Paoo JO or,,",


1 And my youngest has that little devil in him that was so

2 much a part of my husband .

, Q . How do you want your k ids to remember their dad?

, , . ! think the grea t est gift that my children go t from their

5 tather was jus t a founda tion ot unconditiona l love . Tha t t hey can

6 a l ways hold in their heart that their father l oved them comple t e ly

7 and , you k now , t aught them how to love o t hers and how to be ,

S practice hospitality , to always have good food and great fri e nds

9 in your home .

And so, I hope they remember those things .

11 O. No w, you wen t back to school eventually?

12 A. Yes . I realized tha t spending any more t ime in the poli t ical

13 Science Department was really not going to be fruitful for me .

14 so , 1- * The political science De partment is right down t he hill

15 from the Divinity School , and I always k new that the Divinity

16 School was there , my brother- in- law is a graduate . And 1 thought

11 that that would be a great place to heal myself , that there would

18 be wonderful people there and t could spend some time trying to

19 ma ke sense of what had happened to me and my family .

20 O. Have you?

21 A. 1 am wor king on i t . AS a Christian woman , one has to accept

22 or ponder the que stion of why the wor l d is the way it is . In my

23 work in the Political Science De partment , 1 had worked under the

2 4 International Criminal Court , which is concerned with gross

2S violations of human rights . And one of the things 1 had always

, .... ",----------. ...... 2012 Paoo " or ,,",

•


1 understood about the world Is that human beings are really very

2 flawed and broken species.

3 The things that hum"n beings will do to other human

4 beings and have done throughout history , if you spend any time a t

5 all 100Hn9 at it , is suggedn" .

6 And one of the things that the Bible attempts to explain

7 tor uS is how -- the fallen nature of humanity and t;he tact that

S we were all sinners and we are all broken , broken people .

9 But on the other side , we are all children of God and

10 loved by God .

" MR. YAMAMOTO : Th/lnk you , Mrs . Theurkauf.

THE COURT: Mr . Spencer , i'lL Raskin , any cross?

MR. RASKIN : No , nO CrOSS.

THE COURT : Thank you , ma ' am, fOI" yOUI" testimony .

NOTE , The witness stood down .

16 TilE COURT ' And we will now take , 1 am sorry I kept you

11 late , but I didn't wan t to interrupt the testimony , until 5 after

18 four we will have our break .

" (Recess from 3 , 44 p.m ., until 4 , 05 p .m.)

" (Defendant and Jury in . )

H THE COURT : All right , MS . Chapman , you may proceed .

" MS. CHAPMAN , Your Honor , the defense calls Patricia

2) Perry .

" THE COURT , I don ' t know what ' s in the air . Half this

2S jury is

, .... ",----------....... 2012 P aoo 32 or9J

•


, A JUROR : Dust.

2 THE COURT : Is that what it is7 I ' m sorry about that .

3 If any of the Jurors need water . you know , I ' m look.ing at you .

4 Just get our a ttention .

, MS . CHAPMAN : May I proceed. YOU1" HOnOr?

, THE COURT , Ye s , ma ' am .

7 PATRICIA PERRY , DEF ENDANT ' S WITNESS . AFFIRMED

S DIRECT EXAMINATION

9 BY MS . CHAPMAN :

10 Q. MS. ?e.-ry . would you plellse introduce yourself and spell your

11 fi rst and las t name , plel\se~

12 A. My name is pa t cicia Perry .

13 Q . lind can you spell your first and your last name?

14 A. Oh . I ' m sorry , I couldn ' t heal" you . Oh , p-a-t ~r-i-c-i-a

15 P -- as in Pete r -- -e-r-r-y .

16 Q. And where do you live , MS . perry?

11 A . We leave in Seaford , wh ich is in Nassau County. New York.

18 O . And you.- son , John , wllS II pol ice officer in Ncw York ; is t ha t

19 right?

20 /; . Yes , he was .

21 Q . And John was killed on September II ?

22 A. Yes , he was .

23 Q. And can you tell the jury what John was qoinq to do on

2 4 September II?

2S A. Oh , 1 don ' t know how much time the y have , but John , John qot

, .... ",----------....... 2012

•


1 up early that morning and had already started doing . He was

2 working for a campaign for a political ~rson. And as you

3 probably remember , September II ",as a primary day in New York

4 Ci ty, so he stopped by the campaign office sometime after 6 : 00 In

5 the morninq , after a very shon niqht , as he was hanqinq posters

6 until 1 : 00 , and saw the collected volunteers and told them that he

7 would be back in the af ternoon to help them do a call-in and qet

S ~ople to vote .

9 And then he took the subw,,"y down to One Police PlIIz,," ,

10 which is the headqullrters of the NYPO, and he siqned his

11 resiqnlltion papers and turned in his tin , which was his badge .

" Q . John --n •• lind -- yes?

" Q . GO ahead .

" A. I'm sorry . And about that time , "0 first plane hit .

16 Q. So John ... resigninq .. • police officer 00 September 117

" A. Yes , "- was. lie had • job ",aitinq '0< him wi th , medical

18 !TI4lp..actice firm.

19 Q. lind --

20 II . He wllS also a lawyer .

21 Q . And what did John do then when he was In the process of

22 resigning?

2) A. He said, "Give me b,,"ck my badge , and 1 ' 11 return , and we ' ll

24 finish this . ·

2S Q. So --

, .... ",----------....... 2012

•


, A. And he went down to the first floor , and he purchased a $35

2 HYPD polo shirt with emblem, because he was in civilian clothes ,

3 and he ran out the door to go to the world Trade Center ,

, Q . /;nd how did you learn that John had been ki lied On September

5 ll?

, A. We actually had some minor confirmation that he was there 24

7 hours later . we SOrt of knew , but until 24 hours later , we did

S not learn from the man with whom he had entered the World Trade

9 Center to help others , and that man was fortunate to survive. His

10 name was Captain Timothy Pearson .

11 O. /;nd Captain Pea rson told you that he and John had been

12 helping others in the World Trade Center ; is that right?

J) /;. That ' s correct . Actually , Ti"",y had called the precinct

14 where John was then assigned and wanted to know what happened to

15 John , because Timothy escaped, and he didn ' t know that John

16 hadn ' t , and that's when he said , "Ile was with me . "

17 What happened was that they were working under the

18 towers on the plaza , under plaza area , directing those persons who

19 were coming down the stairwells , exhausted and wanting to stop and

20 rela ~, and they were encouraging them to keep moving, keep moving,

21 and go underground to exits that would take them to the street

22 level , because they could see what was happening outside the

2) buildings , and they did not want them to be hurt or even to be

24 frightened by what was going on with all the debris coming down

2S and the bodies thllt were coming down lit thllt time.


1 And they were fairly comfortable, according to Timmy ,

2 doing what they were doin<;l , because they were not in great fear

3 for their own lives until really close to the time ",hen the second

4 tower fell , and at that pOint , they <;lot really kind of concerned .

, I n fact , my son , John , told Timmy , " You ' re qoinq to qet

6 a promotion for this ." And of course he did. He ' s no", a deputy

7 chief .

S So it , I think , was the second to",er which fell first ,

9 and the impact when it imploded threw dust and debris all through

10 that level where they were , and somehow Timmy and a fe", other

11 people ",ho were in the area were able to find each other and find

12 a way out, and Timmy did nOt know that John was not able t o qet

13 out , because it was too much confusion , and sO it was not until

14 the next day .

And even after that , there were e-mails and there were

16 websites that were posted with names of people who were surviving,

17 and his name was on SOme of those, those postinqs . So it was

18 really very confusinq to, to know what. happened since there was no

19 cO!1lnunication . And many people that went there to help rescue

20 stayed there , slept where they could for a few hours , and helped

21 sOme mOre . so we had sOme hope that maybe he was one of those

22 persons .

23 Q. And you eventually learned that he did , in fact , die on

24 September II?

2S A. Well , after a few days , it became evident. In fact , by the

, .... ",----------....... 2012

•


1 second day , the police poste d his name with the other 23 ~~ 22

2 police officers whom they knew had not survived .

, O. And did you have a memorial service then?

, , . Oh , yes , ye" . T don ' t know how many people know wha>o >000

5 police do , bu t it was , it was a grand memoria l service . I t ' S with

6 motorcycle police and police on horseback and a long parade of

7 uniform men and women up and down the !l t reet. And, of course , t he

S church was ove rflowing . And at the end, they have the bagpipe

9 band and the flyover .

10 So they do honor ~~ the police , NYf'O takes good care of

II families .

" Q . They >oook good Care "' you and your famil y ?

" , . They took e xtremely good car .. and continue c" '" many way" .

" Q . And can ,"0 t ell ", jury about >ohe effect "' John ' S dea t h on

" ,"0 and your family?

16 A. Well , like all families , we ' ve b .... n devastated . , mean , , 17 can ' t ~~ you know, whllt do you do? We , we mourned and ..;,urned .

18 We have been mos t fortunllte beeau"e we hllve II family that has

19 supported us .

20 /It his memorial service , the neighbors rented a bus >oha>o

21 wen>o from Seaford into Manhattan . My hU!lband ' s collea gues Came

22 down from upstate New York . Jim * - John had f r iends allove r

2) Manhattan . John ha d actors and Cameramen and law colleagues and

24 police colleagues and Stony Brook colleagues and people he knew up

2S and down the street . There was oVer L 100 people in the church ,

, .... ",----------. ...... 2012

•


1 and the streets were flowing . He was 11 most remarkable man .

2 Q . Let ' s tell the jury about II tew of John ' s interests . He ' s

3 been described 4S kind of II Renaissance man. Can you tell the

4 jury about II few of his interests]

, A . 're!! . He was a marathon runner and competed in five and

6 finished five New York City Marathons . And in 2002 , five of my

7 relatives wore I-shirts for him and competed, and all of them

S finished .

, He loved to swim. He did II lot of the Hudson River

10 gWlms . And in 1981 , when he was just about 23 or so, he did the

11 swim 8I"ound Manhattan .

12 John grew to be Six-four , but he didn't put on much

13 weight. And when you swim around Manhattan for seven Or eight

14 hours , t;he water gets pret;ty cold , and sO he didn ' t; have too much

15 rat . And I was on the escort boat watching him pathetically

16 taking one stroke and then a deep breath and then another nroke .

11 And I said , "Get out of the water ." And he finally came to the

18 boat; . And t;hey took him away In a Red Cross boat , and he was

19 sick.

20 lind by the time the boat I was on arrived do"n at; the

21 tip of Manhattan , he had had a bac); rub , tood , clot;hes . He was

22 okay .

23 And 1 really think that the next 20 -- IS years of his

24 life , he attempted to bulk up so that he could some day do that

2S again . lind in the meantime , he took the shorter, the 7 miles and

, .... ",----------....... 2012

•


1 the 2 . 4 and the 9-mile swims in Manhattan . And 1 did one the year

2 l ater for 2 . 4 .

