12619 5115SATF 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 January 26, 2005 8 9:25 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 12620 5115SATF 1 (Trial resumed; jury not present) 2 THE COURT: May I see the lawyers? 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 12621 5115SATF 1 (At side bar) 2 THE COURT: Good morning, all. 3 ALL COUNSEL: Good morning, your Honor. 4 THE COURT: Mr. Grate called me -- we will put this 5 under seal -- to say that, last night, that the marshal 6 reported that juror number 14 had complained about the van 7 driver compromising anonymity. 8 So, I spoke to the marshal and he said that the juror 9 had left a voice mail message complaining about the van driver 10 and that the juror said that he was speaking on behalf of all 11 of the jurors and would take it up with the Court tomorrow. 12 The marshal also said that he saw to getting the van 13 driver changed. So, rather than having the marshal give the 14 checks to the jurors this morning and not being here when the 15 jurors initially gave us the note that they were ready to 16 deliberate, I'm here to accept any note from the jurors about 17 what any complaint they have as to the van driver or what the, 18 or how the van driver compromised anonymity and to see what the 19 jurors want to complain about. 20 MR. TIGAR: Judge, who are the drivers? Are they from 21 a private service? Are they marshals? 22 THE COURT: No, I believe they're from a private 23 service. 24 THE MARSHAL: I don't know how much I can go into 25 that, your Honor. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12622 5115SATF 1 MR. TIGAR: Are they government employees? 2 THE COURT: No. I don't -- they're not -- I don't -- 3 THE MARSHAL: I would feel comfortable speaking with 4 Jerome first before I answer that. 5 THE COURT: Okay. 6 MR. TIGAR: Are they sworn? 7 MR. RUHNKE: That's a reasonable question, your Honor. 8 MR. PAUL: Sworn. 9 THE COURT: Mr. Ruhnke may know the answers to these 10 questions and I don't. 11 MR. RUHNKE: I know in past cases they've been ex-cops 12 who have been driving the vans. I don't know if that's the 13 case here. And I don't know if they're sworn or not but 14 obviously they should be instructed that they're not to 15 compromise the jurors' anonymity or speak to the jurors about 16 the case. And I assume that's done. 17 MR. TIGAR: That was my concern, your Honor. I don't 18 want to inquire into things that are not supposed to be 19 inquired into but the question logically arises what 20 instructions have they been given, who gave the instructions 21 and in what form were they given. 22 THE COURT: Okay. I will -- I will ask the marshal to 23 make some inquiry and think about it. I don't get involved in 24 that either except to pass the bill on. 25 MR. TIGAR: This is not a criticism of Mr. Donnelly, SOUTHERN DISTRICT REPORTERS (212) 805-0300 12623 5115SATF 1 by the way. 2 THE MARSHAL: I don't take it as. 3 THE COURT: Because as those of you who have -- well, 4 as you've seen from my interaction with the jurors on the 5 subject when the issue of the vans has come up before, I don't 6 want to get any information about details like where people are 7 picked up or thing like that so I maintain a distance from that 8 also. 9 But I will have Mr. Donnelly make some inquiry with 10 respect to that. 11 MR. RUHNKE: May I inquire whether the jurors have 12 arrived yet today? 13 THE MARSHAL: They are in, yes. 14 MR. RUHNKE: Is it your Honor's intention now to 15 follow up on the note, or to -- 16 THE COURT: Well, I'm going to wait to see what the 17 jurors wish to -- 18 MR. RUHNKE: -- do first? 19 THE COURT: Yes. 20 And I also have instructed the marshal not to give 21 them their checks. Actually, since they're here and haven't 22 given us any note that they've started to deliberate, I have no 23 problem having the marshal give the checks to the jurors at 24 this point. 25 Is that agreeable? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12624 5115SATF 1 MR. DEMBER: That's fine. 2 MR. PAUL: That's fine. 3 MS. SHELLOW-LAVINE: Certainly. 4 THE COURT: Then the marshal can do that and I will 5 just await any notes. 6 (Recess) 7 THE COURT: I have a note from the jurors and it will 8 be marked as Court Exhibit 69. It reads: 26 January '05. 9 Judge Koeltl, we had an incident in the van on our way home 10 yesterday. The marshal was notified. However, jurors number 11 329, 217, 82, 146, 292 and 364 were present in the van and 12 because we feel threatened we would like to discuss this with 13 you in person. Number 329. We would like to discuss this 14 before we start deliberations. 15 Of course I will discuss it with the jurors 16 individually. 17 MR. PAUL: I'm sorry. I didn't hear, your Honor. 18 THE COURT: I said of course I will discuss it with 19 the jurors individually. 20 MR. PAUL: Threatened. 21 THE COURT: The parties are welcome to inspect the 22 note and Mr. Ruhnke wasn't here also, so. 23 MR. TIGAR: Your Honor, may Ms. Shellow-Lavine be 24 excused for a moment? She has to get some notes. She is going 25 to be our designated representative. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12625 5115SATF 1 THE COURT: Of course. I will take a few minutes 2 while -- for whoever wants to be there when I talk to the 3 jurors and when you have decided that, you can come in. 4 (Recess) 5 THE COURT: Two things. First, I have a note from the 6 jurors. Dan -- this will be Court Exhibit 70. We are ready to 7 start deliberations and I mean I -- I will send them a note 8 which will be Court Exhibit 70, please do not begin 9 deliberations until I have talked to some of the jurors 10 individually. Period. 11 Satisfactory? 12 MR. PAUL: Yes. 13 MR. RUHNKE: Yes, your Honor. 14 MS. SHELLOW-LAVINE: Yes. 15 MS. BAKER: Yes. 16 THE COURT: The other thing is that the, one of the 17 senior officials at the marshal's office informed me that I can 18 share with the parties that the drivers are private and that 19 they are repeatedly told not to have any conversations with any 20 of the jurors or anyone in law enforcement. 21 Let me write out the note. 22 Okay. Court Exhibit 71. It reads: Members of the 23 jury, please do not begin deliberations until I have had an 24 opportunity to talk with some of the jurors individually. I 25 signed it. The parties are welcome to inspect it. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12626 5115SATF 1 Mr. Fletcher? Okay, I have given the note to the 2 marshal to give to the jurors. 3 MR. TIGAR: Your Honor, may we ask that the gentleman 4 who has been attending our conference be identified, for the 5 record? 6 THE COURT: He is the senior official in the marshal's 7 office. 8 MR. TIGAR: I thought that he was but because this is 9 a sealed conference I wanted to make sure that he was 10 identified. Thank you. 11 THE COURT: Okay. All right? Okay. See you in the 12 robing room. 13 I'm sorry, I saw a whole group coming in and I wasn't 14 sure who -- I had intended to talk to the jurors individually 15 and without the marshals and with whoever counsel wants -- I 16 was just saying I intend to talk to the jurors individually 17 without the marshals and with whoever the parties want to be 18 there in the same way that I have spoken to them before. 19 MR. RUHNKE: Your Honor, it is my understanding the 20 defense is going to send two representatives and the government 21 is sending two representatives. 22 THE COURT: Okay. 23 MS. BAKER: Correct. 24 THE COURT: However many you want. 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 12627 5115SATF 1 (In robing room; Counsel present: Mr. Dember, Mr. 2 Morvillo, Mr. Ruhnke and Ms. Shellow-Lavine) 3 THE COURT: I am going to call the jurors in in the 4 order in which they're seated in the jury box so 1, 3, 6, 8, 10 5 and 12. 6 329? So, we can call them by the juror that sits in 7 seat number 1 first. 8 MR. RUHNKE: Your Honor, before we do that, I just, it 9 is, for obvious reasons of great concern to us what the jurors 10 meant in the note by saying, quote, we feel threatened, closed 11 quote. And we would ask that the Court inquire with some 12 specificity about that, who do they feel threatened by, people 13 in the courtroom, defendants? Is it somebody on the outside? 14 All questions of that nature. 15 THE COURT: I intend to ask the jurors what happened 16 and what do you mean when you say that you feel threatened. 17 MR. RUHNKE: Particularly concerned though that they 18 be asked directly do you feel threatened by the defendants, by 19 anybody in the courtroom. It was a very general statement. 20 THE COURT: I intend to explore the incident and what 21 it is about them, about that that leads them to feel if in fact 22 they individually feel that they are threatened. 23 MR. RUHNKE: Thank you, your Honor. 24 MS. SHELLOW-LAVINE: Your Honor, also before we 25 proceed may we have the name of the senior person from the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12628 5115SATF 1 marshal's service who was present at side bar and know what 2 role he is playing at this point in terms of if he has any 3 contact with this jury at all? My understanding is he doesn't 4 but I would like to be sure that that's the case. 5 THE MARSHAL: Your understanding is correct, he does 6 not have any contact with this jury whatsoever. 7 THE COURT: And who is it? 8 THE MARSHAL: He is my senior supervisor, Mike 9 Witkowich, W-I-T-K-O-W-I-C-H. 10 MS. SHELLOW-LAVINE: Thank you, Mr. Donnelly. 11 THE MARSHAL: You're welcome. 12 THE COURT: All right. 13 So let's bring in juror 329. Do you usually refer to 14 them as juror in seat number 1? 15 THE MARSHAL: Yes, your Honor; seat number 1. 16 THE COURT: You will not be present when I talk to 17 them. 18 THE MARSHAL: No, your Honor. I do have a request 19 during your inquiries, I don't know if something might slip out 20 about locations or pick up -- 21 THE COURT: Oh, no. I will tell them, I will give 22 them instructions not to tell me anything about locations or 23 anything that could, in any way, compromise that. 24 THE MARSHAL: Thank you, your Honor. 25 THE COURT: Anything else? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12629 5115SATF 1 THE MARSHAL: I think that should be sufficient. 2 THE COURT: Okay. 3 MS. SHELLOW-LAVINE: Your Honor, it is possible that 4 the location may be necessary in order to explain the nature of 5 the incident. I mean -- 6 THE COURT: I will see. I have dealt with it on other 7 occasions, right in the course of the trial. It's okay. 8 (Juror number 329 present) 9 THE COURT: Hi. 10 JUROR 329: Hi. 11 THE COURT: Please, have a seat juror 329, good 12 morning. 13 JUROR 329: Good morning. 14 THE COURT: Please, don't tell me anything about the 15 case or what you are thinking about the case or deliberations 16 or anything like that. And please don't talk to any of the 17 other jurors about what we talk about, all right? 18 And finally, don't tell me anything that tells me 19 anything about your identity or where you live or anything like 20 that because I maintain my separation from that too, so I bring 21 that up because the reason is something to do with 22 transportation and an incident happened, you have reported to 23 me, with the vans. So I wanted to explore that with you but I 24 want to make sure that you don't tell me anything about your 25 identity or address. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12630 5115SATF 1 So, tell me what happened that occasioned the note. 2 JUROR 329: We left the garage, I was in the front 3 seat, I rolled up the window. And as we were going up the ramp 4 both windows, driver's side and the passenger side, are rolled 5 down, not by me. We swing past the guard shack, we made a left 6 turn. Usually we make a right turn. All the TV camera people 7 are about 30 feet down. The van slows, almost comes to a stop. 8 The driver yells out, anybody know who Lynne Stewart is? 9 People with placards come up to the window. I look over to my 10 right, there are a few camera people there but their cameras 11 are down. And that was the incident. 