2.Limits on Prosecution Rebuttal About SAMs and ADX
95 linesTHE COURT: Okay. So the defense will conclude. So let's turn to the rebuttal witnesses. As a general matter I don't think the government needs to refrain from rebuttal evidence of its own even if a point has been made on cross-examination of a defense witness. In other words, I think the government is entitled to an authoritative witness of its own on rebuttal. It can get redundant and cumulative in the sense of wasting time because it's saying things that they've already heard, but I do think in a sense the government's entitled to get it from the mouth of a government person. But that's not license to go on at great length.
And I think it should be particular to the structural operation of the SAMs. I think it -- to get into other cases specifically I think diverts attention from the issues here. And you have issues of comparability and so on and so forth, and I don't think other cases ought to be discussed. That includes the nine down to three or whatever the numbers are.
MR. MELLIN: The government does not want the numbers out --
THE COURT: Right.
MR. MELLIN: -- because I think Mr. Bezy --
THE COURT: I want to focus on the structure. The SAMs permit relief, I guess is the government's point of view, under certain circumstances, and it is available when the circumstances are satisfactory to the people making the decision, that even people convicted of terrorism crimes can get relief. Whether this defendant will or whether others did on whatever conditions, there's just no way of comparing the prospect of --
MR. WEINREB: Mr. Bezy was allowed to testify --
MR. MELLIN: Your Honor, we should be able to rebut that. I do think Mr. Bezy left a very misleading if not false impression that there have been numerous SAMs violations, and he said he was unaware of any. And the examinations will be very truncated and very focused.
THE COURT: I think you could say in general terms that relief has been given, but to then be specific as to the criteria by which it was given -- because, I mean that's simply saying the availability -- for example, I think it's legitimate to say the availability of relief under the SAMs is not just theoretical in the language of the SAMs, it has and actually has occurred. But to go any further and to try to compare -- to suggest that there's a ratio, and therefore a probability, I think goes too far. So if you say of the original whoever was in 2002, three --
MR. MELLIN: Seven down to three, right.
THE COURT: I think that suggests a probability which is speculative and unreliable. So the numbers I think have to stay out of it.
MR. WEINREB: What if we avoid any specific numbers and say a number have so that --
THE COURT: It has happened, okay?
MR. MELLIN: Yes.
MR. BRUCK: Now, when we're talking about relief, we're talking about the government withdrawing the SAMs. There was an implication raised, The courts could do this, and no court has ever ordered a SAMs withdrawn. There's been -- and no court has ever granted -- has never issued an order even altering or requiring the government to make the slightest variation in a SAMs but, yes, there has been back and forth, there's been negotiation, there have been compromises, but that gets us into a world of comparison that would keep us here for the rest of the week.
So the subject of court review should not be mentioned. It's so unfair and it is so impossible to respond to and it appeals to this popular idea that there are liberal judges who just can't wait to let people loose and undermine national security and so forth. We don't know what the political views of jurors are going to be on these areas. If there was any factual basis to it, that would be one thing, but there isn't. It's nothing but an appeal to bias and suspicion. So it's --
THE COURT: Well, let me ask you this: No court has ever ordered it. Has there been litigation over it?
MR. BRUCK: Of course there has been.
THE COURT: Maybe that's a way of saying it.
MR. BRUCK: But that implies -- if there's been litigation that has run into essentially a brick wall in terms of getting a court to order relief, that opens the door and doesn't allow us to close it. And they're calling witnesses who will say, Oh, well, I mean, why should courts -- the fact that -- prisoners can sue over anything, and do as you well know, as every federal judge knows.
To inject that when this is an area to which courts defer to the executive branch -- this Court deferred to the executive branch when we asked the SAMs to be removed. It just -- it is enough that the government -- that the SAMs are imposed and they are sometimes allowed to lapse, or at least they are sometimes withdrawn by the government. That tells the jury everything they need to know: That they don't stay in effect forever in every case. End of story. Beyond that, there's simply no way to have a fair airing of this.