, Q , And was John also a bit of an actor?

, " He was a ham . When he first -- the firs t year Or t wO when he

5 was in the police department . he was assigned to midtown t raffic .

6 and that unit also puts up barrie rs and takes care of the filming

, Crews . ~ "- found an a gent . and he became an e xtra and appeared

" in many , ~"'

different television programs and commercials , • , .. , movies .

'" His picture " "0. '" , frame on the set M "<m. Li fe to

" Live ,' " ,00 ever have time '0 watch soap operas , '" the police

12 department, because he wa s frequently an e xt ra in uniform . And

13 they put that up a year after 9/11 on the program . And every once

14 in a while , it shows up , especially because t he cameraman was a

15 good friend of John ' s , and he says , "1 ma ke certain that the y

16 always get his picture in . 1 mOVe the actors around sO his

11 picture shOwS ."

'" MS . CHAPMAN : And could we show Ms . Perry VWOlS . 2? It ' s

" a photo .

" '" COURT : , '. sorry , run those numbers by me again?

H "" CHAPMAN : 015 . 2 , Your Honor .

" '" COURT : '" right . ' "' obje ction?

" .. , NOVAK : "", Your Honor .

" '" COURT , '" right , it ' s in .

2S (Defendant ' s Exhibit NO . VWClS . 2 was received in

, .... ",----------. ...... 2012

•


1 evidence . )

2 BY MS . CHAPMAN ,

, Q. And is this a picture of John:

, , . Yes , it ' s a picture of John .

, Q . And where is he?

, A. I think that ' s Red Square.

, Q . And John spoke many different languages?

, ,. Yes , he did .

, Q. Can you tell the jury a few of them?

'" , . Well , he started out with French , And he was fortunate to

11 spend a Summer in Europe , in Belgium for One month and in Spain

12 for the second . And then when he went to college , he met a young

13 RUSSian , as well as Chinese and a few thousand others , and began

14 Russian , and he went to Russia with his friend Vladimir . He ' S

15 wearing his New York State Guard uniform, which you wouldn ' t think

16 to uke with you to Russia , but he did because he wanted a picture

11 of himself in Red Square .

18 While he was in RUSSia , he met with pollce officers who

19 were members of the International police Association , and he 9ave

20 them used police officer vests from this country, because Russia

21 didn ' t 9ive much to their police . And so when police officers

22 resign , there is a program in this country to collect them, but

23 John had his own progra.m, and he took them to Russia .

24 And he spent two days in the company of the pol ice

25 officers, And his friend Vladimir , who was a Il<Itive of Russia and

, .... ",----------....... 2012 P OO .. OOl'"

•


1 had relatives there , said, "We didn ' t know where John was ." But

2 he was riding in patrol cars. He was at the shooting range. He

3 .. as hobnobbing with the Russian poli~, So he could speak Russian

4 pretty well by then .

, , . And how did he learn all those different languages?

, A. I think he learned languages well because he had a good sense

7 of hearing . It didn ' t always COme easy for him, but John , I ' ll

S tell you , learned everything the first nine years of his life by

9 hearing. He wouldn ' t do well on these standardized tests that are

10 sO popular today , because he .. as a learning disabled, believe it

11 Or not , a learning disabled Child . and he was in Special Ed until

12 he would have been in the middle of fifth grade .

13 Sometime around nine, nine- and- a - half , the little

14 synapses began to COnneCt , He began to figure Out which lette"

15 was which, which color was which . He even developed some fine

16 motor coordination and some gross motor coordination , and then he

17 just sped ahead from that point On .

18 But J ' ve always thought that because he had to learn by

19 listening, that he had a good ear .

But he didn ' t just depend On hearing . He walked around

21 with tapes , he listened to all the tapes of the languages he

22 wanted to learn . He , he learned Swedish , he learned Albanian ,

23 German . With the Spanish and French , he also knew some Portuguese

24 and some Italian. He met a young .. oman from finland and learned

2S some Finnish . We ' re not sure how much Finnish it was that you ' d

, .... ",----------....... 2012 pooo " or,,", •


1 use in proper society .

2 And he did know some Chinese . Be had -- the fellow who

3 got him into the State GUllrd ",as Chinese , and he called him "my

4 son .' II.nd so he would go to Chinatown . The NYPD headquarters 15

5 near Chinatown , and John worked in NYPD Headquaners , one police

6 Plaza , for four~and-a-half years . So at lunch he ' d go over , he ' d

7 stop at some store, pick up SOme food , Chinese tood , and take it

S to his friend , Charlie Hu , and they would have lunch together.

9 And so he learned to talk to the shopkee~rs.

He challenged himself . He challenged everybody he knew .

11 He thought everybody should learn as much as they could . And he

12 was encouraging people to go on in their studies , to leatcn mOre .

13 lie had 11 good friend -- ! don ' t know If I ' m jumping where you want

14 to jump, but John, one of his best friends is in anot;her picture ,

15 I don ' t know if you have it . If he enjoyed something , he wanted

16 other people to enjoy it .

11 So he joined the State Guard , and then he got two

18 friends to join with him, and the three of them had a great time.

19 They went t;0 Fort Camp Smit;h on the Hudson River . And in

20 lIugust; 2001. they had to spend a week or two there , and they put

21 blanket;s in their bunks in the middle of the night; and went out

22 with paint guns and shot at deer and then snuck back in a9ain .

He had a very mischievous grin . Be was always looking

24 for something to do , kind of ornery , but he .. as very seriOUS , very

2S serious about life , and --

P OO .. 'OI,,",


, Q . And did he - - did John talk his brother and sister into going

2 to law school as well?

Yes , he did . He thought everyone should go to law school.

4 because it would give you a basic understanding of the law and how

5 it works , and he was very strong in hi!! suppOrt; of the law and the

6 Bill of Rights .

7 He was a beard member ot our Nassau chapter ot the ACLU .

S He saw no contradiction between civil liberties and police work .

9 He felt that police were there to protect citizens from whatever

10 bad guys were out there . And he felt the laws we.-e there to

11 protect clt!~ens from the intrusive government , should i t become

12 that; way . And he , he -- that was flO contradiction in his life

13 whatsoever .

14 Q . And you mentioned tha~ John when he was retirin9, he was

15 90in9 to 90 work as a lawyer; Is that ri9ht?

16 A. Yes . 1 didn ' t mention , he 9raduated from Stony Brook

11 University , and then he went to law school at New York University

18 School of Law , and when he finished that , It took him a while , but

19 he passed the Bar, and he formed an i JT\JT\igration firm with a

20 friend , and they worked in New Jersey and New York because John

21 got a license in New Yor k as well .

" But he had take n the police examination. He always

2) wanted to be a cop, And 10 and behold, they called him up in the

2 4 sunlner of 1993 , and he said , "Sorry , Barry , I ' m 90in9 to go to the

2S police service ." They closed the firm. Barry went down to

, .... ",----------. ...... 2012

•


1 Memphis, he ' s doing very well , and John went to the Police

2 ... cademy .

3 And he patrolled Cent rill Pllrk after he finished -- Or he

4 loved Central Park, beclluse visitors from countries would came In

5 and want directions , and John would then get to show off his

6 languages , and he could dire ct them where they wanted to go . Yes .

, Q . ... nd can you t ell the jury SOme ot the ways t hat your family

S and other organizations have chosen to honor John ' s memory?

, A. Yes . And 1 didn ' t , 1 didn ' t answer your question before , for

10 one second .

11 O. Sure .

12 ... . He was the mentOr to his brother and sister . He was Our

13 he wllS four - and-a-haif yellrs younger than his sister, but she

14 didn ' t finish college ; she got married . ... nd her husband died in

15 1 993 . So he began a campaign to get her back in school . She did .

16 She got her Nuning Associate ' s , she got her Bachelor of Nuning ,

11 her Bachelor of rine Arts , lind she went to 111 .. school , lind she had

18 started law school August 2001 .

19 And , of course , before that , he got his brother to go ,

20 So his brother also finished law school .

21 Q . so all three ot your children studied law.

22 .... ...11 three . hod the y were going to have a firm together some

23 day ,

24 O.

2S ... .

Okay .

...nd you as ked me another question .

, .... ",----------. ...... 2012

•


, Q . I was asking you to tell the jury a little bit about the

2 different ways that John has been honored and his memory has been

3 honored .

, , . ot:. , he ' s -- we ' re most blessed that he was our sOn . He was

5 honored by the Stony Brook Alwnni Association with the first

6 Posthumus Distinguished Alumni Award . He was honored by the BLAPA

7 Law Organization at NYU , which is the Bl!.ck, Latino, Asian Pacific

S American Association , with an award . And his fellow classmates

9 contributed enough funds that there is an annual John Perry Award

10 for a graduating student at the School of La .. at NYU for Someone

II who e ~empl ified the dedication to civil righ t s and civil

12 liberties -- sorry, civil liberties . that John supported .

I) Q. All right.

14 A. And , and the high school has a -- he .. ent to a high school

15 .. here there were five victims of 9/11 , and the community has been

16 .. onderful . They have raised funds and constructed a memorial .

17 And each year we raise funds and give a .. ay $2 , 000 Patriot Awards

18 to five graduating seniors . And that's an ongoing --

" And there have been other things : plaques and

20 memorials . And the church where the service .. as he ld has a

21 pl!.que . And stony Brook has an arch . And there ' s JUSt -- it ' S

22 just been a very .. onderful thing .

2) And we have heard -- and all victims ' families , 1 think. ,

24 know that they have been thought of and laved by people around the

2S .. orld, and they have sent all kinds of trinkets and teddy bears


1 and quilts .

2 And the police organizations around the country have

3 been particularly good to the police families in their support .

4 School teachers have had children write letters , you get a packet

5 of letters from every child in this class . And I have written

, answers '" each child . H kept ", busy.

, "'. CHAPMAN : Thank you , Mrs . Perry .

, '" IHTNESS : Thank '0" very much . Thank you-all .

, '" COURT , "'. Novak?

'" Me . NOVAI< , No questions .

" '" COURT : Thank you , ma ' am, '0' your testimony .

" (Witness e xcused . )

" "'. CHAPM/lN : Your Honor , the defense calls Mr . Orlando

14 Rodr iguez .

THE COURT , All right.

16 MS. CHAPMAN , May I proceed, Your Honor?

TilE COURT : Yes , sir -- yes , ma ' am .

18 ORLANDO RODRIGUEZ , DEfENDANT ' S WITNESS , AFFIRMED


20 BY MS . CHAPMAN :

21 Q . Mr . Rodriguez , Can you please tell the jury your first and

22 last name and spell them both?

2) A.

24 Q.

2S A.