12 THE COURT: All right. Okay. 13 When it was reported that there was a problem with the 14 van driver, you saw that the van driver was, I believe was 15 changed. 16 JUROR 329: Today? 17 THE COURT: Yes. 18 JUROR 329: Absolutely. 19 The other jurors, as they got in the -- got out of the 20 van brought it to my attention that they felt very threatened 21 by this. 22 THE COURT: Okay. 23 JUROR 329: I was oblivious to it until this was 24 brought to my attention. 25 THE COURT: Did you feel threatened by it? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12631 5115SATF 1 JUROR 329: I just couldn't understand why he was 2 driving right through the news. 3 THE COURT: Right. 4 JUROR 329: Because we always made a right, which is a 5 very private causeway. I Hadn't given it much thought but 6 thought, well, there is a reason for it because usually the 7 cameras are down there on the street at the end of that street 8 or they're around the corner going southeast. So, I figured we 9 went that route because the -- I mean our usual route because 10 it was for our protection. 11 THE COURT: Did you personally feel threatened by the 12 incident? 13 JUROR 329: I didn't until the jurors, at the end of 14 the trip, mentioned it. I thought it was stupid and inane on 15 the driver's part because he has a history of acting in an 16 infantile aggressive way. 17 THE COURT: What do you mean by that? 18 JUROR 329: Well, earlier in the trial he would swear, 19 I guess women -- or jurors in the other van complained, and 20 then he would take it out on whoever was in the particular van 21 that he was in the next day. And we basically tried to ignore 22 this behavior. 23 He would turn his radio up to shock rock full blast 24 and then he would play with the heating controls and -- it was 25 just infantile behavior. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12632 5115SATF 1 All the other drivers have been gentlemen, behaved 2 themselves. 3 THE COURT: Well, it is good for the other drivers. 4 I'm -- obviously the driver shouldn't be doing anything that is 5 offensive to the jurors whether it's swearing or loud music or, 6 you know, anything else. 7 Do you -- as I have said and you confirm that that 8 driver has been changed, is there -- do you feel threatened? 9 JUROR 329: No. 10 THE COURT: Is there anything about that incident that 11 would prevent you from being a fair and impartial in the case? 12 JUROR 329: No. 13 THE COURT: Thank you. 14 Could you step out just for a minute? 15 JUROR 329: Sure. 16 (Juror 329 not present). 17 MR. RUHNKE: Your Honor, if I understood the 18 juror's -- not testimony -- juror's statement correctly, they 19 were driving out of the garage, I guess in this building, made 20 a left turn instead of a right turn, they saw a bunch of TV 21 cameras. Those cameras were not for this case, they were there 22 for that Ross case in Connecticut. 23 THE COURT: I might have thought that, but -- 24 MR. RUHNKE: And they turned left. And I think I 25 understood him to say the driver yelled out, Does anyone know SOUTHERN DISTRICT REPORTERS (212) 805-0300 12633 5115SATF 1 Lynne Stewart? And then people came running up to the van with 2 placards? 3 If that's the case I would like to know, did he read 4 any of the placards? What was that all about? 5 THE COURT: Okay. 6 MR. RUHNKE: Was it to do with the Connecticut case, 7 was it to do with Ms. Stewart? 8 THE COURT: Fine. 9 MR. RUHNKE: And the juror also made a statement that 10 he understood things were being done, quote, for our 11 protection, closed quote; and I would like you to ask him who 12 does he think he needs protection from, or who does he think 13 the procedures are protecting him from. 14 I don't think when this jury was impaneled as an 15 anonymous jury they were told that matters were being done for 16 their protection, they were told other things; that it was done 17 to keep the news media away from them and it was a common 18 practice in federal courts and why he believes that the jury, 19 things are being done to protect them and from whom. 20 MR. MORVILLO: Your Honor, I think when they were 21 originally impaneled they were told that they were anonymous to 22 protect them, their privacy from invasion by the media and I 23 would assume that that's what he was referring to. I'm not 24 sure that you need to further inquire as to who he feels he 25 needs protection from. I don't know that that's a -- SOUTHERN DISTRICT REPORTERS (212) 805-0300 12634 5115SATF 1 MR. RUHNKE: I think it is a very important question 2 and Mr. Morvillo's interpretation is one. I think the more 3 reasonable interpretation is that the jurors do feel somehow 4 that their safety is at issue or we would not have this 5 inquiry, this note and these issues so I'm asking your Honor, 6 does he feel that the jury needs protection for their personal 7 safety? And if that is a yes answer, who is it that they need 8 protection from, is it the defendants, for example? 9 THE COURT: All right. 10 MR. RUHNKE: And just one additional question: 11 Whether this particular van driver has ever said anything to 12 the jurors about the case itself. 13 MS. SHELLOW-LAVINE: Or otherwise mentioned any of the 14 defendants. He appears to have mentioned my client by name. 15 Your Honor, I would also like to know whether this 16 jury believes that his identity has been compromised, whether 17 he thinks his picture has been taken. If there were a bunch of 18 television cameras I can't tell whether he was saying they were 19 there or whether he believes that they were actually running 20 and taking pictures. 21 THE COURT: He said that the cameras were down. 22 I will ask a few additional questions. 23 MR. MORVILLO: Your Honor, this driver has been 24 permanently removed from involvement in this case? 25 THE COURT: Well, I will check to confirm that. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12635 5115SATF 1 MR. DEMBER: Your Honor, I don't know whether he will 2 be permanently banned or not but he should be, certainly, and I 3 think it would be helpful if each of these jurors that we have 4 are told that this driver will no longer be driving because it 5 seems that they need to be protected from him more than anybody 6 else. He seems totally irresponsible. 7 THE COURT: Okay. 8 (Juror 329 present) 9 THE COURT: Juror 329, just a few other questions. 10 You had mentioned that there were camera people there 11 and that there were people with placards, did you read any of 12 the placards? 13 JUROR 329: No. I was look -- I kept my head to the 14 right and all of those people were on the left. 15 THE COURT: And did anyone take your picture? 16 JUROR 329: Not as far as I know. 17 THE COURT: I believe, by the way, based upon what I 18 have been told, that those people were there for a wholly 19 different case, nothing to do with this case at all. 20 JUROR 329: Except that some of the jurors mentioned 21 that some of the placards were about Lynne Stewart. 22 THE COURT: Okay. 23 JUROR 329: But I did not see, you know. I just kept 24 my head away. 25 And, as I said, on my side there were a few cameramen SOUTHERN DISTRICT REPORTERS (212) 805-0300 12636 5115SATF 1 but they had their cameras down. 2 THE COURT: Okay. Did any of the other jurors tell 3 you what any of the placards said? 4 JUROR 329: Just the one about Lynne Stewart. 5 THE COURT: Some -- 6 JUROR 329: Something about Lynne Stewart. 7 THE COURT: Okay. 8 JUROR 329: And that they pushed them up against the 9 van. 10 THE COURT: You had mentioned that this procedure was 11 for your protection with the vans and all. 12 JUROR 329: Right. 13 THE COURT: Can you just tell me what you mean by "for 14 your protection"? 15 JUROR 329: Well, I think because of the nature of the 16 case it's the only reason why I could think of why we were 17 being ferried back and forth. And also to protect us from the 18 media as it was an anonymous jury -- juror -- jury. Excuse me. 19 THE COURT: Okay. Is there anything about any of that 20 that interferes, in any way, with your ability to be a fair and 21 impartial juror and decide the case based solely on the facts 22 and my instructions on the law; the evidence or lack of 23 evidence and my instructions on the law? 24 JUROR 329: No. 25 THE COURT: Okay. Did the -- has the van driver ever SOUTHERN DISTRICT REPORTERS (212) 805-0300 12637 5115SATF 1 spoken about the case? 2 JUROR 329: No. At least not that I heard. 3 THE COURT: And let me just ask you again, do you feel 4 in any way threatened by anything that's happened? 5 JUROR 329: The only thing that gives me pause is 6 because of the nature of the van driver's overt actions -- and 7 he seems to have a problem if called upon his behavior -- that 8 he acts toward retribution and that's the only consideration 9 what this guy could possibly do because, again, we are 10 anonymous, we have pick-up points and he's a loose cannon, as 11 far as I'm concerned. 12 THE COURT: Okay. First of all, we'll assure that the 13 van driver, you know, does not work on this case at all and 14 we'll also make sure that the marshal talks to the van people 15 so that the -- if it would make you feel more comfortable that 16 the pick-up places get changed so that -- 17 JUROR 329: I don't have a problem with it except for 18 my reservation. And the same pick-up points are fine but just 19 as I mentioned, I just -- this -- this guy's behavior is -- is 20 extreme. 21 THE COURT: Okay. He will be, is removed and with 22 that is there anything about the incident that would prevent 23 you from being a fair and impartial juror in the case? 24 JUROR 329: No. 25 THE COURT: Okay thank you. Thank you. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12638 5115SATF 1 (Juror 329 not present). 2 MS. SHELLOW-LAVINE: Your Honor, I would like to 3 consult with Mr. Tigar and my client before we move on to the 4 next series of jurors, if we could just have a moment, please? 5 THE COURT: Sure. 6 MR. RUHNKE: And just while we are on this same juror, 7 I would reiterate my request that every juror be asked, do they 8 feel in danger from any of these defendants. 9 THE COURT: I've asked and in careful ways so that I 10 don't suggest an answer to the juror. And, for example, this 11 juror on prodding from me, felt that the only concern had with 12 respect to a threat was the van driver. And I will pursue that 13 with each of the jurors in a careful way thorough examination. 14 It is important to me to assure that the jurors are 15 fair and impartial and that there is nothing about the incident 16 that would prevent them from being fair and impartial, which is 17 why I have gone through what I think is a thorough inquiry, 18 what I know is a thorough inquiry, and I will do it with all of 19 the other jurors and follow up on any questions that you 20 suggest and any that you think are appropriate. 21 MR. RUHNKE: Thank you, your Honor. 22 THE COURT: And I will take as long with this process 23 as is necessary. 24 MR. RUHNKE: Your Honor, the reason for the request 25 and the reason I press it is that it is kind of a payoff SOUTHERN DISTRICT REPORTERS (212) 805-0300 12639 5115SATF 1 question for this entire inquiry. If there is any risk to be 2 run by suggesting something to the juror that's not in their 3 minds, it is our risk to run. I think the, any danger of 4 asking that question or suggesting something that hasn't 5 occurred is far outweighed by our desire to find out whether 6 jurors feel that they need protection from the defendants in 7 the courtroom. 