3

1 ( T h e fo llo w in g d is c u s s io n o c c u r r e d in t h e j u d g e 's
1

1 IN THE UNITED STATES DISTRICT COURT 2 c o n fe r e n c e r o o m : )

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
2 3 THE COURT: G o o d m o r n in g .
UNITED STATES OF AMERICA :
3 : 4 MR. RUHNKE: G o o d m o r n in g .
vs : 3:13-CR-00123
4 :
: 5 THE COURT: J u s t a c o u p le o f t h in g s . N u m b e r o n e , t h e
5 JESSIE CON-UI :
: 6 c o v e r s h e e t o n t h e v e r d ic t s lip h a s b e e n c h a n g e d . I t n o lo n g e r
6
BEFORE: THE HONORABLE A. RICHARD CAPUTO 7 h a s o ff ic e r W illia m s ' n a m e o n it . I t s im p ly s a y s , c o u n t o n e ,
7
PLACE: COURTROOM NO. 1
8 8 f ir s t - d e g r e e m u r d e r , a n d w e m a d e t h e c h a n g e o n M a s k - - y o u h a d
PROCEEDINGS: PENALTY TRIAL
9 9 --
DATE: THURSDAY, JULY 6, 2017
10 10 MR. RUHNKE: R ig h t . I f i r s t s a id it s h o u ld b e
11
11 d e le t e d a n d t h e n r e a liz e d it s h o u ld b e a m e n d e d .
12
APPEARANCES: 12 THE COURT: A m e n d e d a n d fa m ily . T h e o t h e r t h in g is
13
For the United States: 13 t h a t w e d id h a v e in th e - - t h e p h r a s e r e a s o n a b le d o u b t o n p a g e
14
FRANCIS P. SEMPA, ESQ.
15 ROBERT J. O'HARA, ESQ. 14 4 0 o f t h e fin a l in s t r u c t io n s o n d e a t h p e n a lt y m e a n in g y o u h a d
U.S. ATTORNEY'S OFFICE
16 235 NORTH WASHINGTON AVENUE 15 d o it a g a in , y o u r t h e o r y , M r . R u h n k e , w h ic h w a s in a d v e r t e n t ly
3RD FLOOR
17 SCRANTON, PA 18503
16 p u t in t h e r e a n d t h e n w a s ta k e n o u t .
18 ROBERT J. FEITEL, ESQ.
UNITED STATES DEPARTMENT OF JUSTICE 17 MR. RUHNKE: I th o u g h t Y o u r H o n o r r e c o n s id e r e d .
19 1331 F. STREET, NW
WASHINGTON, DC 20530 18 THE COURT: S o d id M r . S e m p a .
20

21 For the Defendant: 19 MR. SEMPA: N o, no.

22 DAVID A. RUHNKE, ESQ. 20 THE COURT: H e p ic k e d it u p . S o r r y a b o u t th a t. That

RUHNKE & BARRETT
23 47 PARK STREET 21 h a p p e n e d , a n d t h a t 's b e e n c h a n g e d . A n d t h a t 's it r e a lly .
MONTCLAIRE, NJ 07042
24
JAMES A. SWETZ, ESQ. 22 A n y t h in g e ls e ? I d o n 't w a n t t o t a k e y o u r t im e . I k n o w y o u 'r e
25 711 SARAH STREET
STROUDSBURG, PA 18360 23 r e a d y t o c lo s e , a n d e v e r y b o d y h a s t o b e p r e p a r e d a n d b e r e a d y .

24 So good enough. Thank you.

25 MR. RUHNKE: O u t o f c u r io s it y , w h a t i s t h e la t e s t in
2
1 4
M A R K F. FLE M IN G , ES Q .
2 L A W O F F IC E O F M A R K F L E M IN G 1 t h e d a y p o in t fo r t h e ju r y s t a r t i n g d e lib e r a t io n s ?
5 3 1 K R IS T E N C O U R T
3 E N C IN IT A S , C A 9 2 0 2 4
2 THE COURT: I h a v e n o - - u s u a lly I - - I ' m k n o w n t o

3 k e e p t h e m u n t il th e y - - u n t il th e y in d ic a t e o t h e r w is e .
4 D IA N E FE R R O N E , E S Q .
L A W O F F IC E O F D IA N E F E R R O N E 4 MR. RUHNKE: Okay.
5 1745 BROADW AY
NEW YORK, NY 10019 5 THE COURT: T h a t 's s o r t o f h o w I le a v e it .
6
6 MR. SEMPA: J u d g e , o n e t h in g w e w a n t t o b r in g u p ,
7
7 w h e n e v e r t h e v e r d ic t is r e t u r n e d , is t h e r e a n y p o s s ib le w a y w e
8
8 c o u ld h a v e s o r t o f a 4 5 - m in u t e in t e r v a l s o t h e W illia m s fa m ily
9
9 c o u ld g e t h e r e ? I a s k it b e c a u s e I w a s - - i t w a s a r e q u e s t .
10
10 MR. RUHNKE: I d o n 't w a n t t o w a it 4 5 m in u t e s fo r a
11
11 ju r y t o r e t u r n a lif e o r d e a t h v e r d ic t .
12
12 THE COURT: In o th e r w o r d s , th e y a re n o t h e re .
13
13 MR. SEMPA: Y e a h , in o t h e r w o r d s , th e y liv e in
14
14 N a n t ic o k e , a b o u t a 4 5 - m in u t e d r iv e a n d - - s im p ly m a k in g a
15
15 re q u e s t.
16 16 THE COURT: I d o n 't t h in k it's r ig h t t o d o t h a t . I
17 17 m e a n , I w o u ld lik e t o a c c o m m o d a t e y o u , b u t I j u s t - - y o u k n o w ,
18 18 t h e - - m a y b e t h e y m ig h t t a k e a c h a n c e a n d c o m e . W h o k n o w s .

19 19 MR. SEMPA: I w ill c o n v e y t h a t .

20 20 THE COURT: T h a t m a y b e in d ic a t o r s lik e a q u e s t io n

21 21 f r o m t h e ju r y . Y o u n e v e r k n o w - - n o t t o s o u n d - - b u t ju s t p la y

22 22 it b y e a r .

23 23 MR. RUHNKE: T h a t r a is e d a n o t h e r q u e s tio n t h a t w e h a d

24 24 b e e n d is c u s s in g . H o w d o y o u in t e n d t o h a v e t h e ju r y a n n o u n c e

25 25 it s v e r d ic t ? D o y o u in t e n d t o ta k e t h e m t h r o u g h e a c h o f its
1 of 79 sheets Page 1 to 4 of 177 07/07/2017 02:10:08 PM
 5 7
1 findings and then, you know, the final -- final verdict or have 1 You have heard about this defendant's lifetime of bad choices.
2 the foreperson announce the verdict and simply announce the 2 And you've heard about a lifetime of horrible suffering for
3 verdict? 3 each and every one of his victims.
4 THE COURT: Truthfully I hadn't thought about it very 4 Now we're at a point where it's your turn to make a
5 much. I probably was going to do it myself. I was going to 5 choice, a very important choice, a choice that's had very
6 get the verdict slip and read the -- the responses. I mean, 6 important consequences for everyone involved in this case. Now
7 anybody have any different ideas? 7 is the time for you all to come together and make the
8 MR. FLEMING: That's fine. 8 appropriate choice that gives the appropriate consequences for
9 MR. SEMPA: That's fine, Judge. 9 this defendant's lifetime of bad choices and wrong choices. It
10 MR. RUHNKE: I think that's fine. It's just the 10 is the time for you to come together and choose a penalty of
11 suspense is -- 11 death for this defendant.
12 THE COURT: What would you like me to do, read the -- 12 Before I get into the details of why the government
13 or not read it? 13 has proven to you that he deserves the death penalty and why
14 MR. RUHNKE: One option would be the jury has reached 14 the government has proven to you that he has earned the death
15 the following determination and simply ask the foreperson, does 15 penalty, I want to digress briefly to go over something that
16 the verdict sheet reflect the findings of the jury and -- 16 his honor will instruct you on at the end of these arguments,
17 THE COURT: I always do that. 17 and it's called gateway intent factors. They call them that
18 MR. RUHNKE: I know that. 18 with good reason because it's a gateway to getting death
19 THE COURT: And therefore, what? 19 penalty eligibility.
20 MR. RUHNKE: That you not have to read aloud in court 20 We submit to you that they have been proven beyond a
21 each individual finding. 21 reasonable doubt. It's not a heavily lift. It's very
22 THE COURT: What would you like me to read? 22 straightforward. Let me read to you what these factors are any
23 MR. RUHNKE: The determination. 23 one of which is sufficient to get you to death penalty
24 THE COURT: I can do that. I kind of agree with you. 24 eligibility in addition to his age of 18 at the time of the
25 I hate going through all that -- all those preliminaries. You 25 commission of the crime, that's also an easy lift. They
6 8
1 want to know what are we doing here. 1 stipulated he was over 18 at the time of the crime. These
2 MR. RUHNKE: Yes, for both counts I mean. 2 gateway intent are, any one of which is sufficient, that the
3 THE COURT: I can do that. I agree with that. 3 defendant intentionally killed the victim or that the defendant
4 That's not a problem, okay. Good. 4 intentionally inflicted serious bodily injury that resulted in
5 (The discussion concluded at this time.) 5 death or the defendant intentionally participated in an act
6 THE COURT: Good morning, members of the jury. This 6 contemplating that the life of a person would be taken or
7 morning you're going to hear closing arguments from counsel, 7 intending that lethal force would be used and the victim died,
8 and then you're going to hear my charge, that is to say my 8 or four, that the defendant intentionally and specifically
9 instructions on the law. The way it's going to work is the 9 engaged in an act of violence knowing the act created a grave
10 government, Mr. Feitel, will address you first. Thereafter, 10 risk of death to a person and it constituted reckless disregard
11 Mr. Ruhnke will address you, and so will Mr. Fleming on behalf 11 for human life and the victim died.
12 of the defense. 12 Any one of these four gateway intent factors and his
13 After that, Mr. Feitel -- Mr. O'Hara, I'm sorry -- 13 age of 18 gets us to the point, which is why we're all here
14 has a -- an opportunity to give a brief rebuttal to the 14 today, what is the appropriate penalty for him. You've already
15 arguments advanced by the defense that were not covered in the 15 found, ladies and gentlemen, in your guilt phase verdict a
16 original argument before you by the defense. That said, are we 16 number of these gateway intent factors. The reason I mention
17 prepared? 17 them again here today, however, is the law requires you even
18 MR. FEITEL: Yes, Your Honor. 18 though you've already found them, you have to revisit the
19 THE COURT: Mr. Feitel. 19 issue. You cannot rely solely on your prior finding in this
20 MR. FEITEL: Thank you, sir. May it please the 20 determination in the penalty phase.
21 court, counsel. Ladies and gentlemen of the jury, good 21 You got to revisit the issue and re-decide it, as I
22 morning. There has been a pervasive theme to all of the 22 said to you, though I think it's an easy lift for you because
23 evidence you heard these past several weeks, and that theme is 23 you already decided he had intent to kill, that's what you
24 this. Choices and consequences. Choices and consequences. 24 found him in the guilt phase, guilty of these two capital
25 You've heard about this defendant's lifetime of wrong choices. 25 offenses. Nonetheless, you do have to make separate findings
07/07/2017 02:10:08 PM Page 5 to 8 of 177 2 of 79 sheets
 9 11
1 in this phase. That's why I mention it.
2 All right. Let me get back to the real reason we're
3 all here, the appropriate penalty for this defendant. Let's
4 review the evidence you heard these past several weeks.
5 Evidence of the crushing weight of the aggravating factors the
6 government has proven to you beyond a reasonable doubt which
7 weigh in favor of a death penalty for that defendant. Take a
8 look with me at exhibit 15.
9 As you know, ladies and gentlemen, the video of this
10 horrific murder is in evidence. You will not have it back in
11 the jury room to view again, but it is in evidence. And please
12 harken back to it as you make your deliberations in this case.
13 We're going to go over some aspects of it here today. Exhibit
14 15, you'll recall is the stairwell. You will recall on the
15 right side of exhibit 15 on the second tier of unit C-1 at U.S.
16 Penitentiary Canaan on February 25th of 2013, that is where
17 that defendant chose to lay in weight for correctional officer
18 Eric Williams right up there perched on that railing leaning
19 over it looking for his prey.
20 And that is significant, ladies and gentlemen,
21 because substantial planning and premeditation you'll recall is
22 one of the statutory aggravating factors the government is
23 proving to you beyond a reasonable doubt. And how do we know
24 he substantially planned and premeditated? Well, first of all,
25 he's up there waiting for officer Williams. That's number one.
10
1 Number two, remember he has secreted two metal shanks on his
2 person inside of a U.S. penitentiary while he's waiting for
3 correctional officer Williams to ascend the stairwell after the
4 evening count begins. Three, he's standing up there and times
5 his arrival to the top of the stairwell such that the defendant
6 arrives at the top of the stairs as officer Williams is
7 ascending the stairs, going up the stairs.
8 He times his positioning such he has maximum leverage
9 over officer Williams, the element of surprise if you will,
10 he's walking up the stairs. And what does he do? He kicks him
11 in the face. Kicks him in the face. But it doesn't stop
12 there. Take a look at exhibit 130. This is officer Williams
13 hurdling down the stairs after the defendant kicked him in the
14 face. And look who is in close pursuit holding the railing on
15 his way down pursuing the very man he just kicked in the face
16 who is tumbling down head first backwards, concrete and metal
17 stairs, a full flight. There it is.
18 And amazingly, ladies and gentlemen, after officer
19 Williams lands down this full flight of concrete and steel
20 stairs, he has the courage and the strength and wherewithal and
21 the situational awareness to know that he has to flee, that he
22 has to flee from this defendant for his life. And he does so.
23 Take a look at exhibit 131. Eric manages to get as
24 far as that far wall. The defendant is in close pursuit. He
25 attacks him mercilessly, begins his stomping, stabbing,
3 of 79 sheets
1 kicking, beating even though the man has just been kicked down
2 a flight of stairs backwards, lands, flees, and he goes after
3 him relentlessly. He corners him against that wall. Amazingly
4 officer Williams again manages to muster up the strength and
5 the wherewithal and the heroism to flee again for his life.
6 But who's in immediate pursuit? That defendant.
7 Exhibit 132. Eric manages to flee the center of the
8 common area, and this is where the defendant has at him,
9 mercilessly. Kicking, stomping, slamming his head to the
10 concrete floor, stabbing him over 200 times, again and again
11 and again. During this vicious assault, this vicious murder,
12 this vicious slaughter of officer Williams, what does this
13 defendant do? He takes the time -- he choose to take the time
14 to wipe his brow because he's sweating so profusely from
15 killing this man.
16 He takes the time to take off his shirt and then
17 continue his vicious slaughter. He takes the time to rinse off
18 in the shower because he's cut his hand from stabbing officer
19 Williams so many times. He pauses to hydrate. He takes a
20 beverage. You will recall from the video a fellow inmate hands
21 him a bottle of water so he can continue his relentless murder
22 of this man. And he stops to drink the water to quench his
23 thirst so he can pursue his murderous task.
24 He pauses to rest, the defendant does, at the game
25 table. He pauses to choose to take Eric's radio from him and
12
1 throw it at his head. And perhaps most tellingly, ladies and
2 gentlemen, believe it or not it's such a little thing and yet
3 it's huge, he pauses to steal this officer's chewing gum. He
4 doesn't just steal it. But he opens it up, and he starts
5 chewing Eric's gum while he's slaughtering him. Think about
6 that. That shocks the conscience. That is depravity on a
7 whole new level.
8 Take a look at exhibit 133. Here's the defendant
9 stomping on Eric's head and stomping on his neck. You will
10 recall the medical testimony in this case from Dr. Gary Ross,
11 the forensic pathologist, that Eric suffered a shattered larynx
12 in his neck and shattered hyoid bone also in his neck. And you
13 will recall Dr. Ross telling us the tremendous force that is
14 required to shatter these two organs in the body. You will
15 recall Dr. Ross testifying that the force depicted in this
16 exhibit, exhibit 133, of the defendant's stomping on his neck
17 is absolutely consistent with those horrific injuries.
18 Take a look at exhibit 134. Here is the defendant,
19 Con-Ui kicking, officer Williams in the head. Look at the
20 defendant's body position, ladies and gentlemen. Look at it.
21 I know it's difficult. I know it's graphic. He's relishing
22 this murder. He's loving it. He's enjoying it. This is sport
23 to him.
24 MR. RUHNKE: Your Honor, I object to that. There's
25 no evidence of that. I object.
Page 9 to 12 of 177 07/07/2017 02:10:08 PM
 13
1 THE COURT: Overruled.
2 MR. FEITEL: He kicked this man in the head the way
3 you and I might kick a soccer ball or a football again and
4 again with the nonchalance of attending a sporting event, all
5 the while chewing Eric Williams' gum he stole from him as he's
6 murdering him. That's heinous, ladies and gentlemen. That's
7 cruel. That's depraved. That's a statutory aggravator.
8 Exhibit 33, the FBI recovered officer Williams'
9 package of gum at the crime scene. Exhibit 30, the FBI
10 recovered and took pictures of the wrappers of gum that the
11 defendant opened as he was seated at the game table during the
12 slaughter of Eric Williams and left on the table.
13 The nature and volume, the extent of these injuries,
14 ladies and gentlemen, was profound. It shocks the conscience.
15 The needless suffering this defendant inflicted on officer
16 Williams, the gratuitous violence this defendant inflicted on
17 Eric Williams, it sets this killing apart from other killings.
18 He didn't just kill officer Eric Williams. He overkilled him.
19 Needless mutilation.
20 You will recall all the correctional officers
21 testimony. What is the one word they used over and over and
22 over again to describe how they saw their coworker?
23 Unrecognizable. His choice to leave that officer
24 unrecognizable as he killed him and overkilled him. You heard
25 from Dr. Siddiqui, the emergency room physician, how much Eric
14
1 suffered, the blood markers, all the stressors, all those
2 biomarkers showing his body was shutting down under tremendous
3 stress from all of the blunt impact trauma to his whole body,
4 particularly his head. You heard testimony that his pupils
5 were not reactive, that he was stabbed in the eye, that he had
6 what medical folks call crepitus. It's a fancy word, ladies
7 and gentlemen, for a horrible thing. He had a head of mush --
8 a head of mush at the hands of that man sitting right there, a
9 boggy skull. Massive blunt impact trauma. Unrecognizable.
10 Heinous, atrocious, despicable, sickening, wicked, evil. These
11 are not mere words. They are descriptive of his choices that
12 day. They describe his conduct. They probably don't even do
13 it justice.
14 They are probably aren't enough words in the English
15 language that one could come up with that really adequately
16 defines what that man chose to do to officer Eric Williams.
17 There's just not enough words. Take a look at exhibit 76 A.,
18 the neuropathology report from Dr. Ross. Look at all of the
19 areas of trauma.
20 Six different areas are referenced in this exhibit,
21 ladies and gentlemen, multiple fossae subarachnoid hemorrhage.
22 Look at the sizes of the areas of hemorrhage, nine by six
23 centimeters, eight by three and a half centimeters, four by
24 four centimeters.
25 76 B., diffuse cerebral edema, bilateral cerebellar
07/07/2017 02:10:08 PM
15
1 herniation with compression of the brain stem, cortical
2 contusion in nine different areas. Look at all of the areas
3 and their sizes, ladies and gentlemen, interforaminal
4 hemorrhage into the gray matter, marked tonsilar cerebellar
5 herniation with brain stem compression. You will recall,
6 ladies and gentlemen, Dr. Ross -- he testified Eric's brain
7 swelled so much it had nowhere to go. It had to go into what
8 is known as the foramen magnum, the one hole at the base of the
9 skull where it could go.
10 That's where our brain stem is. You remember Dr.
11 Ross testifying. Your brain stem is where all those important
12 things like breathing and heart rate are controlled. And once
13 you got profound swelling on the brain stem, you recall Dr.
14 Ross testifying, it's pretty much all over, folks. His head
15 was swollen so much, his brain was, it had nowhere to go. You
16 remember I asked Dr. Ross about the external injury chart,
17 exhibit 76 D. You'll recall there was page after page after
18 page after page after page of external injuries. Ten pages he
19 itemized. He said that wasn't even an exhaustive list. That's
20 just the one he itemized, 81 separate external injury sites
21 each with multiple external injuries referenced and not even an
22 exhaustive list. Ten pages referenced.
23 That's just the external injuries, not the internal
24 injuries. Exhibit 113. That is what that man chose to do with
25 officer Williams, ladies and gentlemen. I know it's hard to
16
1 look at, but I ask you please do so because it's why we're all
2 here. He tortured Eric Williams. He seriously physically
3 abused Eric Williams. His violence against him was gratuitous,
4 it was needless, and he enjoyed it. Take a look at exhibit
5 114.
6 He stabbed him again and again and again kicked him
7 again and again and again and stomped on him and slammed him,
8 and this is what he did to this man. Exhibit 115. You recall
9 Dr. Ross, the forensic pathologist, testified that these
10 injuries are indicative the defendant was attempting to cut
11 through the back of Eric's neck with one of his two metal
12 shanks, and that photograph reflects those horrific injuries
13 that that man chose to inflict on officer Eric Williams that
14 day.
15 And after all this horrific injury that he inflicted
16 on Eric killing him, slaughtering him, he came into this
17 courtroom -- the defendant did -- and he stood up and he said
18 to you, I'm sorry, I'm ashamed of what I did. Those were his
19 words out of his mouth sitting right there. Let's look at that
20 a little bit closer. Can we have exhibit 1, please? On the
21 day of the murder, ladies and gentlemen, the defendant -- you
22 heard from the testimony of correctional officer Tommy Baux.
23 What did he say to the officer that day, the day he murdered
24 officer Williams? He disrespected me. Next item.
25 What did the defendant say to correctional officer
Page 13 to 16 of 177 4 of 79 sheets
 17
1 Ryan Boynton? It was a disrespect issue, man. Think about
2 that for a minute, ladies and gentlemen. The defendant is
3 saying it's a disrespect issue. Who is disrespecting whom?
4 This defendant chose to offer the ultimate disrespect to his
5 fellow human being by slaughtering him, and he's complaining
6 about disrespect? Pretty ironic.
7 Next item. What does he say to correctional officer
8 Mark Turner? I think we all know what happened here, what are
9 we waiting for, and significantly he says this, according to
10 officer Turner, while chewing Eric's gum, a non-commissary
11 item. That's significant, ladies and gentlemen. You can't buy
12 gum if you're an inmate at the prison. The only place he got
13 the gum was from Eric.
14 It was nothing personal, I did what I had to do.
15 That nonchalance -- that nonchalance, which is also reflected
16 in the way he stole Eric's gum and chewed it and paused
17 throughout the murder to rest and take water and wipe his brow
18 shows a level of depravity that we've never seen. It's
19 shocking to the conscience. This is how he reacts to such a
20 vicious slaughter. It's nothing personal, I did what I had to
21 do.
22 Next slide. The story evolves, however, ladies and
23 gentlemen, changes two days after the murder. He's in
24 Allenwood prison. He's talking to chaplain Osuji -- you heard
25 him live. What does he tell the Catholic priest, the man who
18
1 is raised Catholic? What does he tell the Catholic priest?
2 Jessie went ahead for the next five minutes to narrate how they
3 shook him down the previous evening and took away his loud
4 speakers and other stuff. Well, we know that's not accurate.
5 The cell search that was allegedly the disrespect issue was
6 about an hour before the murder.
7 But he's telling the Catholic priest the shakedown
8 was the prior evening. This is two days after the murder
9 coming out of his mouth. Next item. From chaplain Osuji he
10 said further the next day he offered the officer an opportunity
11 to fix it but he did not. Where is that coming from? That's a
12 complete fabrication. The cell search was an hour before the
13 murder.
14 But this is what he's telling the Catholic priest two
15 days after the murder. The story evolves again. In a letter
16 to his mother 16 days after the murder, what does he say? You
17 have to just trust me when I say that I can only say so much.
18 Something really bad happened, mom. A correctional officer was
19 killed, and I'm the only suspect. I myself have mixed emotions
20 about it that keeps my mind in a clutter. Mixed emotions?
21 Does that sound like remorse to you? I have mixed emotions
22 about it.
23 What does he say June 28th here in court? I wish I
24 could give you a better explanation why this happened, why I
25 did this even and I can't because I don't know. We started out
5 of 79 sheets Page 17 to 20 of 177
19
1 it was a disrespect issue. Then we got some story about the
2 prior evening shakedown to the priest. Then we have got mixed
3 emotions, and now we got I don't know. That is not remorse.
4 That is not contrition. That is empty words.
5 Take a look at exhibit 11. That is the defendant the
6 day of the murder during his medical assessment by the COs
7 during which the cut on his palm was dressed, the cut he
8 sustained slaughtering Eric Williams. This is right after the
9 murder. That, ladies and gentlemen, is the face of a
10 remorseless killer. A remorseless killer. But there's so much
11 more than what I have just gone over. What other horrible
12 choices has this defendant made over the years, folks? What
13 other horrible choices? Let's review them.
14 Exhibit 90. This was Carlos Garcia. That's a
15 statutory aggravator, folks. The defendant was serving a life
16 sentence for murdering this man in cold blood when he murdered
17 Eric Williams. That is a statutory aggravating factor. He
18 murdered Carlos Garcia August 25th, 2002 in Maricopa County,
19 Arizona, you will recall. You will recall he was convicted May
20 30th of 2008, that he was sentenced on June 27th of 2008. And
21 he was serving the life sentence for this murder when he
22 slaughtered Eric Williams. Look at exhibit 91. Those are
23 gunshot wounds. That is significant because that is another
24 statutory aggravating factor, the use of a firearm during the
25 commission of this felony. That is a separate statutory
20
1 aggravating factor than the one I just mentioned.
2 But there are more bad choices this defendant made
3 along the way. Exhibit 135, yet another statutory aggravating
4 factor. This is a still photo from the video you watched,
5 which is in evidence, of this defendant's drug deal. You will
6 recall the defendant is the one in the checkered shirt in the
7 upper right part of the picture holding the firearm.
8 You recall that this conviction for conspiracy to --
9 conspiracy for possession with intent to distribute 33 pounds
10 of cocaine was entered on June 20th, 2005 and that it had
11 related offense conduct of possession of marijuana, possession
12 of methamphetamine, possession of guns, not only the one in his
13 hand, but another one that was found in the hotel room. For
14 this the defendant was sentenced, you will recall, to 11 and
15 one quarter years.
16 The list of bad choices this defendant made along the
17 way continues. We're not done. In the fall of 1999 the
18 defendant threatened to harm other inmates while he the
19 defendant was incarcerated at Arizona State Prison Complex in
20 Florence, Arizona. In June of 2000, this defendant chose to
21 beat another inmate with a metal food tray from the chow hall
22 at the Arizona State Prison Complex in Winslow. That was
23 inmate Espinoza. In October of 2009 at U.S. Penitentiary
24 Victorville, California, this defendant chose to threaten
25 correctional officer James Cobos.
07/07/2017 02:10:08 PM