Orlando Rodriguez . O- r - I - a - n - d - o R- o- d - r - i - g - u - e - z .

And , Mr . Rodriguez , where do you live?

White Plains , New York .

, .... ",----------....... 2012

•

, Q .

2 A.

, Q.


And are you a professor there?

Yes, 1 am.

And can you tell the jury /IObout ",hat you teach?

4342

, A . ! teach crlmlnol09Y , I teach CourseS on research methods , and

5 I teach COurSeS on Hispanics in the profession of sociology .

, Q. And your son , Greg , was killed on September II; is that

7 right;?

, A. Yes .

, Q. And he worked at the World Trade Center?

lOA . Yes , he did .

11 O. And what did Greg do there?

12 A. He was II computer security person for Cantor Fit;zgerald . He

13 was 8n associate vice president in charge of " - mail security .

14 ba!lically .

15 Q. And how did you learn that Greg had been killed on September

16 II?

11 A . TwO days afterwardS , when the head of Cantor told the

18 relatives and employees that he felt after looking a~ all the

19 hospi~al records . that anybody ",ho did not appear in any of the

20 hospital records we hlld to aSsume had died .

21 Q . And can you tell the jury what effect Greg ' s dea~h has had on

22 you and your family?

2) A. Well . i~ -- the first effect was despair and one that led me

24 to try to think of ho", I could help students and colleagues and

2S friends to try to understand something like this on the basis of

P OO .. 1019J


1 the knowledge that I had acquired from my training as a

2 sociologist and criminologist .

, O. And did you teach a class on terrorism then sometime shortly

4 after September II?

, A . I taught a class with a colleague who was an adjunct

6 professor, a New York Police Department captain who had been hired

7 by the department to teach classes on criminal justice . So right

S afterwards , we decided to teach a class the next semester on

9 terrorism in society .

10 Q. And Can you tell the jury a little bit about what that class

11 was like? What was the focus of it?

12 A. The focus was to try to understand the motivation of people

13 who commit political violence in vadous situations , not just in

14 the Middle East but all over the world. to try to understand how

15 the state responds to political violence , and ultimately to find

16 out if there are , is a role for civil society other than the state

11 and the political or9anizations in tryin9 to prevent violence .

18 Q . Let ' s talk a little bit about Greg .

" Could we show -- brin9 up VWOl87

THE COURT : Any objection?

MR . RASKIN : No objection .

" IHE COURT , All right , it ' s in .

23 (Defendant ' s Exhibit NO. VWOIS was received in

24 evidence.)

TilE WITNESS : That ' s not Greg .

, .... ",----------....... 2012

•


, "'. CIIAPMAN : That ' s John.

2 Q. "" ., "k Y"O this while they ' re pulling up the picture.

, Did Greg like '" hike?

, , . Yes , " did .

, Q . And can Y"O tell '" jury what t;his " a picture of?

, A. This '" a picture "' Greg and me atop Lafayette Ridge "0 ", 7 way t;0 one of the hut;s in t;he White Mountain system of hiking

Shuts .

, Q. And was t;his One of your first; experiences on a long hike?

lOA . Yes , it; was for me , not for him .

11 O. I\nd can you tell me a little bit; about what that e ~perience

12 was like for the t;wO of you?

I 3 1\ • Well, It was fine for him. He was less than 30 years old.

14 The hike consisted in going along a ridge that when

15 there is inclement weather , it can be very dangerous , and

16 afterwards , to get to the ne~t hut , you have to go down a

17 mountain , then up a mountain , then do .. n a mountain , then up a

18 mountain repeatedly .

19 Q . Did you run out of bananas at sOme paint?

20 1\ • Yes , 1 did. And 1 was told afterwards , unfortunat;ely , that

21 it · s good to take bananas along t;0 replace the disappearing ions

22 in your , in your bloodstream . I had also run out of water .

23 Q . And can you tell the jury a little bit about Greg? What kind

24 of son was he?

2S A. Well , he -- his wife , 1 think -- my wife accurately describes

, .... ",----------....... 2012 pooo " "' ,.

•


1 him as hail-fellow-well-met . He was a person who could talk to

2 anybody anywhere , under any circumstances . Very sociable , very ,

3 very funny , and very much oriented towards people as human beings,

4 unlike his father .

, , . Did you learn something from Greg?

, A. Yes . Yes , I did very much. I had always been aware of his

7 abilhy to make contact with people in a way that I, was very

S difficult for me , and also aware that unlike us academics , who are

9 trained to look at people as labels , cateqories , and so on , he

10 didn ' t have a talent at all for looking at people as labels and

11 categories . He had a talent for only looking at people as people .

12 And it ' S something that I admired him for a lot and that I

13 reflected a lot after his death .

" Q . And Greg also loved to travel ; " that ri9ht?

" A. Yes , he did .

16 ,. Where .11 i, ". world did his travels take him?

" A. lie went C" -- as '" employee of Cantor , "' ." '" Japan , "' '" ." '" l.ondon , he was '" Argent I na . '" '" own , "' ." '" Me)[lco ,

" " ." in Guatemala , ." in Cuba " weli visiting his family .

20 Q . And you - all have family in Cuba ; Is that ri9ht?

21 A. Yes , we do .

And Greg was close to them? 22 O.

2) A. He was very close to all of them, yes , especially to his co- ,

24 co-age , my second COUSin , his first

25 Reyes . They became very close .

, .... ",----------....... 2012

second COllS i n actual I y ,

• POOO"""'''"'


, Q . And I understand that G~eg also really liked music ; is that

Yes . He had a tremendous talent for music. He composed a CD

4 that was to play at hi'" wedding . It wa", One of Our pOints of

5 com;;act; t;hat we enjoyed ve~y much t~yinQ to under nand different

6 kinds of music .

, Q . And did you t ake G~eQ to a couple of concerts?

Yes . Yes , I did . I took him to an Aerosmith concert , and I

9 pretended that 1 enjoyed it tremendously.

10 (Laughter . )

11 BY MS . CHAPMAN :

12 Q . And you did share sOme musical taste ; isn 't t hat; riQht;?

1 3 /; . I beQ your pardon?

14 Q . You did share some musical t;aste with GreQ ; isn ' t; t;hat; riQht?

15 A. Yes , we did . We did . He enjoyed very much -- he liked

16 classical music a bit , which 1 love . And he 11.130 loved Latin

11 American folk music .

18 Q. /;nd can you tell the jury how you would like GreQ to be

19 remembered?

20 /; . Well. I think t said it already . I ' d like to have him

21 ~emembered as a per !IOn who had a , an extraordina~y capacity t o

22 look at people as human beings, regardless of their , their faults .

MS. CHAPMAN : thank you , Mr . Rodriguez . thank you .

THE COURT , Mr . Raskin , any cross-examination?

MR. RASKIN: No questions.

, .... ",----------. ...... 2012 POOH. or,,",

•


, TilE COURT , Thank you , sir , for your testimony .

2 (Witness e xcused.)

, T~f: COURT : MS . Chapman or Mr . Yamamoto , your no >; t

, witness?

, MR . YAMAMOTO : Donald Bane , Your 1I0nor .

, TilE COURT , All right.

, All right , Mr . Yamamoto .

, DONALD BANE , DEFENDANT ' S WITNESS , AFFIRMED

, DIRECT EXA.MINATION

10 BY MR . YAMJI.MOTO ,

11 O. Mr . Bane , please state your name and spell your last name .

12 A. Donald B1Ine , B-a-n-e .

13 O. Mr. Bane , you had a .'lon , Michael Andrew , was born On Easter,

14 1968?

15 A. That's correct.

16 O. Can you tell us the circumstances of his birth, please?

11 A. Michael ",as born on Easter day 1968 , .. hich .. as April 14 that

18 year . And his mother , my first wife , Kay Jlbben , died in

19 childbirth due to medical negligence .

MR . YAMAMOTO : May I have WOSP

MR . RASKIN , NO objection .

22 TilE COURT , All right. It ' s in .

23 (Defendant ' s Exhibit No. VW051 was received in

24 evidence .)

25 BY MR . YAMAMOTO:

Paoo 52 or,,",


, Q . Mr. Bane , to your lett is a photograph. What does that

2 photogrllph portray?

That ' s 11 picture of Klly on the plaque that ' s the top pa.-t of

4 the photograph , and that ' s our daughter , Christina , with Michael

5 s t anding under it .

, Q. And what ' s the plaque for?

, A . I his was -- t his ia in the high school in Morton , I llinois ,

8 where a scholarship fund in Kay ' s me"",ry was established, and it · "

9 been a very active scholarship that has provided music

10 scholarships for students from Morton , Illinois , for all those

11 years . It still is .

" Q . ... ," • t alent ed rnu!lician?

" •• '" ... • very t alented musician .

" Q . What; ins t .-ument did she play?

" A. Piano .

" Q. And did Michael have musical talents?

" A. He had musical interest toward the end M his Ii fe , , don ' t

18 know how much talent he had ,

19 Q, What instruments did he play?

20 /; . Well, he -- I gave him piano lessons , and I was somewhat

21 disappointed hOw those turned out , but -- I had a hope he would

22 inherit some of his mother ' s tale nt . But he began playing the

2) guit!lr when he was proba bly around 1S- 16 and was getting mOre and

24 more serious about that until the end of his life ,

MR. YA/o'.AMOIO : May I have 51 . 2 , please?

, .... ",----------....... 2012

•


, MR. RASKIN, No objection.

2 IHE COURT: 51.2 is also in.

3 (Defendant ' s E"hibit NO . VW051 . 2 waS received in

4 evidence . )


, Q. Is this a picture of Michael?

, A . Ihat; ' S a picture of Michael around 16 . I don ' t know exactly

8 when this was made , but that ' s when he was beginning to pick up

9 that musical interest again.

'" o. NOw , you were raising t wo children .

U A. That ' s correct .

" Q . Michael, and what was hi!! sister ' s name?

" A. Christina .

" Q . I ' m sorry . And eventually did you marry?

" A. In 1984 , I married Arlene Peabody .

" o. What were the circumstllnces of your meeting her?

" A. Michael and her daughter , Brenda , who was 16 , Michael waS 15 ,

18 almost 16 , met a t camp, and both of them were very unhappy abou t

19 school at that point , and lifter camp , they got together and (lin

20 away together .

" O. Where did they go?

" A. To Florida.

2) o· "" long were they gone?

" A. Almost t wo weeks.

2S o. , tllke " Y"O tracked them down eventually?


, A. 01'1 , yes . And brought them back home . And Arlene and Brenda

2 and her brother , Brian , were living in Massachusetts at the time ,

3 and we were livin9 in New York , in Irvin9ton on Hudson , And

4 anyway , we had gotten acquainted over the telephone during that

5 two-week period , and we 90t together tor Thanksgiving, and then

6 for Christmas , and were married the following June ,

, Q . Mr. Bane, it you could try to speak into the microphone , I

S think it would help ,

, Now, how was Michael in school as a teenager?

lOA . He was .n school .