8 I mean, the description of the incident, of people 9 running up to the van and placing placards against the side of 10 the van, which is what this juror just described, is pretty 11 disturbing. And I don't know whether they take from that that 12 they have something to fear -- and this is from the incident 13 itself, whether they have something to fear from the defendants 14 or their supporters or anyone else. 15 And I think that's the heart of the matter, that's why 16 I ask that the question be framed that directly. 17 MR. MORVILLO: Your Honor, we object to that. We 18 think that the way the Court has handled the inquiry is 19 perfectly appropriate. Open-ended questions are far more 20 appropriate under the circumstances, particularly given the 21 fact that this is a deliberating jury and the jurors may have 22 come to some conclusions based on the evidence about the 23 dangerousness or lack of dangerousness of certain of the 24 defendants. 25 They are -- they have heard all of the evidence now SOUTHERN DISTRICT REPORTERS (212) 805-0300 12640 5115SATF 1 and they are in the process of analyzing the charges and I 2 don't think that an inquiry into their views of the defendants 3 at this point is necessary and, frankly, may even invade into 4 their deliberations. 5 THE COURT: All right. You can certainly take a 6 moment to -- 7 MR. RUHNKE: Thank you, your Honor. 8 MS. SHELLOW-LAVINE: Thank you, your Honor. 9 THE COURT: -- to consult before I go to the next 10 juror. 11 (Recess) 12 THE COURT: All right. Let's bring in the juror who 13 sits in the number 3 chair, juror 217. 14 MR. MORVILLO: Your Honor, I just wanted to make one 15 point or request before we continue with the voir dire. 16 Given the fact that we are now in the middle of 17 deliberations, we have been going for about two weeks, it 18 strikes me and my colleagues as somewhat inappropriately 19 invasive in deliberations to ask the jurors whether they can 20 still be impartial. The case is over, they were supposed to 21 listen to the evidence impartially. And what I would 22 suggest -- 23 THE COURT: If I had said that I -- it should be 24 phrased in terms of whether there is anything about this 25 incident that interferes in any way with your ability to be SOUTHERN DISTRICT REPORTERS (212) 805-0300 12641 5115SATF 1 fair and impartial. 2 MR. MORVILLO: It is the word "impartial" that I am 3 concerned with. They don't have that obligation to remain 4 impartial once the deliberations have begun and what we would 5 suggest is that the, whether anything about this incident would 6 affect your ability to decide this case based on the evidence 7 and solely on the evidence and my instructions on the law, or 8 lack of evidence. 9 MR. RUHNKE: We don't have a problem with that, your 10 Honor. 11 THE COURT: Okay. 12 MR. RUHNKE: As long as we find out what impact it did 13 have. 14 THE COURT: I'm sorry? 15 MR. RUHNKE: As long as we are finding out what impact 16 it did have on them. 17 THE COURT: Okay. You don't have a problem with my 18 asking whether it would affect their ability to be fair -- 19 MR. MORVILLO: Absolutely not, your Honor. 20 THE COURT: -- and to decide the case based solely on 21 the evidence or lack of evidence. 22 MR. MORVILLO: And your instructions on the law. 23 THE COURT: And my instructions on the law. 24 MR. RUHNKE: Would your Honor include in that 25 formulation lack of evidence? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12642 5115SATF 1 MR. MORVILLO: Yes. 2 THE COURT: I always do. 3 MR. RUHNKE: Okay. 4 THE COURT: I try to. 5 Okay, let's bring in the juror sitting in the number 3 6 chair. 7 MR. RUHNKE: Your Honor, I will stop talking if the 8 juror walks in the door but as I walked out of the court house 9 yesterday I only saw one person with a sign. 10 (Juror 217, in seat 3, present). 11 THE COURT: Hi. 12 JUROR 217: Hi. 13 THE COURT: Juror number 3, good to see you. 14 As I have told you, please don't tell me anything that 15 you are thinking about the case or deliberations or anything 16 like that, and please don't tell any of the other jurors 17 anything that we talk about. 18 JUROR 217: Okay. 19 THE COURT: And also, because it relates to the van 20 and transportation, don't tell me anything that affects your 21 anonymity or where you live or anything like that. 22 JUROR 217: Okay. 23 THE COURT: The foreperson advised me that there was 24 an incident with the van going home so could you tell me what 25 happened? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12643 5115SATF 1 JUROR 217: Do you want me to tell you as if you had 2 never heard anything or? 3 THE COURT: Yes. 4 JUROR 217: The van historically, from the beginning, 5 would leave the court house and turn in one direction and then 6 this happened for some time, and all of a sudden for whatever 7 reason we go in a different direction. This one particular 8 driver -- and I don't know if I should use his name or not -- 9 but this one particular driver that we had yesterday, for 10 whatever reason had problems with other jurors or whatever. 11 What happened is it just at the time I noticed it carried out 12 and he takes it out on everyone. 13 So, when he drives he decides that he is going to 14 continue to go in the old direction because it takes longer to 15 go that way and you run into traffic and this kind of thing. 16 So, yesterday, when he left the court house, he turned 17 in the old direction and as soon as we turned there was what 18 looked like many, many media people, I don't know how many were 19 there but there were lots of cameras and different media people 20 and there were people standing there, there were four people 21 that I noticed that had signs -- do you want me to tell you 22 what? 23 THE COURT: Yes. 24 JUROR 217: It says free Lynne Stewart on the sign. 25 They were white pieces of paper that had black letters on them. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12644 5115SATF 1 As the van started to approach this barrage of media 2 people and these people holding signs he slowed the van down 3 and he put the window down on the passenger side -- juror 4 number 1 was sitting in the passenger's side -- he put the 5 window down and he screamed out the window, Who is Lynne 6 Stewart? 7 And then he started to proceed and he put the window 8 up and we continued on our way. 9 THE COURT: Okay. A couple things. The van driver 10 has been removed, changed, and we will see to it that that van 11 driver never drives any vans with the jurors. 12 JUROR 217: Like I said, it is petty what happened. 13 We turned a blind eye to it and it's generally the same six of 14 us that are in the van together. And we don't pay any 15 attention to the crazy things. I mean, he has done crazy 16 things in the past but yesterday it was different and it 17 crossed the line and it just -- it made us feel, all of us, we 18 were just very uncomfortable and just a little bit fearing for 19 our own safety and what was going on and just feeling very 20 apprehensive about it. 21 THE COURT: Okay. Has the driver ever talked to you 22 about the case? 23 JUROR 217: No. 24 THE COURT: What do you mean when you said you were 25 fearing for your own safety? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12645 5115SATF 1 JUROR 217: The four of the people that I saw are 2 people that I have noticed -- and I will say the audience 3 because I don't know what the correct word is used for people 4 that are sitting in the courtroom -- but I have noticed these 5 people sitting in the courtroom before; and one of them in 6 particular is a little bit of an ominous looking person. It 7 was a man and he was holding his sign and as soon as the van 8 started to approach this big gathering of media people, he kind 9 of started to get closer to the edge of the sidewalk and to the 10 road and then, as we approached and when the driver rolled down 11 the window, he got much closer to the van and kind of held up 12 his sign. And then the other people held up their signs and 13 they got closer to the van with their signs. 14 THE COURT: Okay. Is there anything -- as I've said, 15 we've changed the driver. Is there anything about that 16 incident that would prevent you from being a fair juror and 17 deciding this case based solely upon the evidence or lack of 18 evidence in this case and my instructions on the law? 19 JUROR 217: Absolutely not. 20 THE COURT: Okay. Let me give you just a, an 21 additional instruction. 22 People -- you have already told me that this incident 23 wouldn't affect your ability to be fair and to decide the case 24 based solely upon the evidence or lack of evidence and my 25 instructions on the law, and I want to underline that for you SOUTHERN DISTRICT REPORTERS (212) 805-0300 12646 5115SATF 1 just with a further instruction and that is, people have a 2 constitutional right to, first of all, to express their views 3 and they can do it personally, they can do it through the 4 press, the press can take positions. All of that is -- and 5 people have a right to be in court also and that is -- that's 6 part of our sacred constitutional rights, people have the right 7 to do that. 8 I have also given you the instruction about looking 9 away from, if you see or hear something in the press. And the 10 reason behind that is similar to expressions of views by 11 people. Whether people express views is not the issue for you 12 because the issue for you is what's the evidence or lack of 13 evidence and my instructions on the law. 14 And so, you couldn't let the fact that some people 15 express their First Amendment rights to express views affect 16 your decision in the case which has to be made solely on the 17 evidence or lack of evidence and my instructions on the law. 18 Do you understand that? 19 JUROR 217: Absolutely, yes. 20 THE COURT: And will you follow that instruction? 21 JUROR 217: Absolutely. 22 Yesterday there was -- there was no way to get around 23 it. There were, you know, people on both sides of the van and 24 it happened so quickly that the van pulled up and there is this 25 onslaught of people so you would just automatically turn and SOUTHERN DISTRICT REPORTERS (212) 805-0300 12647 5115SATF 1 look and you look the other way and there was people there as 2 well doing the same things. So, there was absolutely no way to 3 prevent seeing anything that was there. 4 THE COURT: I should also tell you that -- I believe 5 that from what I'm told that much of the media presence, 6 cameras and the like, were because of another case that was 7 going on in the court house yesterday. There are in fact other 8 cases which have brought media attention to the court house and 9 yesterday, in particular, having nothing at all to do with this 10 case. So I just advise you about that. 11 Okay, could you step out for just a moment? 12 THE JUROR: Sure. 13 (Juror number 3 not present) 14 MR. RUHNKE: Your Honor, when the juror said that she 15 was scared for her own safety and very apprehensive about what 16 is going on -- to the best of my ability to write down words 17 that she spoke -- I would ask that you follow up, Who is she 18 afraid of? Is she afraid of the people in the street? Is she 19 afraid of the van driver or maybe none of them? 20 MR. MORVILLO: I thought she identified the people on 21 the street and in particular one person who she has seen in the 22 gallery as a fairly ominous looking person. 23 MR. RUHNKE: Ominous looking person. 24 MS. SHELLOW-LAVINE: Ominous looking person. 25 MR. MORVILLO: I thought it was clear. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12648 5115SATF 1 THE COURT: She did. She did. And it's a -- I 2 thought she was absolutely clear. 