1 You heard from officer Cobos live and in person
2 during this penalty phase. You will recall that he stood up on
3 the stand to demonstrate the manner in which this defendant
4 threatened him. The exact words of the threat were, you need
5 to be careful who you fuck with before you get hurt. His words
6 to the CO. And significantly when did that occur, that threat?
7 You recall the evidence, right after the defendant's cell was
8 searched. That sound familiar?
9 Additional choices bad choices this defendant made
10 along the way, exhibit 105 B. Here's the defendant stabbing
11 inmate Joshua Parks in the yard. You recall that video.
12 Exhibit 105 A., there's another shot of him stabbing inmate
13 Joshua Parks. That was at U.S. penitentiary Pollock,
14 Louisiana, you will recall. You heard from the COs from that
15 institution as well. Exhibit 107. Here's the ten-inch metal
16 shank recovered from the defendant that he used to stab inmate
17 Parks causing a sucking chest wound. Another metal shank,
18 ladies and gentlemen. Does that sound familiar?
19 What was the testimony about the defendant's demeanor
20 after he just stabbed inmate Parks with that ten-inch metal
21 shank? The testimony was, you will recall, he was calm, he was
22 cool and he was collected, he was cold. Exhibit 108 B. Here
23 is the defendant Con-Ui right after stabbing inmate Parks
24 covered in Parks' blood. And 108 A., look at his face, ladies
25 and gentlemen. It's just taken right after he stabbed inmate
22
1 Parks. It's significant. Look at his face. What did he tell
2 the disciplinary hearing officer related to this attack?
3 Quote, it was one of those days. It was one of those days.
4 Exhibit 109 A., this is inmate Parks. Just one of those days,
5 ladies and gentlemen. Just one of those days.
6 I want that talk to you briefly, ladies and
7 gentlemen, about some of the evidence you heard from the other
8 side, the defense's claimed mitigation evidence. I want you to
9 think back in particular to the defense experts, Mr. Mark Bezy,
10 Dr. Craig Haney. I want you to remember about something that's
11 true of any witness actually, not just the defense witnesses,
12 but government witnesses as well, when you're assessing a
13 witness, their credibility, that is to say their believability,
14 it's important for you to think about what, if any, biases that
15 witness may have, what they bring to the table before they come
16 in this courtroom. How does that color their view, their world
17 view, their view of things they are talking about on the stand
18 to you under oath.
19 Mr. Bezy, who was the defense expert on conditions of
20 confinement, you will recall, testified here in front of you
21 he's only testified for the defendant in numerous federal
22 capital cases. He's never testified for the government, only
23 for the defendant in federal capital cases including testifying
24 at the Boston Marathon bombing case for that defendant. He
25 testified he's never worked at the ADX ever. And Mr. Bezy
07/07/2017 02:10:08 PM
21 23
1 retired from the Bureau of Prisons in 2006. It's 11 years ago.
2 Yet he's coming in here and he's telling you about the ADX.
3 The man never worked there. Think about that.
4 He also testified that here in court that he had
5 testified previously in the Boston Marathon bombing case 95
6 percent of his revenue was derived from testifying for the
7 defense in cases like this, but then on the stand here in court
8 in this courtroom he said, no, it's not 95 percent, it's
9 actually more like 40 percent. And apparently that was due to
10 a conversation with his accountant, you will recall. That's a
11 55 percent jump in income from the Boston Marathon case to this
12 case. Think about that. A curious change.
13 The guy who never worked at the ADX is here talking
14 to you about his ultimate opinion on conditions of confinement
15 at ADX, a place he never worked. Contrast that with the
16 government's expert, Mr. John Oliver. Mr. Oliver ran the whole
17 show at ADX. He started out, by the way, raised in Florence,
18 Colorado, where it's located. He held pretty much every job
19 one could have in that prison complex starting from standard
20 lower level CO, up to lieutenant, up to associate warden, up
21 the food chain. He ends up as senior executive service complex
22 warden over the entire facility, not just the ADX, which is
23 only one of the four camps, you will recall, all four camps.
24 He's run the whole show.
25 He testified he's pretty much third in line under the
24
1 director of the Bureau of Prisons. That's the highest level
2 person there is. So he knows ADX. He knows the conditions of
3 confinement. What did he say? By design the ADX is designed
4 to step inmates down from more restrictive environments to less
5 restrictive efforts. That is its reason for being. That is
6 the goal of the institution.
7 That's why it's there. So when they get up here and
8 show you the one snow shot of the prison on the one snow day
9 where it's normally high desert brown and semi-arid desert
10 optically trying to make you think it's Siberia, think about
11 that. Think about ADX's reason for being, what is its goal,
12 get them in and get them out. There's only 490 beds you will
13 recall the testimony. And getting them into those less
14 restrictive environments includes if they comply with their
15 behavorial requirements to USP general populations. That is
16 the goal of the ADX.
17 Let's talk about the defense expert, Craig Haney. He
18 told you he's testified for the defendant in several dozen
19 federal capital cases for the defendant, never testified for
20 the government. Think about that when assessing his
21 credibility and/or bias. Recall importantly Mr. O'Hara's
22 question of Craig Haney on cross examination. He asked him, do
23 you believe in free will, Dr. Haney. The doctor said, it
24 depends on what you mean by free will. Really? It's the
25 reason we're all here, folks. Free will is acting on one's own
Page 21 to 24 of 177 6 of 79 sheets
 25
1 accord, acting at one's discretion, one's own volition. He
2 chose to act certain ways all along the way. He chose it. It
3 wasn't chosen for him. This whole thing that we're in here --
4 this is all about personal accountability and personal
5 responsibility.
6 It's what the whole system is set up for, crime and
7 punishment. It sounds pretty simple. You choose to do an act.
8 You bear the consequences of that act. It's really just that
9 simple. You choose to do a heinous act, you bear the
10 consequences of that heinous act. You choose to do a cruel
11 act, a depraved act, an atrocious act, you bear the
12 consequences of that cruel, depraved, atrocious act. It's
13 really just that simple.
14 Let's talk about the defense what they call execution
15 impact witnesses, how they claim that the family and friends of
16 the defendant will be negatively impacted if you sentence him
17 to death. Look at how far back they had to go in time to find
18 people to vouch for this man. He's 40 years old, ladies and
19 gentlemen. They are taking us back to grammar school to find
20 somebody to have something nice to say about the guy. Boy, he
21 was a good artist in fourth grade. Yeah, he had a lot of
22 talent, did well on the math test in fifth grade. He was a
23 good lacrosse player in sixth or seventh grade. They had to go
24 back to 20 or 30 years to find somebody to say something nice
25 about the man other than his family.
26
1 Look who crawled out of the woodwork suddenly,
2 haven't spoken him in 20, 30 years, suddenly here they are, oh,
3 yeah, he was my brother, like a brother to me. His relatives
4 haven't spoken to him in 20, 30 years in the Philippines, we'll
5 be real upset, real upset. Think about that. View that with
6 some scepticism as you would with any witness at least
7 initially. Use your common sense.
8 Take your common sense back with you into that jury
9 deliberation room. Look at all of these witnesses for both
10 sides, assess their credibility, assess their believability,
11 assess their bias, look at where they are coming from. It's
12 important. These people from 20 to 30 years ago, they don't
13 know what he's become. They don't know him at all. There's an
14 old simple saying, people change. Sometimes they change for
15 the worse. Sometimes they change for the better. He has
16 dramatically changed for the worse because of the choices he
17 made over a lifetime.
18 The other thing the defense tried to paint a picture
19 of this evil step-dad, Gary Sliney. You heard a lot about him,
20 the evil stepfather. He's the reason for all these problems in
21 the defendant's life. I submit to you, ladies and gentlemen,
22 that's not there. While Gary Sliney may not win father of the
23 year, what did we hear about him that was so bad? He made us
24 eat our vegetables, the horror, the horror. He made us put our
25 sandals neatly by the door. Unbelievable. Can you believe
7 of 79 sheets
27
1 that? He yelled at us sometimes. Wow. Sometimes he made us
2 abide by evening curfew. Folks, whether you're a parent or
3 child, these are normal parenting behaviors. Sometimes we have
4 to reign our kids in.
5 Sometimes we have to yell at our children. He's not
6 the evil step-dad they have painted him as. He certainly
7 didn't make this defendant who he is. Think about all of the
8 things that were said about Mr. Sliney when you're back in that
9 room and how much you credit them and how much impact you think
10 they had on this defendant's life. Gary Sliney took this
11 defendant out of poverty, brought him to the United States,
12 brought him to the idyllic town of Rome, New York, put him up
13 in an upper middle class home, showered him with gifts,
14 camcorders, boom boxes, video games, material things like
15 appliances they never had before, good public education.
16 What did this defendant do to all this opportunity?
17 He flittered it away. They want to you believe Gary is the bad
18 guy. Jim ended up okay. He fixes state-of-the-art planes for
19 the U.S. Air Force. Maria ended up okay. She's living a happy
20 life in Arizona, married a cop. Two great kids. Same exact
21 environment. Free will. His free will. He made his life. He
22 made his choices. He needs to deal with his choices and the
23 consequences of his choices.
24 Everything bad this defendant has done over the
25 course of his lifetime, when he did it he knew, he had a
28
1 mother, he knew he had a family, he knew he had two kids. But
2 he chose to do these horrific acts anyway. He himself thumbed
3 his nose at his own family when he did all these horrific acts
4 knowing that he had them. Think about that.
5 The family got up to say how sad they are going to be
6 if you sentence him to death. He knew all these people when he
7 did all these horrible things. He didn't care. Remember the
8 letter the defendant wrote to his mom in 1995, I am going to
9 change, really trying to change my life around, you will never
10 hear me about prison in 1995. Well, that didn't take.
11 Really, ladies and gentlemen, what I want to leave
12 you with is the impact that this defendant's choice to
13 slaughter Eric Williams had on the Williams' family and Eric's
14 friends and Eric's coworkers. Take a look at exhibit 119. You
15 heard from deputy U.S. marshal Joe Brozowski. He testified
16 that he was a great friend of Eric's, that Eric visited Joe's
17 elderly grandmother, never told Joe about it, brought her
18 flowers. You recall that Joe placed his coveted U.S. marshal
19 academy star, a treasure or memento for anyone going through
20 that academy, on Eric's casket as a tribute to him and their
21 friendship.
22 You recall Joe testified that Eric was a devout
23 Seattle Seahawks fan and how much he's going to miss Eric and
24 their times together. You heard from correctional officer
25 Jeremy Bennett, a trusted colleague at USP Canaan, about their
Page 25 to 28 of 177 07/07/2017 02:10:08 PM
 29
1 love of hunting, fishing, football and talking about girls,
2 remodeling the lake house. Jeremy talked about what is known
3 as the accountability chit, that piece of metal the size of a
4 50 cent piece, maybe a little bit bigger, that all the Canaan
5 guards rub in that lobby area on the way into work out of
6 respect and to honor Eric's memory.
7 You recall the Jeremy said he touches it every day
8 and that's become worn down to the nub from everybody touching
9 it so much. Take a look at exhibit 138. You heard from Todd
10 Hrivnak, a picture of Eric hamming it up at a friend's wedding
11 as he often did as you heard. Todd said Eric was a great
12 friend, so great, in fact, he chose Eric to be the godfather to
13 his children even though Todd has two older brothers.
14 He talked of Eric's love of football and in
15 particular Eric's promise that if Seattle ever made it to the
16 Super Bowl Eric would host a steak and lobster party to
17 celebrate that. Sadly, ladies and gentlemen, the Seahawks made
18 it to the Super Bowl in 2014, the year after Eric was murdered.
19 Eric didn't get to see the Seahawks to beat the Broncos.
20 Eric and Todd won't get -- to use his quote -- two
21 old men fishing on a dock, never going to happen because of
22 that man's choices. You heard from Randy Davies, exhibit 141,
23 about the trip to buffalo, New York where they met quarterback
24 Jim Kelly in an elevator. You heard Randy talk how they won't
25 get to end up on a 90-minute detour through the Lincoln Tunnel
30
1 on their way home from the Meadowlands having gone to a Dave
2 Matthews band concert. That's gone. He took that away. You
3 heard from Ashlee Swales, exhibit 124. Ashlee is Eric's
4 cousin. Her dad is Jean Williams' sister. Jean, of course, is
5 Eric's mom. She testified Eric was like a brother to her, he
6 lit up a room and that he taught her how to fish for Musky in
7 the Susquehanna River, which he's doing right here in this
8 photograph.
9 You heard from Lauren Williams, exhibit 154. Eric's
10 baby sister. She testified she never heard her dad cry let
11 alone like he did the night of getting the news of Eric's
12 murder. She said her parents are consumed by this. She
13 herself -- Lauren lost motivation, battled with depression --
14 to use her exact quote, the fire has dimmed. The fire has
15 dimmed. Christmas is just another day. Christmas is just
16 another day.
17 You recall when she walked in here, Lauren was
18 visibly pregnant. She is pregnant with a baby boy due August
19 10th of 2017, just about a month away . She's already
20 indicated she will be naming that boy Oliver Eric Williams.
21 Exhibit 151. You recall the testimony from her that this is
22 her favorite picture of Eric at the Easter egg hunt. She uses
23 it as her Facebook cover photo. She testified Eric was always
24 helping her in the classic big brother little sister
25 relationship. You heard from Kyle Williams, Eric's younger
07/07/2017 02:10:08 PM Page 29 to 32 of 177
31
1 brother. They shared a bedroom. They shared a love of fishing
2 and hiking and football. This here exhibit 145 is the famed
3 blue truck Eric would push Kyle around on. Exhibit 147.
4 Working together at Wegman's. He testified Eric got him the
5 job there. Kyle referred to his mom as lifeless and broken.
6 He described his dad as screaming and crying. Kyle said he's
7 trying to hold on to the good times. You heard from Eric's mom
8 Jean.
9 Eric was an all American child to use her phrase.
10 Exhibit 155, here that's Flopsy the rabbit. And she said Eric
11 was playing with a police car on top of the rabbit cage there.
12 You can see it there in the exhibit. Exhibit 156, this is Eric
13 with the family dog Buddy. You recall Jean described Eric as
14 meticulous, he couldn't stand it when he got a stain on his
15 pants or jeans, and she had to basically buy him 40 pairs of
16 jeans. He got a stain on his jeans, they basically had to get
17 a new pair. Described him as a good student.
18 Exhibit 160. Again, that police car on the rabbit
19 cage was -- he did become a Jefferson township police officer
20 as a part-time position. There he is wearing his uniform from
21 that agency. Jean said that she liked to help on the Lilly
22 Lake house Eric was remodeling. She had a mother's pragmatism
23 about it. She knew it was a money pit. She helped him anyway
24 because he knew he loved it. That's what mothers do. She
25 testified that they could not have an open casket, that the
32
1 undertaker did a great job reconstructing their son. She lives
2 in a house of sorrow, there's a hole in their hearts. She
3 said, I try to fix things, I can't fix this. I can't fix this.
4 You can fix this. You all can fix this.
5 MR. RUHNKE: Your Honor, I object to that as -- I
6 object to that. Implying the victim -- that's all I am going
7 to say. I object.
8 THE COURT: The jury should disregard the last
9 comment.
10 MR. FEITEL: There will be no more lasagne without
11 cheese. There will be no more barbecue Middleswarth potato
12 chips. All they have left, as Jean testifies, is the giant
13 cement eagle statue that they erected in front of the Lilly
14 Lake house in which they testified they named Justice. You
15 heard from Donald Williams, Eric's dad. Exhibit 127. No more
16 Christmases for a family big on rituals. Eric was his golden
17 child, a fun little boy, a joy. They used to go to state Parks
18 for picnics and hikes, occasionally to the beach. He described
19 his son as goal driven.
20 He also said he can't even look at his picture
21 anymore, he literally falls apart. He talked about the nuclear
22 explosion inside of his head and the hysteria he suffered not
23 only on the night of getting the news of Eric's murder but
24 thereafter. He said -- and I quote -- the tape plays in my
25 head every day. It's torture. And that tape, ladies and
8 of 79 sheets
 33 35
1 gentlemen, is this. I regret to inform you of the death of 1 yourselves or with anyone else. Should anyone try to talk to
2 your son from the BOP personnel who came to their house late 2 you about it, bring it to my attention. See you back in here
3 that night, early the next morning. I regret to inform you of 3 in 15 minutes.
4 the death of your son over and over again. 4 (A brief recess was taken.)
5 Don testified the undertaker testified I did the best 5 THE COURT: Mr. Ruhnke?
6 I could. Don can't part with anything of Eric's. 6 MR. RUHNKE: May it please the Court, government
7 Understandably. Their house has become a shrine to him. Those 7 counsel, defense counsel, most importantly, ladies and
8 family rituals that were a huge part of this family are now 8 gentlemen of the jury. Good morning. I am David Ruhnke. I am
9 just -- to use his phrase -- going through the motions. 9 here to plead for Jessie Con-Ui's life. I'm here to tell you
10 There's a lot of photos, ladies and gentlemen, we can't show 10 why the life verdict is the right verdict. No one -- no one is
11 you. He took that away. We can't show you a photo of Eric at 11 asking you to do anything except send Jessie Con-Ui to a
12 an Easter egg hunt with Oliver. He took that away. He choose 12 lifetime of isolated incarceration in the bowels of a secure
13 to take that away. 13 federal penitentiary such as ADX and, in fact, ADX.
14 No more photos of Eric fishing for the big fish he 14 In a way Jessie knows something that none of us know.
15 caught. No more stories of the one that got away. That's all 15 He knows for sure where he will die. He knows for sure he will
16 gone. No more photos because of his choices. No photos of 16 die as a federal inmate within the Federal Bureau of Prisons at
17 Eric rocking in his rocking chair at the Lilly Lake house. He 17 the ADX complex, and the only question remaining is how he's
18 took that away. 18 going to die. Is he going to die of natural causes, or is he
19 Ladies and gentlemen, I want to show you the 19 going to die because the jury in Scranton, Pennsylvania
20 collective works of the life of Eric Williams. This is exhibit 20 authorized the government to strap him to a gurney and pump
21 153 as a young boy. Exhibit 159 with his two grandmothers. 21 poison into his veins until his breathing stops and heart stops
22 Exhibit 138 at the wedding. Exhibit 149, that is a serious 22 and his dead? That's the only question. That question is
23 fish. Exhibit 157. There's somebody missing from this photo 23 resolved by you, the members of the jury.
24 now, ladies and gentlemen, from this family portrait. That's 24 As I did in my opening, I'm going to take us through
25 Eric. That's by that man's choice. He ripped a hole in the 25 the evidence. And as I do this, maybe as a lawyer I am not
34 36
1 fabric of this family. He ripped a hole in the fabric of the 1 supposed to say this, but I will. I think as lawyers we think
2 USP Canaan family. He ripped a hole in the fabric of Eric's 2 we are way more important in this process than we really are.
3 friends. 3 I think of a good lawyer, a good trial lawyer as being more
4 His choices, his free will, he did it all, and there 4 like a good teacher. We bring you the information that you
5 should be consequences for that. These are the collective 5 need. We present the facts that you need, but the decision
6 works of the life of the defendant Jessie Con-Ui. Exhibits 108 6 gets made by you being informed by the facts.
7 A. and B. exhibit 107. 7 So this case is not about -- no matter what the
8 MR. RUHNKE: Your Honor, I object to the comparative 8 government tried to tell you, no one is excusing what Jessie
9 worth argument that's now being made. 9 Con-Ui did, not for a second. Nobody is blaming somebody else
10 THE COURT: I don't know that it's that. I'm 10 saying it's somebody's else fault not for a second. The person
11 allowing it. 11 responsible for taking the life of Eric Williams is Jessie
12 MR. FEITEL: Exhibit 109 A., exhibit 91, exhibit 90, 12 Con-Ui. Nobody else accepted responsibility for that. Nobody
13 exhibit 79, exhibit 10, exhibit 116, exhibit 117. Choices and 13 is taking the blame for that. There's no justification.
14 consequences, ladies and gentlemen, his choices. Now is the 14 There's to explanation. There's no causation.
15 time for you to decide on the consequences. The defendant's 15 We can't say, well, because this event in his life
16 moral compass is always pointing in the wrong direction always. 16 that led inevitably to the terrible, terrible events of
17 Now is the time for you to make a choice that has consequences 17 February 25, 2013. When we talk about your decision making,
18 for everybody in this room, important consequences. Please 18 your ultimate conclusion, your resolution of this case, we know
19 choose wisely. Please choose wisely and choose a penalty of 19 that you're never required to impose a sentence of death. That
20 death. 20 is an absolute given. You can weigh the aggravating factors.
21 THE COURT: Mr. Ruhnke? 21 You can weigh the mitigating factors. You can conclude that
22 MR. RUHNKE: Your Honor, can we take our morning 22 the aggravating factors outweigh the mitigating factors, and
23 break? It's almost 11. 23 that brings you to a threshold. That brings you to a choice of
24 THE COURT: Members of the jury, we will take a 24 what sentence you're going to impose.
25 15-minute recess. Remember not to discuss the case among 25 You know that this is an individual decision. It's a
9 of 79 sheets Page 33 to 36 of 177 07/07/2017 02:10:08 PM