And the fact that the defendants are allowed to send, you know, handwritten pleadings to the Court saying, "Please do something" that no court has ever done and no court probably ever will, does illuminate the facts for the jury as to what's going to happen to this uniquely spotlighted defendant who's likely to stay under the SAMs for years and years, and presumably for decades, and will stay at ADX even if it doesn't. Ramzi Yousef went there in 1998 and he's never leaving, and our kid is in the same --
MR. MELLIN: Your Honor, that's not correct. Walker Lindh went there in 2002 and he's no longer there. It's unfair for them to try to leave this impression which they've left which is incorrect. I don't need to get into the names or say the names like Walker Lindh or anything like that, but it's wrong to leave the impression someone who is convicted of a terrorism charge, who is on SAMs, who is sent to ADX will always be at ADX.
MR. BRUCK: Walker Lindh was serving a 20-year sentence. There is no possible way to compare that case to this case. And that's the problem. And that is why this is a brier patch that, you know, we just should stay out of. It is enough that the SAMs are not necessarily permanent. They can be lifted. They have been lifted. End of story.
MR. WEINREB: Your Honor, if I may make a few points. One is that the reality is that litigation is not always resolved with a court order one way or another. People often settle litigation, and that happens with respect to the SAMs all the time. And it happens often with the courts signaling to one party or the other that it will -- it is expecting relief or seeking a negotiated modification of the SAMs in order to avoid a court order. That is exactly what happened in this case.
Secondly, to say that the government is trying to open a can of worms here really rings hollow because it is the defense and only the defense who brought this up, introduced this entire topic. They basically -- Mr. Bruck said to the jury in his opening statement and tried to establish through Mr. Bezy two propositions that cannot, in fact, be proved because they are not true. One is that the SAMs will always be in place on this defendant and the second is that he will never be stepped down. That is not only not true but it's not likely.
And it's one thing to say that it's a difficult issue for the jury to understand, it requires, you know -- that reasonable limits have to be placed on the testimony -- that's something the Court's equipped to do -- but it's another thing to say that the defense has put on its one-sided story from which they're completing the picture. That would be unfair and it's something they opened the door to, not us.
MR. BRUCK: Well, I mean, I think the Court's initial ruling seems to --
THE COURT: I think it is fair and probably -- not probably, I guess it is accurate at a level of generality to say that -- I think -- "there has sometimes been litigation over the extent of the SAMs and it has sometimes resulted in modification." That's a true statement?
MR. BRUCK: It has sometimes resulted in the government deciding --
THE COURT: "It maybe resulted" is conclusory.
MR. BRUCK: And the government has sometimes --
MR. WEINREB: Your Honor, that's a matter for cross-examination.
THE COURT: I mean, it is true that litigation that doesn't proceed to judgment can have real effects changing the prior relationship of the parties. I don't think there's any question about that.
MR. WEINREB: That certainly happened in the case of Richard Reid. There was excessive litigation over the SAMs in that case, and ultimately the government would --
MS. CONRAD: You're talking about pretrial litigation?
THE COURT: Is it still at a very high level without no --
MS. CONRAD: Was that -- I want to be clear. When you say Richard Reid, our office didn't litigate the trial.
MR. WEINREB: Judge Young kept continuing supervision over the SAMs even after the defendant was put in BOP. For example, Judge Young ordered that the defendant could not be interviewed unless it was videotaped and he had an opportunity to review it and various other things. I'm not sure which of these are under seal or not.
MS. CONRAD: I don't think any of that --
MR. WEINREB: So I don't want to put things on the open record. But in any event, it is the reality that judges do exercise a degree of supervision over SAMs, and either by indicating what a ruling will be, if not making an actual ruling, affects the modifications.
THE COURT: Would either of these witnesses have been in a position to affect or execute the government's policy in litigation; that is, to approve an amendment to the SAMs? Participate in the process? In other words, could they testify about that process?
MR. MELLIN: Yes, and as a matter of fact, that's what Agent Nicolet would be talking about. She is the unit chief in Washington, D.C., for the FBI who is in charge of overseeing the request for terrorism SAMs. So she can discuss that.
THE COURT: In other words -- I guess I'll refine my question -- would she have personal knowledge of a -- of the fact, if it is a fact, that litigation brought has resulted in --
MR. MELLIN: Modifications.
THE COURT: -- modifications by the government?
MR. MELLIN: Yes. Yes. She is a lawyer and she's also an FBI agent.
THE COURT: Well, I think testimony at that level of generality is okay without any specific cases.