3 MR. RUHNKE: I would ask for the follow up. 4 THE COURT: Could we, could you go back to that 5 portion just to read back what the juror had to say? And 6 I've -- I've -- let's go back and -- I was just going to say, 7 on occasion when there has been someone in the courtroom with a 8 sign or a hat or something we have tried to bring it to your 9 attention, raised the issue with you recognizing that there is 10 all of the rights of presence in the courtroom and all of the 11 rights of the ability to protest on the street. 12 But let me hear back what was said. 13 MR. RUHNKE: Before you do that if you would ask her, 14 she said that the driver had done some, I think the word she 15 used was crazy things in the past. I would like to have the 16 Court respectfully ask what sort of crazy things. 17 MS. SHELLOW-LAVINE: She also said she didn't know 18 whether she should identify for us the driver by name. If she 19 can do so, do we want her to do so? 20 THE COURT: We can identify the driver of the van 21 without putting his name here. 22 MS. SHELLOW-LAVINE: It's interesting that she knows 23 his name though. Is she at all concerned that her anonymity is 24 compromised by any of what has happened and what happened with 25 the incident? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12649 5115SATF 1 THE COURT: I will follow up on what other things the 2 driver has done that's been bothersome. And let me hear what 3 the other -- I really thought it was clear. I mean, I let her 4 talk and I thought she pretty well identified the specific 5 person as the source of the concern but let me go back and 6 listen to it. 7 (Record read) 8 THE COURT: Okay. 9 MR. RUHNKE: Your Honor, I do understand what she said 10 and your Honor was correct. 11 THE COURT: Okay. 12 MR. RUHNKE: But as with the last juror, I would ask 13 that this juror and all the remaining jurors be asked directly 14 whether they fear anything from the defendants or their 15 supporters, any retribution from the verdict from the 16 defendants or their supporters. 17 THE COURT: I will listen to the government and I will 18 ask further about the driver and the other incidents but it 19 is -- let me -- does the government think any further inquiry 20 is appropriate on that subject? 21 MR. MORVILLO: No, your Honor. 22 THE COURT: I've thoroughly explored with her her 23 views with respect to that incident, what happened and whether 24 it would affect her ability to be a fair juror and it's plain 25 to me, based on her responses that it would not and that there SOUTHERN DISTRICT REPORTERS (212) 805-0300 12650 5115SATF 1 is nothing about it that would lead her to feel threatened or 2 unfair. 3 I gave additional cautionary instructions about the 4 supporters and sometimes the cold record does not reflect the 5 affirmative views of the juror and the positiveness with which 6 this juror expressed her views that she fully appreciates her 7 responsibilities and that she will be fair and decide the case 8 based solely on the evidence or lack of evidence and my 9 instructions on the law and that she fully appreciates the 10 First Amendment rights of all of these people both to be in the 11 courtroom and to be outside the courtroom. 12 And it's -- so, there is really no basis for further 13 inquiry on that. I mean if -- 14 MR. RUHNKE: I do understand your Honor's view of 15 that. Our concern is simply that, asking the direct question, 16 Do you feel threatened by our clients, is an important inquiry, 17 that's why I ask that it be made. 18 THE COURT: And I, simply because I don't ask all of 19 the questions that you ask, in no way do I mean to suggest that 20 you shouldn't ask any questions that you believe I should ask. 21 MR. RUHNKE: Thank you, your Honor. 22 Your Honor, just, I'm not recalling whether you 23 instructed the first juror not to talk about this discussion 24 with anybody else. 25 THE COURT: I did right at the outset. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12651 5115SATF 1 MR. RUHNKE: Okay. 2 THE COURT: It was one of my three initial 3 instructions but I will repeat it again at the conclusion. 4 (Juror number 3 present) 5 THE COURT: Juror number 3, just a follow up. 6 You said the driver had done some crazy things in the 7 past. 8 JUROR 217: There was one morning, it was very, very 9 cold out and there was only one van there and it was more or 10 less full of people so we were waiting for the other one to 11 come. He pulled up and he had the door locked, he got out of 12 the van and he just left the doors locked in the van and he 13 went to talk to the other driver. So, we were just standing in 14 the cold waiting. 15 He just -- he says -- he says things that are a little 16 bit off color and makes racial comments or comments about gay 17 people or just things that are just not appropriate. 18 You know, yesterday we were driving and it's very 19 inappropriate but he opens the window and he spits out the 20 window. He just -- 21 THE COURT: Okay. 22 Please, if anyone associated with your juror 23 experience whether it be a van driver or a court employee or 24 anyone else -- marshal, anyone -- does anything that you 25 believe is wrong, just bring it to my attention because not SOUTHERN DISTRICT REPORTERS (212) 805-0300 12652 5115SATF 1 only is it important to me that you be a fair juror and decide 2 the case based solely on the evidence or lack of evidence and 3 my instructions on the law, but it is also important to me that 4 you be treated with the courtesy and respect that you are 5 entitled to. 6 And if anyone does something that is not right by you 7 we will make sure that it is righted. So. 8 JUROR 217: Okay. 9 THE COURT: Is there anything about that that would 10 affect your ability to be fair and decide the case based solely 11 on the evidence or lack of evidence and my instructions on the 12 law? 13 JUROR 217: No. 14 THE COURT: Okay. 15 Juror number 3, remember not to talk to any of the 16 other jurors about what we have talked about. 17 THE JUROR: Okay. Thank you. 18 (Juror number 3 not present) 19 THE COURT: All right, juror number 6. 20 (Juror number 6 present) 21 THE COURT: Hi. 22 JUROR 6: Hi. 23 THE COURT: Juror number 6, please, be seated. 24 Just some preliminary matters. Could you make sure 25 that in talking to me you don't tell me anything about what you SOUTHERN DISTRICT REPORTERS (212) 805-0300 12653 5115SATF 1 are thinking about the case or deliberations or anything like 2 that? Because I don't want to know. I don't want to intrude 3 on your thinking about the case or your deliberations at all, 4 okay? 5 JUROR 6: Uh-huh. 6 THE COURT: And second, please don't tell any of the 7 other jurors what we talk about, okay? 8 JUROR 6: Okay. 9 THE COURT: And finally, don't tell me anything about 10 your identity or where you live or anything like that because I 11 have told you I don't want to know that either. 12 JUROR 6: Okay. 13 THE COURT: Because I raise that because this issue 14 comes up because there was an incident with the van yesterday 15 I'm told, and so I wanted to find out from you what happened 16 and get your perspective on that. 17 JUROR 6: Uh-huh. 18 THE COURT: Okay. 19 JUROR 6: Okay. 20 Well, yesterday when we left we made a left turn out 21 of the garage, we usually go right. So, left there were quite 22 a few reporters and cameras and just a bunch of people over 23 there. And as we got to where the reporters and people and 24 some, you know, people holding up signs it seemed like I was -- 25 I guess I was in the back of the van. It seemed like the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12654 5115SATF 1 windows were open in the front and the passenger side and the 2 van driver's side and on the passenger's side where one of the 3 jurors was -- juror number 1 was in the front. And the van 4 driver kind of yelled out -- because there were signs saying 5 free Lynne Stewart, a couple of people had signs and they were 6 sort of leaning into the van which was open, I believe the 7 windows were open on both sides -- and the van driver said 8 something like, Who is Lynne Stewart, he yells out of the van. 9 And so we're like looking at this. Whatever. Okay. 10 So, we drive through. He sort of slowed down mostly 11 because there were people around, people in the street, and 12 then he just went up and went around so we left. 13 So, it was a little odd. 14 THE COURT: Okay. Did you feel threatened in any way 15 by the incident itself? 16 JUROR 6: I didn't feel great about it. Mostly 17 because the windows were open in the van and, you know, just 18 because I know we have been pretty anonymous. When the van 19 windows are up and nobody can see who is inside it is fine but 20 I just felt because there was a lot of media around that it 21 wasn't the greatest thing that people were looking into the van 22 as we went by. 23 Also I was, we were, a few of us were wondering why we 24 had gone left instead of right, why we were driving into all of 25 this other commotion when we had gone the quicker way and there SOUTHERN DISTRICT REPORTERS (212) 805-0300 12655 5115SATF 1 was nobody over there. 2 So that was -- we were just sort of discussing that. 3 I mean, it was a little odd. 4 I know this particular van driver has been a little 5 bit -- I don't think he likes us. I don't know. It's hard to 6 explain. He has a bit of a problem with the jury for whatever 7 reason so he does little things that, up until now, have been 8 kind of annoying but nothing; no big thing. 9 And yesterday I just, I got the feeling that he was 10 doing that on purpose. I mean I could be wrong but it just 11 seemed a little strange to me that he could choose to bring us 12 that way, do that; and say something out of the window which 13 was kind of inappropriate. 14 THE COURT: Okay. 15 JUROR 6: To answer your question, I didn't feel 16 threatened at the time. I would rather not have had it 17 happened. 18 THE COURT: Okay. Is there anything about that 19 incident that would prevent you from being a fair juror in the 20 case and deciding the case based solely upon the evidence or 21 lack of evidence and my instructions on the law? 22 JUROR 6: No. Absolutely not. 23 THE COURT: Let me tell you a few other things. 24 First, the van driver will not drive any of the vans 25 with the jurors in the case again. He is not there today and SOUTHERN DISTRICT REPORTERS (212) 805-0300 12656 5115SATF 1 won't be there. 2 If any other driver or court employee or marshal or 3 anyone else associated with this process is in any way, fails 4 to be courteous and nice to the jurors, the jurors should let 5 me know because I'll see that something is done because it's 6 important that all of you be treated with courtesy and respect. 7 And if anyone associated with the process doesn't do that, I'll 8 see that something is done. 9 JUROR 6: Great. 10 THE COURT: I should also tell you that this is -- 11 that I'm told that much of the media outside the court house 12 yesterday was involved in at least one other case and perhaps 13 two other cases so that it was not in connection -- much of it 14 was not in connection with this case. 15 And I should also give you an additional instruction 16 because you have explained to me that this wouldn't affect your 17 ability to be fair and to decide the case based solely upon the 18 evidence or lack of evidence and my instructions on the law, 19 but I want to give you an additional instruction which actually 20 supports what you have said. 21 You mentioned that there were people with signs there 22 in support of one of the parties in the case. And people have 23 an absolute First Amendment right to express views and I have 24 told you that -- and they can express their views publicly, 25 they can hold signs, they can write articles, they can -- the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12657 5115SATF 1 news media can publish stories. That's all part of our 2 constitutional protected rights. 