1 moral decision. The law doesn't control your morality. You
2 can agree to disagree. You heard that throughout your service
3 as jurors, throughout your selection phase as jurors that you
4 -- you have 12 votes for death. That's going to mean there's a
5 death verdict. The judge will tell you that in his
6 instructions.
7 But if there's a single vote for life, a single vote
8 for life, you know and you will be told that the result of that
9 will be the judge will impose a sentence of lifetime
10 imprisonment. None of you have a vote that does not matter.
11 It will take 12 votes to kill but one vote for life or two or
12 three or five or seven or all 12 will mean that Jessie Con-Ui
13 will live out his life incarcerated in isolation and he will
14 die in prison.
15 The case, therefore, is literally about life or
16 death. The power of life or death is yours -- each one of
17 yours -- the power of life or death. Anyone who holds a vote
18 for death has guaranteed a life sentence. So it is a unique --
19 it is an individual personal moral judgment about the
20 appropriateness of sentencing another human being to death.
21 You don't just count up factors.
22 You don't just add them up and reach a mathematical
23 equation or mathematical sum. You reach a decision where you
24 decide in my own unique personal moral judgment does this
25 defendant deserve the death penalty and should I impose the
38
1 death penalty given my only moral view of where we are and what
2 we have heard on the evidence. The judge when he instructs you
3 later this afternoon will take you through a long process of
4 how you go about reaching various decisions, but here's the
5 reality and the truth of that. You are going to find that
6 there are aggravating factors in this case.
7 You're going to find that there are mitigating
8 factors in this case. And the real task in front of you and
9 the real moment of truth is in how you weigh and balance those
10 factors and how you make that unique individual moral decision
11 and the choice between life and death. In my opening remarks
12 to you -- seems like hundred years ago -- but my opening
13 remarks to you I talked to you promises that you all had made.
14 Each and every one of you knew what this case was
15 about going in. There haven't been any surprises. You were
16 told about what this case involved on the questionnaires. You
17 were individually questioned about your abilities to handle a
18 case like this in terms of the ultimate question of can you
19 give meaningful consideration to either a vote for life or a
20 vote for death even in a case like this. You all said yes you
21 could. Because if you said no, you wouldn't be sitting here
22 today as jurors.
23 Here's another promise that you made, and this is
24 from a questionnaire. It's probably nobody's questionnaire
25 sitting on the jury, but from a questionnaire, you said that
07/07/2017 02:10:08 PM
37 39
1 each juror is going to have to make a unique judgment about
2 life or death. And we are asking you if you will respect the
3 right of each juror to make his or her own judgment, and
4 everybody who is on this jury said yes to that question. And
5 if you said no, you wouldn't be here. You were asked, would
6 you respect other jurors' views if they happened to differ from
7 yours as far as your own personal moral judgment as to the
8 appropriateness, and you all said yes, or you wouldn't be here.
9 The final promise you made to us in this area of
10 respect was if you're in the jury room and you see people
11 disrespecting other jurors, not respecting their own individual
12 moral judgment, that you'd would speak up, that you would take
13 action, if necessary you'd contact the judge. And you all said
14 yes, I'm not going to allow my fellow jurors to be bullied by
15 other jurors just because they disagree with somebody. You all
16 said yes to that.
17 So as we go through this, the case for life comes in
18 different themes, different areas. It involves punishment,
19 isolation, increased punishment, a life of concrete and steel
20 is one way we described it. It has to do with remorse. It has
21 to do with acceptance of responsibility. It has to do with the
22 course and trajectory of someone's life. It has to do with two
23 decades of incarceration.
24 It has to do with something as simple as familiar to
25 all us as family love. It is not one thing. It is many
40
1 things. Just as when we grow up and when we take on burdens of
2 life, at some point it's not just one thing, it's everything
3 that we are exposed to. So I'm going to talk again about
4 concrete and steel. The slide on the screen you have seen
5 before. It's an overhead, an aerial of the United States
6 Penitentiary at Canaan. It shows the open yard area in the
7 middle. You heard the officers talking about the handball
8 courts and baseball diamond and the opportunity to engage in
9 quote/unquote passive recreation, walking around the track,
10 socializing with people, outside looking at the sky, looking at
11 the sun.
12 It's not a life I would choose or you would choose I
13 am willing to bet. But compared to what is in Jessie's future,
14 it sounds almost like freedom. You saw the video and the still
15 photographs leading up -- remember the video. People are
16 walking around. People are talking to one another. People are
17 socializing. People are doing what we do and what is most
18 precious to us, which is interacting with each other. We are
19 social animals.
20 When we take away the ability to socialize to be
21 around, to interact with other human beings, we are inflicting
22 punishment. Here's ADX a little closer. You will notice right
23 away there's no central yard in ADX. There's no recreation
24 that takes place as Jessie knew it at the USP Canaan. The
25 guard towers of the Rocky Mountains in the background, you
Page 37 to 40 of 177 10 of 79 sheets
 41
1 heard interesting testimony from -- I think warden Bezy and
2 warden Oliver -- these institutions are designed to look in.
3 In other words, you look in, you look at the yard. You look at
4 walls. You look at concrete. You don't see that. You don't
5 look out and see the world. It is disorienting. You don't
6 know where you are.
7 Let's go on to range 13 where Mr. Con-Ui Jessie is
8 now -- is now housed. This is the entrance door to range 13.
9 This is his cell looking in. Remember the testimony about what
10 this range 13 cell was like. What you're looking at what is
11 called the inner sally port, which means basically just a
12 doorway out to the cell. This is kind of a vestibule area that
13 what we're -- the photographer is standing in essence in the
14 sliding door that leads out to the hallway and looking in that
15 an inmate like Jessie Con-Ui when they take him out of the cell
16 like this, he backs up to the slot that's in that sliding door.
17 He is handcuffed from behind before they even open the door.
18 He backs his feet up to the slot at the bottom.
19 His feet are shackled before he even comes out the
20 door, and everywhere he goes he's escorted by at least two
21 correctional officers. And we look at the other direction of
22 Jessie's cell on range 13. We see some of the things that the
23 corrections folks talked to us about. We see that there's a
24 remotely operated door that goes to a little computer setup
25 called a law library -- not much of a law library. To the
42
1 right is remotely operated door to a recreation area.
2 This is a cell that is 80 square feet. It is
3 approximately eight feet by ten feet, and inmates on range 13
4 where Jessie is housed and has been since 2013 are in that cell
5 basically 24 hours a day. If they want to go to recreation
6 from this eight by ten foot cell, they go out through a sliding
7 door that is operated remotely into an outdoor recreation area
8 where you can look up and maybe see the sky, but it is self
9 contained 24 hours a day unless there happens to be a visit to
10 break the routine, 24 hours a day unless you get your one hour
11 of outdoor recreation or two hours of outdoor recreation on
12 Monday through Friday, and that is where we are asking you to
13 send him.
14 Nobody is saying that this is quote/unquote free
15 crime. And I want to revisit as I did in opening what Jessie
16 Con-Ui's future will look like on February 24th, 2013, the day
17 before he murdered officer Williams.
18 And this is what it looked like. As you know, he was
19 arrested on June 3, 2003 on federal narcotics charges. You saw
20 the videos of the transactions in progress. He has not been
21 out of custody since that day. It's 14 -- 14 years ago. In
22 2005 he pled guilty in federal court, was sentenced to 11 years
23 and a couple months in federal court for this crime. That's
24 why he was at Canaan, serving that federal narcotics sentence,
25 that 11-year federal narcotics sentence. In 2008 he pled
11 of 79 sheets Page 41 to 44 of 177
43
1 guilty to the 2002 murder of Carlos Garcia and was sentenced to
2 life with parole eligibility after 25 years, and they gave him
3 a thousand days, almost three years, of credit for time served
4 that he had served already on that sentence. And they made it
5 concurrent to the federal drug charge, meaning at the same time
6 the drug charge was running, his sentence in Arizona was also
7 running and time was ticking off on the Arizona sentence.
8 His max out date, the date he completed his federal
9 sentence, was September 17, 2013. So nine months after the
10 murder of officer Williams. Both sides have stipulated and
11 agree that was the date he maxed out. Had the murder of
12 officer Williams taken place, he would have been released from
13 the federal sentence, turned over to the State of Arizona and
14 been close to his family and been parole eligible when he was
15 54 years old. He's 40 years now.
16 In the way credits work, in 2031 he would have been
17 eligible for release on parole in Arizona. 2031 sounds like a
18 million years from now. It's 14 years from now. He's 40 years
19 old. He would have been released at age 54, and believe me
20 there's a lot of living you can do after age 54. So that was
21 his life on February 24, 2013, a few more months to go on the
22 federal sentence, released to Arizona, close to home, close to
23 family. But then what happened?
24 That changed as of June 7, 2017 with your verdict.
25 This is what you accomplished with your verdict. He's not
44
1 eligible for release of any kind. He is subject to mandatory
2 lifetime imprisonment. Nobody disputes that. Nobody doubts
3 that. That's a hundred percent fact. He will never be
4 released, never be eligible for release on parole or any other
5 kind. And that status changed because you found him guilty. I
6 want to be crystal clear on the differences between custody and
7 isolation.
8 Warden Oliver didn't like the word solitary. I don't
9 know what you call locked in an eight by ten foot cell 22 out
10 of hours of 24 hours by yourself with no human contact except
11 with the correctional officer who brings you a meal and slides
12 it through a slot three times a day. But this is general
13 population in a United States penitentiary. This is a place
14 that Jessie Con-Ui will never go.
15 This is a place where other inmates who have murdered
16 federal correctional officers have never gone, have never
17 returned to. There was an undisputed fact, uncontradicted by
18 anything that warden Oliver ever told you. So in a general
19 population in a United States penitentiary, it's double bunked.
20 You have a cellmate. You have the same, about 80 square feet.
21 You have a little window that looks into the interior of the
22 penitentiary.
23 But you have the common area with its television,
24 game tables and opportunities -- most of all just to talk to
25 people, just to socialize with people. Warden Bezy laid out a
07/07/2017 02:10:08 PM
 45
1 typical footprint of the United States penitentiary. This
2 happens to be Terre Haut, United States penitentiary at Terre
3 Haut. Terre Haut is also the place where federal death row is
4 located.
5 Like Mr. Oliver, warden Bezy was the complex warden
6 at this facility with its FCI, which is a medium security
7 institution, its camp, federal prison camp, work type camp, and
8 warden Bezy was in charge of the entire -- of the entire thing.
9 But look at it. I mean, you see the yards that are set up.
10 There are three different recreation yards. He discussed the
11 kinds of recreation opportunities that are available. There
12 are chow halls, places to go and have your meals with other
13 people. There are places to go for classes, for education, for
14 any number of programs. And it gets you out of your cell.
15 And I want to contrast general population at a USP.
16 Let's stop for a second -- I will come to it in a minute.
17 General population in a U.S. penitentiary bears no resemblance
18 to what is called general population at the administrative
19 maximum unit at ADX Florence, Colorado. They use the same
20 terms. They bear no relationship, no resemblance to one
21 another because Mr. Oliver talked about general population and
22 I please don't want you to think people are going into rec
23 yards, people going to classes, group meals. That just isn't
24 so.
25 So in a general population unit, something Mr. Con-Ui
46
1 will never see again, something that other inmates who have
2 murdered federal correctional officers since 1987 have returned
3 to, have the opportunity to socialize, the opportunity to work
4 -- in fact, you have to have a job within the Bureau of
5 Prisons. You have to contribute. You get 300 minutes of phone
6 calls every month. That's five hours -- you have to pay for
7 it.
8 They are only 15 minutes long. And they are
9 monitored and recorded -- but five hours of conversation every
10 month with your loved ones and friends. You get to go to group
11 recreation. You get to go to group meals. You get to go to
12 group religious services. You have contact visitation. You're
13 out of your cell basically from six in the morning until ten in
14 the evening. You have to return once in a while to be counted,
15 and you're locked in for a count. But the once is completed,
16 you're released again to continue -- continue your activities.
17 And a word about contact visitation, you heard the
18 relatives and Mr. Con-Ui's sons talk about their visits with
19 him at ADX and how he is behind a glass -- he cannot touch
20 them. He is in handcuffs. He's in chains separated by a plate
21 of thick glass. There's no hug. There's no touching. There's
22 no nothing. And in general population, contact visitation is
23 the rule. People can hug. People can hold their children on
24 their lap.
25 People sit around during the visit holding hands, and
07/07/2017 02:10:08 PM Page 45 to 48 of 177
47
1 you -- you're in contact -- human contact with your family.
2 The whole idea of not having human contact is something that we
3 want you to consider very much in terms of how punishing -- how
4 much punishment is that.
5 So to go in isolation -- they don't like the word
6 solitary confinement. Give me another word for it when you're
7 22 hours a day in a cell. Isolation, they don't like that
8 word. Give me another word for it when your only contact in a
9 24-hour period is somebody sliding a food tray through a slot
10 in your door. You can't work. You get two 15-minute phone
11 calls per month. You have to pay for them. They are
12 monitored. They are recorded.
13 You go to recreation alone. You are alone in your
14 cell for 24/7. You have a T.V. And your visits, as I said,
15 are through the glass and over the -- and over the phone. How
16 long will this go on? First of all, let's talk about general
17 population conditions at ADX. This becomes important -- and
18 I'll touch on it in a moment. But remember the story about
19 this inmate Tommy Silverstein and how he was in general
20 population at ADX.
21 Here's what general population is -- means at ADX.
22 You're in your cell by yourself -- in your cell by yourself 22
23 out of 24 hours, Monday through Friday and 24 out of 24 on the
24 weekend. You take your meals in your cell alone. You shower
25 in your cell. You go to recreation alone. There's this outer
48
1 sally port that I talked about before where the correctional
2 workers can come into this cell and the inmate is still behind
3 a sliding grate. You're escorted in chains by two COs who are
4 armed with pepper spray and what was called rapid rotation
5 batons and -- which are wooden devices -- hardened metal
6 devices in the properly trained hands are capable of
7 immediately disabling and inflicting a great deal of pain to
8 anybody who makes the slightest misstep while they are being
9 escorted by the officers.
10 You're in chains. You're in handcuffs. Warden
11 Oliver talked about what he called a Martin chain, sometimes
12 referred to as a belly chain, a simplest device in the world,
13 you are in handcuffs, take a chain and wrap it around where the
14 handcuffs are connected so that now not only are you
15 handcuffed, you can't move anywhere except in this narrow area.
16 And this will be until he dies. Because he murdered
17 a corrections officer, Jessie Con-Ui will never return to
18 general population. He will never get there. Here's what
19 warden Oliver told you about long-term isolation. He was asked
20 by Mr. Feitel who said he's going throw a term out to you --
21 the term long-term isolation, does that even exist in the ADX
22 world. And warden Oliver said, no, sir, it does not. I'm
23 going to through out another term, solitary confinement. Does
24 that exist in the ADX world. No, sir, it does not. Then we
25 located on the fly Defendant's Exhibit 184 in evidence.
12 of 79 sheets
 49
1 You will have it with you in the jury room. It
2 happens to be the intake form for Thomas Silverstein in 2005 at
3 ADX where the question is asked, is he okay for general
4 population, and the answer checked on the form -- you will see
5 it -- is no, and the -- the form says why -- if no, why, and
6 the answer, is long-term isolation case.
7 Somebody in ADX knew the term long-term isolation and
8 just wrote it in as if everybody in the world understands
9 exactly what they were talking about. Here is warden Oliver
10 being asked what sounds like a straightforward question. Do
11 you ever see yourself actually recommending an inmate who
12 murdered a federal correctional officer should be placed back
13 in general population, really. And instead of saying yes or
14 no, warden Oliver says, I believe that if we give the inmate
15 the opportunity to program through these -- these programs,
16 that we have set up, we will program -- give them the
17 opportunity to program them out of the units.
18 That did not seem to be a yes -- a yes answer. We
19 know from warden Bezy who testified from the ADX institutional
20 supplemental manual that among the 13 factors that are
21 considered are the reason the inmate is at ADX in the first
22 place, the inmate's criminal history and the safety and
23 security of the institution. These are not just behaving well.
24 This is not just keeping yourself clean. This is why you're
25 there in the first place and can we let you -- let you into
50
1 general population.
2 Warden Bezy was asked this question about the
3 step-down unit at ADX, and he's asked, does Mr. Con-Ui meet any
4 criteria for the step-down program. The answer is, he would
5 probably meet a third of it, but he would fail the majority of
6 it, I have the 13 right here -- referring to the 13 factors.
7 Then he was asked, in your opinion to a reasonable degree of
8 professional certainty, do you believe that the Bureau of
9 Prisons in light of how they have treated those who kill guards
10 since 1987 would ever consider Jessie Con-Ui as a candidate for
11 the step-down program at ADX, the answer was firm
12 straightforward and clear, no.
13 No, they are not going to treat him -- they're not
14 going to consider him for the step-down program at ADX.
15 Contained in that question is the notion of what BOP has done
16 with other people who have killed correctional officers since
17 1987. Warden Bezy was asked of the inmates who killed
18 corrections officer after the abolition of parole in 1987 were
19 any placed in a USP with the privileges, opportunities for
20 social contact, recreation that Jessie Con-Ui experienced at
21 USP Canaan before he killed Eric Williams, the answer is no.
22 The next question, do you have an opinion to a
23 reasonable degree of professional certainty based upon your
24 experience with the BOP, your knowledge of other cases where
25 inmates have killed correctional officers since 1987 whether
13 of 79 sheets Page 49 to 52 of 177
51
1 Jessie Con-Ui will ever be housed at a USP like USP Canaan
2 should he be sentenced to life imprisonment without the
3 possibility of release, he says no. And the next question is,
4 do you have an opinion. He said, yes, he would not be
5 returned.
6 If warden Oliver knew of a single exception, a single
7 exception to that statement, you would have heard about it.
8 The answer is, there are none. I think I can recall one
9 exchange with warden Oliver where -- I simply asked him, give
10 me a name, and he couldn't give me a name. Here is warden Bezy
11 on long-term isolation. Do you have an opinion to a reasonable
12 degree of professional certainty based upon your experience
13 with the BOP, your knowledge of other cases where inmates have
14 killed correctional officers since 1987 where the Bureau of
15 Prisons would house Jessie Con-Ui and under what conditions
16 should he be sentenced to life imprisonment without the
17 possibility of release for the murder of Eric Williams -- do
18 you have an opinion, yes, I do. What is that opinion. He
19 would be housed at the ADX in long-term isolation.
20 Now, in its closing argument the government suggested
21 that warden Bezy who followed basically the same career track
22 as warden Oliver starting as a correctional officer and
23 promoting all of the way up to complex warden at Terre Haut,
24 somehow didn't understand how ADX worked.
25 You recall his testimony that he's been at ADX more
52
1 than 25 times. You should also recall his testimony when he
2 worked for regional office overlooking the area including ADX
3 one of his jobs was to audit the operations at ADX to see if
4 they were in compliance with how the Federal Bureau of Prisons
5 should be operating an institution like ADX. All right.
6 So what about this issue of inmates who have killed
7 federal correctional officers since 1987? A man named Anthony
8 Battle murdered a correctional officer named D'Antonio
9 Washington in 1994. He has never been returned to general
10 population, 24 years. A man named Roy Green killed a
11 correctional named Scott Williams at the U.S. penitentiary at
12 Lompoc in 1997. He has never been returned to general
13 population. Two inmates, Jose Sablan and James Guerrero,
14 killed a correctional officer named Jose Rivera at the United
15 States at Atwater in 2008.
16 They've never been returned to general population,
17 and they're now at ADX. Tommy Silverstein, you recall the
18 testimony about Tommy Silverstein, he murdered a correctional
19 officer in 1983. In 1983. He has never been returned to
20 general population at a United States penitentiary or anything
21 remotely resembling general population at a United States
22 penitentiary, and it has been 34 years.
23 So the idea -- the idea that the Bureau of Prisons is
24 going to place Jessie Con-Ui back in general population after
25 murdering a federal correctional officer in general population
07/07/2017 02:10:08 PM
 53
1 I suggest is unworthy of belief. And on our listing of
2 mitigating factors, we ask you to find that he will never be
3 returned to general population because the evidence that
4 supports that is completely one sided. Oliver couldn't give
5 you a single example of anybody who had ever been returned to
6 general population after murdering a federal correctional
7 officer.
8 And we urge you to make that finding. Another of the
9 themes we're going to be discussing -- I'll just touch upon
10 this briefly -- is remorse and acceptance of responsibility.
11 But you know and you should remember from the evidence you have
12 heard that Jessie Con-Ui was willing to plead guilty early in
13 the case. I will show you some more on that in a second. We
14 did not challenge the evidence of his guilt at the guilt phase.
15 He has expressed remorse and shame to others. He has expressed
16 remorse and shame to you.
17 He has been respectful of the process here in court,
18 and Mr. Fleming will discuss these further, but meeting with
19 the chaplain at USP Allenwood two days after the murder as
20 witnessed by correctional officer Timothy Milheim speak in
21 terms of an acceptance of responsibility and a willingness to
22 express remorse and expression of remorse. Was he willing to
23 plead guilty? This is a stipulation that was signed by
24 everybody, signed by all of the lawyers that says basically in
25 2013 he twice offered -- I'm sorry -- 2014 he twice offered --
54
1 I am going to check the date -- 2015 he twice offered to plead
2 guilty, accept a sentence of lifetime incarceration without
3 release, waive -- give up any and all appeals of that sentence
4 and submit to whatever conditions of confinement the Federal
5 Bureau of Prisons deemed appropriate.
6 We know what those are. Those conditions are
7 confinement are lifetime isolation. That offer to plead guilty
8 was repeated in a year later in November of 2016, same offer,
9 plead guilty, waive all appeals, submit to lifetime
10 incarceration within the Federal Bureau of Prisons. Had that
11 offer been accepted, which it was not, we wouldn't be here. We
12 wouldn't have been here for the last several weeks.
13 He has accepted responsibility for what he's done.
14 The next general topic is the course of his life -- we're not
15 trying to explain conduct, but we are trying to give you a life
16 history. You're being asked to sentence somebody between life
17 imprisonment and the death penalty, and I think it's fair that
18 you know something about who he is and where he came from. Dr.
19 Haney whose testimony was not rebutted in one manner, shape or
20 form at all.
21 The government didn't call any social psychologist to
22 say these things Dr. Haney is talking about is rock solid
23 science aren't really rock solid science, and the reason is
24 because it is rock solid science. They talked about the role
25 and research that's been done into human behavior and the kind
07/07/2017 02:10:08 PM Page 53 to 56 of 177
55
1 of experiences that can the knock a person off course, knock a
2 person into a place where the likelihood of engaging in
3 criminal conduct becomes greater and greater and greater. The
4 analogy that he used was smoking, not everybody smokes gets
5 cancer. But if you smoke, your chances of getting cancer are
6 way up. Not everybody who suffers from an enormous different
7 amount of health risk factors is going to have a heart attack
8 or something like that.
9 It just increases the risk. He talked about poverty
10 and domestic violence, an unstable home. He talked about
11 absent father figures, early incarceration, the problems that
12 are not met. He talked about turning points, death of a
13 sibling, family conflict, financial instability. All these
14 things, all these things are risk factors that are completely
15 documented in the literature, and it doesn't mean that
16 everybody who goes through these and experiences these is going
17 to wind up where Jessie Con-Ui did, which is at age 40 his life
18 has been reduced to two things, either he's going to be
19 executed or he's going to die in prison of disease or old age
20 whenever his time comes.
21 We talked about a life history, his birth in the
22 Philippines and early experiences with his brutal father, the
23 Tondo slums, the intervention of the other American -- this
24 time civilian contractor from the Air Force who bought the
25 family this home at Pampanga Street. We know that Gary Sliney
56
1 married Tess. They moved to up state, New York, then Arizona,
2 and then to prison and then to prison. And he's here in
3 prison. He's been there that way since 2003. You become
4 familiar with this life history. It's the grandmother who
5 suffer from schizophrenia, Paulina. That's the American
6 service contractor they called daddy Jim. These are uncles and
7 other relatives in the Philippines, and I know the government
8 denigrates the idea of family love, somehow it's ridiculous
9 that these people who are Jessie's uncles and cousins still
10 love him, that that's something wrong with that. But they do.
11 It's family. It's about family.
12 You saw the photographs presented of what this
13 unimaginable slum called Tondo is like. The upper right-hand
14 corner photograph happens to be of the entrance to the home
15 that this family lived in for Jessie's first five or six years
16 in Tondo. You know, Dr. Haney doesn't sit behind a desk
17 checking things out on the internet. When he went to that
18 place, coincidentally the owners were there. Coincidentally
19 they remember the Con-Ui family, and they talked about what
20 they remember about them. That is how you do a social history,
21 not from behind a desk but from getting on a plane, flying half
22 way around the world driving through an area that even the taxi
23 driver who is driving doesn't feel comfortable driving in and
24 talking to people and learning things.
25 More pictures of Tondo including that horrible
14 of 79 sheets
 57
1 mountain of garbage and debris where people go every day to
2 pick for garbage or anything of value. It is hard to look at.
3 You've been familiar with these pictures, this beautiful young
4 woman Tess, with her children. You see the photograph on the
5 left, it's the only photo we have where the baby boy Ritchie is
6 actually shown in the photograph. That's Ritchie in the
7 middle. That's Maria on the lower left. That's Jessie in the
8 middle and his brother Jim.
9 Here's another photograph in the middle. By that
10 point Ritchie is no longer alive. Another smiling family
11 photograph taken in the Philippines with relatives and cousins,
12 and this was life in the Philippines. It wasn't easy. They
13 didn't always have food. But when they moved to the Pampanga
14 Street house, things got better. And ultimately Gary Sliney
15 comes along and takes the family to Rome, New York.
16 Mr. Feitel talked about the people who came from
17 Rome, New York as having crawled out of the woodwork -- really
18 crawled out of the woodwork. Jane Padron, who was the teacher
19 -- the music teacher -- she didn't crawl out of the woodwork.
20 She came because she remembered him. She came because he
21 thought he was important, a jury learn a little bit -- not a
22 lot -- but a little bit about Jessie's life.
23 Joseph Martin, whose son Derek Martin tragically died
24 of a drug overdose at an early age, didn't crawl out of the
25 wood work. He came here because he thought his son would want
58
1 the jury to hear what they remembered about Jessie and the
2 impact a nine-year-old or ten-year-old Jessie made. Christine
3 Rudd, who served in the military for ten years, didn't crawl
4 out of the woodwork. She came here because she wanted to tell
5 you what she remembered about Jessie and what life was like
6 when they were in fourth and fifth and sixth grades, and he was
7 a kid with promise.
8 He was a kid with promise, and something happened.
9 Something happened along the way to derail it. So he did well.
10 Here's his fourth, fifth and sixth grade classes. He did well.
11 Here's a family in Rome, New York, that looks like for all
12 intents and purposes things could not be more promising.
13 Here's -- Dr. Haney presented you some of these documents. He
14 does well. He initially does well. He learns English. He's
15 social.
16 He's able to make friends, and he is on the honor
17 roll. He gets athletic awards. He's on student council. He
18 was doing well. There was potential. But at the same time
19 this family which looks on the surface like things are going
20 well is under enormous stress. Here's what is going on about
21 the time they get ready to uproot everything and go to Arizona.
22 Remember at this point Gary Sliney is a 24-year-old Air Force
23 veteran -- 24-year Air Force veteran. He's been in the service
24 for 24 years.
25 Now they have to declare bankruptcy. Now they have
15 of 79 sheets Page 57 to 60 of 177
59
1 to move to base housing, Air Force base housing, in Syracuse.
2 Jim stays behind. There's increasing family conflict. Gary
3 declares his love -- that he's in love with his step-daughter
4 Maria. What is happening in this family? Then the crushing
5 blow is because he's depressed because life is not going well,
6 he can't keep his weight under control, he can't make the Air
7 Force requirements to maintain a certain weight despite them
8 putting him into a program.
9 He loses the most important thing to him, which is
10 his fair force career. Now he's discharged honorably from the
11 Air Force. But he's discharged against his will. And the
12 family tries to do some counseling, but you can see from these
13 counseling records, which are in evidence, that the father
14 dominated the conversations and dominated the sessions.
15 There's statements in here from Maria she's afraid of
16 Gary. There are discussions of the fact that Gary wants to
17 move then ten-year-old Sarah Sliney, who testified here, into
18 the home, and that's an additional stressor. And at the end of
19 the second session -- and during the second session Sarah
20 Sliney says she doesn't want to move into the home, and Gary's
21 response, that means you don't love me. And Gary asks and the
22 family asks for a two-hour follow up session. It never
23 happens. That's the end.
24 This family is in crisis and is falling apart. What
25 did detective Hubalik have to say about Gary Sliney? He said
60
1 that he would counsel him to be a dad, start being a dad to
2 your child. He testified that he never spoke to Gary Sliney
3 when Gary Sliney had not been drinking. He told him, you
4 cannot take a 14-year-old, 15-year-old child and throw him out
5 of the house, throw him on to the streets. That's not being a
6 dad. That's not appropriate parenting.
7 When you're trying to think of 14-year-old Jessie
8 Con-Ui, think for a moment of 14-year-old Jessie Con-Ui,
9 junior, who testified and how young he was and how young he
10 looks to us and how vulnerable he looks to us. And then you
11 see Jessie. You see Jessie and how young he was. Remember
12 detective Hubalik ran into Jessie junior at the hotel where
13 out-of-state witnesses were taken.
14 He thought he was looking at the 14-year-old Jessie
15 senior again. Dr. Haney had the following -- Dr. Haney had the
16 following to say about Gary Sliney. Is Gary Sliney a villain?
17 No. Is he the cause of everything that happened? No. Is he a
18 significant factor in the life trajectory of Jessie Con-Ui?
19 Absolutely. Absolutely he is. So Dr. Haney says -- talking
20 about Gary -- in addition to that, he was verbally abusive, he
21 had been verbally abusive for a very long period of time. He's
22 unapologetic for it.
23 In other words, he thinks it's okay to verbally abuse
24 children. He thinks it's appropriate for you to call your
25 children names, to tell them they are not going to amount to
07/07/2017 02:10:08 PM