MR. WEINREB: One other thing we'd like to revisit here is our request that the government be able to put in some limited testimony about what, in fact, the conditions of the defendant's confinement within his cell would be. He was asked about -- Mr. Bezy was able to testify that he has to back up to a slot in the wall and have handcuffs undone and various other things. Mr. Bruck again made a very big point in his opening statement and tried his best to develop through Mr. Bezy's testimony a picture of life in ADX. And we believe that it is an entirely fair response to that to offer some limited testimony about what it would be like, and in particular, that there is some programming for defendants who are there, that they have television and that they have access to education like to be able to take online courses or whatever it is, video courses and so on.
MR. MELLIN: True.
MR. WEINREB: And it seems as if that's a pretty minor thing that the government is asking permission to do. It is responsive to what was said both in the opening statement and in Mr. Bezy's testimony, and I don't think that there's something, you know, incredibly prejudicial about it to outweigh its probative value because it's something that has been raised as an issue in the case and something the jurors are no doubt interested in.
MR. BRUCK: I mean, we went into the issue with Mr. Bezy of restrictions on communication. He accurately described that there are three levels and that there is more communication at the third level if a defendant -- if the SAMs are modified to allow a defendant to reach the third level in the SAMs structure. He did not testify one way or the other about conditions. We avoided that. We didn't put in the pictures. We stayed away from the whole area. And now to say, Well, that opens the door to cable television and ESPN and all these inflammatory details, the government is pushing so hard not because they think it's modest but because they think it's huge. They've been pushing on this since day one. We did not open the door to it, we did not create a miscommunication whether he'll be allowed to.
Mr. Bezy's testimony was accurate on that. It wasn't spun perhaps the way the government would like it but that isn't -- that doesn't mean that they're entitled to go into new areas, and that's what they want to do. This is -- you know, this is just -- this is inflammatory and it should not be allowed. The Court ruled at the beginning of this that we were going to stick to the SAMs and that's the correct ruling.
MR. WEINREB: Your Honor, for the defense -- for Mr. Bruck to say in his opening statement the Rockies are right there but the defendant won't be able to see them because he'll only have a tiny slit in his wall and that's all he could see out of, for him to say in his opening statement the defendant will spend the rest of his days doing nothing but thinking about what he did to these victims, implying he'll have nothing else to do in his cell other than that because all he'll have is four walls to stare at, is what opened the door or invites the -- creates the necessity for some limited evidence to provide a more complete picture of what the defendant will be able to see while he is sitting in his cell.
He will not be blocked from view of the outside world because it will be piped into his cell through a screen. So the fact that there's just a slit in the window that doesn't even let him see the Rockies does not in any way convey what the -- the visual, you know, distraction the defendant will have from having to think about his crimes for the rest of his life while he's sitting in that cell.
THE COURT: So what are the specifics that you would want to put in?
MR. MELLIN: Just what is in the cell, your Honor. The fact that there is a desk, so he can write on his desk, the fact that there is a TV in there with cable television.
THE COURT: Who controls it?
MR. MELLIN: The defendant -- or the inmate controls it. There are 50 channels of DirecTV that's piped into their room along with music as well, so the inmate controls all of that. They can watch whatever television stations they want. They can watch educational training, they can watch videos that are -- to workouts like yoga or something like that. The individual inmate controls all of that.
Also, just in response to what Mr. Weinreb was saying, Mr. Bezy testified and left the impression that the defendant or an inmate will be left in his prison cell for 23 hours a day with nothing to do, and this is -- these are the things they can do: They can watch television the entire time.
THE COURT: What else. That's it? Just television?
MR. BRUCK: Nothing --
MR. MELLIN: They can watch television, education.
MR. BRUCK: The "nothing to do" is supplied by Mr. Mellin. That isn't what Mr. Bezy said. I point out most of what the government is complaining about they elicited on cross. It was not about H unit; it was about ADX generally. And it came out because Mr. Mellin elicited it. It did not go beyond what the government is saying, and we opened it up and didn't like the answer, and now we're entitled to open it up even further. This is completely barred. It does not go to the SAMs.
THE COURT: Let me think about this. We have a little bit of time before the witness testifies so let me think about it.