3 I have also told that you if you see any media or the 4 like you just turn away. And that's true with respect to any 5 people who want to express their views about the case. 6 There is nothing about the fact that people express 7 views on the case that has anything to do with what your role 8 in the case is, which is to decide the case based solely upon 9 the evidence, or lack of evidence, and my instructions on the 10 law. 11 And so, it's important that nothing about the fact 12 that other people express their constitutional right to express 13 their views, there is nothing about that that affects anything 14 you do in the case because your role in the case is to decide 15 the case based solely upon the evidence or lack of evidence and 16 my instructions on the law. 17 Do you understand that? 18 JUROR 6: I agree. Other people's opinions have 19 nothing to do with what's happening in the jury room. 20 THE COURT: Okay. Okay, could you make sure don't 21 tell anyone else what we talked about? 22 JUROR 6: Yes. 23 THE COURT: Okay, thank you. 24 JUROR 6: Thank you. 25 THE COURT: Could you wait outside just for a moment? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12658 5115SATF 1 (Juror 6 not present) 2 MR. RUHNKE: Judge, I did not hear juror number 3's 3 comment about the racial remarks and I think that's what he -- 4 when she said that the juror or the driver had said things that 5 were off-color, comments about gay people and racial comments, 6 and obviously two out of the three defendants in this case are 7 Arab Americans and I think I would like you to inquire further 8 of Juror number 3 what she meant by racial comments. 9 THE COURT: You mean Juror number 6? 10 MS. SHELLOW-LAVINE: He actually means juror number 3 11 because this happened, it's the prior juror, your Honor, not 12 this one. 13 MR. RUHNKE: It is sort of like peeling an onion as we 14 go through this. This juror said something -- 15 MR. MORVILLO: Which juror? 16 MR. RUHNKE: Juror number 6 said that the driver 17 seemed to have a little bit of a problem with the jury and had 18 done little things that were, I think she said, "kind of 19 annoying." I would ask that you explore that, whether the 20 driver, what she meant by, he has done things that were kind of 21 annoying, and has he ever made comments and has he ever said 22 anything about the case. 23 THE COURT: I have already explored with Juror number 24 3 that there was, what her recollection is of what the driver 25 did and there was nothing about it that that would affect SOUTHERN DISTRICT REPORTERS (212) 805-0300 12659 5115SATF 1 anything that she did in the case. And I will explore with 2 this juror what the -- I'm sure that I explored with Juror 3 number 3 whether there was anything about any of the comments 4 that would affect anything that she did in the case and the 5 answer was no. I mean -- 6 MS. SHELLOW-LAVINE: Yes, your Honor, but we did not 7 explore -- when she said that he had made off-color remarks 8 about people who were gay and racial comments I noted it 9 because I wanted to wait until the end and consult with 10 Mr. Tigar and Ms. Stewart. Not only are two of the defendants 11 Arabs, of Arab decent, but my client is married to an African 12 American. This is a matter that we take very seriously. 13 I didn't want to push it with Juror number 3, I wanted 14 to wait and hear it out but it is a matter that I join 15 Mr. Ruhnke in expressing significant concern with. 16 THE COURT: I'm reasonably confident -- I mean, we can 17 go back -- that I asked her whether there was anything about 18 the comments that affected anything she did and the answer was 19 no. But we can go back and look at that. 20 With respect to this juror, I will follow up what does 21 she mean by the little things that the van driver did that were 22 annoying. 23 I also made it clear to the juror that -- juror number 24 3 also -- that if there was anyone who was, does anything 25 that's impolite, that's disrespectful, to bring it to my SOUTHERN DISTRICT REPORTERS (212) 805-0300 12660 5115SATF 1 attention. 2 All right? 3 MR. RUHNKE: Your Honor, just to keep my line of 4 inquiry on the record; to ask a juror that if anything that was 5 said would affect any ability of her ability to cede the legal 6 decision that ultimately the Court must make. For example, 7 this juror -- or this driver could have said to this juror at 8 one time or another: These Arabs are all a bunch of 9 terrorists. Could have. Could have. 10 And had that been said and the state of the record 11 allows for it to have been said, without our knowing about it, 12 had that been said, the jurors' statement that nothing said 13 affects her ability to be fair, to evaluate the evidence -- 14 THE COURT: Okay. 15 MR. RUHNKE: -- is in a different light. 16 THE COURT: I have asked, and if you bring these up as 17 they occur it would be better. 18 MR. RUHNKE: I agree, your Honor. I'm sorry. I 19 didn't hear the remark. 20 THE COURT: Because I usually ask if there is some 21 issue whether the driver said anything about the case and the 22 answer has been -- so far -- no. I mean, I will go back to 23 juror number 3 and ask, I'm sorry to bother you again but tell 24 me, did the driver ever talk to you about any of the parties in 25 this case? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12661 5115SATF 1 MR. RUHNKE: What kind of racial remarks the driver 2 made. 3 I mean, she is the one who used the phrase "racial 4 remarks." 5 THE COURT: All right. 6 MR. RUHNKE: I apologize for not having heard the 7 first time around. I did not -- 8 THE COURT: All right. Okay. 9 MS. SHELLOW-LAVINE: Your Honor, before we go back to 10 juror number 6 or juror 3, wherever we are going to go at this 11 point, the other thing that this juror said was that they, 12 amongst themselves, discussed why they had driven the opposite 13 direction. I would like the Court to inquire about what 14 discussions they had amongst themselves and to make certain 15 they had no discussions amongst themselves of any of the 16 defendants or the deliberations in this case. 17 THE COURT: All right. Okay. 18 Let's bring back juror number 6. 19 MR. RUHNKE: Your Honor, I'm sorry. I understand that 20 this is taking a while and it will take as long as it takes, 21 your Honor, and we appreciate that, but to reiterate the basis 22 of the concern, it began with a telephone call to Mr. Grate in 23 which a juror reported, the foreperson, that there was an 24 incident that compromised their anonymity, and the note itself 25 said, quote, we feel threatened, closed quote. So, our SOUTHERN DISTRICT REPORTERS (212) 805-0300 12662 5115SATF 1 concerns are driven by what the jurors are telling us about how 2 they're feeling. 3 MR. MORVILLO: But the Court has inquired of every 4 juror whether they feel threatened. It is a perfectly 5 inappropriate inquiry to make under the circumstances. 6 MR. RUHNKE: The government has its position and we 7 have our position. 8 THE COURT: It is also helpful to get the facts at 9 least right. 10 The juror left a voice mail for the marshal who called 11 Mr. Grate who initially left the call for me. I spoke to 12 Mr. Grate, as I reported to you this morning. I then spoke to 13 the marshal, as I then reported to you this morning, and 14 reported to you what the marshal had told me. 15 MR. RUHNKE: All right. 16 THE COURT: You are right we then received the note 17 from the first juror and it was the first juror who used the 18 word "threatened" and I explored it particularly with the first 19 juror. 20 The last juror who was in the back row had really -- 21 didn't feel threatened. 22 MR. RUHNKE: I understand that. 23 THE COURT: Okay. All right, let's -- okay. 24 (Juror number 6 present) 25 THE COURT: Juror number 6, just a couple of other SOUTHERN DISTRICT REPORTERS (212) 805-0300 12663 5115SATF 1 questions. 2 You had mentioned that the van driver had done other 3 things that were indicating that he didn't like you; could you 4 tell me what sort of things he did? 5 JUROR 6: Well, a couple of times he told us he didn't 6 like us. Basically just, you know, You're the worst jury I've 7 ever driven. 8 Well, why is that? 9 And then he wouldn't say why. 10 That was probably three months ago. That was a while 11 ago. Then he turned the heat up really high so it was hot or 12 else not turn the heat on. 13 Again, I don't know if he did these things on purpose 14 but we noticed them. 15 And then he just got kind of quiet recently where he 16 wasn't talking at all, like saying good morning or anything. 17 So, it was pretty apparent he had a problem with us. 18 He didn't drive us that much for the last, say couple, maybe a 19 month or two. He wasn't there very often so it didn't come up 20 that much. 21 THE COURT: Okay. Is there anything about his -- did 22 he ever talk to you about the case? 23 JUROR 6: No. 24 THE COURT: Is there anything about any of his conduct 25 that would prevent you from being a fair juror in deciding the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12664 5115SATF 1 case -- 2 JUROR 6: No. 3 THE COURT: -- based solely upon the evidence or lack 4 of evidence and my instructions on the law? 5 JUROR 6: No. 6 THE COURT: You mentioned that he, that you had 7 discussed with some of the other jurors why he drove left out 8 of the -- what was the substance? 9 JUROR 6: It's been kind an ongoing thing with this 10 particular driver that started, like I said, a while back. And 11 when he did that yesterday our conversation had to do with he 12 was just doing that to annoy us, you know; he was just doing 13 that because he has this problem and he wants to just annoy us 14 and so he did that. 15 Now, I mean, I don't know if that's the reason he did 16 it but that's the general nature of why we talked about it. 17 And I think it wouldn't have come up with any other driver but 18 because this driver has kind of made it clear that he doesn't 19 like driving us that -- and these little kinds of things 20 happened -- we thought that, that he had done it on purpose. 21 THE COURT: Okay. 22 JUROR 6: None of this has anything to do with the 23 case, I can say that. He never talked about the case at all. 24 This was just sort of one of those things that has 25 been going on a little bit here and there. Every time he SOUTHERN DISTRICT REPORTERS (212) 805-0300 12665 5115SATF 1 drives us we sort of mention it, ugh, you know, he still has 2 this problem for whatever reason and so, you know, it would 3 come up, for maybe 30 seconds we would talk about it, and it 4 would sort of be dropped again. 5 THE COURT: Okay. Thank you. 6 And could you, please, don't talk to any of the other 7 jurors about what we talked about? 8 JUROR 6: Yes. 9 THE COURT: Thank you. 10 JUROR 6: You're welcome. 11 (Juror number 6 not present) 12 THE COURT: All right, do you want me to go back now 13 to Juror number 3? 14 MR. RUHNKE: I would, your Honor. If she hadn't made 15 the remark about racial remarks. 16 THE COURT: Okay. 17 MR. RUHNKE: Your Honor, maybe we should wait until 18 the end and hear things from other jurors on top of it. 19 THE COURT: All right. 20 MR. RUHNKE: Thank you. 21 THE COURT: Juror number -- who sits in the number 8 22 chair, juror number 292. 23 MS. SHELLOW-LAVINE: Your Honor, assuming this is all 24 under seal? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12666 5115SATF 1 MS. SHELLOW-LAVINE: I don't recall you instructing 2 the reporter. 3 (Juror number 8 present) 4 THE COURT: Hi. 5 JUROR 8: Hi. 6 THE COURT: Good morning. Juror number 8, please 7 don't tell me anything you are thinking about the case or 8 anything about deliberations, and don't tell any of the other 9 jurors what we talked about and don't tell me anything about 10 your identity or where you live or anything like that. The 11 reason I say that is because the inquiry arises from an 12 incident with the van driver. 