1 anything, call them stupid if they are stupid as he said to me
2 or if they are acting stupid. And this was going on for a long
3 period of time. It was intensified because Gary was
4 struggling, describes himself as struggling. He was still
5 living in that same apartment, and that's where I interviewed
6 him. And at that point Tess leaves the family. Was he
7 physical?
8 Sarah Sliney, the step daughter -- step sister --
9 said at one point Gary would -- you said got physical with you,
10 yes. You said that he got physical with the other children,
11 too. Yes. And did you actually see him get physical with the
12 other children. Yes. He treated them the same way he treated
13 me, you know, with a hand around the back of the neck, like
14 when he wanted our attention and we were looking down at the
15 floor, he would grab -- so he didn't like that. He would grab
16 our face or grab us, get to your room and shove us upstairs to
17 our room.
18 You saw him do that with Maria, answer, yes. Is that
19 right, answer yes. And then still on Sarah Sliney -- there are
20 -- if you strike a child with your fist, you may leave a
21 bruise. If you whip a child with a belt, you may leave scars.
22 But there are scars that you can't see that children bear if
23 they are mistreated and if they are humiliated. Sarah Sliney
24 was asked -- and the writing is very small -- did he treat you
25 with respect. No. Did he treat you with love. No. Would he
62
1 call you names. Yes. What names would he call you. I was
2 called stupid, slow. Eventually later on he called me a loser
3 a couple times.
4 Did he compare you to your mother. Absolutely and
5 said basically she was just like her and would never amount to
6 anything. Now, these aren't physical scars. You can't look at
7 Sarah Sliney and look for physical scars that were inflicted,
8 but you saw Sarah. You saw what a lifetime of mistreatment --
9 and I'll leave it at that -- has brought her to. Jim Con-Ui
10 was thrown out of the house.
11 Do you recall -- do you remember why. He says, I
12 don't remember why I was kicked out of the house. All I
13 remember was I was coming home from work, and as soon as I got
14 to the house Gary was yelling at me already for, you know, for
15 whatever reason, probably for breaking one of his rules. And
16 the thing was, as soon as I got into the house, he was pushing
17 me out, you know, we actually had a fight on the sidewalk. And
18 at one point, you know, I was trying to force myself into the
19 house so that, you know, I could -- I guess try to get some
20 help from my mom, you know, support from my mom, but, yeah, he
21 was very physical with me and he pushed me on top of the car.
22 And after that I told him, you know, that I would leave, and he
23 said -- he just told me not to come back. So that's where --
24 when I left.
25 Question, was that before you joined the Air Force.
07/07/2017 02:10:08 PM
61 63
1 That was before I joined the Air Force, yes. How soon after
2 that did you join the Air Force. I would say around six months
3 after that.
4 What did Jim and Maria think of Gary? On the left is
5 Gary -- I'm sorry -- Jim. He says, so six months prior to July
6 of 1966 (sic), Jim says, that's correct, sir. You were kicked
7 out of the house, answer yes. From the time you were kicked
8 out of the house by Gary Sliney, have you ever again been in
9 his presence, no, sir, I never seen him again. From that
10 period over 20 years ago, have you ever spoken to your
11 stepfather, no, I've never spoken to him since then. And how
12 old were you when you joined the Air Force. I was 22 years
13 old.
14 Wherever Gary is, whatever Gary was, his son cut off
15 complete contact with him as a result of those childhood
16 experiences. And Maria says -- is asked -- from that time, 18
17 to 19 until right now today, how many times have you spoken to
18 Gary? Answer, I don't speak to him. I actually ran into him
19 at an airport. He was working as a T. S. A. agent at the time.
20 And I just said hi to him, and I kept -- had a short brief
21 conversation -- I kept it short, brief. I wasn't rude to him.
22 I didn't ignore him. I just said hi and excused myself that I
23 had to catch a flight, and I -- and I never saw him again, and
24 I don't intend to talk to him ever again.
25 These are scars that have been left that speak
64
1 volumes. I mean Craig Haney told about you two children being
2 raised -- three children in the same environments is never the
3 same environment. Jim and Maria managed because of resilience
4 maybe, because of age differences, because maybe of the fact
5 several witnesses told you it was always Jessie and Sarah who
6 were on the receiving end of Gary's wrath and Jessie didn't
7 make it, but they did but not without scars and not without
8 that kind of testimony that I do not intend to speak to him
9 again. This is the father who would sit in his 18-year-old
10 daughter's room watching her at night -- she woke up and found
11 him watching her, had Sarah stay with her in the room for a
12 couple nights and left the house and was never in his presence
13 again.
14 Two decades of prison. In the Arizona Department of
15 Corrections, he spent ages 18 to 24. He was sentenced to seven
16 years in prison for stealing cars. No violence, no injuries to
17 anybody, but the simple act of stealing cars. And some of the
18 times he stole a car so he'd park it somewhere so he can have a
19 place to sleep at night since he was essentially homeless since
20 Gary had tossed him out of the house.
21 He would break the rules in the prison and get sent
22 to solitary confinement. Dr. Haney described the dangerous
23 conditions that existed in the Arizona Department of
24 Corrections, no rehabilitation services, the effects of
25 prisonization -- prison changes people. Prison changes people,
Page 61 to 64 of 177 16 of 79 sheets
 65
1 and prison changed Jessie for the worse.
2 He was an 18-year-old kid going into, and he came out
3 in his 20s capable of committing murder. And that was a
4 transformative period of time. I think from that point forward
5 without some kind of intervention, his life course was
6 unfortunately set. This is what the Arizona Department of
7 Corrections was like at the time Jessie was there. These are
8 not minimum security camps.
9 These are maximum security prisons for 18, 19, 20
10 year old. These are the years when he's now in federal
11 custody. That's a photo of Jessie junior on the left as he's
12 visiting at father at Victorville. The upper right-hand photo
13 is a photograph of Tess, Jessie and Tess's friend Bob Erdigan,
14 and the middle photograph is a photograph of Tess, Melissa who
15 is the boy's mother, who is Jessie and Jadin's mother and
16 Jessie and Jessie himself.
17 I'm not going to ask you to read this because it's
18 too small. But you'll be given a verdict sheet in which we set
19 out a total of 61 reasons why steps in life that a life verdict
20 in this case is overwhelmingly the right verdict. We talked
21 about conditions of confinement. We talked about how Jessie
22 grew up. We talk about family members who love him.
23 We talk about the -- the impact -- the crushing
24 impact his murder would have on the ones around him who love
25 him. And you'll have an opportunity to go through this verdict
66
1 sheet. Remember you do not have to be unanimous on a
2 mitigating factor. Any one juror or two or five or ten or all
3 12 are free to decide this has been established to my
4 satisfaction by a preponderance of the evidence, and
5 preponderance of the evidence is not as hard to get to as
6 beyond a reasonable doubt.
7 As the judge will tell you later today, preponderance
8 of the evidence means that it's more likely true than not.
9 Think it of it as a scale tips slightly to one side you have to
10 find it. And if you find mitigating factors, you will weigh
11 them. The judge will tell you that nobody can tell you how
12 much weight to give a mitigating factor. You may give it a
13 little. You may give it a lot. You may give it something in
14 the middle. The.
15 One thing you can't do it just ignore it and give it
16 no weight. You have to give it some weight. If you find it's
17 true, you have to give it some weight, either life or death
18 balance. And at the conclusion of the verdict form, you will
19 have three choices to make. You will be asked, do you
20 unanimously find that Jessie should be sentenced to lifetime
21 imprisonment. You will be asked, do you unanimously find that
22 Jessie should be sentenced to death. But you'll also be asked
23 whether you have not been able to agree unanimously on one
24 choice or the other.
25 And if that's the state of affairs that comes about,
17 of 79 sheets Page 65 to 68 of 177
67
1 the verdict sheet itself tells you that the judge will sentence
2 Mr. Con-Ui to lifetime incarceration. So if you don't come to
3 a unanimous agreement -- if you can't come to a unanimous
4 agreement, it's not that -- the result is not a new trial.
5 It's nothing like that. It is that Mr. Con-Ui will be
6 sentenced to lifetime incarceration just as if all 12 jurors
7 voted for lifetime incarceration.
8 And family love -- I'm going to be turning this over
9 to Mr. Fleming to discuss this. But I think -- our theme here
10 is just there's so many good and decent people, good and decent
11 people whose lives will be traumatically and forever upset, the
12 sons whose lives will be forever altered, that there's a case
13 here that screams out for life. You don't have to impose a
14 death sentence here. There's no reason to impose a death
15 sentence that mandates it.
16 You're free to make your individual unique moral
17 judgment -- just say the word individual over again because as
18 I said before, 12 votes for death equals death, one vote for
19 life equals life. Your Honor, I completed my remarks. I am
20 wondering if you want to break for lunch now or --
21 THE COURT: Okay. So we will then. You're going to
22 hear from Mr. Fleming, but we will break for lunch. We will
23 come back at 1:15, an hour and five minutes. Remember not to
24 discuss the case among yourselves or with anyone else. If
25 anyone tries to talk to you about it, bring it to my attention.
68
1 We will see you back at -- what did I say -- I mean 1:30 -- an
2 hour and ten minutes, okay.
3 (A lunch recess was taken.)
4 THE COURT: Mr. Fleming?
5 MR. FLEMING: Thank you, Your Honor. Members of the
6 jury, I stand here before you asking that you spare the life of
7 my client, Jessie Con-Ui. And I've been doing this a lot,
8 practicing law. And I can tell you that there is no greater
9 burden that I ever felt than I feel at this moment right now.
10 And not from personal experience, but I can imagine the
11 prosecutor standing before you asking you take a man's life
12 must be an incredibly difficult thing to do.
13 But no one in this courtroom bears a heavier burden
14 than the 12 of you who will soon decide whether Jessie Con-Ui
15 lives or dies. No one, not Judge Caputo, not anyone on the
16 defense team and not anyone on the prosecution team. I ask you
17 respectfully and with humility to choose life over death.
18 There's been a lot said already today and in the
19 weeks that we have been together, and so my plan is keep my
20 comments relatively brief. But my hope is this. I hope my
21 comments adequately express to you why a life sentence in this
22 case -- why an act of mercy in this case is entirely
23 appropriate and why ending Jessie's life is not necessary.
24 Ending Jessie's life is not a necessary thing to do
25 in light of what we have heard and in particular in light of
07/07/2017 02:10:08 PM
 69
1 how the rest of Jessie's life is going to be spent. You know,
2 we come to the courts in the hope they can redress our
3 grievances. You have a conflict with somebody. You bring it
4 to the court in the hope that a wrong will be made right, that
5 the scales of justice will balance out and the aggrieved party
6 will be made whole again somehow.
7 In if taking Jessie's life could return to the
8 Williams family their son, their brother, their loved ones, his
9 friends, then your decision would be a much easier decision to
10 make. But, of course, that simply isn't possible. It's not
11 possible. It's beyond our powers to do that. So the scales of
12 justice in this case will never be balanced out. That is just
13 a fact. And I wish it weren't true, but it's true.
14 And the other truth is that taking Jessie's life will
15 cause immeasurable grief and pain to another innocent family.
16 That, too, is something that is just simply a truth. Now, I'm
17 going to take us through some of the people we met, some of the
18 people in Jessie's life in a little while and show you some
19 photos that you're familiar with and talk about the impact that
20 your decision would have on these people.
21 But before I do that, I'd just like to make a comment
22 about the way in which Jessie was described to you during the
23 remarks of the government, and I completely get this. I
24 understand it, the horror of that video, resonates with
25 everyone who see it. I include myself in that. Everyone.
70
1 Those nine minutes are indescribable. Some of the other things
2 you heard Jessie has done are unforgivable, but Jessie is not a
3 monster. He's not a monster. He's a human being who committed
4 a monstrous act. But he's a human being with a loving family,
5 somebody who cares about what happens to his children, someone
6 whose children care about him, who loves his mother dearly even
7 in the bowels of ADX where he will spend the remainder of his
8 life.
9 Now, Jessie and Jessie alone is responsible for his
10 actions, and I hope that we have made that clear from the very
11 beginning, that we're not looking for justification or excuses,
12 none of it. And so why did we bring you the facts of Jessie's
13 life? Why is it important for you to know where he came from,
14 how he grew up, things that influenced him in his life? Why
15 that important? It's important for this reason. We owe it to
16 you. We owe it to each and every one of you understand the
17 consequences of what you're being asked to do, to know the
18 person whose life you're being asked to end.
19 And so we bring this to you in the hopes you'll gain
20 a better understanding of what this decision you're about to
21 make will bring, not just to Jessie, of course, but to the
22 people around him and the people you have met and the people
23 you heard about and the people that are going to be affected by
24 this decision. And again, the government presented Jessie --
25 and again, I get it -- focusing on those nine minutes because
07/07/2017 02:10:08 PM
71
1 in some ways it lessens the burden on a person if they don't
2 think of the person whose life is in their hands as a living
3 breathing human being but as a monster. It's easy to kill a
4 monster. It's much more difficult to kill a human being whose
5 life impacts others.
6 Now, let me just start with this -- and this is --
7 sounds so insignificant, yet it's something that must be
8 considered by you. We talked about this with each one of you
9 during the voir dire about the different, you know, mitigating
10 -- I am sure you all remember going through that process in
11 talking about the mitigating factors and the aggravating
12 factors. And there was one about remorse, about whether or not
13 the defendant's remorse carried any weight.
14 And I know for a fact that I'm speaking to some
15 people in this jury box right now to whom that makes a
16 difference, and Jessie is remorseful. Jessie has been
17 remorseful, and Jessie always will be remorseful for what he
18 did. Is that in any -- does that diminish the act? No. Is it
19 an excuse for the act or in any way gives him a pass?
20 Absolutely not. But the fact of the matter is, the fact is, he
21 is remorseful. How do we know that?
22 First, just hours after he was taken from Canaan and
23 brought to USP Allenwood, he was in locked in a cell -- we
24 heard from father Osuji, who came in and said, I went and spoke
25 with Jessie. He wasn't supposed to do it we found out but did
72
1 it anyway. Jessie hadn't seen a lawyer yet. There was some
2 testimony he requested a lawyer. He hadn't seen a lawyer yet,
3 just Jessie alone in his cell hours after he took the life of
4 Eric Williams.
5 What we know from father Osuji, that Jessie was
6 remorseful, that he cried, he sobbed uncontrollably. And when
7 asked, would you like to pray for the family of officer
8 Williams, Jessie walked as far as he could, put his hands up
9 against the bar, and father Osuji put his hand on the other
10 side, and they prayed together. It wasn't a cynical act by a
11 man who hoped some day he can use that in order to escape his
12 fate. That was a man who is showing remorse for what he's
13 done.
14 How else do we know? We had the witness CO officer
15 Milheim. He took the stand. You recall he was a few feet away
16 and described how he heard this happen, this prayer, the
17 sobbing. And officer Milheim -- he didn't want to be on the
18 stand. I knew that. His brother officers are here. The last
19 thing he wanted to do was to provide any information for the
20 defense. I understand that, too. But he testified truthfully.
21 He told you what he saw, and what he saw was Jessie
22 and father Osuji praying for the family. It's something for
23 you to consider. It's a small thing, but it's something for
24 you to consider. You recall what Dr. Craig Haney told us, and
25 he was asked about -- you met Jessie a bunch of times. He said
Page 69 to 72 of 177 18 of 79 sheets
 73
1 nine or ten times spending hours and hours at a time with
2 Jessie trying to understand him, learn about his life. You
3 heard Dr. Haney flew to the Philippines. He said this when he
4 was asked -- did you ever discuss what happened that night with
5 Jessie. And this is what Dr. Haney said. I asked him about
6 this several times. It's not something I would ordinarily do,
7 but this -- this seemed to be something without a motive and
8 difficult for me to understand for me, and so I asked him. I
9 interviewed many times, and I have gotten to know him, I think,
10 well. I found him to be a thoughtful person who thinks about
11 things and analyzes things and is reflective. So I asked him.
12 I asked him several times in different interviews, and he was
13 never able to even answer the question. Each time he became
14 emotional, his face got red, he put his head down, he turned
15 away, and eventually he would look up. He choked on answers to
16 me usually crying. He said, I don't know. I don't know. Each
17 time he said essentially the same thing, I honestly don't know.
18 I think about it all the time. I have no explanation for it.
19 I am ashamed of myself, I'm ashamed of the pain I have caused
20 people, I wish I can tell you. I wish I can tell you why, but
21 I can't. I wish I can explain it to myself, but I can't. And
22 I wish that we had a better answer for you as to why this
23 happened. This was a senseless act, and we may never
24 understand fully what happened to Jessie Con-Ui that night.
25 It could be as father Osuji said when he asked him
74
1 why, Jessie's response was, I snapped. Again, insignificant, a
2 small thing. Jessie addressed you himself from defense counsel
3 table. He acknowledged what he said to Mr. Haney and had said
4 earlier just days after this event to father Osuji. That is, I
5 realize the harm I've caused officer Williams' family, friends
6 and coworkers, I know the harm I have caused my own family and
7 friends, and I'm sorry that my actions have caused so many
8 heartache and pain. I'm sorry that officer Williams' family,
9 friends and coworkers have suffered so much through these
10 years, and I'm sorry that my family and friends have suffered
11 so much. I'm always going to feel shame for taking an innocent
12 man's life. I'm always going to feel shame that so many lives
13 have suffered because of what I did. I wish I can take back
14 what I did. I wish I can undo what happened, but sadly that's
15 not in my power to do. And I wish I can give you a better
16 explanation for why this happened. But he doesn't know. Those
17 are the words from Jessie to you, this jury, and again it
18 doesn't -- it doesn't make what Jessie did one bit less
19 egregious.
20 It does matter in terms of your ability to assess the
21 appropriate punishment, whether the punishment that he has
22 coming to him given the verdict that you have rendered is
23 sufficient -- is it sufficient that he's going to remain in a
24 box 80 foot square box for the rest his life? Please, you
25 heard the testimony of Mr. Bezy, Mark Bezy. You heard the
19 of 79 sheets Page 73 to 76 of 177
75
1 testimony of Craig Haney.
2 We showed you there's no way in the world the Bureau
3 of Prisons is ever, ever, ever going to allow Jessie Con-Ui out
4 of the most restrictive conditions of confinement that are
5 available to them, and that is in a box -- in a cement box for
6 the rest of his natural life, no more yards, no more hanging
7 out in that open area that you saw at Canaan where the guys are
8 milling about. That's done. And compare it to general
9 population at a USP like Canaan where Jessie is now is the
10 difference between being a free person and being put in prison.
11 That's -- that's the dramatic difference. You have
12 made sure that Jessie Con-Ui is going to pay for what he did
13 every single day of his life until the day that he dies. That
14 is a -- that is something that you the jury can make certain
15 of. So I want to take a quick overview of Jessie's life and
16 the people in it. We start -- we start in Tondo. This is the
17 overview of Tondo.
18 This is the notorious slum in Manila where Jessie
19 spent the first five years of his life. I won't go into a lot
20 of detail. I think Dr. Haney covered this quite well about
21 what this place is like and also the importance of experiencing
22 this kind of deprivation in those critical years of one through
23 five. So here's a photo that we're all very familiar with now
24 of his mother Tess holding Ritchie and holding -- sitting next
25 to Ritchie there in the little blue jumpsuit there, that's
76
1 Jessie with the suspenders, and Jim over there on the right and
2 Maria, all people that you have come to know, people that have
3 come in here and talked to you about their life and about what
4 Jessie means to them.
5 This is about the age when these four kids would
6 huddle underneath the stairs when Jessie's biological father
7 Jaime Boado would beat Tess. That's something that is seared
8 in the memory of a four-year-old boy as would follow when
9 Ritchie died and the family moved on. They moved on to -- this
10 is the shot -- you're familiar with this. This is Pampanga
11 Street in the Philippines. It looks like today as it did back
12 then. I don't want to give you the impression at all that
13 Jessie's life as a child was nothing but misery and heartache
14 and suffering. It wasn't. There were happy times. You heard
15 about it.
16 Sometimes food was scarce, but they made do. They
17 had family and friends around, children to play with. You
18 learned from people there at the time about Jessie as a little
19 boy and how he would use a stick and old pottery and go down
20 the dirt road on Pampanga Street and play with his friends. He
21 had an infectious smile. He liked to climb fruit trees and
22 pick fruit with his friends and do well in school. Everyone
23 said that. And eventually they moved on to Rome and Syracuse,
24 New York. You heard about those years. Things started off
25 well there in Rome and got progressively worse.
07/07/2017 02:10:08 PM
 77
1 Here they are playing in the snow. That's the little
2 boy -- Jessie is on the ground on his knees and Maria. She
3 said she was throwing a snowball toward the camera. Jim is
4 right behind her. This picture we have seen a lot of, and I
5 think Dr. Haney described this as sort of the -- the -- you
6 look at Jessie's life. This was sort of the apex where
7 everything looked like it was heading in the right direction,
8 he was adjusting well in school. He had these friends that,
9 you know, came back 30 years later.
10 I don't know if I know anybody from third grade that
11 they got a phone call to fly across the country and speak to me
12 about me, but they did. They did because Jessie affected
13 people. He affected people at this age with that smile and his
14 lacrosse stick, and the image we are left with was a happy boy
15 who was on his way. He came from the Philippines. Maria
16 described it as an overwhelming sense of happiness and
17 disbelief like they just won the lottery, they were coming here
18 to the United States where everyone wants to be, and the future
19 couldn't have looked brighter here. The smile on his face.
20 Something went terribly wrong.
21 We're not going to blame Gary for this, Gary Sliney.
22 It's not his fault. But come on, let's not pretend that the
23 worse thing Gary ever did to these children was force the
24 children to eat their vegetables. How many people did we hear
25 from that had direct contact with Gary who all told the same
78
1 story of verbal abuse which in a lot of ways leaves scars you
2 can't see but scars that you feel much deeper than physical
3 scars? They leave a mark. We know that Dr. Haney -- we know
4 from personal experiences each and every one of us -- and to
5 try to stand up and here and defend Gary Sliney's behavior, I
6 think simply falls flat. It wasn't about finishing vegetables
7 and making sure your sandals were positioned in the right
8 place.
9 We would grab his kids like rag dolls and throw them
10 around, scream and berate them. Worst of all right around this
11 time Jessie only a year or so older in this photograph right
12 here when they moved to Syracuse and Gary Sliney, as you heard,
13 threw him out in the cold, locked the door behind him and
14 Jessie had to then find a place to spend the night and sleep by
15 himself. These are facts. These aren't excuses. These are
16 the things that we felt it was important for you to know before
17 you decide what it is you're going to do, whether you're going
18 to let him live or whether you are going to decide he's to die.
19 A little bit after this picture was taken is when
20 Gary starting throwing him out, locking him out and telling him
21 as you heard from Sarah Sliney, his stepsister, who she said
22 she considers Jessie to be a brother -- not a stepbrother but a
23 brother -- she described the way he was treated. That is a
24 factor established without any -- any realistic option. I mean
25 he was -- he was just a terrible guy. I think we can all agree
07/07/2017 02:10:08 PM Page 77 to 80 of 177
79
1 on that. Does that mean he's responsible for what Jessie did
2 on February 25th, 2013? No.
3 We're not suggesting that at all. But people are
4 influenced by their environment and by the way in which they
5 were raised. Some people like Jim and Maria go one way. Other
6 people like Jessie go another way. And if you remember Maria
7 Fenton -- she brought this from her home. She flew up from
8 Florida, and she was the -- Tess' cousin, and she talked about
9 the time she spent with Jessie. That's the other thing that
10 runs through this family is service to the country. She
11 married a serviceman as well in England and came over. This is
12 how she remembers Jessie.
13 Jessie is holding her son, and Jim is over there with
14 Ms. Fenton's daughter, and Maria, of course, is in the middle.
15 Normal average photograph of a family enjoying time together.
16 Things went wrong. But before we leave New York and move on to
17 Arizona, I would like to remind you of a witness named Joe
18 Martin. Joe, if you recall, he came in -- I believe it was
19 from Arizona. He flew out here, and he knew Jessie when Jessie
20 was about the age we just showed in the photo, and he knows
21 Jessie because he has these memories, these happy memories of
22 Jessie and his son Derek who were best friends, the kind of
23 friends who were inseparable, who spent all their time
24 together.
25 And if you recall, Mr. Martin described for us what
80
1 was going on in his home, he was having problems with his wife,
2 there was a custody dispute over Derek. And he had custody of
3 Derek, and he talked about the times when he would see Jessie
4 and Derek playing together and it brought a smile to his face,
5 it brought back a happy memory of him. When we reached out to
6 Mr. Martin and asked him, please, if he would willing to come
7 out here and testify, he didn't hesitate. He came out and
8 testified.
9 Nobody was forced to come here. We asked if he
10 wanted to come just like officer Hubalik, who I will get to in
11 a little while. We asked if you recall Mr. Martin right before
12 he got on the stand, why were you -- why did you come out here
13 to testify on behalf of a grown man who you haven't seen in 30
14 years. He told us about those happy memories, and he told us
15 that tragically his son Derek died at the age of 28 of an
16 overdose.
17 The last thing he said before he left the stand was,
18 I'm here because Derek would have wanted me to be here. These
19 are people affected by Jessie Con-Ui. Yes, he's done terrible
20 things, terrible unspeakable things. But there is good inside
21 of him. We know that because why in the world would Mr. Martin
22 get on an airplane to fly out here and share a story about a
23 kid who used to hang out with his son 30 years ago? He didn't
24 crawl out of the woodwork. He got on an airplane. He found
25 some photos that were precious to him. He came in here, and he
20 of 79 sheets
 81
1 shared what he knew about Jessie Con-Ui with you.
2 You might remember that videotape -- I believe it
3 came from Christine Rudd of the sixth grade graduation. You
4 see Derek up there getting his diploma followed by Jessie, and
5 you see Jessie and the sixth grade teacher -- might have been
6 the principal giving each other a high five. That's part of
7 Jessie, too.
8 Every one of those moments in a person's life makes
9 up who that person is, not just nine minutes of horror and
10 inexplicable violence that we all had to witness. So we get to
11 the Arizona years. As you know, things unraveled as Dr. Haney
12 put it. It disintegrated. Jessie was thrown out of the house
13 more and more. He became more involved in drugs. You recall
14 Virginia Moore who came from Concord Village, the young lady
15 who had been there with Jessie at the time. And she shared her
16 memories, too.
17 She said people -- she was emotional when she saw
18 Jessie. She cried. She hadn't seen him in a long time. It
19 didn't lessen the feelings that she had for him. You know, it
20 didn't at all. It was as if no time passed when she saw him in
21 the courtroom and she began to cry. She said, I love Jessie.
22 You know, he's someone that made me feel safe and special at a
23 time in my life when I didn't feel so good about myself when
24 things were bad at home, her mother committed suicide and her
25 family was dysfunctional, drugs riddled the home. Jessie made
82
1 her feel special.
2 She talked to you about Jessie -- one of her memories
3 when his mother Tess walked by the park where they would all
4 hang out and 16-year-old kids trying to act tough, and Jessie
5 would drop all pretense and rush over and give his mom a big
6 hug. She remembers that because it was unusual for somebody in
7 that circle to do such a thing. As she told us, Jessie was
8 hugger. Jessie loved to be around people and to make them
9 laugh.
10 This is the same person. It's inexplicable. I wish
11 I can explain it. I wish we had a team of psychologists that
12 can come in here and describe better for you than I am able to
13 do right now. So what we can do is show you through these
14 witness' testimony the way things actually occurred. So Sarah
15 Sliney, as I mentioned earlier, she experienced the same type
16 of treatment from Gary, her natural father. She told us that
17 Jessie protected her and made her feel safe. She felt a
18 special bond because she felt that she and Jessie would receive
19 the brunt of Gary Sliney's anger and abuse.
20 She said when Jessie left the house, she would
21 sometimes sleep in his bed, why? Because she missed him and it
22 reminded her of Jessie. Officer Hubalik -- he's a hard nosed
23 detective, 30 years in law enforcement, officer Hubalik, who
24 has seen and done it all I am sure. He's a veteran, served in
25 the Iraq war, went back and picked up law enforcement. He's an
21 of 79 sheets Page 81 to 84 of 177
83
1 active law enforcement agent today.
2 He got on an airplane when we asked him to come out
3 here. We asked him, do you remember this kid named Jessie,
4 yeah, I remember Jessie. We told him, as you heard from the
5 stand, what he had done, not what he was accused of, doing not
6 something in dispute. We told him what he had done. He said,
7 I'm coming, I'm going to come and tell this jury what I know
8 about Jessie.
9 He told you that Jessie in his view was a kid looking
10 for some direction, looking for something from home that wasn't
11 there. And despite officer Hubalik and his partner's efforts
12 to straighten Gary out, you can't just throw this kid out on
13 the street and we find Jessie sleeping under the play set at
14 Concord Village, it's child abuse. Today's age -- I mean this
15 was back 20, 30 years ago -- C. P. S. would have been doing
16 something about it. It didn't happen. I'm not sure that would
17 have made a difference. I don't know for sure. But it's a
18 fact.
19 And as with Joe Martin, officer Hubalik came out here
20 and looked over at Jessie, and he got emotional. He has an
21 effect on people. There's good inside of him. He told us that
22 story about running into Jessie's oldest son at the hotel the
23 night before. He was just struck, struck by it. He said, you
24 know, just a young kid, spitting image of his son and when I
25 look at his son, now I remember a boy very familiar, very
84
1 similar, Jessie was just an easy going kid, quiet kid. This is
2 how officer Hubalik described him. Jessie junior, who you met,
3 he's the same age as Jessie when Jessie was locked from his
4 home and spending the night -- nights one after the other
5 either on the roof of that church or the playground or a parked
6 car he eventually paid a heavy price for when he went to prison
7 for seven years for stealing cars -- it seems a little rough to
8 me. You heard the evidence, and you saw the documents. That's
9 exactly what happened. Seven years hard time for stealing
10 cars.
11 That's the way Arizona liked to deal with juvenile
12 delinquents or 18-year-olds back then. I don't know. What
13 would happen if that never happened? What if somebody
14 intervened and hadn't been sent off seven years -- that hell
15 hold that was the Arizona Department of Corrections? No idea.
16 It might have been changed things? Possibly. At this point
17 it's too late. That's perhaps the saddest thing of all. So
18 Jessie then ends up here.
19 And, you know, this picture is important for a number
20 of reasons. One, Jessie is 19 years old here. He's doing his
21 seven years for stealing cars. You see where he is. I took --
22 if you recall I took Tess's testimony and Maria as well. I
23 asked them both, where are you guys, you're outside in the
24 sunshine, you have a cactus tree behind you. There's some
25 ground there, low fence. You're hugging Jessie. That's what
07/07/2017 02:10:08 PM
 85
1 life was like for him as miserable as it was. You recall the
2 letters he wrote and sadness that he expressed in the letters
3 and regret. Well, he's in a whole different place now. He
4 will never be in a place like that again. I can guarantee you
5 that.
6 You know, and the prosecutors made a point to say
7 this and rightfully so -- and they have every right to make
8 this point. In those letters he wrote to his mother back in
9 1996 when he was 19 in 1997 -- he made a lot of promises. He
10 wrote poems, talked about how sad he was away from his family
11 and how difficult it was to be locked down, I am not going to
12 get in any more trouble now, mom, I am going to do right now,
13 take care of you the way you take care of me. It's my turn
14 now. I asked Tess about that.
15 She said he wasn't able to keep those promises. We
16 all know that. For one reason or another this falls on
17 Jessie's shoulders. He ended up back in trouble this time in
18 big trouble. I would like to talk to you about the people most
19 affected by your decision. I want to start with Jim -- Jaime
20 Con-Ui. This is Jessie's older brother who testified for a
21 good few hours and told the good and the bad.
22 One of the -- one of the things -- responsibilities
23 that jurors have is evaluating credibility of witness'
24 testimony. It's up to you. We present the evidence, and we
25 ask at the end of the case for you to evaluate and consider it
86
1 and give it whatever you believe it's worth. That applies to
2 Jim. There are certain facts about Jim that can't be disputed.
3 He served our country 20 years in the Air Force. He
4 was thrown out of the house by Gary. Gary threw him over a car
5 and told him -- he said, I'm leaving, and Gary said, don't ever
6 come back. He never did. Instead of getting in trouble like
7 Jessie did, he went down to the recruiter's office and joined
8 the military. He served with distinction for 20 years in the
9 Air Force, and we didn't bring this out. He's a modest man.
10 He wasn't here to brag about his accomplishments.
11 On cross examination, the prosecutor said to him,
12 well, look at you, you came from the same place and you're just
13 fine, you must have all kinds of medals and ribbons. He said,
14 sir, I have 19 ribbons on my rack. That's what he said. He
15 said that in response to the prosecutor's questions. He's
16 proud of serving the country. He is emotional when he talks
17 about his brother, when he thinks about what could have been.
18 You know, I'm sure everyone in that family carries a little bit
19 of guilt, I wish we can wash that away because they deserve
20 none of it.
21 He said this before he got on the stand. He said,
22 you know, I lost a brother, and I have one brother left. I
23 don't want to bury my last brother. And Jim -- it's in the
24 verdict form. There's a question about whether or not Jim is
25 going to suffer grief and loss if Jessie were to be executed.
07/07/2017 02:10:08 PM
87
1 It's up to you to decide if that's true or not. I will ask you
2 to consider his testimony and credibility before you answer
3 that question. I think the question -- answer to that question
4 is obviously yes, he's going to suffer grief, unimaginable
5 grief not just for himself, his children, his little girl,
6 Meredith and his mom and his sister.
7 Speaking of his sister, here's a picture of Maria and
8 Mark Mask. Mark is -- there's -- if there is a hero in the
9 story in terms of the defense case, it's Mark Mask. Remember
10 what he did. Maria told us that story about how Gary was
11 creeping her out because she woke up one night and there he was
12 over her while she's sleeping in bed. And she said, I went to
13 Mark's parents and they only together a few months, and they
14 took me in. I thought this guy was never going to talk to me
15 again, and they took me in.
16 We know what happened after that. They fell in love.
17 They got married. They've been together ever since. They have
18 two beautiful daughters. You think about what Mark said, and
19 Mark -- of course, he's a SWAT team member from Arizona. He
20 had been in law enforcement 13 years, and he as well other
21 members of the family served our country in the military. He
22 talked about Jessie, you know, I am here for my family, I'm
23 here for my wife, I'm here for her and her family. He also
24 shared his own experience with Jessie.
25 He said, I remember when I met Jessie -- he knew
88
1 Jessie was off on the wrong track. Mark is a cop. He can
2 tell. But he said he and Jessie would goof around together.
3 We -- as he put it -- bag on Maria, give her a hard time.
4 Those were the memories he has. This tough guy when he was
5 asked the hard question, which I certainly hope that you each
6 understand why we have to ask these questions about what the
7 impact would be because you're entitled to know that, as I said
8 earlier -- he broke down. He said, this would devastate the
9 family.
10 And again there would be a place on the verdict form
11 for your findings on that issue, and give it whatever weight
12 you think it's entitled to. When you're in a death penalty
13 case, the jurors have a vaulted position. I think -- I think
14 it's a burden as I said earlier. But you decide. You're
15 basically not just the decider of the facts, you are the
16 decider of the sentence. That usually falls on the judge to
17 decide. Not in a death penalty case. You decide what the
18 appropriate punishment is.
19 And when you are making that decision, please think
20 about how this is going to affect Mark Mask personally and his
21 family. We talked about Mark, and I'm not going to belabor it.
22 You were paying close attention not just to this testimony but
23 throughout the trial. It didn't escape our notice the amount
24 of involvement that you were engaged in throughout the trial.
25 There was some very difficult testimony and visuals and awful,
Page 85 to 88 of 177 22 of 79 sheets