Let me complete the government's proffer for rebuttal. Dr. Francis: Let me set the table by saying it sounded like he was an expert rebuttal witness, and if the testimony is lay opinion, it sounds like he would not be necessary.
MR. WEINREB: That's correct. If the testimony that Sister -- can I ask you a question? Is it Sister Helen or Sister Prejean?
MS. CONRAD: Sister Helen.
THE COURT: Presumably nuns use their first name.
MR. WEINREB: So if the testimony that Sister Helen gives is limited in the way the Court directed, there will be no need for Dr. Francis.
MS. CONRAD: Well, then I don't need to address his opinion about the boat writings.
MR. BRUCK: If I could get back to the SAMs limitation, I trust that the testimony will not involve pretrial litigation in this case which is --
THE COURT: That raises the notice question. I'm inclined against it because I think there is a difference between -- the purposes of the pretrial -- the purposes of the accommodations in pretrial which had to do with the Fifth and Sixth Amendment implication, I think I said it at the time that I was not sitting on this as a judge drawing the Civil Rights case but only as it impacted the fair trial right of this defendant in this case and I didn't want to make any judgments beyond that. So I think there can be a substantial difference in the judicial prospective on pretrial addressing SAMs in the context of a criminal prosecution as opposed to judicial attention to the conditions of confinement postconviction.
MR. WEINREB: Well, and yet --
THE COURT: And we can't get into that with the jury, that distinction.
MR. WEINREB: But there's no guarantee, and, in fact, we all know that, in fact, there will be litigation wherever he's sent, and if he's sent to -- that there will be additional litigation, he will continue to have a right to counsel and --
THE COURT: And we've said you can -- I think at the level of generality, that can be put in. But to compare it to what happened in this case I think is too gross a comparison, I guess is what I would say, and the considerations certainly that I was thinking of as we were considering these things is how much does this interfere with the right to access to counsel and those kinds of things for the criminal prosecution where he is presumed innocent. All that changes with conviction and the other circumstances. So I think it could be an apples and oranges situation.
MR. MELLIN: The concern, your Honor, is that the modifications in place now are going to roll over to ADX.
THE COURT: They will for a while anyway.
MR. MELLIN: So those changes in the immediate family members.
MR. FICK: Even the modifications in place were all about the members of the defense team and the defendant's sister-in-law. All of the postconviction incidents that I was able to find that nibbled at the edges of SAM were ultimately about the exercise-of-counsel duties. And the government is suggesting in their cross of Mr. Bezy, he's going to get unlimited fan mail and he's going to write a book. And that is way, way outside of the realm of possibility and unlikely.
THE COURT: You won the point.
(Laughter.)
MR. BRUCK: This other thing about TV, there is a prisoner's composition we provided detailing the psychologically debilitating effects for him of confinement in H unit. We would like to enter that portion of that testimony if the defendant -- if the government is going to be able to show that he gets cable TV. This is a man describing going out of his mind in that cell, becoming paranoid and having all sorts of degrading conditions psychologically, with cable television. And so it is just terribly unfair -- I realize the Court hasn't ruled on this, but that's part of a mix that I hope the Court will keep in mind.
THE COURT: Okay.
MR. WEINREB: We would object for the reasons --
MS. CONRAD: With respect to Sister Helen, I would like a little leeway on leading on some of these points.
THE COURT: Yes. To stay within bounds? Yes.
MS. CONRAD: Thank you.
MR. WEINREB: No objection.
THE COURT: And you'll take a couple of minutes with her to explain the limitations?
MS. CONRAD: Of course.
(The proceedings adjourned at 9:33 a.m.)
P R O C E E D I N G S
COURT CLERK: All rise for the Court and the jury.
(The Court and jury enter the courtroom at 9:51 a.m.)
COURT CLERK: Be seated.
THE COURT: Good morning, jurors.
JUROR: Good morning.
THE COURT: Thank you for your patience. Let me ask you again: Have you all had success in avoiding any news reports about the case?
JUROR: Yes.
THE COURT: And avoided any discussion of the case with yourselves or others?
JUROR: Yes.
THE COURT: Yes? All right. Thank you.
All right. Ms. Conrad, we're ready to proceed.
MS. CONRAD: Thank you, your Honor. The defense calls Sister Helen Prejean.