(Laughter . )

THE WITNESS : NOt terribly active , at least not in the

13 school part at school .


And what did he eventually do? 15 Q.

16 A. He eventually dropped out of school at 16. Ihis was in

11 19- -- I guess this was in the latter -- no , I guess t h is was in

18 ' 85 . And tha t ' s a le9a! age that they can do that withou t

19 parental permission in New York . And I .. asn ' t happy about it . but

20 he didn ' t just goot off .

21 He went directly to work in a local restaurant , French

22 restaurant , washin9 dishes and then began cooking there , and he

23 moved from that restaurant to another and to and several moves

24 "here he was gettin9 more and mOre in demand as a cook , and wound

25 up running a 40-seat restaurant , a popular bar and grill


1 restaurant in North Terry Town, which is now called Sleepy Hollow .

2 And he WaS doing the cooking . doing the ordering.

3 planning the menus . He was really the chef as far as you CQuid

4 call 11 little place li ke that . a chef. and managing h at 19 , r

5 guess he was .

, Q. Did he stay?

, A . NO . In sec"et , it was secret tor a while , he went; back and

S got his GED. He kept it seceet from Arlene and me .

, And he finally had to tell us , because he was about to

10 graduate , get his hi9h school diploma . And we brought his

11 grandmo>oher -- this was his maternal grandmother, with whom we

12 still kept 11 very clo!!e relationship . Kay ' S tamilI' , and Arlene

13 had -- Arlene had found out earlier and had encouraged him in this

14 etton; , and but he h",d really already m",de the decision t o get

15 the GED and go back ~~ ga to college .

16 And it WaS her entry inta aur life . 1 think . that made a

11 huge di tterence tor him. because he had a mother nOw who though

18 She didn ' t give him life . she gave him ~~ she shared his life in 1\

19 way that was important and supportive to him that he needed . in a

20 way he needed .

21 Q . so she . in (",ct . became his mother?

22 A. Definitely , yes. And her daughter , wha shifted fram being a

2) runaway campanian ta sister pretty rapidly . and Brian . her son .

24 and Michael and Christina all ~~ they re",lly quickly bonded I

2S guess is the word you use . and maybe it ... ",s because they were .


1 kind of ganged up against us some of the time. But they never

2 reaUy talked about ellch other after the first days , first months ,

3 as stepbrother and -sister , but really began to think of each

4 other as a real brother and sister pretty quickly . 1 was amazed .

, , Q .

, A .

, Q.

, A.

10 Q.

11 1>. .

so t;hat was they were quitoe a --

Now, did Michael go on to college?

Yes, he did .

Where did he go?

Went to State University of New York in Stony Brook .

Do you know what his major was7

It was in II general, general studies , with a lot of business .

12 And he did , he did pretty well . And he met while he was there

13 another important wOm8n in his life .

14 Q . WhO was that?

15 A. Tara Lorenzana , whom he married a few years after they

16 qraduated .

" '" "

MS . CHAPMAN : I ' d li ke to have 51 . ) , please.

MR . RASKIN : No objection .

THE COURT , All right , it ' s in .

20 (Defendant's E><h lbit No. VW051.3 was received in

21 evidence . )

22 BY MR . YAMAMOTO ,

23 Q. And the photograph there is their wedding?

2 4 A. That ' s correct . That shows -- that ' s the whole -- that ' s the

25 family.

Paoo5101'"


, Q. Can you identify the members there, please?

2 A. Right, Well , , think Y" can tell the bride io <h. center

, ,,' Michael " <h, ,,, nellt to her , Arlene , his mother , next " , '"' -- ne xt " ,'. And Christina , And then 00 the other side " , Brian and Brenda . M' , performed <h, ceremony . I ' m an Episcopal

6 priest . And that ' s it.

, Q. NOW , did -- Michael didn ' t have any Children , right?

" A. '" " didn ' t.

, Q. '" " loved live things?

'" A. "- what?

U Q. "- loved live things .

22 A. "- did, he did . M' "' had -~ he had adopted a '" while "' 13 was , t guess , still lit Stony Brook . Yeah , that ' s lind he and

14 Tara adopted two mOre dogs . The first dog was an American Eskimo ,

15 which we considered our granddog .

16 Q. Can 1 have 1 , please?

11 A . That ' s it . There he is , That ' s Casper . He ' s still alive .

'" And then Tara and Mlchllel IIdopted a Greyhound off the

19 track rescue , and then 11Iter they adopted a second one , So they

20 had twO, they had twO.

21 He also, one of t he things about him that struck me one

22 time was how many times he had given me something that was living

23 as a present , like a birthday present or a Christmas present . He

24 gave me another American Eskimo that had been , "'as a rescue dog ,

25 you know, an SPCA dog. And he gave me a Cockatiel, a bonsai

, .... ",----------....... 2012

•


1 plant , and -- but that , that was sort of , that was ~- he gave , he

2 gllve living things . He "IIV<! life . And thllt was the wily I think

3 IIbout him .

, Q . You~all had a family trust?

, A . That ' S correct .

, Q. And Michael was going to be the trustee?

, A . Yes , he was the well , he had been appointed the , I forgot

S the technical terms for it , but, of course , my wife and I were the

9 trustees liS long liS we ' re living . but he WIIS the trustee who -- he

10 would become the trustee when we . when we died or became

II incapacitated .

12 And he was the youngest of the four kids , and yet he was

13 the One who we thought could carryon f or uS and would be the one

14 mOSt responsible .

15 And the other kids agreed, they were quite happy to have

16 him be the trustee , lind he was very proud of thllt . And we , we

11 still don ' t know how thllt -- what ' s gOlOg to hllppen with that

18 responsibility .

19 Brian waS particulllrly close to Michael because although

20 he ' s the eldest and Micheel is the younqest , Brian has some

21 developmental disability , and although he ' S been working very

22 successfully since he graduated from a special high school , when

23 we becllme II fllmily , Michllel sort of helped Brilln with some things

24 he needed help with , like kind of negotiatiog relll life , you know,

25 lind helped him with thin"s thllt he needed help in his judgments


1 on . An d that ' s going to be ~~ that ' s been a big loss for Brian.

2 And that was , that was another thing We felt when We

3 appointed him the, our successor trustee , he , he would have some

4 special responsibility for Bdan and his special needs . And he

5 WiHl , he was qoinq to be qood at that , like he was qood abou t

6 taking care of animals.

7 When he was , when he was a bout nine years old, I think

S it was , he had a rabbit that needed medication, I can ' t r e member

9 what it was for , but he had to have a shot every day . And this

10 nine~year~old was qivinq this rabbit injections every day . I

II thouqht he was qoinq to be a vetednarian at that point . but that

12 didn ' t turn Ou t t o be the case .

13 Q. September II of 200L where were you that day?

14 A. I was in New lIamburq , New York . It ' S about 40 miles from

15 where we live d in Westchester County. New York , where I had been

16 vicar of a little Episcopal church half time following my

17 retirement from the . as director of pastoral care at the

18 Westchester Medical Center , which has been the. sort of the end of

19 my m,Un career , and there .. as ~~ I had quarters there . I didn ' t

20 live there , bu t I had quarters there to stay overniqht when I

21 needed to, had meetinqs Or somethinq . And that'S where I was on

22 the morning of September 11 .

23 I hadn ' t had the radio or the television on or anything.

24 and so I didn ' t know what was happening .

25 Q. IIOW did you find out?

, .... ",----------....... 2012

•


, A. My wife calle d me , and she was scre aming in terror and

2 anxiety that a plane had flown into the Wor l d Trade Center . And I

3 turned on the television , and I could see from the picture that it

4 looked like it was dead center On where Michael ' s office was , on

5 the 1001;h floOI" of the North TOwer . where he had just recently

6 been made an assistant vice pre sident at Marsh and McLennan . And

7 I , and I jus t, I didn ' t give up . but I kne w sOOIehow 1;hat i t would

S be very unlike ly that I ' d ever see him again.

, Q . Did you try calling him?

lOA . Yeah . Yeah . that ' s the first thing I did was try calling

11 his , t guess I called his office and probably his cell phone , too ,

12 and , you know , t hey were both , I didn ' t get -- they weren 't

13 answering .

And so I gOt in the Car and drove home . While I was on

15 the way , I he ard that the second attack had happened and ~~ no , I

16 saw the second attack, the second plane into the second tower .

11 And then I -- and then on the way home , I heard the, that that

18 tower had fallen . And then r -- and then when the North Tower

19 fell , that wiped out the radio co"""unications .

20 So r drove home not knowing what was going on until t

21 got home and go t SOme mOre information .

22 O. Now, did you have reason to believe it wasn ' t an accident

23 when you saw those events?

24 A. Yes , even though for a few minutes on ne .. s reports they were

2S still talking about it as being , maybe it was an accident , but I ' m

Paoo "' or9J


1 a pilot , and I, I knew that you don ' t f ly into the World Trade

2 Center by accident . I knew that would ~ highly unlikely ,

3 Also , the size of the , the fire and e xplosion , I knew it

4 wesn' t just SOme little plene that had gone in .

, Q . Did your wife talk ~~ did anything unusual happen regarding

6 your wife on that day?

, A .

" Q.

, A.

Before I got home , she Saw Michael. and it was a

When you say she saw Michael , did he come to the house?

A vision of him or she ~~ but it was a clear ~- he was there

10 as far /Os she could see , /Ond he w/os "",,/Oring clothes th/Ot she

11 wou ldn ' t have e xpected him to wear to the office , /Ood thet was

12 /Onother det/Oil about it , and then --

13 Q.

14 A.

15 Q.

16 A.

Whet w/Os he wearlng?

He was """aring a , like a tennis shirt and khakis .

What does he normally wear?

He would normally wear a suit . And later we found out from

11 Tara that , in fact , he h/Od worn th/Ot , what she described that day ,

18 end th/Ot that was not that unusual , thet their policy in the

19 office w/os if you were gOlng to be just working in the office /Ond

20 didn ' t have /Ony appointments and weren ' t going out , you know , you

21 could, you could dress that way . which I didn ' t know . But that

22 was -- and it was a reassuring thing to her , because he said he ' d

2) ~ all right . And there was something else he said; I can ' t

24 remember nOw , And he just sort of, like he waS walking

2S downstairs , looking , look ing back a little , I guess,

P>o""'01""

, Q .

2 A.

, Q .

, , .


Looking back at he r?

'leah, yeah .

you had a memorial serV1.ce for him?