1 awful -- and even when we presented our case, we noticed that
2 you continued to pay attention even after hearing the horror
3 that this case is. And we appreciate that. We do.
4 We think you're taking this seriously as it needs to
5 be taken. You heard Maria's testimony and what Jessie means to
6 her, her baby brother she calls him. And they haven't always
7 been in touch over these past 20 years consistently, but
8 there's one thing that's clear. The love they have for one
9 another is as strong today, maybe even stronger than it ever
10 was. And she loves Jessie with all of her heart, and she --
11 doesn't mean she's not angry and that she can't stand the
12 things he's done, but she can't help loving her brother.
13 They have been through a lot together. She wants him
14 in her life, and she wants him in the lives of her two
15 children, Hailey and Hannah. These two adorable girls who are
16 as -- I think it was Hailey who has been pen pals with Jessie.
17 Jessie writes them these letters, and, yes, he's a great drawer
18 and sketcher, and his handwriting is beautiful and much better
19 than mine. That's for sure. These girls -- they said he's
20 important to them in their lives. They want him around when
21 they grow older and continue to write and maybe once in a while
22 make that short little phone call.
23 Jessie has got some decisions to make when it comes
24 to making phone calls. He only gets two per month, 15 minutes
25 each. Those calls are cut off immediately once those 15
90
1 minutes are up. He has to decide do, I call my mom this month
2 or my boys. So don't get the impression he's allowed to sit
3 and chat on the phone all day. Those are 15 minutes per call,
4 twice per month. That's it. That is all he gets. And maybe
5 that's the way it should be because what he's done. That's
6 part of the punishment you have ensured he's going to endure
7 for the rest of his life.
8 But at least that family on the other end gets that
9 occasional phone call and gets that letter from Jessie, and it
10 lifts their spirits, and that includes these two little girls.
11 And Tess, we took her deposition, as you know rather than have
12 her come in live to testify. And I think you can each
13 appreciate why we did it that way. She was sitting right over
14 there, and I feel as if you had a chance to meet her even
15 though you didn't get her live.
16 I feel the testimony she gave is as every bit as
17 valid and as useful to you, I hope, as if she were able to do
18 that from the stand. But she loves her son. What mother
19 doesn't? They have a special bond as you heard. She's --
20 Jessie is her baby. And when she was asked, do you want this
21 to continue in the future, of course, she does. I mean, I
22 don't have to -- I don't have to say that. I think you all
23 understand through her testimony just how important Jessie is
24 to her in life and how important that relationship will be in
25 the future.
23 of 79 sheets
89 91
1 These are the people affected by your decision. And
2 then Jessie -- we talked about the phone calls. He's going to
3 a deep dark dungeon. That's the best way to describe it. When
4 you think about life in the ADX and in the conditions he's
5 under, it's like the size of a -- small bathroom I think David
6 may have described it that way, 80 square feet. You're
7 surrounded by cement. And think of it like this. If you were
8 back in the jury room and you stand six to eight feet from the
9 wall and you look at the wall for the rest his life, that's his
10 field of vision.
11 He'll never see beyond six to eight feet without his
12 field of view being interrupted by a concrete barrier
13 everywhere he looks. The only human contact he will have is
14 when a guard places restraints on his wrists on those rare
15 occasions he's taken from his cell. That's his life. You can
16 debate whether that -- which punishment is worse. But that is
17 his life from this point on, day in, day out as he grows old
18 and as his family moves on with their lives. At least if you
19 spare his life, that family will have some comfort from the
20 brief calls and those letters and that occasional visit, which
21 as we heard it's not easy, it's not a wealthy family. They
22 have limited means.
23 They will have fly themselves to Denver from Arizona
24 and drive two and a half hours south past Colorado Springs, way
25 out to a little down called Florence to visit for a few hours
92
1 separated by Plexiglass. Jessie Con-Ui will never put his arms
2 around his children again. That's something that's gone for
3 him. He will never kiss his mother. He will never shake the
4 hand of a friend or embrace anyone in his family. Again, I
5 don't say this to raise even an ounce of sympathy. I say this
6 as a fact, and it's something that's punishment. And we need
7 it to show you that there's this punishment beyond not being
8 eligible for release, beyond even being in the ADX, these are
9 the realities of life for Jessie from this point forward.
10 But even from within that cell, even from deep inside
11 the ADX, he can still show his boys some guidance and remember
12 -- I want to try this -- first here, of course, are his boys.
13 Jadin is on the left and Jessie junior on right. We heard from
14 them. We kept things lighter with them. We wanted you to be
15 able to see this is a real relationship that these boys have.
16 They love their father. They know he's done a bad thing. He's
17 trying to teach them don't follow in my footsteps. That's
18 reflected in a phone call that we put into evidence -- I will
19 try this.
20 (An audiotape was played at this time.)
21 MR. FLEMING: So that's Jessie talking to his boys.
22 And, you know, he sounds like he's upbeat, and I am sure he
23 wants to be upbeat when he speaks to his boys. He hangs that
24 phone back up. It's a long time before he speaks to another
25 human being who cares a but about him. The rest of the time
Page 89 to 92 of 177 07/07/2017 02:10:08 PM
 93 95
1 he's alone there in his cell or going to the rec area -- it's 1 not deserved. It's yours to give.
2 no better than a cell, just a cell with a grate on top. Again, 2 And even though Jessie may not be entitled or is not
3 he brought that on himself. You made sure that's the life he's 3 entitled to mercy, you can still show mercy and not just for
4 going to lead from now on. That's punishment. The question 4 Jessie or not for Jessie at all. You can show mercy for that
5 for you each of you is, is it sufficient punishment when you 5 fine family, those little boys, his mother Tess, Maria and Mark
6 balance it against these other interests that are here in the 6 and the people that you met throughout the trial. You can show
7 case such as those two boys and five, six, seven years from 7 them mercy knowing full well that Jessie is going to be
8 now, five, whatever it is, if Jessie were to be put to death, 8 punished severely for what he did for the remainder of his
9 they will be older as will Tess and Maria and Hailey and 9 life.
10 Hannah, but the effect it will have on them will be absolutely 10 You know, if you decide that Jessie is to be put to
11 devastating. It's just an absolute fact. I'm almost done. I 11 death, then Jessie's pain and misery ends at that moment, it
12 got a few more minutes. I want to talk to you about mercy, 12 doesn't. He's beyond the capacity to feel remorse, to feel
13 about the concept of mercy. 13 anything, to feel the regret that he feels and to think about
14 MR. FEITEL: Objection. Your Honor, may we approach? 14 the things he's done for the rest of his natural life and the
15 Can we approach? I'm objecting. 15 mistakes he made and the harm he caused and perhaps trying in
16 THE COURT: To what? 16 some small measure to make a positive contribution whether it's
17 MR. FEITEL: What Mr. Fleming just said. 17 through phone calls with his boys or talking to his family or
18 THE COURT: He wants to talk about the concept of 18 some other way that he tries in some small measure to reach for
19 mercy. 19 redemption that's likely to be out of his reach, but he can
20 MR. FEITEL: Yes. 20 reach for it in a small, small way.
21 THE COURT: I don't know there's a need for that. I 21 If he's put to death, he won't feel a thing. He's
22 think it's appropriate to address the jury in that fashion. 22 gone. But Jessie's family, their pain and suffering over his
23 MR. FEITEL: May we approach? 23 death will only have just begun, and the reality is that
24 THE COURT: I will grant your request. 24 another -- another innocent family is going to suffer loss of
25 (The following discussion took place at sidebar:) 25 their loved one. You know, every life has -- that's taken has
94 96
1 MR. FEITEL: My understanding is Your Honor has ruled 1 a ripple effect. That's no different than here even though
2 that the mercy mitigator is not appropriately before this jury. 2 Jessie has been in prison for as long as you heard. His
3 So if that's the case, then an argument about mercy is -- we 3 execution will ripple close by to upstate New York. It will be
4 will submit equally inappropriate. 4 felt there by the people you met and people that care for him,
5 THE COURT: Well, I did rule that it was not a 5 spread to Arizona where his family lives, and that will be a
6 mitigator. It does not mean it shall not be argued and 6 devastating blow to them. They'll feel it. They'll suffer for
7 addressed to the jury. I even said that I recall. It seems to 7 it.
8 me there are things that are appropriate for argument, and 8 And it will remain with them for the rest of their
9 that's one of them, I believe. 9 lives and travel half way across the world to that little place
10 MR. FEITEL: Very well. 10 on Pampanga Street where his uncles still live and his cousins
11 (The discussion at sidebar concluded.) 11 live, and they'll be thinking about it, and they'll feel
12 MR. FLEMING: Mercy. You know, you watch that 12 unshakable sadness and concern for their sister Tess and her
13 videotape, and it's fair to say to yourselves, Jessie Con-Ui 13 family and what they're going through. Every human life
14 didn't show any mercy to officer Williams. Why should I show 14 affects other human lives. This is no different. When you
15 any mercy to Jessie Con-Ui. I can predict an argument perhaps 15 think about Jessie as a small boy with that lacrosse stick
16 when the prosecutors to get into rebuttal afterward to that 16 running around with so much promise, it's just sadness, it's
17 effect. I don't know. He might. 17 just inexplicable sadness that happened here.
18 Let me point out what should be obvious to everyone 18 And Jessie is responsible for what he did. He wants
19 in this courtroom. None of you -- not a one -- is Jessie 19 to make amends, but he can't. It's impossible. Taking
20 Con-Ui. You don't think like him. You don't make the 20 Jessie's life will eliminate the bad that's inside Jessie. But
21 decisions that he made. So comparing what Jessie did in terms 21 it can't eliminate the bad that he's already done. It can't.
22 of his lack of mercy to what I'm asking you to do is an unfair 22 It's impossible. That's going to remain after he's gone.
23 comparison because you have the capacity for mercy. Mercy is 23 There's nothing that can be done to undo the death of officer
24 not something that's earned. You don't earn mercy, right. 24 Eric Williams.
25 Mercy is something given even when -- especially when mercy is 25 When you take somebody's life and you take Jessie's
07/07/2017 02:10:08 PM Page 93 to 96 of 177 24 of 79 sheets