13 JUROR 8: Yes. 14 THE COURT: So I don't want to find out anything about 15 where you live or your identity. 16 Tell me what happened with the van driver. 17 JUROR 8: Um, I will try to recount it. It was very 18 fast at the time, so. I may not have gotten all of it. 19 We came up the ramp and normally we turned right and, 20 I will say, go out the back way. But this driver sometimes is 21 peculiar so he hung a left -- which has happened before. And 22 we started down, I think that's Pearl Street, the rest of Pearl 23 Street, and I immediately -- I was seated in the row just 24 behind the driver on the right-hand side so I had a good view. 25 I just saw a lot of people and right away I paid attention. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12667 5115SATF 1 First, I saw a cluster of, like, microphones and 2 cameras on the left-hand side about, oh, a hundred feet in 3 front of us. And then I was aware of opposite of them was a 4 bunch of people that were looking at us. And as we approached 5 I recognized at least one of the people that's been commonly in 6 the courtroom -- a tall gentleman -- and he was holding up two 7 pieces of paper that said, Free Lynne Stewart. 8 As we got closer the van slowed down and the guy just 9 seemed to, like -- he didn't put them in front of the van but 10 he got closer. It was -- it was disconcerting. 11 And then I heard the van driver say, Who's Lynne 12 Stewart? I did not know until afterwards that the window was 13 down when he did that. And literally, it was a four-second 14 deal. 15 And then he finished off down Pearl Street and we sort 16 of sat in the van and were highly uncomfortable that that 17 occurred. 18 THE COURT: Okay. Did you feel threatened by the 19 incident? 20 JUROR 8: I wouldn't say threatened. I felt unnerved. 21 It was so unexpected. And then I wondered, well, why are they 22 there? It's a public street. 23 How the hell did they get there -- excuse me -- and 24 how did they know -- it was like they knew it was our van. 25 Maybe they do that to every vehicle that goes through, I don't SOUTHERN DISTRICT REPORTERS (212) 805-0300 12668 5115SATF 1 know, but there was a personal aspect to it that was, as I say, 2 disconcerting; I won't say threatening. 3 THE COURT: Is there anything about that incident that 4 would prevent you from being a fair juror in the case and 5 deciding the case based solely upon the evidence or lack of 6 evidence and my instructions on the law? 7 JUROR 8: No, that's not going to affect me, those are 8 separate people doing what they do. 9 THE COURT: Okay. Let me explain some various things. 10 You are, of course right that these are -- that these are 11 separate people. And you have told me that it wouldn't affect 12 what you do in the case and your obligation to decide the case 13 based solely on the evidence or lack of evidence and my 14 instructions on the law; I sort of want to underline that for 15 you by giving you an additional instruction and some additional 16 information. 17 People have a First Amendment right to express their 18 views. They have a First Amendment right to gather, a First 19 Amendment right to hold up signs, express their views and 20 it's -- so, it's very important that that's a right that's 21 respected. At the same time it doesn't affect what you do 22 because what you do in your role is to decide the case, this 23 case based solely upon the evidence or lack of evidence and my 24 instructions on the law. 25 JUROR 8: Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12669 5115SATF 1 THE COURT: So, just as it is true that newspapers and 2 radio and TV can all express views and run newspaper stories 3 and the like; I instruct you, if you see something just to turn 4 away, that it can't affect what do you because it has nothing 5 to do with what you do. You listen to the evidence or lack of 6 evidence and decide the case based solely on that and not on 7 what appears in the newspapers or what people out there are 8 saying or how they express their First Amendment rights. 9 I should also tell you that there was a lot of, I'm 10 told, media around the court for cases totally unrelated to 11 this case yesterday, so that's why there were a lot of media 12 around the court. 13 And I should also tell you that we have made it clear 14 that that van driver is not to drive any vans in this case, so 15 you won't see that van driver again. 16 JUROR 8: Thank you. 17 THE COURT: If anyone should, whether they be a van 18 driver or court employee, marshal or anyone else associated 19 with the process, is anything other than polite, respectful to 20 you all, please, just bring it to my attention. 21 JUROR 8: Everyone has been terrific except for that 22 one individual. That's fine. 23 THE COURT: Is there anything that that individual has 24 done or said that would interfere with your ability to be a 25 fair juror and decide the case. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12670 5115SATF 1 JUROR 8: The van driver? 2 THE COURT: Yes. 3 JUROR 8: No. 4 THE COURT: All right. Please remember not to discuss 5 this with any of the other jurors. 6 JUROR 8: Will do. 7 THE COURT: Okay. Thank you. Could you just step 8 outside for a moment? 9 (Juror number 8 not present) 10 MR. RUHNKE: Your Honor, I keep my record consistent, 11 I would ask whether this juror feels threatened by any of the 12 defendants and, again, this is harkening back to the note from 13 the juror which did say, quote, we feel threatened unquote. 14 Other than that, your Honor, nothing additional. 15 I know you said is there anything about anything that 16 they have said that would affect your ability. 17 THE COURT: I thought I said "said or done." 18 MR. RUHNKE: Said or done. I would like to know has 19 he talked about the case. 20 THE COURT: That's fine. 21 MR. RUHNKE: Or has he said anything inappropriate and 22 what the juror meant by -- 23 THE COURT: There is in fact no basis for that but I 24 will -- but he hadn't suggested anything like that. Nor have 25 any of the other jurors, but I will ask him. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12671 5115SATF 1 MR. RUHNKE: Only one of the jurors so far has said 2 anything about racial comments; and the juror did make the 3 comment that the driver was, quote, sometimes peculiar, closed 4 quote. 5 THE COURT: Okay. 6 MR. RUHNKE: I ask for further inquiry into that. 7 THE COURT: Anything else? Okay. 8 (Juror number 8 present) 9 THE COURT: Just one other thing. Did the driver ever 10 talk to you about the case? 11 JUROR 8: Oh, no. No. That's why when he said it, 12 Who is Lynne Stewart, yesterday, it was so bizarre. I assume 13 he knows about the case. I don't know. We have never 14 discussed it. I don't know what he knows. 15 THE COURT: Okay. Thank you. 16 JUROR 8: Thank you. 17 (Juror number 8 not present) 18 MS. SHELLOW-LAVINE: Before we proceed to the next 19 juror, your Honor, could we have a short break? 20 THE COURT: Before we go to the next juror? 21 MS. SHELLOW-LAVINE: Before we go to the next juror 22 for a personal moment. 23 THE COURT: Sure. We just have two jurors left. 24 MS. SHELLOW-LAVINE: Right, we have two left. Thank 25 you, your Honor. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12672 5115SATF 1 MR. MORVILLO: Five minutes? Two minutes? 2 MS. SHELLOW-LAVINE: Five would be -- 3 THE COURT: Five or less. Whenever you can all 4 return. 5 MS. SHELLOW-LAVINE: Thank you. 6 THE COURT: Okay. 7 (Recess) 8 THE COURT: Okay, the juror number who sits in the 9 number 10 chair, number 146. 10 THE DEPUTY CLERK: Number 10? 11 THE COURT: Yes, number 10. 12 (Juror number 10 present) 13 THE COURT: Hi. 14 JUROR 10: Hello. 15 THE COURT: Juror number 10, please -- 16 JUROR 10: Yes. 17 THE COURT: -- please, don't tell me anything about 18 the substance of the case or anything about deliberations. I 19 want to make very sure I don't intrude on deliberations or your 20 thought processes at all. 21 Also, don't tell any of the other jurors what we talk 22 about. 23 And finally, because this is an inquiry that relates 24 to transportation, don't tell me anything about your identity 25 or where you live or anything like that. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12673 5115SATF 1 But, I understand there was an incident with the van 2 yesterday afternoon and so tell me about it. 3 JUROR 10: When we left yesterday I was in the back of 4 a van, the last sole passenger in the last seat. We made a 5 left, which is unusual -- usually we make a right when we go 6 out from where we exit -- and halfway down the block -- and it 7 was obvious there were reporters and there was a lot of 8 activity going on and -- I noticed, I was looking to my left 9 when the van slowed down and I believe the front window went 10 the whole way down and somebody was shouting by the driver out 11 to the right of the van. 12 As I turned my head and looked to the right there was 13 someone I have seen in the courtroom on a regular basis 14 standing very close to the edge of the street, very close to 15 the van and he was holding a sign. And I looked back to see 16 who he was holding the sign to and he sort of was looking in 17 the van and I couldn't tell if he had eye contact with anybody 18 in the front seat of the van or whatever. 19 I know to the right of me the, the windows are 20 darkened so I don't think he actually saw me, but I'm not quite 21 sure about the passenger in the front seat since the window had 22 been rolled down. 23 And then the driver hit the gas and went on his way. 24 THE COURT: Did you feel threatened by the incident? 25 JUROR 10: Threatened by the incident -- I was more SOUTHERN DISTRICT REPORTERS (212) 805-0300 12674 5115SATF 1 annoyed than threatened I would say. 2 And the particular individual I have seen in court, I 3 had watched the person in court. And I wouldn't say I felt 4 threatened -- because of the marshals -- but I kind of had 5 noticed the person before. 6 THE COURT: Okay. 7 JUROR 10: Physically threatened? No. Because it 8 happened so fast. 9 THE COURT: Okay. Is there anything about that 10 incident that would interfere with your ability to be fair and 11 to decide this case based solely upon the evidence or lack of 12 evidence and my instructions on the law? 13 JUROR 10: No. No. 14 THE COURT: Okay. Let me just advise you about some 15 additional things. 16 First, the van driver will not be driving any vans 17 with jurors here again. He was not on the vans this morning 18 and won't be. 19 Second, did you see what the, what was on the sign? 20 JUROR 10: I did. 21 THE COURT: What was on the sign? 22 JUROR 10: I believe it said Free Lynne Stewart. 23 THE COURT: Okay. 24 JUROR 10: It was crumpled but I could still -- it 25 looked like I was rushing to get it open, like he had been SOUTHERN DISTRICT REPORTERS (212) 805-0300 12675 5115SATF 1 standing there a while for the cameras or something and put it 2 down and was trying to get it up. 3 THE COURT: Okay. You said that there is nothing 4 about the incident that would prevent you from being fair and 5 deciding this case based solely on the evidence or lack of 6 evidence and my instructions on the law. I want to give you an 7 additional instruction, really, which supports that in 8 connection with what happened. 9 People have a right, a First Amendment right to 10 express their views, and they can do it in the newspapers, they 11 can do it by holding up signs and that's a very important 12 right. 13 At the same time I have told you not to look at 14 newspapers or media and -- 15 JUROR 10: Which I have. 16 THE COURT: -- and if you see something inadvertently, 17 just turn away. That's true for signs also. People have a 18 right to express their views and it doesn't affect what you do 19 because what you do is to look at the evidence or lack of 20 evidence and my instructions on the law and decide the case 21 solely on that basis. 