Yeah . There were actually two . Since he had grown up in

4358

5 west;chest;er and mainly in -~ well , he had grown up in Briarcliff

6 Manor unt;il -- I mean , I ' m sorry , grown up in Irvingt;on , and the n

7 when Arlene and I were ma rried we moved t. o Briarcliff Manor . In

8 I rvingt;on , we had a Eucharist; , and t;he first service was in

9 Yardley, Pennsylvllnia , lit lin Episcopal church there , because

10 th!lt ' s "'here he and Tara lived . So he relllly , you kno"" had ties

11 in both communities .

12 Q . What; ",as your react;ion t;0 his deat.h?

I 3 /; . Well, it was a mi xt;ure first of, of ... age and murderous

14 feelings , vengeful feelings . but also deep, deep sadness .

15 The , the loss , the -- his loss and also my first wife ' s

16 death certainly came flooding back to me . And the , the loss of

17 Kay , her loss of that life she could have had ",ith Michael , and

18 the whole business, it was very ~- it was very tough .

19 And so I k ind of went back and forth , I guess , from

20 between , you know, very deep sadness and feeling all t;hat and what

21 i t was fOl: Adene and for Michael ' s grandmother and, and his --

22 well , the r e st of the family , e veryone , it was a big loss , and so

23 1 went back and forth feeling a lot of rage for a while at times ,

24 but then at SOme pOint , I realized , I guess I think I realized

25 this pretty early on , to tell you the truth , that 1 really had a


1 choice of staying with those feelings or sort of nurturing them.

2 You can ' t , you can ' t just walk away from it and deny it.

3 1 knew from my own past experience in my professional life , too ,

4 that you can ' t deny that you have those feelings , but you do have

5 a choice .

6 And so I tried to think of ways that I could, well ,

7 learn mOre and understand more , because One ot the things I felt

S was so desperately needed was bridges of understanding with people

9 who could do this k ind of thing , and 1 wasn't naive about that ,

10 but L I was given an opportunity by a friend of mine in London ,

11 who ' s a former member of the European Parliament , who was the

12 Anglican communion ' s Observer at the U. N., that 'Observer " is kind

13 of a funny word , but basically, she ' s the Archbishop of

14 Canterbury ' s representative on behalf ot all the Anglican churches

15 throughout the world , and the Episcopal church being one , so the

16 liaison to the United Nations , and they started a program of

17 dialogues , they call them Muslim-Christian dialogue, sometimes

18 they ' re called Muslim-C:hristian discussions , in parts of the U.K .

19 and parts of the United States , ",ith a very specific idea of not ,

20 not just trying to talk to each other about your religion , but to

21 really talk about things we have to deal with as human beings in

22 cortmon , like issues of governments and democracy , of how we arrive

2) at decisions and about law and order and justice and things like

24 that , so that sOme data about ",hat on-the-street people , not the

25 professors and clerics , either Christian or Muslim, what they


1 really held in common and where they had conflicts over things

2 like this , so that there could be some help in making decisions ,

3 in planning programs , particularly in feeding all this back

4 through the Anglican observer to the U.N .

5 so anyway , that was one small opportunity I had to, to

6 organize one of those dialogues , and I did that in Dover after I

7 moved from New Yor l<. to Delaware , and that's sOOlething that may

S continue . The report is being made up of , of these things .

9 So that gave me sorne feeling of the ways instead of just

10 nurturing anger , to try to, to do something to , that hopefully

11 will help something help this not ever happen again .

12 Q . Can you tell u! a little bit about Keep the Music Going?

1 3 /; . Yeah . Well, that ' s another thing . w.-. , we started a -- Or

14 actually , Tara was instrumental in starting a music scholarship at

15 Stony Brook in Michael ' s memory , so there ' s a Michael Andrew Bane

16 Memorial, Music Scholllrship Fund , 1 think 1 got the title right ,

17 at Stony Brook now, and that ' s one way of trying to I<.eep the music

18 going .

" Q. '" how about

" , . '"' that sort 0< -- , '" have 'o. "'" 0< that based on what

H '" been dene by Kay ' s friends when ", died . , .. sorry .

" Q. , didn ' t mean <0 interrupt.

2) A", other living things?

" A. Well, Arlene and , had -- have moved no .. from New York '0. 2S little farm in Dover -- near Dover , Delaware , in Wyoming ,

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1 ANTHONY AVERSANO, DEFE NDANT ' S !'IITNESS, AFF I RMED


3 BY ME\, YAMAMOTO ;

, Q. Please s t a t e your name and spell your firs t and last nameS .

, A. My name is An t hony Ave~sano , A-n-t-h-o-n-y A-v-e-r-s-a -n~o .

, Q. I just introduce d you as Antonio .

, A. An t onio .

, Q. I s it Anthony or Antonio?

, A. yeah . That ' s the ~oots of my name , Antonio.

'" Q. Which , Antonio?

" A. Yes .

" Q . Mr . Ave~sano , your dad wor ked f or Aon in t he World Trade

13 Center --

" A. That ' s correct .

" Q. -- and '"0 kille d "0 Septembe r " . 16 A. Yes , unfortuna t ely , h. was .

" Q. What ." your relationship with your dad 9ro .. jn9 up?

'" A. Well, ., parent s were divorced when , "0 very youn9 , and , 0" 19 Dad was al ways , I 9uess , a feel 900d kind of relationship for a

20 while , for many years , because r 90t t o see him On birthdays ,

21 Chdstmas , hOlidays , spend Summe rS with him, vacations , t hin9S

22 like that , and , ye ah , and I just * - it .. a s just normal for me that

23 that was who your da d was .

2 4 So he was just my dad , football and all that stuff .

2S Q . Di d that relationship change at one point?

, .... ",----------. ...... 2012 Poo""''''''"' •


, A. It did . When I -- it didn ' t change for the better . When I

2 was in my twenties , I moved from upstate New 'tork. to , I guess , Las

3 Vegas , Nevada , and somewhere along the way , 1 , having the

4 20-year-old woes that! was having at the time, just saw my dad as

5 a really good target for why my life wasn't working, and as I ' m

6 sure a lot of people do , they target their parents , and Dad was a

7 really great target just because of the particular circumstances

S of , you know , that my parents were divorced, and that ' s how it

9 showed up for me.

10 So yeah , 1 basically shut him out for , shut him out for

11 a long time . ! didn ' t even want to take a picture with him for a

12 while .

13 Q. And did that relationship change sometime In 1999?

14 A. Thank God it did . I was living in northern California

15 thank you -- in 1999 , and a great friend of mine , who I ' ll forever

16 be gr!lteful to , knew that , you know , I was really into doing

11 self-reflective work , and that ' s what had me move from Las Vegas

18 to northern California was my own personal growth , and he

19 recommended this workShop, a weekend wor kshop three days , and

20 you ' re , you know , you would get lots of transformation . So!

21 said, okay , what do I have to lose?

22 And on the Saturday of that workshop, I , you know, we

23 were instructed to bring the hardest relationship that you had in

24 your life to , to this e"ercise that we were gOIng to do , and it

2S was , ok.ay , it ' s my dad for sure .

, .... ",----------....... 2012

•


1 Even though I knew it was going to be hard to deal with

2 that , 1 knew that that was , 1 was going to get the most value by

3 bringing that one to the plate , And in that exercise , they had uS

4 look at how we were showing up In the relationship, and I clearly

5 saw that I was , like who I was being wit h my dad was I was being

6 angry , I was being resentful , you know , I got to justify when

7 t hings in my life did not work , you know , t hat it was his faul t.

S So he was , again , a good target , I was seeing all of that , and so

9 it made SenSe for me.

10 But the part that was the light bulb for me was we were

11 asked to look at what it was costing you to be like that In that

12 relationship , and what I saw was , oh , it was costing me being

13 successful In my career, it was costing me being in II

14 relationship , it was costing me , like this list came out , and it

15 was costing me my dad . I didn ' t have my dad in my life because I

16 was being a jerk to him.

17 And so it ' s like a miracle happened that day , because

18 the first break we had , what there was to do was to go to the

19 phone, and I called up my dad and I asked and I told him , " I ' m

20 sO sorry . I ' m so sorry for being a jerk to you ." And I asked him

21 to forgive me .

" And he said , "Of course . You ' re my son. "

And 1 got my dad back in that phone call. And it was

24 like I was carrying this bag of rocks on my back that a rip cord

2S was pulled and was released, and , wow, you know, 1 saw not only

, .... ",----------....... 2012

•


1 that I got my dad back that day ; I got my life back that day ,

2 because I saw that underneath all the anger , that , that -- because

3 I had all this anger and resentment and stuff with hi.m , that I

4 wasn ' t really , li ke , alive . I wasn ' t livln9 my life . It was li ke

5 livin9 in reaction ta this stuff . And by letting that ga , I gat

6 my life back , too . It was a huge freedom far me .

, And, and I saw that, ah , my God , it gave me apponunity ,

S where else am I doing this in my life? Where else am I showing up

9 in this way that I have all this crap, that 1 ' m being a jerk or

10 whatever , that , you know, where it mi9ht be covering me uP? And

11 so it was a huge transformation f or me .

12 And I think it ' s important for me to say that that was,

13 that day , I find it nO coincidence that God put me there that day ,

14 that; that was September 11, 1999 . that day when I gOt my dad back.

15 Q. Now, you were on t he West Coast ; your dad was on the East

16 Coast?

11 A . Yeah .

18 Q . You would talk t o him on the phone?

19 A. Yeah . I had from that day literally , I had the most ama>;ing

20 relationship with my dad . We were able to share things with each

21 other that . it was like we fit a lifetime of relationship in a

22 couple of years . I feel so lucky to have , have the depth of

23 conversations that I was able to have with him, having my dad say

2 4 things to me that , you know, just would floor me .

It was like the , you know, it was that day that we have

, .... ",----------. ...... 2012 Paoo 70Ol ,,",

•


1 that reconciliation with each other, it was like a bridge was

2 built . It was like two foreign worlds that came together , my dad

3 being the " )lecutive that worked in Manhattan , and r was this , you

4 k now, guy finding my life in northern California , doing the stuff

5 I was doioq .

6 And so I really qat t hat, wow , there ' s so much to ~-

7 when I got past the anger and stutf . I realized there ' S so much to

S learn by , when you build a bridge In life with someone and

9 relationships with other people , that there ' s so much that you may

10 not kn ow about over there , and I got to learn ill lot about that .

11 O. from your dad?

12 A. Yeah, from -- we got to learn a lot from each other , because

13 we -- it was li ke , you k now, t really got t o s>oep into his

14 perspective and point of view , and him to me , you know, be really

15 got to understand me as his son more , and the sharing and

16 e xchanging of ideas and, and philosophies about our lives "",de uS

11 both gro", tremendously ,n a short amount of time . It ",as quite a

18 blessing, and it still is a blessing for me .

" MR. YAMAMOTO ; 52 . 1, please .

THE COURT : The number?

MR . YAMAMOTO : VWOS2 . 1 .