1 life, you don't just take the life of a man who we saw during
2 those nine minutes -- and you heard about the other things he's
3 done -- you take the small boy from Pampanga Street, take that
4 young kid with the lacrosse stick, you take the boy who was
5 sleeping outside when Gary kicked him out in the playground.
6 You take away everything he ever was, and you take any
7 opportunity he has to try to better the lives of his children,
8 to be a positive influence for them, to comfort his mother like
9 he did when you heard her brother died -- small things like
10 that. Those things matter to this family.
11 That's what gets taken away if Jessie is executed.
12 And let me just close with this. When you think about this
13 decision, this unimaginable decision that you're going to make
14 in just a few minutes -- you're going to start to make as you
15 go through the evidence and talk to one another, if taking --
16 if you take Jessie's life, if that's the decision, I wonder is
17 that something that might be regretted in a few years? I don't
18 know the answer to that. Maybe it won't be. Maybe it will.
19 What about a decision to grant mercy?
20 What about a decision in light of everything else
21 that we know now and punishment he now faces -- what if you
22 were to grant mercy to Jessie? Mercy is the ultimate act of
23 compassion. That's what it is. This would be an act of
24 compassion for a kind and decent family, and compassion has no
25 preconditions to it. I suggest to you that we don't regret
1 acts of kindness, acts of compassion and acts of mercy, not
2 ever. You don't look back and think to yourself, if I didn't
3 show mercy, I'd feel better about things right now. I don't
4 believe that to be true. I think that when we show an act of
5 mercy, it speaks to the goodness of a person. For those
6 reasons, I ask you to show mercy, and I ask you to choose life.
7 Thank you for your attention.
8 THE COURT: Mr. O'Hara?
9 MR. O'HARA: Thank you, Your Honor. Ladies and
10 gentlemen, some words in rebuttal and in response to the
11 defense arguments. It is not my intention to be lengthy. But
12 I ask you when you consider the mitigating factors the defense
13 has spoken about, ask yourself, have they been proven to me,
14 have these mitigators been proven to me.
15 My grandmother used to say, wishing so doesn't make
16 it so. Have they been proven? Let me further suggest to you
17 that even if some of these mitigators have been proven, they
18 don't carry very much weight. We suggest to you that you
19 should assign them very little weight if at all. As Mr. Ruhnke
20 said, it's not a numbers game, it's not the number of
21 mitigators and number of aggravators. It's the weight, the
22 substance, the substantialness of the factors.
23 We submit to you the aggravating factors in this case
24 outweigh all of the mitigators by a mile. Mr. Ruhnke spoke
25 about just one vote for life. I would like to take you back to
25 of 79 sheets
97 99
1 jury selection also. We asked you as you took that stand,
2 would you be willing to work towards unanimity. You promised
3 us that you would, you would talk to each other, and you would
4 listen to each other, not bully, but reasoning with each other
5 in working towards consensus and a unanimous verdict.
6 Mr. Ruhnke spoke of Jessie's offer to plead guilty as
7 if that's he deserves some medal for that. First, Jessie was
8 obviously guilty. The murder was on videotape. Secondly,
9 Jessie was trying to leverage his own crime in order to try to
10 take the death penalty off the table. There are only two
11 possible penalties, life in prison or the death penalty.
12 Jessie said, I'll plead guilty, but I want to decide
13 what the penalty would be. The justice department, the Office
14 of the United States Attorney General, Loretta Lynch at the
15 time said, no, the jury will decide what the penalty would be.
16 Let's make no mistake about it. Jessie was already sentenced
17 to life in prison. He was sentenced to serve a life in prison
18 by the Arizona courts for the murder of Carlos Garcia.
19 Government exhibit 94. The sentence of imprisonment from June
20 27th of 2008. The sentence is life. In parenthesis, the words
21 with the possibility of parole in 25 years. The sentence was
22 life.
23 You heard it had the murder of Eric Williams not
24 occurred, Jessie would have been headed back to the Arizona
25 prison system in September of 2013. You heard the term maxed
98 100
1 out. He would have maxed out on his federal drug sentence at
2 Canaan, completed the 135-month sentence and been sent back to
3 Arizona to serve life in prison. You know about Jessie's
4 previous track record in the Arizona prison system.
5 Twenty-nine disciplinary infractions in five and a half years,
6 not seven -- he served five and a half -- including beating
7 another inmate with a metal food tray, threatening harm to
8 other inmates, possessing a weapon in prison.
9 You know of disciplinary infractions in the Federal
10 Bureau of Prisons including threatening to harm officer James
11 Cobos in Victorville, stabbing another inmate Joshua Parks
12 Pollock.
13 MR. RUHNKE: I object. This is not proper rebuttal.
14 The prosecutor is simply repeating what was said to the jury
15 the first time around.
16 THE COURT: Well, it's a little different. I'm going
17 to let him proceed. You're free to object whenever you feel
18 you should.
19 MR. O'HARA: You know his track record. You think
20 Jessie Con-Ui is ever getting out on parole with that track
21 record? You also heard from Mr. Bezy -- the testimony of Mark
22 Bezy, so-called prison expert the defense presented. Robert
23 Feitel on cross examination asked Mr. Bezy about the Arizona
24 equivalent of the super max prison, what is known as the
25 Browning unit, in Arizona the most secure facility in the state
Page 97 to 100 of 177 07/07/2017 02:10:08 PM

