Before the jury entered this morning, Mr. Carney objected to the cumulative evidence the prosecution intends to present. Mr. Carney’s argument was that the government is presenting an excess of documents, hundreds of instant message chats, pictures and videos to show Tarek’s “state of mind,” even though Mr. Carney established Tarek’s state of mind the very first day in his opening statement. Mr. Carney again explained that state of mind to the 35 supporters that were present in court today: Tarek’s belief has been and continues to be that Muslim people have the right to defend themselves. Mr. Carney argued that the cumulative nature of the state of mind evidence is prejudicial more than probative (meaning that using many similar exhibits to prove the same point only ends up creating a prejudice in the jury’s mind and doesn’t add any more substance to the argument). The prosecution is supposed to be proving that Tarek translated documents and videos under the direct order or in partnership with Al-Qaeda, but “there has been zero evidence of this,” Mr. Carney argued vehemently. “The flaw of the government’s view is that all people who share the views [of Tarek] are part of a worldwide conspiracy. If they have evidence that Tarek was acting under direct order of Al-Qaeda, bring it on!” Mr. Chakravarty rebutted that presenting Tarek’s state of mind is “squarely at issue” in this case because it shows Tarek’s motivation. Judge O’Toole denied the motion, saying that it wasn’t far enough into the trial for this kind of evidence to be cumulative. Later we realized that Mr. Carney was not going to let it go at that.
Ali Aboubakr took the stand again today. In response to Ms. Bassil’s aggressive cross-examination on Friday, Mr. Auerhahn questioned Aboubakr about his grand jury testimony. Mr. Auerhahn ascertained that Aboubakr testified in the grand jury about conversations he had had about a decade earlier, perhaps trying to prove that Aboubakr wouldn’t have given the same testimony in the grand jury as he gave yesterday because he needed his “recollection refreshed” by the prosecution. The fact that Mr. Auerhahn is the one to help witnesses “remember” should set off alarms for anyone paying attention: Jeffrey Auerhahn has been found guilty of coercing a witness (threatening to take the witness out of the witness protection program, in fact), forcing this witness to lie under oath (called “suborning perjury”), and doctoring evidence, all of which he was never reprimanded for (see David Boeri’s investigative article regarding Auerhahn). Given that Mr. Auerhahn is the one handling and examining the “cooperating witnesses,” it is through the lens of Mr. Auerhahn’s criminal record that the testimony of these witnesses should be understood. During a status hearing before the trial began, Mr. Auerhahn even told Judge O’Toole that one of his cooperating witnesses was “reluctant at first,” but eventually was convinced to cooperate. As we know from Tarek’s experience of harassment and threats to become an informant, the FBI doesn’t just ask nicely for people to become informants, and they don’t take kindly to people saying no.
Mr. Auerhahn again asked about “donating blood” and what that meant, and Aboubakr replied it meant to fight, and that he and Tarek agreed to go to Yemen over the summer to fight. This testimony directly contradicts his own testimony from Friday to Ms. Bassil, which was that the blood donation comments he and Tarek exchanged were jokes. Mr. Auerhahn asked how Tarek felt about current conflicts and Aboubakr said that it was difficult to recall exactly, but that Tarek was extremely angry about US troops in Saudi Arabia. He couldn’t recall much more than that (even though he had testified all day Thursday and Friday about Tarek’s feelings on the current wars in Iraq and Afghanistan and the genocides in Bosnia and Chechnya, among other current conflicts). Mr. Auerhahn then countered that the US troops in Saudi Arabia weren’t invading, they were invited by the Saudi government.In cross-examination, Ms. Bassil asked Aboubakr if he recalled where he talked with Tarek about his views about US troops in Saudi Arabia, when he talked about these views, or who else was there when he talked about these views, but Aboubakr recalled none of that information; this convenient lack of memory gives Aboubakr’s answer to Auerhahn’s question about current conflicts a certain prompted feel. Ms. Bassil also asked Aboubakr if the username that Tarek had suggested for him, “Abu WTC,” was a joke. It was, he replied. Ms. Bassil ended her cross-examination by asking Aboubakr if he and Tarek talked about finding someone for Tarek to marry. They did, Aboubakr conceded. Quite often? Ms. Bassil asked, smiling. Yes.
The court recessed for the mid-morning break early so the judge could review some videos the prosecution wanted to submit for evidence. The videos were more of Osama bin Laden’s speeches, more of the destruction of the World Trade Center, and more of suicide bombers talking in Arabic without subtitles. Before the jury came back, Mr. Carney again argued strongly that “Tarek’s possession of these videos doesn’t show he was part of a conspiracy. The prejudicial value of this video is enormous.” But again his objection was overruled. Mr. Carney didn’t let that stop him: “The government has got to stop trying to poison this jury,” he went on, raising his voice. “[Tarek] didn’t create [the video the prosecution wanted to show], he didn’t edit it even though he was asked to do it, and he didn’t disseminate it. Somehow it’s a crime to listen to the words of Osama bin Laden.” Nevertheless, Judge O’Toole allowed the prosecution to use the videos, except one. Carney then said, “Your honor, I move for a mistrial,” which the judge promptly denied. He moved for, and was denied, a mistrial once more before the jury came back.
The second part of today’s court session was testimony from FBI special agent Andre Khoury. As we understand it, informants will take the stand alternating with FBI agents, so there won’t be one whole week of informants. We will let you know as soon as we can when the next informant will testify. Not much came out of Mr. Khoury’s testimony for either side. In fact, Mr. Khoury was not even assigned to investigate this case, he simply sat next to the agents who were investigating the case and was asked about some things regarding the case on account of his expertise in the Middle East and his fluency in Arabic (Mr. Khoury is Lebanese). Mr. Chakravarty played two videos, one that had Al-Qaeda logos that someone had asked Tarek to edit, and one that we can at best describe as a “state of mind” video (tanks blowing up, people shooting bazookas, 9/11 attack images, etc.). It was unclear whether Mr. Chakravarty was arguing that Tarek had translated or edited either of these videos at all;* either way, Mr. Chakravarty never even moved to show that Tarek edited or translated these videos at the direction of Al-Qaeda. A video translated not under the direction of Al-Qaeda does not constitute material support.
One aspect of the examination of Mr. Khoury that was noteworthy was the frequency with which Mr. Carney objected and asked to approach the bench. It is clear from Mr. Carney’s actions and arguments today that the defense will proceed with this trial in full fighting mode. They’re going to make them fight for every inch.
*It is all too common for the prosecution to finish their questioning of a witness without expressly making any connections about why they asked certain questions or included certain vague yet inflammatory pieces of evidence, leaving the jury and the public to wonder.
++++More to come tomorrow! Please join us in court! There have consistently been between 25-50 supporters in the courtroom since the. trial started. Let’s keep it up! We will be there 9am-1pm, Monday through Friday at Moakley Courthouse in Boston. Email firstname.lastname@example.org or check www.freetarek.wordpress.com for more details.