" MR. RASKIN , No objection .

2) (Defendant ' s Exhibit No. VW052 . 1 was received in

2 4 evidence . )

2S BY MR . YAMAMOTO:

Paoo" or9J


, Q .

2 A.

, Q.

, A .

Who ' s that photograph of?

That ' s my dad .

where is that?

That ' s a t -- I believe that ' s at my sister Rose ' s wedding ,

, "d we were doing A dance , ,od they handed out glasses , and my dad

, ••• front ,od center •• usual . 00, God bless him .

, Q . NOW , when ... ". laSt time ,00 ... your dad?

, A. Last ,,~ , saw my dad was the summer of 2001. " ... July

, 2001 ,

'" Q. Where did ,00 ••• him?

U A. , went <0 visit. '" visited anytime , ",d an opportunity <0 ,

12 because I was living a t the wen coast , t o t ravel back and for t h .

13 !t was an anniversary in Our family , and so ! spent Some time with

14 my dad , and we went to the - - him and my stepmom went and did

15 garage sale s in Jersey , and we went up , went to the beach that

16 day , and it was a very memorable time that I got to spend with my

17 dad ,

18 We were joking around On the beach and , you know, t

19 jumped on his shoulders and, you know, fell in the sand . Jus t a

20 beautiful day to spend together .

MR. YAM!'.M:)TO : Can I ha ve 052 . 4 , please? VW052 . 4 .

22 THE WITNESS : Oh , my God . He might be embarrassed if he

2) was still alive to see that picture .

24 Yeah , that was -- he was regaining his health back in

2S his , you know , last years , and , you know , before he died, before

Paoo 72 or""


1 he was killed , and so he happened to be strutting around the

2 kitchen that day of his house when we were visiting, and shaking

3 his butt around and showing off that he had been working out , and

4 my sister said , "Pose , " and he did one of those muscle pOses .

, , . NOW , your sister got your dad at Aon ; is that right? Your

6 sister got your dad his job at 1\on?

, A . Yeah . My haH-sister , Lisa , who my dad had in his second

8 marriage , worked at Aon before my dad did, and he •• and, God

9 bless , we are so lucky that the week before , she had taken a new

10 job after nine years of working there. My dad actually encouraged

11 her to , you know , follow her dreams , it was good she was making a

12 change , and , you know, she frequently says that , you know , he

13 saved her life because of his encouragement for her to take that

14 step, and it ' s really cleu he did .

15 Q.

16 A.

You visited your dad at the World Trade Center on occasion?

I did . The last time 1 visited him, you know , it ' s funny how

11 hindsight you see all the things pieced together . I visited him

18 in December of 2000 at his office, which! frequently did visits

19 on holidays back home frOm the West Coast , wherever I was living ,

20 and he , you know , just out of nowhere he said , you know, " Have you

21 ever been down in the courtyard , IHe in between the twO

22 buildings? "

23 1 said, " NO . "

24 He said, " Let ' s take a walk . "

2S So we went down there , and , you know , he said, "Let ' s

Paoo 1J or9J


1 go -- they have this memorial for the bombing for ' 93 . Let ' s , you

2 know, let ' 3 check it out . '

3 So I went -- we went lind we looked at it , and we

4 Iherally sat there for 20 minutes , stoed there reading the Mmes

5 and 100Hn9 up at those buildings , not imagining t;hem falling

6 down .

7 It; was like we were jok ing about like you'd have to be

S really far away to get away from if these things really came down .

, He even knew I really honor the intuition that we

10 have as human bein9s , lind he knew in his heart, he said standing

11 there tha t day that he knew they were going to try, that there was

" going <, "" " attempt again , '0' 0- just hoped he wasn ' t t here ,

" ,,' his wishes '" "'< Come true.

" Q . you talked " your '" ", Sunday before September 11?

" A. Yes . Yes , , did . Yep. Just ,,' an int uitive hit to give

16 him , call 00 that night , "0 ", Sunday before September ," ,,' 11 we had an a"",~ing conversation , and I was -- we ' d really grown so

18 much at tha t -- t o thllt point . thllt , you know, t wllS giving

19 encouragement to him, because he had wo r ked so hard his whole

20 1 i fe , lind he conunuted three hours every day to get to and from ,

21 from where he lived in Jersey to the World trade Center t o go to

22 work , and I really .'law that , you know , the toll it was taking on

2) him to have the rigorous job he had and lifestyle he had , and 1

24 said, " You know, Dad , why don ' t you start your o wn business? You

2S can be a consultant. You ' re so smart . You have such experience . "

, .... ",----------....... 2012

•


, He was . like, "Yeah , I k now . "

2 And, you know, We tlliked about . you know , We were

3 planning on going on 11 v/lciltion together , like 11 father-son

4 vacation , because we had something we had never thought of before,

5 it JUSt was neVele in sight previously. and here was t;his .-aaIHy .

6 like, wow, I get to go on vacation with my dad , just him and t , no

7 one will have t o know anything , wherever we go . So--

September 11 , how did you hear about the tragedy? " Q.

, A. Well , living on the West Coast . it was early in the morning

10 when the planes hit , lond it wasn ' t until -- I don ' t even know what

11 time t was woken up by my cell phone, and it w/Is my dad ' s brother,

12 my Uncle Phil , callin9 . and he said , " t hey did it again . they hit

13 the towe.-s . I ' m seeing them fall before my eyes ."

And it; was , as you can imagine , a shocking way to wake

15 up. An d by the time I got to a t e l e vision , they already had come

16 down . And eVen though there was a lot of confusion about what was

11 happening, I just knew ,n my heart that my dad was gone . I just

18 knew it .

19 Q. Did you go back for a memorial service?

20 A. I did . As soon -- it took all my fI"iends could muste.- up to

21 hold me back , because even though in my heart I knew my dad was

22 gone , my b.-ain .-e action was , I 'latta go find Dad . I 'latta go

23 look. 1 gotta do something .

And I was ready to jump on , drive across a hund.-ed miles

2S an hour , because 1 couldn ' t fly , obviously , no one could fly. I

, .... ",----------....... 2012

•


1 was going to hitchhike , anything , it was like I gotta get to New

2 York , and I was held back by my friends , who said, "NO , no , no ,

3 no , don ' t do that, "

4 lind so fifl8lly , I think as many people ~ealized th8'0

5 there were no if your person wasn ' t there , didn ' t call you ,

6 that there was no chance -- the~e was not really a chance that

7 there was anybody left who waSn ' t already standing .

S And so our family , like many families did, decided to do

9 a memorial. and early -- late September , I went back to New York

10 to attend my dad's memorial. and I also had an opportunity to go

11 to the viewing platform that they had erected , because t knew that

12 I had to go back to wor k in California and I had limited time . so

13 ! had to even though t wasn ' t prepared , I knew that if t didn ' t go

14 and view that wreckage and JUSt view the burial ground of so many

15 people , including my dad , that I would never get to do that .

16 So 1 kind of swallowed my heart a bit and went .

11 Q . It was still smoking?

1 8 II . Oh , a smell that you ' ll never forget , a site you ' ll never

19 forget to the day that I die . Definitely not .

Just to know the , to know that there ' s -- this is a

21 burial ground . It had me really have respect for when you hear

22 the Native American stories about digging up burial grounds , like,

2) here WaS this mass grave for who knows how many people .

24 lind it waS well respected , you know , like when the group

2S of families showed up , all the work stopped. Like , all the

, .... ",----------. ...... 2012 Paoo 7."'''' •


1 workers stopped , they took off their hats , their helmets , and they

2 just honored these people , these family members walking through.

3 That was probably the most moving things to just -- yeah .

, Q . Now, eventually , they did find your dad ' s body .

, A . Yes . Again , no coincidence here that I had made a decision

6 to move back from California to New York in 2002 , and as I ' m

7 crossing the Rocky Mountains with my truck and a trailer , my phone

S rings , and it ' s my , my sister, and she s",id, "We didn ' t , you know,

9 we were kind of we weren ' t SUre if we should tell you or not

10 tell you , but they found Daddy , and as soon as you get home , we're

11 go! Ilg to have a funeral .'

12 so I was all of a sudden , I wasn ' t moving my life ; I was

13 driving home to my dad ' s funeral ; and It was almost like he , you

14 know, he was waiting for me to do that and say, okay, now you can

15 find me so you can be there for this .

16 Q. How are you able to cope with this?

11 A . Say this again?

18 O. How are you able to cope with thisJ

19 A. You know, 1 feel very lucky . You know , from that e xperience

20 ! had with my , that reconciliation and transformation with my dad

21 In '99 , sooll aftel" Septembel" 11 . I l"eallzed that there was . God , I

22 saw that , that terrorism, an act of terror was , it was doing

23 something inside me . It had -- there was , like , personal

24 reaction . And what was inside me was fear , anger , hatred ,

2S vengeance , all these things .

, .... ",----------....... 2012

• Paoo 11 or",


, And, you know, when I had that reconciliation with my

2 dad, 1 saw , wow , 1 had this same kind of stuff in my relationship

3 with my dad , and what happened back then and something that I had

4 practiced for the last two years in between , was , like , wow ,

5 actually I have a choice here . I have a choice in how I want to ,

6 how I want to show up in relationships , who I want to be in the

7 world , you know , how I want to focus my energy and use my life .

S And I sawall of a sudden I had that same choice again

9 right in front of me , that , you know , 1 saw that if 1 let the

10 terror , if I let myself succumb to the fear , that ,"ould lead to

11 anger and vengeance and hatred , then not only planes were hijacked

12 that day , that my life was going to be added to that list of

13 casualties , and 1 was not willing to let that happen .

And I realized I had choice . I had the power in myself

15 to go a different direction . Because I clearly saw that if I went

16 down that path of, of. you know , wanting retaliation or whatever ,

17 the dark side , if you will , that there was a particular life that

18 that was going to lead me to. And 1 had , and 1 had learned from

19 that transformation .. ith my dad that that ' s not living at all.

20 that r would be giving my life to that fear.

And , you know, life , you know . the other thing t;hat;

22 happened to me that had me cope was I realized how precious life

23 is , that we never know what ' s going to happen. You never know

24 "hat ' s going to happen in your life .

Look at what happened that day . People ' s lives were

, .... ",----------....... 2012 Pooo ," "' ,. •

pooo'·"'''"'


1 taken . My dad worked so hard for his life , in hopes that some day

2 he was going to retire and be able to enjoy himself.

And , you know, so he , you know , so part of me

4 recognized , wow , he wasn ' t even fully living the fullness of what

5 he really ~~ his dreams and what he really want;ed , you know . He

6 worked so hard .