1 where an inmate is locked down 23 hours a day.
2 Robert Feitel asked Mark Bezy, question, so you are
3 aware had he not murdered correctional officer Eric Williams,
4 this defendant would have been sent to the Arizona state
5 Department of Corrections, correct. Answer by Mr. Bezy,
6 correct. Question, and based on his classification, he would
7 have been sent to the Browning unit, correct. Answer by Mr.
8 Bezy, if he met the criteria, yes. Question, which is actually
9 more restrictive than the federal ADX, correct. Answer,
10 correct.
11 So had this murder of Eric Williams not occurred,
12 Jessie was headed to a place even more restrictive than the
13 federal system at ADX in Colorado. That was the defense expert
14 that said that, not the government's expert, the defense expert
15 who said that. Jessie was already headed for a super max
16 prison. So where is the additional punishment for the murder?
17 MR. RUHNKE: Your Honor, I'm sorry. That was not the
18 testimony at trial.
19 THE COURT: The jury will have to remember what the
20 testimony was. That's the standard.
21 MR. O'HARA: When I asked you, has the defense proven
22 its mitigators, Mr. Ruhnke says, Jessie will spend the rest of
23 his life in isolated confinement at ADX. Has that been proven
24 to you, ladies and gentlemen? There's no guarantee that Jessie
25 Con-Ui will spend the rest of his life in the control unit at
1 ADX. Further, there's no guarantee that he will spend the rest
2 of his life in any portion of ADX. Rather, the opposite is
3 true. John Oliver the government expert, former warden, told
4 you about the step-down program. By design one of the goals of
5 ADX in the BOP is to try to step down inmates whenever possible
6 to move them from a more restrictive environment to a less
7 restrictive environment. The ultimate goal -- the ultimate
8 goal of returning them to general population at a United States
9 penitentiary.
10 You heard there are only 490 beds at ADX. There are
11 4,700 inmates serving life in the BOP. So the goal is to move
12 them out of there, to move them out of ADX, move them out of
13 the control unit. It doesn't happen overnight. It's done in
14 small steps over the course of years. And there are a number
15 of factors, 13 factors that are looked at. But the bottom line
16 is this. Mr. Oliver told you even if a defendant sentenced to
17 life in prison for murdering a corrections officer would have
18 the opportunity -- the opportunity to program out from the more
19 restrictive environment such as the control unit into a less
20 restrictive environment. The opportunity.
21 Has the defense prove than mitigator that Jessie will
22 spend the rest of his life in the control unit at ADX? Not by
23 a long shot. Not by a long shot. I will talk for a moment
24 about Jessie's remorse. Empty meaningless words. Jessie has
25 been apologizing since 1995. Remember Teresita's video
07/07/2017 02:10:08 PM
101 103
1 deposition. Mr. Fleming, I believe, read the letters, that
2 Jessie had sent to Teresita in 1995 and 1996. Remember these
3 excerpts, I am really sorry for what I put you through? I
4 promise you that this year I will do good. Things will change.
5 I'm tired of going back to jail. I know that I have said and
6 wrote those words many times before. Now I have learned my
7 lesson the hard way, and I will not mess up again. I'm sorry
8 for letting you down all these years.
9 Those letters were written in 1995, 1996. Jessie
10 didn't change. Jessie went on to murder Carlos Garcia, to
11 become involved in a major cocaine trafficking case, to stab
12 Joshua Parks, to brutally and cruelly murder Eric Williams.
13 Ladies and gentlemen, how many times does Jessie Con-Ui get to
14 say that he's sorry for the crimes that he committed? How many
15 times does he get to say that he's sorry? Empty meaningless
16 words.
17 The incident with chaplain Osuji, religious man,
18 chaplain, a man of the cloth manages to coax a few tears of
19 Jessie Con-Ui, and we are supposed to believe he's remorseful .
20 Crocodile tears, ladies and gentlemen, crocodile tears. If you
21 want to know about the kind of person Jessie Con-Ui is, look at
22 his actions. Robert Feitel called them the collective works of
23 Jessie Con-Ui. Jessie's actions speak much louder than his
24 meaningless words.
25 Execution impact. You heard a lot of talk about
102 104
1 Jessie's friends and family. Ladies and gentlemen, we are here
2 to punish Jessie Con-Ui for what he did. It's because of his
3 actions and his actions alone that we're here today. We're
4 here because of the choices that Jessie made. He has now
5 committed his second murder. He reaches back into his past to
6 present to you people from the Philippines and Rome, New York
7 and even Arizona, people like Bernie Beltran -- haven't seen
8 him since third grade, Rachel Mendrosso, hasn't seen him since
9 the Philippines. She grew up in poverty, too.
10 She didn't become a killer. None of her cousins,
11 aunts, uncles, Jessie's extended family -- they all stayed
12 behind in the Philippines and stayed in this poverty. None of
13 them became multiple murderers. He reaches back to these
14 people like Brian Evans, the guy who tried to get off the
15 witness stand for before Mr. Sempa had chance to cross-examine
16 him who hadn't seen Jessie since fourth or fifth grade, hasn't
17 written to Jessie, hasn't received a letter from him. They
18 don't know the real Jessie. They don't know Jessie Con-Ui you
19 have seen over the last few weeks. Jessie, the multiple
20 murderer, Jessie the inmate with all these violations. It's
21 not nine minutes of violence. It's 14 years of violence,
22 ladies and gentlemen.
23 Even his step sister, Sarah Sliney, she hasn't seen
24 him since 2001. They don't know the real Jessie. They don't
25 even know his crimes. Some of them just found out about his
Page 101 to 104 of 177 26 of 79 sheets

1 crimes recently when they were approached by a private
2 investigator. They don't know Jessie cruelly murdered Eric
3 Williams. Jessie's sons, Jessie's family, they are victims of
4 his crimes, too. Now, Jessie tries to manipulate them and use
5 them as a shield to protect himself. Did he think about his
6 family before he shot and killed Carlos Garcia? Did he think
7 about his family when he became involved in a cocaine
8 trafficking conspiracy?
9 Did he think about what the ramifications would be
10 for their lives? Did he stop for a moment to think about his
11 family before he stabbed Joshua Parks before he so cruelly
12 murdered Eric Williams? Did he give any thought whatsoever to
13 what the ramifications would be for his family? No. Jessie
14 doesn't think that way. Now, Jessie tries to use his family as
15 a shield to protect himself. Anyone with any sense of decency
16 would not use his own flesh and blood as shields.
17 As for his allocution, I want to be a better father
18 for my son, empty words, ladies and gentlemen, same type of
19 words he was writing to his mom back in 1995 and 1996. Please
20 do not let Jessie play a victim here. Don't forget who the
21 real victim is. The real victim is Eric Williams. Age 34. He
22 got up, went to work to do his job. He was the victim of one
23 of the most heinous, cruel and depraved murders you'll ever
24 see.
25 Jessie's own words, I took an innocent man's life.
1 Talk for a few minutes about Dr. Haney and his risk factor
2 analysis. Let's look at what Dr. Haney has previously written.
3 I showed him that article from something called the Society For
4 the Psychological Study of Social Issues. 2001. He's listed
5 as the author of something called the S. P. S. S. I. statement
6 on the death penalty.
7 At the conclusion of the article, the society
8 condemns the use of the death penalty and calls upon all
9 regional and national governments to abolish the death penalty.
10 Further, in 2012 he wrote an article that I showed you, an
11 article for the Santa Cruz Sentinel newspaper calling upon
12 people in California to vote for a proposition to abolish the
13 death penalty. He wrote a book, Death By Design, Capital
14 Punishment As a Social Psychological System. I showed him and
15 asked him about a quote from that book. Let me get this
16 straight. Putting the defendant's life in a human context,
17 situating his actions with a personal history and appreciating
18 a set of connections he has to other lives are among the only
19 ways a capital jury can be led to a life sentence rather than a
20 death sentence.
21 I asked him, Doctor, tell us how many times have you
22 attempted to lead a jury to a life sentence. How many times
23 have you testified on behalf of defendants who are facing the
24 death penalty. His answer was dozens and dozens. He's
25 testified all over the country on behalf of death penalty
27 of 79 sheets
105 107
1 defendants. I asked him about some of those cases. I won't
2 belabor the point, New Mexico, Hawaii, Vermont, Atlanta,
3 Georgia, Philadelphia all at $250 an hour by the way. He has
4 never testified on behalf of the United States in a death
5 penalty trial. Never. Not once.
6 Are those reasons alone to question his objectivity,
7 his credibility? Let's take a look at his risk factor analysis
8 and his methodology. He and he alone decides who to interview.
9 He and he alone decides what risk factors apply. He totally
10 ignores of the risk factors that don't apply like the fact that
11 Jessie always grew up in safe neighbors. There weren't bullets
12 flying around. There weren't drive-by shootings. Jessie's
13 parents were not -- parents, stepfather, they weren't in and
14 out of jail. His siblings weren't in and out of jail. His
15 family wasn't on drugs. He wasn't physically abused not in the
16 sense of hitting.
17 I asked Dr. Haney about a case he had where a mother
18 hit her son in the head with a baseball bat. We didn't hear
19 anything like that in this case. Jessie certainly wasn't
20 sexually abused. There weren't disciplinary and truancy
21 problems. Dr. Haney ignores all the factors that don't apply.
22 Dr. Haney also minimizes what he calls the protective factors,
23 the good things Jessie had in his life, like a loving mother
24 and loving brother and sister, a warm and loving extended
25 family in the Philippines, the fact that Jessie was a good
106 108
1 athlete, the fact Jessie was -- had a lot of friends, even
2 girlfriends, the fact he was a good artist. Dr. Haney
3 minimizes all those things. He completely ignores the concepts
4 of free will and personal responsibility. And in his words, a
5 jury can be led to a sentence of life because you see, Dr.
6 Haney's science, the science always leads to a sentence of
7 life.
8 I'm not going to go through all of the history with
9 you. I know you've been sitting for a long time. You saw
10 slide upon slide upon slide of the Philippines people like
11 Bernie and Rachel Mendrosso. Dr. Haney told you the family
12 remembers a time on Pampanga Street as a happy time. They have
13 fond memories. Dr. Haney told you that Jim and Maria were
14 exposed to the same risk factors that Jessie was exposed to.
15 In fact, they were exposed to some of them like
16 poverty for a longer period of time because they are slightly
17 older than Jessie -- that Jim and Maria did not become multiple
18 murderers. We talked about Sarah Sliney -- Sarah's mother
19 Sonia -- mother from Belgium, padlocked Sarah in the house so
20 Sarah cannot get out while her mother went to bars and
21 associated with other men.
22 Sarah was in and out of foster homes, Sarah who
23 testified to all her troubles, a number of pregnancies, a
24 series of bad boyfriends. Sarah did not become a murderer
25 either. Wasn't it interesting as an aside when Sayre moved to
Page 105 to 108 of 177 07/07/2017 02:10:08 PM
 109 111
1 Arizona and was on the street and had nowhere else to turn, 1 about the Philippines. Did you -- how many slides did you see
2 Gary Sliney took her in not once, but twice when Sarah had 2 about Jessie after he got out of prison in 2001? Maybe one,
3 nowhere else to turn. Let's get back to Dr. Haney. He 3 maybe two. Let's review.
4 traveled all the way to Tondo in the Philippines. He found the 4 Jessie gets out on parole in the State of Arizona in
5 house, the Con-Ui house. He found Pampanga Street in the 5 December of 2001. He is supervised by a parole officer named
6 Philippines. Again, $250 an hour. 6 Jeff Smith. Jessie was being supervised on something called
7 I asked him, did you interview anybody from the 7 maximum level supervision. He had to meet face-to-face with
8 Arizona juvenile justice system. No, no. Didn't interview one 8 his probation officer Jeff Smith in the office, couldn't just
9 person. There's no evidence that Jessie was ever abused by the 9 call on the phone -- 32 meetings with Jeff Smith from January
10 Arizona juvenile justice system. Dr. Haney interviewed Jessie 10 to August of 2002.
11 nine times, nine times. If there was abuse, don't you think 11 Did Dr. Haney interview Jeff Smith, the guy
12 you would have heard about it? Jessie had 11 prior juvenile 12 supervising him on what might be going on in Jessie's life at
13 arrests. The doctor couldn't find anyone in any of those 13 the time? Not a chance. Not a chance. While on parole,
14 facilities to talk to. 14 Jessie received drug and alcohol counseling, anger management
15 I asked him, can you tell me what programs were or 15 counseling at a place called Value Options. He completed the
16 were not available in the juvenile system at the time Jessie 16 courses. He received a certificate of completion, which I
17 was in it. He couldn't do it. He couldn't tell me one program 17 showed to Dr. Haney. Jessie was employed first with a
18 that was not available. He went all the way to the Pampanga 18 construction company and then Osco drug store in Scottsdale in
19 Street in the Philippines. He didn't interview anybody from 19 the position of assistant manager.
20 the Arizona juvenile justice system. Is that a thorough social 20 Perhaps most importantly he was being drug tested and
21 history? Is that a thorough institutional history? Or is that 21 had 34 -- 34 consecutive clean drug tests over the better part
22 someone who is picking and choosing who to interview in order 22 of a year, 34 clean tests. He got married. He had a son. He
23 to fit the narrative, the story that he's trying to tell? 23 soon had another son on the way. Jessie had a lot of things
24 Let's talk quickly about Jessie in the Arizona prison 24 going for him than many people never have. Yet in spite of all
25 system. Jessie had jobs in the prison, working as a cook, 25 those good things, August 25th, 2002, Jessie chose to shoot and
110 112
1 dishwasher, working in building maintenance, working in 1 kill Carlos Garcia known as Garfield in the parking lot of a
2 building construction. As Dr. Haney indicated, Jessie 2 laundromat in Phoenix, Arizona. Jessie has pled guilty and
3 participated in vocational training, he even took a Central 3 received a life sentence.
4 Arizona College computer course while in prison in computer 4 His crimes didn't end there because we know Jessie
5 applications. He enrolled in a class in cement finishing, 5 became involved in a conspiracy to distribute 15 kilograms of
6 completed something called Hazleton Design For Living Substance 6 cocaine, 33 pounds of cocaine, and possessed a firearm in the
7 Abuse Program on more than one occasion. You see, the Arizona 7 offense. By the way, Dr. Haney, did you interview any of
8 prison system tried to help Jessie. 8 Jessie's five coconspirators in that case, five other
9 The Arizona prison system didn't let Jessie down. 9 co-defendants.
10 Jessie let Jessie down. The major problem is Jessie kept 10 He interviewed the girl at the wall, a place called
11 committing more violations. He couldn't stay out of trouble, 11 the wall he smoked marijuana with, but you didn't speak to any
12 29 disciplinary infractions in Arizona in five and a half 12 of his five coconspirators. I challenged him on that. I said,
13 years, nine major infractions for beating another inmate with a 13 aren't peer association and peer delinquency and peer
14 metal food tray, threatening to harm other inmates, possession 14 criminality -- isn't that part of your dynamic? He didn't
15 of a weapon, disobeying orders, threatening assault. 15 interview them. He didn't talk to them. We know that Jessie
16 MR. RUHNKE: Your Honor, this is the second time in 16 was arrested in June 2003 on federal cocaine trafficking
17 rebuttal Mr. O'Hara said the same thing. I object to it. 17 charges. He goes to prison.
18 THE COURT: Rebuttal. Rebuttal. 18 Along the way he pleads guilty to the murder of
19 MR. O'HARA: Yes, Your Honor. Did Dr. Haney talk to 19 Carlos Garcia. The federal system -- I won't recite at length.
20 anyone from the Arizona Department of Corrections? Not one 20 You know the highlights. October of 2009 he threatens James
21 person, not one person, not a warden, not a lieutenant, not a 21 Cobos, CO.
22 CO. He talked to two professors who wrote about the system. 22 MR. RUHNKE: Your Honor, this is just repeating what
23 Let me talk for a moment about a critical period in his life no 23 is already --
24 one spoken about today. Jessie gets out of the Arizona prison 24 THE COURT: Mr. O'Hara, this is rebuttal, please.
25 system in December of 2001. You saw an awful lot of slides 25 MR. O'HARA: In the end, ladies and gentlemen, what
07/07/2017 02:10:08 PM Page 109 to 112 of 177 28 of 79 sheets
 113 115
1 did Dr. Haney tell you? Despite the elaborate risk factor 1 I'm going to say it.
2 analysis, he said risk factors do not excuse Jessie's crimes. 2 MR. O'HARA: Let me wind down, ladies and gentlemen.
3 In the end Jessie is responsible. One thing we agreed on, 3 Eric Williams doesn't get to do that.
4 Jessie is responsible. You see, this murder of Eric Williams 4 MR. RUHNKE: I object to that.
5 wasn't preprogramed by Jessie's childhood. It was not a 5 THE COURT: I didn't hear it.
6 product of external circumstances beyond Jessie's control. 6 MR. RUHNKE: Eric doesn't get to do that. I object
7 This murder happened because Jessie chose to make it 7 to that.
8 happen. He chose to make it happen in one of the most cruel, 8 THE COURT: Overruled.
9 heinous and depraved ways possible. The defense talks about 9 MR. O'HARA: Ladies and gentlemen, I submit to you
10 life imprisonment. It's not life as we know it, but it's still 10 that aggravating factor that weighs more than all of their
11 life. Talk about being in a box. Eric Williams is in a dark 11 mitigating factors combined is what is called victim impact,
12 silent grave. Even at ADX, super max prison, the defendant can 12 the loss of the victim to the victim's family. There's no
13 step into the recreation unit, breathe fresh air, feel sunshine 13 dream catcher that can take away the nightmare the Williams'
14 on his face. He gets to eat a hot meal. 14 family have been left with since Eric was murdered four years
15 MR. RUHNKE: Your Honor, the defense never contended 15 ago. They can't talk to Eric on the phone.
16 anything like that -- to the contrary. This is not rebuttal. 16 They can't receive letters, cards, postcards,
17 MR. O'HARA: We have heard phone calls, Your Honor. 17 drawings from him. They can't visit him, can't visit him
18 THE COURT: Just a minute. Just keep it to rebuttal. 18 through a Plexiglass.
19 MR. O'HARA: I am almost finished, Your Honor. 19 MR. RUHNKE: This is improper argument. I object to
20 THE COURT: All right. 20 it.
21 MR. O'HARA: He gets to pursue hobbies, arts and 21 THE COURT: Mr. O'Hara.
22 crafts, painting and drawing, even crocheting we heard from Mr. 22 MR. O'HARA: Winding up, Your Honor.
23 Bezy and Mr. Oliver. He can work out and exercise. He can 23 THE COURT: Please.
24 purchase candy bars and chips and food from the commissary. 24 MR. O'HARA: Ladies and gentlemen, they go to the
25 MR. RUHNKE: Your Honor, just -- I repeat my 25 cemetery and they try to remember, try to remember Eric as he
114 116
1 objection. Nobody says he can't do those things. We never 1 was. They try to remember his voice. They try to remember his
2 did. 2 smile. They try to remember his laugh. Every single day it
3 THE COURT: His comment on the -- the issues of 3 gets harder and harder, harder for them to remember. I will
4 confinement were related by the defense. It's fair rebuttal. 4 end with this. I take you back to the day you were selected as
5 I would like the rebuttal to be rebuttal. Okay. Proceed. 5 a juror. Each of you was asked, can you render a verdict of
6 MR. O'HARA: He gets a cable T.V. package over 50 6 death. Each of you said yes. The time has come.
7 stations, including E. S. P. N., he can follow his favorite 7 The facts of this case say the death penalty is
8 sports teams. He can read newspapers and magazines and books 8 appropriate. The evidence in this case says it is justified.
9 about things that interest him. You heard the phone calls. He 9 The defendant is deserving of no less. You saw the video. All
10 can talk to his family and his friends. He can receive visits 10 of their mitigators combined pale in comparison to the whole
11 from family. 11 crime that you saw. Do not be the water that washes the blood
12 He can write letters and cards to his nieces, drawing 12 of Jessie Con-Ui's hands. Remember that video.
13 of Olaf. Defendant's No. 70. He can draw Olaf and send it to 13 Each of the 200 stab wounds, each of the 11 kicks,
14 his niece. He can make dream catchers in arts and crafts and 14 each time Jessie stomped on Eric's head, each time Eric's head
15 send them to his family as gifts. He can experience all these 15 was smashed off the concrete. We ask you to sentence Jessie
16 simple pleasures in life, hot meal, good book. With the 16 Con-Ui to the sentence that he has earned. We ask you to
17 step-down program he has the opportunity, opportunity -- 17 sentence him to death. Thank you.
18 MR. RUHNKE: Your Honor, it is improper summation 18 THE COURT: Members of the jury, we are going to take
19 argument to describe the conditions of confinement that way. I 19 a 15-minute recess. I am going to charge you with my
20 am not going to say anything further. I object to it. He's 20 instructions on the law. Remember not to discuss the case
21 minimizing punishment in prison. It's improper. 21 among yourselves at all or with anyone else. If anyone tries
22 MR. O'HARA: Every one of those -- 22 to talk to you about it, bring it to my attention. See you
23 THE COURT: Just a minute. There's no surrebuttal. 23 back here in 15 minutes.
24 Let's not do it this way. Your point -- some of them are well 24 (A brief recess was taken.)
25 taken. Mr. O'Hara, this is rebuttal, and that's the last time 25 MR. RUHNKE: We have a motion.
29 of 79 sheets Page 113 to 116 of 177 07/07/2017 02:10:08 PM
 117
1 THE COURT: I am listening.
2 MR. RUHNKE: At the very end of his closing, Mr.
3 O'Hara dropped his voice very low -- and I could not hear what
4 he said -- I heard something about blood and water. I don't
5 know if Your Honor heard it. We didn't understand what he said
6 until we actually looked at it on the live notes immediately
7 after he sat down and we alerted to your clerk to the motion.
8 The words we think were said based on our review of
9 live notes -- we know that's definitive -- is that he told the
10 jury, don't be the water that washes the blood from Jessie
11 Con-Ui's hands. That is improper. It is saying that giving a
12 life sentence to Mr. Con-Ui will somehow absolve him of the
13 murder. It suggested that the jury will be complicit in the
14 murder if they impose a life sentence by washing the blood from
15 his hands. We move for a mistrial based on that remark.
16 We made the objection as soon as we figured out what
17 he said. Mr. O'Hara was speaking very low and very quietly at
18 the end. I could not hear. Either my younger colleagues could
19 not hear at all. It wasn't until we checked the live notes
20 what he actually told the jury. I don't think I ever heard a
21 more improper closing to a penalty phase argument at any time.
22 And I can't imagine that this was a spontaneous
23 closing line by Mr. O'Hara -- had the sound of something that
24 had been worked on and designed to be the final -- final word
25 in the government's -- so we move for a mistrial on that.
118
1 THE COURT: And the basis is what exactly?
2 MR. RUHNKE: It's emotional.
3 THE COURT: I hear you're objecting to it.
4 MR. RUHNKE: An emotional appeal to the jury that if
5 they give a life sentence to Mr. Con-Ui somehow his guilt for
6 the murder of officer Williams will be washed away, somehow he
7 will not be responsible for the murder of officer Williams and
8 that will be as a result of a jury's decision to impose a
9 sentence of life. I will read it again.
10 THE COURT: No, you don't have to read it. I wrote
11 it down. I am not following your logic.
12 MR. RUHNKE: The logic is --
13 THE COURT: I hear what you are saying. There's --
14 connect the dots a little better for me.
15 MR. RUHNKE: It's telling the jury that giving a life
16 sentence will absolve Mr. Con-Ui of the death of officer
17 Williams. What else does it mean to be the water that washes
18 the blood from Jessie Con-Ui's hands? What else does that mean
19 other than if you give a life verdict, you're dishonoring the
20 death of officer Williams. I think that's blatantly improper.
21 It's an Eighth Amendment violation, a Fifth Amendment
22 violation. We move for a mistrial.
23 This isn't the only improper part of the closing. So
24 I want to get to that also. Mr. O'Hara at one point launched
25 into a comparison of the life that Jessie Con-Ui can have
07/07/2017 02:10:08 PM Page 117 to 120 of 177
119
1 behind bars with what Eric Williams can no longer do and what
2 Mr. Williams' parents can no longer do. On June 12, 2017 at E.
3 C. F. document 1187 we filed an in limine motion to limit
4 improper closings.
5 At page nine of that closing we quoted from the Tenth
6 Circuit opinion in Bland versus Sirmons that says, it is,
7 quote, the prosecutorial misconduct for the prosecution to
8 compare the plight of the victim with the life of the defendant
9 in prison, closed quote. And in that case -- this was the
10 prosecutor's argument -- maybe the defendant will be in prison,
11 maybe he will be behind that concrete and those jail bars with
12 his T.V. and his cable and good food, but one thing is for
13 sure, the victim won't be here, and his family won't be able to
14 be with him. They won't be able to share holidays with him.
15 This is exactly the kind of argument that Mr. O'Hara
16 made -- made an objection. At the time Your Honor overruled
17 the objection. We also noted that earlier in the closing
18 arguments Mr. Feitel invoked the testimony of Mrs. Williams to
19 the effect that, I can't fix this and suggested to the jury
20 that you can fix this implying that a death verdict is what the
21 victims need to fix this, to resolve this. Your Honor
22 sustained the objection, but it was a blatantly improper
23 statement. If the government had taken any look at all --
24 THE COURT: I did what you asked me to do.
25 MR. RUHNKE: I'm asking you to declare --
120
1 THE COURT: You objected. I sustained your
2 objection. You didn't ask me to do anything else at that time.
3 MR. RUHNKE: You told the jury to disregard --
4 THE COURT: Yes.
5 MR. RUHNKE: -- the remark.
6 THE COURT: Okay.
7 MR. RUHNKE: Still we would like to move for
8 mistrial. The remark should never have been made in the first
9 place, and the fact that the jury was told to disregard it did
10 not mean they did not hear it and perhaps have been moved by
11 it. And there was another objection when the government -- Mr.
12 Feitel during his closing put up a series of slides which I
13 think were called the collective works of Eric Williams or the
14 collective life works of Eric Williams consisting of a number
15 of family photographs and family gatherings, childhood
16 photographs and then put up a slide -- series of slides
17 entitled the collective works of Jessie Con-Ui which included
18 photographs of stabbings and stompings and acts of violence.
19 Again, in the memorandum we filed June 12th, 2017, E.
20 C. F. document 1187 we pointed out the cases that say you
21 cannot engage in a comparative worth analysis that Mr. -- the
22 victim's family -- I'm sorry -- the victim's life was marked by
23 good works and good things compared to the defendant's life
24 which was marked by misconduct and criminality and violence.
25 Improper. Your Honor overruled our objection to that. We
30 of 79 sheets
 121
1 renew that objection, and on that basis also we seek -- we seek
2 a mistrial at this point.
3 THE COURT: Response?
4 MR. FEITEL: Your Honor, the defense is basically
5 trying to sanitize its way to the verdict it desires by getting
6 the Court to sanitize or attempt to sanitize the government's
7 legitimate closing arguments and legitimate rebuttal arguments.
8 Nothing that either I nor Mr. O'Hara has said even come close
9 to the line. Mr. Ruhnke knows that. He's engaging in
10 hyperbole at this point to try to get the Court to grant a
11 mistrial. It's not close to the line. He knows that.
12 If you want further argument on that, I can give
13 that, but this is really not -- there's nothing there.
14 THE COURT: Why don't you address his argument
15 substantively rather than tell me what he's trying to do?
16 MR. FEITEL: The defense is complaining because I
17 made one reference after -- referencing Ms. Williams' testimony
18 about -- as the mom she tries to fix things and she can't fix
19 this. And then I said -- I believe the phrase was, you can fix
20 this. That's it. I mean, that could imply quite frankly a
21 life verdict as much as a death verdict . So for that to be
22 couched as improper prosecutorial closing argument, I don't see
23 that at all.
24 As to Mr. O'Hara's comment and use of metaphor is
25 appropriate, it was not improper metaphor. To get to Mr.
122
1 Ruhnke's point somehow there was a conspiracy to use that
2 phrase, that's completely false. I had no idea whatever Mr.
3 O'Hara was going to say. I can't speak for Mr. Sempa. I
4 imagine it's the same thing. There was no collusion to
5 introduce this phrase --
6 THE COURT: What about his analysis of the phrase?
7 What's your take on that?
8 MR. FEITEL: Candidly I am not a hundred percent sure
9 what the phrase means, so I am having a hard time articulating
10 a persuasive argument there. It sounds like a metaphor to me
11 of some sort. A metaphor is not ipso facto improper. I don't
12 see a problem with that.
13 MR. SEMPA: Your Honor, if I may just to add to the
14 -- on this particular point, it was part of our argument that a
15 life sentence would be no additional punishment. That's part
16 of our argument. We made that crystal clear. That could very
17 well fit into the metaphor he used that if you sentence him to
18 life that's not any additional punishment.
19 THE COURT: All right. Thank you. You didn't
20 address the collective works.
21 MR. FEITEL: Oh, sure. I believe that precise
22 language I used was the collective works of the life of Eric
23 Williams juxtaposed with the collective works of the life of
24 the defendant, Jessie Con-Ui -- although I don't think the word
25 defendant appeared in the slide. Again, I think that's proper
31 of 79 sheets Page 121 to 124 of 177
123
1 closing argument. I am letting the jury know how Eric Williams
2 lived his life, and I'm letting the defendant know -- excuse me
3 -- letting the jury know only in a historical context not
4 looking into the future how the defendant lived his life by
5 virtue of the history of the crimes he has committed. This
6 whole case has been about the history of his criminal past.
7 It's not just about the murder of Eric Williams.
8 It's about how that interweaves -- if that's a word -- with all
9 of the things the defendant did from 19 -- the late 90s until
10 up through and including 2013. So all I was doing was showing
11 that historically this is how this man has lived his life for
12 the past 14 plus years in photos.
13 THE COURT: All right. Thank you.
14 MR. RUHNKE: Just -- my answer. I really try never
15 to get personal with any of my adversaries as I am now. I do
16 know what the law is in capital cases as regards proper closing
17 argument. I do know that what the government argued in this
18 case was improper.
19 The -- there's been no substantive response to this
20 remark about the water -- don't be the water that washes the
21 blood off Jessie Con-Ui's hands directed to the jury as if
22 there would be something really improper about them returning a
23 life verdict and it would somehow minimize the impact of the
24 crime. When a prosecutor puts up two completing side by side
25 slide shows called the collective works of the victim followed
124
1 by the collective works of the defendant, they are engaging in
2 a comparative worth analysis that Courts around the country
3 have condemned as improper argument, as prosecutorial
4 misconduct.
5 The same as is true as a comparison between what a
6 defendant's life is in prison versus the fact that the decedent
7 will never have those kind of opportunities. Prosectorial
8 misconduct. Improper. So I will -- the idea that Mr. Feitel
9 would say to the government -- representative of the government
10 would say that his remark about you can fix it was actually a
11 call for a life verdict I think makes no sense at all in the
12 context of an impassioned argument for death. So we ask for a
13 mistrial.
14 THE COURT: All right.
15 MR. FEITEL: May I? There was absolutely no
16 reference made by me or anyone else on the government's side on
17 a comparative worth analysis. I never said or intimated or
18 suggested that Eric's life was more valuable than the
19 defendant's life, never even got close to that. So that
20 insinuation is just that. It's an insinuation, and we don't
21 appreciate that.
22 THE COURT: First of all, on the issue of fix this, I
23 -- I instructed the jury to disregard it, sustained the
24 objection of counsel. Motion for mistrial will be denied.
25 Regarding the collective acts of Jessie Con-Ui and the
07/07/2017 02:10:08 PM