22 Do you understand that? 23 JUROR 10: Yes. 24 THE COURT: And will you follow that instruction? 25 JUROR 10: Absolutely. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12676 5115SATF 1 THE COURT: I should also tell you that there was a 2 lot of media around the court yesterday for other cases. It 3 wasn't -- there were other cases in the court house and that 4 produced media attention out there so -- did the -- we have had 5 the driver before, this driver? 6 JUROR 10: Yes. 7 THE COURT: Did the driver ever talk to you about the 8 case? 9 JUROR 10: No. No, he's -- he's made stupid 10 statements before, I don't know; stupid statements about things 11 in general. 12 Nobody pays too much attention to him. I think our 13 concern was him more than anything else. It was totally 14 inappropriate. He obviously didn't have any concern for us 15 when he slowed down with the window down. 16 THE COURT: Okay. Please don't -- let me just ask you 17 again, is there anything about that incident that would prevent 18 you from being a fair juror in this case and deciding this case 19 based solely on the evidence, or lack of evidence, and my 20 instructions on the law? 21 JUROR 10: No. 22 THE COURT: Please don't tell any of the other jurors 23 what we've talked about. Can you step out for a moment? 24 JUROR 10: Sure. 25 THE COURT: Thanks. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12677 5115SATF 1 (Juror 10 not present) 2 MS. SHELLOW-LAVINE: Your Honor. 3 MR. RUHNKE: Your Honor, could I have a moment with 4 Ms. Shellow-Lavine? I had a lot of difficulty hearing what 5 this juror was saying. 6 THE COURT: Okay. 7 MS. SHELLOW-LAVINE: Actually, David, I'm not going to 8 be able to help you because I'm going to ask the court 9 reporter, will she read back what the juror's response was to 10 the Court's question about has the driver ever talked about the 11 case? And she said something about he made stupid statements 12 and then her voice dropped off and I didn't hear. 13 MR. RUHNKE: What I heard at that point, he made a 14 bunch of stupid statements about things in general. 15 THE COURT: But not about the case. 16 MR. RUHNKE: But not about the case. 17 MR. DEMBER: That's what I heard. 18 MR. RUHNKE: One of the follow-up questions I was 19 going to ask is what sort of stupid statements this driver has 20 been making to this jury. 21 We also had an inquiry, generally speaking, whether 22 this driver has driven other members of the jury. I just don't 23 know how they analogized it, I don't know. I think given what 24 we are learning here today I think it is appropriate at least 25 to find out whether this driver has driven other members of the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12678 5115SATF 1 jury. 2 In terms of the follow-up question right now, which is 3 the immediate business, I ask what she meant by stupid 4 statements about things in general from the juror and -- of the 5 driver; and, as well, whether she attributes any of the 6 behavior she witnessed yesterday to any of the defendants; and 7 is she afraid of any of the defendants. 8 Not to beat a dead horse but we started off with a 9 note that says we are -- we feel threatened. And when push 10 comes to shove, we haven't had a whole lot of discussion about 11 jurors being threatened. So, I'm going to ask that that 12 follow-up question be asked. I know your Honor has said you 13 won't ask it in the past. 14 THE COURT: It is -- she already answered that she 15 felt more annoyed than threatened and it is -- the genesis of 16 the note -- I mean, I'll wait until I've heard all of the 17 jurors but it's -- it's clear to me having listened to all of 18 the jurors so far but I will wait until I hear the other 19 jurors. 20 So far the genesis of all of this is apparent from 21 what the jurors have told us but I want to hear all of the 22 jurors, of course. 23 MR. RUHNKE: We just have a fundamental disagreement 24 about that which is apparent and I just don't want to be in a 25 position of having someone reading this record, if they were SOUTHERN DISTRICT REPORTERS (212) 805-0300 12679 5115SATF 1 ever asked to, to say they were never pressed about it, so, I 2 press it. 3 MS. SHELLOW-LAVINE: Your Honor, I would ask one last 4 matter. 5 You were careful about instructing this juror about 6 the First Amendment rights of people to carry signs and the 7 like but I don't recall having heard anything about open 8 courtrooms and people being allowed to be in the courtroom. 9 And she had made a reference to having seen this person before 10 and perhaps even having felt -- I will use the word 11 uncomfortable, I don't think that was her word -- she made some 12 reference any concern she had was allayed by the fact that the 13 marshals were present absent additional -- 14 THE COURT: Yes. 15 MS. SHELLOW-LAVINE: Thank you. 16 It is also -- I am a little troubled because there 17 were things that she said that I didn't hear and I -- I 18 hesitate to ask, but do you think we could have the court 19 reporter just go, fly through some of the highlights because I 20 lost her early on and didn't want to interrupt. I can confer 21 with Mr. Ruhnke. 22 MR. RUHNKE: I don't think there is any reason to 23 confer. She has a very soft voice and there is the heating 24 unit going. I simply couldn't hear. I know the court reporter 25 had difficulty sitting, facing her a few feet away so the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12680 5115SATF 1 request is simply -- that's better. Your Honor just unplugged 2 the heater which made it better. 3 But if we can take two minutes to hear what she 4 actually said? 5 THE COURT: All right. 6 MS. SHELLOW-LAVINE: Thank you, your Honor. 7 (Record read) 8 MS. SHELLOW-LAVINE: Thank you. The only question I 9 have is she made a reference to not feeling physically 10 threatened. Does she feel otherwise threatened? Not 11 physically was the word I heard. It didn't follow sequentially 12 exactly in the -- it came after the 13 more-annoyed-than-threatened, but there was a reference that 14 suggested that she wasn't physically threatened. 15 MR. DEMBER: Your Honor, my recollection of that is, 16 it was just read, that she sort of posed the question to 17 herself, physically threatened? She said no. Because it 18 happened so fast. That's what she responded. 19 She sort of posed the question and answered it and 20 answered it by saying, no, it happened so fast. 21 She wasn't physically threatened. 22 THE COURT: I really think it's sufficient. 23 MS. SHELLOW-LAVINE: Okay. 24 THE COURT: I will follow up with your instruction on 25 the right to be in the courtroom and also to follow up on what SOUTHERN DISTRICT REPORTERS (212) 805-0300 12681 5115SATF 1 kinds of stupid statements, in general, the driver made. 2 MR. RUHNKE: Thank you, your Honor. 3 (Juror number 10 present) 4 THE COURT: Hi. Sorry to keep you outside so long but 5 there are just a couple of other things I wanted to ask. 6 You had mentioned that the driver didn't talk about 7 the case but had said stupid things in general; what sort of 8 stupid things? 9 JUROR 10: I didn't have too many conversations with 10 him but he had many conversations in the van about his personal 11 life, dumb things. I never really spoke to him too much or 12 paid attention to what he said. They were mainly personal 13 things but his opinions, about his personal life. 14 THE COURT: All right. Is there anything about any of 15 that that would affect your ability to be fair? 16 JUROR 10: No. 17 THE COURT: Let me give you another, just another 18 instruction about -- you had mentioned that someone was, you 19 know, who held up the sign was also in the courtroom. And I've 20 explained to you about how what, about the importance of the 21 First Amendment right to express your views and that includes 22 holding up signs or newspapers or TV, magazines, radio but it 23 doesn't affect what you do. 24 Similarly, people have a right to be in the courtroom. 25 It's an open place and it's -- it's a constitutional right that SOUTHERN DISTRICT REPORTERS (212) 805-0300 12682 5115SATF 1 is rooted in a couple of different places in the constitution 2 but it serves many, many purposes in terms of preserving the 3 fairness and openness of the process and so it's very important 4 that we respect that right and that there is nothing about the 5 fact that people come and attend the court or that, you know, 6 people who support one or more of the parties come to court. 7 They have the right to do that. And so, nothing about that 8 should affect anything that you do in the case. 9 JUROR 10: Yes. Yes. I understand. 10 THE COURT: Will you follow that instruction? 11 JUROR 10: Absolutely. 12 THE COURT: Okay. Thank you. Thank you very much. 13 JUROR 10: You're welcome. 14 THE COURT: And remember not to talk about this with 15 the other jurors, about what you said. 16 (Juror 10 not present) 17 MS. SHELLOW-LAVINE: Thank you, your Honor. 18 THE COURT: Okay. Mr. Fletcher advises me that at 19 least one set of the lunches has come but I want to finish. We 20 have one more juror and you wanted me to go back to Juror 21 number 3. 22 MR. RUHNKE: Yes, your Honor. 23 THE COURT: Juror number 12, number 82. 24 (Juror number 12 present) 25 THE COURT: Juror number 12. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12683 5115SATF 1 JUROR 12: Good afternoon. 2 THE COURT: Juror number 12, it is good to see you. 3 JUROR 12: Thank you, sir. 4 THE COURT: A couple of preliminary instructions. As 5 I have told you before when we have spoken, please, don't tell 6 me anything that you are thinking about the case, don't tell me 7 anything about deliberations. I don't want to intrude into 8 your thought processes or the deliberations at all. 9 And second, don't tell any of the other jurors what we 10 talk about. Don't tell any of the other jurors. 11 And finally, because the inquiry relates to the 12 transportation and to the van, please don't tell me anything 13 about your identity or where you live or anything like that. 14 Just because I talk about the transportation I'm not going 15 to -- 16 JUROR 12: Okay. 17 THE COURT: -- find out any of those details. 18 I understand there was an incident with the van 19 yesterday? 20 JUROR 12: Yes, sir. 21 THE COURT: And so, could you tell me about it? 22 JUROR 12: Yesterday, after we left, we got in the van 23 like we normally do. And when we went up past the guards, the 24 driver made a left to where all the TV stations and I guess 25 protesters, were out in front of the court house. And it SOUTHERN DISTRICT REPORTERS (212) 805-0300 12684 5115SATF 1 seemed like the driver paused, rolled down the passenger side 2 window and yelled out, Who is Lynne Stewart? And it's like he 3 just then drove away. 4 The fact that he breached the anonymity of the jury is 5 what has me concerned. 6 THE COURT: Okay. How do you mean breached the 7 anonymity of the jury? 8 JUROR 12: By rolling down the window and letting one 9 of these guys almost peer inside. Because the guy was leaning 10 forward with the sign and it looked like he could have got a 11 good view of the occupants inside when the driver yelled, Who 12 is Lynne Stewart? 13 And they were holding up Free Lynne Stewart signs. 14 THE COURT: Okay. How many signs did you see? 15 JUROR 12: I saw four signs. 16 THE COURT: Okay. Did you feel threatened? 17 JUROR 12: I don't know if the word is threatened but 18 I -- not threatened. I just felt that the anonymity was, you 19 know, we were supposed to be an anonymous jury, okay? I felt 20 that they could see who was in there, know where the van goes 21 and everything, where they're picked up. 22 THE COURT: Okay. Is there anything about the 23 incident that would prevent you from being a fair juror in 24 deciding this case based solely upon the evidence or lack of 25 evidence in this case? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12685 5115SATF 1 THE JUROR: No. No. I don't think it has a bearing 2 on the evidence or anything so I would have to say, no, it 3 wouldn't have any effect. 4 THE COURT: Okay. Let me explain a variety -- a 5 variety of things. 6 First, the van driver is, didn't drive the vans today 7 and will not drive any of the vans in the future. 8 JUROR 12: Okay. 9 THE COURT: He'll be replaced. 10 If, at any time, any van driver or any court personnel 11 or marshal or anyone else associated with the process is other 12 than polite and respectful to you and to the other jurors, you 13 should, by all means, bring it to my attention. Because, as I 14 have repeatedly told you, I believe, if not I'm remiss but -- 15 but I believe I have -- you are entitled to respect in the 16 process and it's important to me that no one treats you with 17 other than care and respect. 18 So, if anything happens the jurors should feel free to 19 bring it to my attention. 20 JUROR 12: This is the only driver who we have had any 21 problems with. In the past he has kept us locked out of the 22 van. In the morning when we go to the meeting place, he is 23 sitting in the other van, he wouldn't open the door. I mean, 24 he made us wait a few minutes more than necessary and actually 25 it shouldn't have been locked anyway. We were standing out in SOUTHERN DISTRICT REPORTERS (212) 805-0300 12686 5115SATF 1 the cold waiting. 2 Having problems with him turning the heat up when it 3 is warm outside or turning the air conditioner on when it is 4 cold and then opening the window trying to get a rise out of 5 us, I think. 6 THE COURT: Is there anything that the driver has done 7 that would interfere with your ability to be -- 8 JUROR 12: No. 9 THE COURT: -- ability to be fair -- 10 JUROR 12: No. 11 THE COURT: -- and to decide the case based -- 12 JUROR 12: No, sir. I just don't want to ride with 13 the guy anymore. 14 THE COURT: And you won't. 15 Has he ever talked to you about the case? 16 JUROR 12: No. 17 THE COURT: Okay. I should also give you a couple of 18 other instructions and advice. There were -- you saw signs on 19 the street and people in support of one of the defendants. 20 It's a constitutional right that people have to express their 21 views and they can do it in the press, in the newspapers, TV, 22 radio, and that's a very important right and so a person has 23 the right to hold up signs, a person has the right to speak. 24 I have told you with respect to publicity, if you see 25 or hear something inadvertently, you just turn away. That SOUTHERN DISTRICT REPORTERS (212) 805-0300 12687 5115SATF 1 applies with respect to people expressing their First Amendment 2 views also on, you know, people holding up signs or the like. 3 And this really supports what you've already told me, that it 4 won't affect anything that you do and you're right, it 5 shouldn't. 6 And, among other reasons, these people expressed their 7 First Amendment rights. Your role in the process is to decide 8 the case based solely on the evidence or lack of evidence in 9 the case and my instructions on the law. 10 So, what other people's First Amendment views are on 11 the case shouldn't affect anything that you do in the case 12 because what you do is to decide the case based solely upon the 13 evidence or lack of evidence and my instructions on the law. 14 JUROR 12: Sure. 15 THE COURT: So, will you follow that instruction? 16 JUROR 12: Yes, sir. 17 THE COURT: Is there anything that's happened with the 18 driver or with this incident that would prevent you from doing 19 that? 20 JUROR 12: No, sir. 21 THE COURT: Let me also add one other thing just for 22 your information. 23 I'm told that a lot of the publicity that was around 24 the court house yesterday had to do with other matters here at 25 the court. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12688 5115SATF 1 JUROR 12: Oh, I -- 2 THE COURT: It just happened that there was a lot of 3 publicity around the court house yesterday unrelated to this 4 case. 5 Okay, please don't talk to any of the other jurors 6 about this and could you just step out for a moment? 7 JUROR 12: Yes, sir. Wait in the hall? 8 THE COURT: Yes, please. 9 (Juror 12 not present) 10 MR. RUHNKE: Your Honor, a couple of suggested 11 follow-up questions. 12 The juror, I think, explained satisfactorily just what 13 his past problems with the driver were so I don't seek any 14 follow-up on that. But, when the juror was expressing his 15 views about what happened yesterday, he made a statement that 16 we're supposed to be an anonymous jury and was concerned about 17 people, or they, knowing where the van is going; and people, or 18 they, maybe finding out where we get picked up. 19 And my question would be to inquire of the juror who 20 he is concerned about when he makes those statements that they, 21 or someone, is going to find out. 22 And the second issue, again, is does he attribute any 23 of this behavior that he observed yesterday to the defendants 24 and is he afraid of any defendants or fear that he is in any 25 kind of danger from any of the defendants on trial? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12689 5115SATF 1 The concern is, your Honor, if he believes that people 2 associated with the defendants are trying to find out or might 3 be attempting to find out where the jurors get picked up, that 4 that is a serious problem. 5 THE COURT: All right. I will ask him whether he was 6 concerned with anyone in particular finding out where the vans 7 were going or where the jurors get picked up. 8 Okay? Anything else? 9 MR. RUHNKE: Nothing else, your Honor. 10 MS. SHELLOW-LAVINE: Nothing, your Honor. 11 THE COURT: Okay. All right. 12 (Juror number 12 present). 13 THE COURT: Let me just follow up on one thing that 14 you mentioned about a concern. Were you concerned about anyone 15 in particular about finding out where the vans picked up or 16 when? 17 JUROR 12: Yes. Yes, sir. It was a -- there was this 18 big guy, he was in the courtroom, I saw him a couple of times, 19 he paced around a lot. I believe one of the marshals had asked 20 him to take his hat off at one time and he got into a little -- 21 a little argument, but he was a very large guy. 22 THE COURT: Okay. All right. 23 Now, I have told you that people have a right to be in 24 the courtroom and that's a First Amendment right and it's -- 25 none of the parties in the case are responsible for people who SOUTHERN DISTRICT REPORTERS (212) 805-0300 12690 5115SATF 1 come to the court, do you understand that? 2 JUROR 12: I understand that. 3 THE COURT: And I have already explained to you the 4 First Amendment right that people have to be in court, and 5 would you hold it against any of the parties that there was 6 this -- 7 JUROR 12: No. 8 THE COURT: -- person -- 9 JUROR 12: No. 10 THE COURT: -- who was in court? Okay. 11 Is there anything about this now that would prevent 12 you from being fair and deciding the case solely on the 13 evidence or lack of evidence and my instructions on the law? 14 JUROR 12: No, sir. 15 THE COURT: Okay. Okay, can you step out? 16 (Juror 12 not present) 17 MR. RUHNKE: That's fine, your Honor. Thank you. 18 MS. SHELLOW-LAVINE: Thank you, your Honor. 19 THE COURT: I will call back in Juror number 3 to ask 20 to tell me about what the, you had mentioned that there was 21 some racial comments before. 22 MR. RUHNKE: Thank you, your Honor. 23 MS. SHELLOW-LAVINE: They were both comments about 24 people who are gay as well as racial comments, was the 25 reference. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12691 5115SATF 1 THE COURT: Yes. I can ask about both except that the 2 latter issue doesn't seem to have to raise anything to do with 3 the case other than deeply impermissible improper comments. 4 MS. SHELLOW-LAVINE: Unless one or more of the jurors 5 is offended personally by such comments or has issues with the 6 comment. I mean, I can't tell whether those might be issues 7 that the jurors might have personal -- 8 THE COURT: But in terms of interfering with their 9 ability to be fair and deciding the case based solely on the 10 evidence or lack of evidence it doesn't, there are no issues in 11 this case or parties or -- I mean, I will ask if you really -- 12 I will ask in general what the kinds of comments were. 13 MR. RUHNKE: Thank you, your Honor. 14 Your Honor, just if the juror -- we are particularly 15 concerned about the racial comments that she alluded to. 16 THE COURT: All right. 17 MR. RUHNKE: And just simply to ask her what did you 18 mean when the you said the driver made racial comments. 19 THE COURT: I was going to ask her because I was 20 asked, What did you mean by racial and gay comments? Unless 21 you want me to phrase it only as What did you mean by racial 22 comments? 23 MR. RUHNKE: No, your Honor. No, thank you. 24 THE COURT: All right, let's call back juror number 3. 25 THE DEPUTY CLERK: Juror number 12 back? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12692 5115SATF 1 THE COURT: Call in juror number 12 and I will let 2 juror number 12 go back. 3 (Juror number 12 present) 4 THE COURT: Hi, Juror number 12. 5 Thank you for coming in and I will send you back to 6 the jury room. Please don't talk to any of the other jurors 7 what we talked about? 8 JUROR 12: Yes, sir. 9 THE COURT: Thank you very much. 10 (Juror number 12 not present) 11 THE COURT: And if we can call in juror number 3, 12 briefly? 13 (Juror number 3 present) 14 THE COURT: Hi. 15 JUROR 3: Hi. 16 THE COURT: Juror number 3, I had one follow-up 17 question. 18 As I mentioned to you, I will assure that the driver 19 doesn't drive any of the vans again. You had mentioned that 20 the driver had made inappropriate racial and gay comments; what 21 was sort of the nature of the comments? 22 JUROR 3: If I have to answer that -- I'm just -- I'm 23 not comfortable even just repeating. He would see girls on the 24 street and make comments about girls and -- and just, you 25 know -- people would do something off-color or somebody would SOUTHERN DISTRICT REPORTERS (212) 805-0300 12693 5115SATF 1 be dressed a certain way and he would say, oh, they have to be 2 gay. And just general things like that. 3 THE COURT: Okay. 4 Did he ever make any comments about any parties to the 5 case? 6 JUROR 3: No. 7 THE COURT: Did he ever talk about the case? 8 JUROR 3: Never that I heard. 9 THE COURT: Is there anything about any of the -- any 10 of the comments that would affect your ability to decide the 11 case based solely on the evidence or lack of evidence and my 12 instructions on the law? 13 JUROR 3: Absolutely not. 14 THE COURT: Okay. 15 Step out just once more? 16 JUROR 3: Okay. 17 (Juror number 3 not present) 18 MR. RUHNKE: I was trying to signal to you that it 19 would be fine just to send the juror back and not have her go 20 out and come back. 21 THE COURT: Okay, thank you. 22 We will bring the juror back in. 23 (Juror number 3 present) 24 THE COURT: Hi. Thank you, Juror number 3. Don't 25 tell any of the other jurors what we talked about. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12694 5115SATF 1 JUROR 3: Okay. Thank you. 2 THE COURT: Thank you. 3 (Juror number 3 not present) 4 THE COURT: Have a seat just for a moment. All of 5 this is sealed. And do the parties have any positions that 6 they wish to express to me or argue to me? 7 MR. RUHNKE: I think what we would like to do is talk 8 with the rest of the attorneys on the case and if there is an 9 application to be made, I am sure one would be made. 10 THE COURT: All righ