7 so it; was such a blessing for me t;o recognize t;hat; , t;hat;

S how I fight the terror in me is to live my life well , is to find ,

9 you know, just like I found bridges with my dad in my relationship

10 with him, that you Can find those bridges in any relationship

11 anywhere in life , that those Can be found , and not; only , you know,

12 and whhin finding t;hose bridges , you actually get; your life back,

13 because you get to see a bigger picture. You get to find out more

14 about; yourself .

15 And it was through all of that process that , you know, I

16 was able to reclaim my life and to take my life back and to take

17 my heart back . Because when , you know , I also Saw that if I waS

18 to succumb to fear, to succumb to the terror that was shadowing

19 over and I feel still shadows , you know , still wants to get in

20 there , t;hat , you know, again , r give up my life . t give up the

21 beSt; at who I am by , you know , by closing my heart; t;0 t;hat .

22 You can ' t ~- I recognize that I can ' t possibly have an

23 open heart and still be afraid or angry or vengeful. So it was

24 like II choice , like what do you really want here? What kind of

2S life do you want? Who do you want to be?

, .... ",----------....... 2012

• Paoo7."',,",


1 And I ' m so cle ar to this day , from then to this day that

2 the life that I "'ant , that I ' m living. is one of heart , of love ,

3 of compassion for other people, oC of livinq it ",ell, as I said .

4 of , of honoring t he best of who r am, and , you kn ow, wanting to

5 reflec\; that t o anyone I c an that ' S in t erest ed in seeing t ha t ,

6 finding that in themselves . There ' s nothing else to do in life

7 but to , to live t ha t pa th .

MR. YAMAMOTO : Thank you . Nothing further , Your 1I0nor .

, TilE COURT : Any cross-exllminlltion7

MR . RAS KIN , No , Your 1I0nor .

" TilE COURT : Thank you for your testin>Ony , sir . You ' re

12 tree to go .

THE WITNESS : Thank you very much .

(Witness e xcused . J

THE COURT : All right , ladie s and gentlemen , it ' s 5 : 30 ,

16 so it is time for Us to stop . We ' re going downstllirs to the si xth

17 floor , just attorneys /lnd the Court , but we ' ll see you back here

18 8fO 9 : 30 t omorrow morning . Please remember my cautions abou t

19 avoiding any media coverage, and we ' ll see you then .

All right , we ' ll recess court .

21 (Recess trom 5 : 30 p . m .• until 9 : 30 a . m., April 20 , 2006 . )

24

, .... ",----------....... 2012

•


1 CERTIFICATE OF THE REPORTERS

2 We certify that the foregoing is a correct transcript of the

3 record of proceedings in the above-entitled matter .

, , ,

Anneliese J . Thomson , , Norman B. Linnell

, " n

12

" 14

" " " " 19

20

" " " 24

"

, .. .J,,---------- • ....... 2012 Paoo"' or",

4377


ATTACHMENT

F ••• ", ... TJ ....... 2012

B

UNCLASSIFIEDIIfOR PUBLIC RELEASE __ E_ 8211 (Al-N ...... )

Paoo "" or",


OFFICE OF THE SECRETARY OF DEFENSE OFFice OF MILITARY COMMISSIONS

4800 MARK CENTER DRIVE ALEXANDRIA, VA 22350·2100

Convening Authority

April 27, 2012

MEMORANDUM FOR LCDR STEPHEN REYES, OCDC

SUBJECT: Defense Request for 6 Additional Translators - United Siales v. Al Nashir;

1 considered carefully your request of April 23, 2012, for the appointment of 6 additional translators to the Nashirl defense team to translate 1,535 pages of documents by July 6, 2012, because your current team of 6 translators "would be unable to complete this project." For the reasons set forth below, I deny your request.

Neither the Military Commissions Act ("M.e.A.") nor the Rules for Mi litary Commissions require the government to provide translations of documents furnished to the defense in discovery. The M.e.A. only requires that the accused receive a copy of the charges "in a language the accused understands" (10 U.S.C. § 9485), and that the accused shall have the services of interpreters, as necessary (10 U.S.C. § 948J(b)). This is consistent with federa l law. which does not grant a defendant the right to have discovery documents, statutes, regulations, or other materials translated into their language of choice. Instead. it is incumbent on defense counsel to dctennine the key documents the accused should examine. and to have the translators assigned to the defense translate those docwnents for his review. You have not demonstrated any "necessity" for the appointment of 6 additional translators. See Military Judge Pohl's Ruling on AE038, Nashiri UnofficiallUnauthenticated Transcript of April 12,2012, at 862. Rather, you make a "blanket" request for the translation of I ,535 pages of documents, without providing any reasoning as to why such material is necessary, why your current team of 6 translators cannot accomplish the task, and why it must be done by July 6, 2012. Id. Accordingly,l deny your request. (fyou desire, you may resubmit your request fo r the appoinunent of 6 additional translators, with an explanation as to why such services are n cessary, for my sidcration.

cc: Mr. Kammen, OCDC Mr. Mattivi , OMC~P

Flied with TJ 3 July 2012

on. Convening Authority

for MiUtary Commissions

UNCLASSIFIEDIIFOR PUBLIC RELEASE Attachment B Page 2 of 11

Appellate Exhibit 82B (AI·Nashiri) Page 84 of 93


I)EPARTME?\T Of DEfENSE O fFICE Of TilE C l llEf Of.FEN' F COUNSEL

OFnn: OF ~II LITARY COMMISSIO 'S 1(,20 I)EFENSE I'E :'\'T \GOi'l

WA SIII\' (;TON, UC 20JOI -162tl

MEMORANDUM FOR TilE CONVENING AUTHORITY

30 April 20 12

SUBJECT: Defense Renewed Request for 6 Additional Translators -United States v. AI Nashiri

1. The defense renews its request of April 23, 2012 for the appointment of6 additional translators to the above case to translate 1,535 pages of documents by July 6, 2012 .

2. In your denial of the defense's request you reiterate the position that it is "incumbent on defense counsel to determine Ihe key documents the accused should examine, and to have the translators assigned to the defense Iranslatc those documents for [Mr. Nashiri's] review," As you know, this is a complex death penalty case that spans multiple countries and over a twelve year time period. Given the complexity of this case, the uncertainty as to the rules such as the admissibility of hearsay and the ultimate penalty at stake, the need for timely translations is crucial for the preparation of the defense. Further, the amount of documents involved in this case is expected to be immense. As one example, the government stated that it expects [Q deliver roughly 150,000 pages of discovery that is releasable to Mr. Nashiri. Currently, the Office of Chief Defense Counsel has dedicated 6 additionaJ translators to this case. It has been determined that those 6 translators can translate an average of 600 pages a month, subject to quality control. Those translators are presently translating 1,200 pages, which wil l require two months to complete.

3. The defense has been reviewing its discovery and has concluded that the document" referred to in this request arc the minimally necessary documents that it believes arc required to be trans lated at this lime .! This is also in addition to the translation of court documents and other case related materials. This is n01 the only request for translations that the defense will make; the review process is ongoing and given the amount of documents involved in this case, the volume of pleadings filed and the defense investigation, the defense may ultimately require the trans lat ion of several thousand additional pages .

4. Currently, the 1,535 pages that the defense requested to be translated are the first set of documents that the defense determined that at a minimum, are necessary for the preparation of its case and for Mr. Nashiri to assist in his defense. Given the amount of pages that can be translated by the current staffing, the translation of these documents will not commence until after the first assignment of 1,200 pages is complete (within the next two months), and marc importantly, once started it will require an additional two to three months to complete (total of five months from Ihis date). 1n order to provide timely assistance of counsel, the defense requests that an additional team of6 translators be assigned so that the 1,500 pages ean be translated within the next two months, prior to the next court hearing.

I The defense continually asserts that Mr. Nashiri has a statutory and constitutional right 10 the translation of the entire discovery mat the gowrnment has dctcnnined is releasable to him.

Filed with T J 3 Ju!y 2012

UNCLASSIFIEDIIFOR PUBLIC RELEASE Attachment 8 Page30f11

Appellate Exhibit 828 (A!-Nashiri) Page 85 of 93

UNCLASSIFIEDIIFOR PUBLIC RELEAS E

5. Further, the defense believes that any additional information aboullhe contents of these documents or the reasons for translation required for you to approve translations infringes upon attorney-client and work product privileges and unfairly provides the government with an insight into defense strategy. See Upjohn Co. v. United States, 449 U.S. 383. 399 (1981)(the fact that counsel believes the documents to be important reveals counsel ' s mental processes and case strategy). Therefore, any criteria for translations that require the defense to provide additional justification, other than what has been provided, would violate Mr . Nashiri ' s right to effective assistance of counsel and his rights under the Military Commissions Act, the Detainee Treatment Act. and the Fifth, Sixth, and Eighth Amendments to the Constitution.

6. In light of your prior denials. the defense must determine thc kcy documents in this capital case and then set those aside for translation. The defense started this process and has identified 1,500 pages that are, at a minimum, necessary for translation . The defense anticipates that due to the volume of discovery and the complexity of the case, this process will yield a much larger volume of pages for translation . However, your refusal to provide additional translators means that Mr. Nashiri and the defense learn must wait months and perhaps years before it can provide adequate representation. Denial of this request is a violation of Mr. Nashiri's rights under the Military Commissions Act, the Dctainee Treatment Act, and the Fifth, Sixth, and Eighth Amendments to the Constitution.

cc: Chief Defense Counsel

Filed with T J 3 July 2012

11511 Richard Kammen Civilian Learned Counsel

11511 Stephen C. Reyes Lieutenant Commander JAGC. US Navy Office of the Chief Defense Counsel

2

UNCLASSIFIEDIIFOR PUBLIC RELEAS E Attachment 8 Page 4 of 11

Appellate Exhibit 828 (Al-Nashiri) Page 86 of 93

Con .... nlng Authority


OFFICE OF THE SECRETARY OF DEFENSE OFFICE OF MILITARY COMMISSIONS

4800 MARK CENTER ORNE ALEXANDRIA, VA 22350·2100

MEMORANDUM FOR MR. RICHARD KAMMEN. OCDC LCDR STEPHEN REYES. JAGC, USN. oeDC

May 17,2012

SUBJECT: Defense Renewed Request for 6 Additional Translators· United Slates v. Al Nashiri

J considered carefuJ ly your April 30, 20 12, renewed request for the appointment of 6 additionallranslators to the Nashiri defense team to translate 1,535 pages of documents by July 6, 2012. For the reasons set forth below, I deny your renewed request.

Neither the Military Commissions Act ("M.e.A.") nOf the Rules for Military Commissions require thc goverrunent to provide translations of documents furnished to the defense in discovery. The M.e.A. only requ ires that the accused receive a copy of the charges " in a language the accused understands" (10 USc. § 948s), and iliat the accused shall have the services of interpreters, as necessary (10 U.S.c. § 9481(b)). This is consistent with federal law, which does not grant a defendant the right to have discovery documents. statutes, regulations, or other materials translated into their language of choice. Instead, it is incumbent on defense counsel to dctenn ine the key documents the accused should examine, and to have the translators assigned to the defense translate those documents for hi s review.

On Apri l 9, 20 12, my office received, and approved that same day, your request for the appointment of6 translators to assist the defense team in translating docwncnts. Since April 25, 2012,4 of the 6 requested translators have been working fo r the defense team, with 2 beginning work on April 16, 20 12, and 2 more joining the defense team on April 25, 2012. ' The remaining 2 translators are in the process of being identified by the government contractor, and will be available to assist the defense team as soon as that process is completed. 1 nott! that, since July 21 , 2008, thero has been I ful l-time translator assigned solely to, and available for use by, the Nashiri defense tearn, Also. there are currentJy 3 translators assigned to the OeDe that may be available, upon request: to assist you as welL

On April 23, 2012, you requested the appointment of 6 additional translators, on top of ilie 6 requested Oil April 9, 2012, to assist the Nashiri defense learn in translating 1,535 pages of documents by Ju ly 6, 2012. Although I denied that request, because you did not demonstrate any "necessity" fo r the appointment of 6 additional translators, I invited you to resubmit your request with an explanation as to why such services are necessary .

UN RELEAS E

Page 87 of 93


On April 30, 2012, you submitted your renewed request for 6 additional tranSlalOrs to assist the 6 translators that you state are already working with, and "dedicated" to, the Nash;r; defense team. However, you have not demonstrated any "necessity" for the appointment of the 6 additional translators. See Military Judge Pohl's Ruling on AE038, Nash;r; UnofficiallUnauthenticated Transcript of April 12,2012, at 862. Instead, you stOle that the documents you seek to be translated are the "mirumally necessary documents," and refuse to provide any funher information regarding the contents of such documents or the reasons for the translation of same because you state it ;'infringes upon anomey·client and work prod uct privileges and unfairly provides the government wi th an insight into defense strategy ." Accordingly. I deny your request because you have not demonstrated why such material is necessary, why your current team of 6 translators cannot accompli sh the task, and why it must be

done by July 6, 2012. {d. .,,6"' .... JQ m Bruce MucDonaJd r Convening Authority

for Military Conunissions

cc: Mr. Manivi, OCP

2

UNCLASSIFIEDIIFOR PUBLIC RELEASE PI I 7 Page 6 of 11 Page 88 of 93

2 Ii :,



48110 MARK CENTER DRIVE ALEXANDRIA, VA 22350-2100

Convening Authortly

June 8, 2012

MEMORANDUM FOR LCDR STEPHEN REYES, OCDC

SUBJECT: Defense Request for 8 Translators 4 United States v. AI Nashiri

I considered carefully your request to my office of May 30, 2012, for the appointment of 8 translators to the Nashiri defense team to translate 2,000 pages of documents by June 29, 2012 (attached). For the reasons set forth below, 1 deny your request.

Neither the Military Commissions Act ("M.C.A.") nor the Rules for Military Commissions require the Govenunent to provide translations of documents furnished to the defense in discovery. The M.e.A. only requires that the accused receive a copy of the charges "'in a language the accused understands" (lO U.S.c. § 948s), and that the accused shall have tbe services ofinterpreters, "as necessary" (IO U.s.c. § 9481(b»). This is consistent with federal law, which does not grant a defendant the right to have discovery documents, statutes, regulations, andlor other materials translated into their language of choice.

You have not demonstrated any "necessity" for the appointment of 8 translators to translate 2,000 pages of documents. See Military Judge Pohl's Ruling on AE038, Nashiri UnofficiailUoauthenticated Transcript of April 12,2012, at 862. Rather, you make a "blanket" request for the translation of 2,000 pages of documents v.ith " 00 showing" as to why such material is "essential" or why it must be done by June 29, 2012. See id. Accordingly, I deny your request If YOll desi re, you may resubmit your request, for my reconsideration, with an explanation as to why such translation services arc necessary.

Attachment: As stated

CC: Mr. Kanunen. aCDC Mr. Mattivi, OCP


Bruce MacDonald Convening Authority

for Military Commissio

UNCLASSIFIEDIIFOR PUBLIC RELEASE Attachment 8 Page7of11

Appellate Exhibit 828 (Al -Nashiri) Page 89 of 93


REQUEST FOR TRANSLATORS AND EXPERTS (CONSULTANTS)

Date received:

Record No.:

you What subject would you like the expert to address?

any Eisalibi would like to site. Due to the nature of the

I

o Indonesian

assignment: #Days = __ or # HOUrs~..","",.,.. o Consecutive: 0 TS/SCI 0 Secret o Research ..... ... ... , ... Hours o Court reporter: DTS/SCI o Secret

OCONUS assignment: # Days (including travel days) __ _

Country:;::O;::;c::c __ n""'''"'' ____ ---; o Simultaneous: 0 TS/SCI 0 Secret: o Consecutive: 0 TS/SCI 0 Secret: o Court Reporters: 0 TS/SCI o Secret

" TranslationfTranscriptlon:

Subject tile: :::::::::;:;:;:",,,,,:c.::;::-;:;;;=:-:::::::==--==-:;;;:;:;: Type of dOGument:(ie, legal docs, letters, interviews, news articles. or other technical information) From English into Arabit;",-;:::,---,;-;-:::;;:-;",;:::;:: Form of Work to be translated or transcribed: 0 Video 0 Audio 0 Handwritten

o Internet Research 0 Other ""="'0:=:::-""=="'''-::===--o English into Arabic 0 Dati/Farsi 0 Pashto 0 Swahili 0 Indonesian From into English

Jerry Christiansoo/SAIC

you We are requesting discovery documents.

Phone number: _ Fax number: E-mail address:

i with and any other linguists that we currently have at Rosslyn 3

our current number of linguists would be unable to complete this

The below signatures certify that the above mentioned services requested have been completed and received by the

ToLal" of words

Date:


Date:

copy to PM)

Date:

UNCLASSIFIEDIIFOR PUBLIC RELEAS E Attachment 8 Page 8 of 11

Appellate Exhibit 828 (AI-Nashiri) Page 90 of 93

ConvenIng Authority



4800 MARK CENTER DRIVE ALEXANDRIA, VA 22350~21 00

MEMORANDUM FOR LCDR STEPHEN REYES. OCDC

SUBJECT: Defense Request for 6 Translators - United Stales v. At Nashiri

June 12, 20 12

I considered carefully your request to me dated June 11, 2012, forthe appointment 0[6

translators to the Nashiri defense team to translate "roughly 1500" pages of documents . (attached). For the reasons set forth below, I deny your request.

Neither the Military Commissions Act ("M.e.A.") nor the Rules for Military Commissions require the Government to provide translations of documents furnished to the defense in discovery. The M.e.A. only requires that the accused receive a copy of the charges "in a language the accused understands" (l 0 U.S.C. § 948s), and that the accused shall have the services of interpreters, "as necessary" (lO U.S.C. § 948I(b)). This is consistent with federal law, which does not grant a defendant the right to have discovery documents, statutes, regulations, and/or other materials translated into their language of choice.

You have not demonstrated any "necessity" for the appointment of6 translators to translate "roughly 1500" pages of documents. See Military Judge Pohl's Ruling on AE038. Nashiri UnofficiallUnauthenticated Transcript of Aprill2, 2012, at 862. Instead, you make a "blanket" request for the translation of "roughly 1500" pages of documents with "no showing" as to why such material is "essential" to the preparation of your case. See id. Accordingly, I deny your request. If you desire, you may resubmit your request, for my reconsideration, with an explanation a<t to why such translation services are necessary.

Attachment: As stated

cc: Mr. Kammen, OCDC Mr. Mattivi, OCP

·B~ru-->ceU:M~a/.C~D::-o:-nJ<a1';'d~Jt.:::.",,~1.:"/ Convening Authority

for Military Commissions

Prir.llld""

UNCLASSIFIIOnJJIOn.c r-UCL' C, RELEAS E


REQUEST FOR TRANSLATORS AND EXPERTS (CONSULTANTS)

"" Date received: 11 Jun 2012

Record No •••••••

you

Office of Military Commissions. evaluate the type of services requested and also with DoD policies and for coordination with the

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From inl, Eflgli.sh

Jerry Christianson/SAIC

What subject would you address?

the expert to We are for the Nashiri case.

LCDR stephen C Reyes Phone number- ••••• -"Ie Detailed Oefanse Coul'1sel Fax nU"1ber: Organlzalton Office cf the Chief Defense Counsel E-mail addl~".~ .. :·-.!!I]!II!!II!!!I!~~~~~.

any clarifying requirements not listed above): This request is"'toC-Cc~o~n"ti~n~u~""'th. translation of the referral binder. So far the team has completed roughly 630 pages of the assignment and has, to date, roughly 600 to 700 more pages to translate.

The below signatures certify that the above mentioned services requested have been completed and received by the USG.

Total # of words

Date :


Date: Date:

OGC/OMC: (once copy to PM)

UNCLASSIFIEDIIFOR PUBLIC RELEAS E Attachment B Page100f11

Appellate Exhibit 82B (Al-Nashiri) Page 92 of 93

Convening Authority



4800 MARK CENTER DRIVE ALEXANDRIA, VA 22350-21 00

MEMORANDUM FOR LCDR STEPHEN REYES, oeDe

June 19,2012

SUBJECT: Defense Renewed Request for 6 Translators - United States \I, Al Nashiri

I considered carefully your renewed request to me of June 13, 2012, forthe appointment of 6 translators to the Nashiri defense team "to continue the translation of the referral binder." For the reasons set forth below, I grant your request.

Neither the Military Commissions Act ("M.e.A.") nOT the Rules for Military Commissions require the Govenunent to provide translations of all docwnents furnished to the defense. The M.e.A. only requires that the accused receive a copy of the charges "in a language the accused understands" (10 U.S.C. § 9485), and that the accused shall have the services of interpreters "as necessary" ( 10 U.S.c. § 9481(b». This is consistent with federal law, which does not grant a defendant the right to have discovery documents, statutes, regulations, and/or other materials translated into their language of choice.

As it was necessary fo r me to rely on the referral binder in making my decision to refer the charges against Mr. AI·Nashiri to a military commission, I find that it is equally necessary to have the referral binder translated for him. Accordingly, I gram your re

cc: Mr. Kammen, OeDe Mr. Mattivi, OCP

Flied with TJ 3 July 2012

4MaCDonaid Convening Authority

for Military Commissio s

UNCLASSIFIEDIIFOR PUBLIC RELEAS E AUachment 6 Page 11 of 11

Appella1e Exhibi1826 (AI-Nashiri) Page 93 of 93

u'j,;l abd al-rahim hussein muhammed aildu al-naslliri ...€¦ · unclassifiediifor public...

Documents