1 collective acts of Eric Williams, you may argue it's
2 comparative worth. I don't see it that way. I just see it
3 comparing the way they lived, and I don't see it as a
4 comparative worth argument because it was not in that context.
5 In any event merely pointing out that Mr. Con-Ui by
6 comparison had lived the life of crime, which has been their
7 theme all along. So the motion for mistrial is denied on that.
8 Regarding the life behind bars versus what officer Eric
9 Williams can no longer do, again, I don't consider that a
10 comparative worth argument but rather just a statement of fact
11 in terms of the life that was taken away and the life behind
12 bars means life as opposed to death. So I don't see that as a
13 basis for a mistrial.
14 The statement, don't be the water that washes the
15 blood from Jessie Con-Ui's hands, I'm not sure that I follow
16 your logic, Mr. Ruhnke. I do think it was rather metaphorical
17 frankly, and I don't see it as basis for mistrial. However, if
18 you want me to instruct the jury to disregard it, I will be
19 happy to do that. But that's as far as I will go with that .
20 MR. RUHNKE: Your Honor, we do obviously stand by
21 mistrial motion which Your Honor has denied. We will ask you
22 to instruct the jury to disregard that as an argument that
23 should not have been presented to the jury.
24 THE COURT: That's fine. I will do that. Frankly I
25 don't -- you know -- I am not sure what it means. But I will
1 do that. Is there anything else?
2 MR. RUHNKE: No, sir. It is a quarter to four. Does
3 Your Honor intend to instruct the jury this afternoon?
4 THE COURT: I was going to. I see no reason not to.
5 Then they -- then they can come back here on Monday and begin
6 deliberations. I'm not going to -- I am not going to have the
7 jury retire to deliberate -- excuse me. I'm not going to have
8 the jury retire to deliberate when I am completed because it
9 will be probably close to five.
10 MR. RUHNKE: Yes, sir.
11 THE COURT: Unless anybody has anything different in
12 terms of scheduling, that's the way I am going to do it.
13 Everybody okay with that?
14 MR. RUHNKE: That's fine.
15 THE COURT: Bring the jury back in.
16 (The jury entered the courtroom at this time.)
17 THE COURT: All right. Members of the jury, at the
18 conclusion of Mr. O'Hara's rebuttal, he made a statement to you
19 as follows: Don't be the water that washes the blood from
20 Jessie Con-Ui's hands. You are to disregard that remark. It
21 is not proper closing argument to a jury.
22 I'm going to instruct you now on the law that you're
23 going to apply to the facts as you find them for purposes of
24 sentencing. To begin my duty to instruct you on the law
25 applicable to the sentencing phase in this case, you have
07/07/2017 02:10:08 PM
125 127
1 unanimously found the defendant, Jessie Con-Ui, guilty of
2 first-degree murder in count one and first-degree murder of a
3 United States correction -- corrections officer as charged in
4 count two of the indictment.
5 These offenses are punishable by death or by
6 imprisonment with life without the possibility of release. The
7 decision about the sentence is left exclusively to you, the
8 jury. If you do determine that the defendant should be
9 sentenced to death or to life imprisonment without the
10 possibility of release, the Court is required to impose that
11 sentence. Before you may consider whether to impose a sentence
12 of death, you must unanimously determine whether each of the
13 following three findings has been proven beyond a reasonable
14 doubt:
15 First, you must determine unanimously and beyond a
16 reasonable doubt that Mr. Con-Ui was at least 18 years of age
17 at the time of the offenses; and, second, you must determine
18 unanimously and beyond a reasonable doubt whether Mr. Con-Ui
19 intentionally killed Eric Williams or intentionally inflicted
20 serious bodily injury that resulted in the death of Eric
21 Williams or intentionally participated in an act contemplating
22 that the life of a person would be taken or intending that
23 lethal force would be used in connection with a person other
24 than one of the -- other than one of the participants in the
25 offense and that Eric Williams died as a result -- as a direct
126 128
1 result of the act or intentionally and specifically engaged in
2 an act of violence knowing that the act created a grave risk of
3 death to a person other than one of the participants in the
4 offense such that participation in the act constituted a
5 reckless disregard for the human life and Eric Williams died as
6 a direct result of the act; and third, you must determine
7 unanimously and beyond a reasonable doubt whether the
8 government has proven the existence of at least one statutory
9 aggravating factor. I will define the term aggravating factor
10 for you shortly.
11 If after fair and impartial consideration of all of
12 the evidence in the case, any one of you does not make these
13 three findings beyond a reasonable doubt, your deliberations
14 will be over. If you do unanimously make these three findings
15 beyond a reasonable doubt, you will then proceed to determine
16 whether you unanimously find that the government has proven the
17 existence of a non-statutory aggravating factor or factors
18 beyond a reasonable doubt and whether any of you find that the
19 defendant has proven any mitigating factors by a preponderance
20 of the evidence.
21 You must then engage in a weighing process. You must
22 consider whether all the aggravating factor or factors found to
23 exist sufficiently outweigh all of the mitigating factor or
24 factors found to exist to justify a sentence of death. Based
25 upon this consideration, you the jury by unanimous vote shall
Page 125 to 128 of 177 32 of 79 sheets
 129
1 recommend whether the defendant should be sentenced to death or
2 to life imprisonment without the possibility of release.
3 Again, whether or not the circumstances --
4 circumstances in this case justify a sentence of death is a
5 decision that is entirely yours. You must not take anything
6 that I may say or do during this phase of the trial as
7 indicating what I think of the evidence or what I think your
8 verdict should be. The terms that you have already heard
9 through this phase of the case are aggravating factors and
10 mitigating factors.
11 These factors concern the circumstances of the crime
12 or the personal traits, character or background of the
13 defendant and the effect of the offense on the victim Eric
14 Williams and Eric Williams' family and friends. The word
15 aggravate means to make worse or more offensive or to
16 intensify. The word mitigate means to make less severe or to
17 moderate. An aggravating factor then is a fact or circumstance
18 that would tend to support imposition of the death penalty.
19 A mitigating factor is any aspect of the defendant's
20 character or background, any circumstance of the offenses or
21 any other relevant fact or circumstance which might indicate
22 that the defendant should not be sentenced to death. In the
23 death penalty statute, a number of aggravating factors are
24 listed. These are called statutory aggravating factors. As I
25 instructed you earlier, before you may consider imposition of
130
1 the death penalty, you must find that the government proved at
2 least one of these aggravating factors specifically listed in
3 the death penalty statute, and your finding must be unanimous
4 and beyond a reasonable doubt.
5 In addition to statutory aggravating factors, there
6 are also aggravating factors not specifically set out in the
7 death penalty statute called non-statutory aggravating factors.
8 Again, your finding that any non-statutory aggravating factor
9 exists must be unanimous and beyond a reasonable doubt. The
10 defendant is not required to allege any mitigating factors.
11 However, if one or more mitigating factors are
12 alleged --- and they are in this case as I will tell you
13 shortly -- it is the defendant's burden to establish any
14 mitigating factor or factors by a preponderance of the
15 evidence. To prove something by a preponderance of the
16 evidence is a lesser standard of proof than proof beyond a
17 reasonable doubt.
18 You need only be convinced that it is more likely
19 true than not true in order to find that a mitigating factor
20 exists. A unanimous finding on mitigating factors is not
21 required. Any one of you may find the existence of a
22 mitigating factor regardless of the number of other jurors who
23 may agree. If you have unanimously found that at least one
24 statutory aggravating factor exists , you must weigh the
25 aggravating factor -- factors you have found to exist against
33 of 79 sheets Page 129 to 132 of 177
131
1 any mitigating factors you have individually found to exist to
2 determine the appropriate sentence.
3 Any juror may also weigh a mitigating factor found by
4 another juror even though he or she did not also find that
5 factor to be mitigating. You must not simply count the number
6 of aggravating and mitigating factors and reach a decision
7 based upon which number is greater. You must consider the
8 weight and the value of each factor.
9 Now I will instruct you an burden of proof. As I
10 just instructed you, the government must meet its burden of
11 proof beyond a reasonable doubt. A reasonable doubt is a doubt
12 based on reason and common sense after careful and impartial
13 consideration of all of the evidence received in this trial.
14 It is the kind of doubt that would make a reasonable person
15 hesitate to act. Proof beyond a reasonable doubt, therefore,
16 must be proof of such a convincing character that a reasonable
17 person would not hesitate to rely and act upon it.
18 However, proof beyond a reasonable doubt does not
19 mean proof beyond all possible doubt. The defendant does not
20 have the burden of disproving the existence of anything the
21 government must prove beyond a reasonable doubt. The burden is
22 only on the government. The law does not require the defendant
23 to produce any evidence at all. It is, however, the
24 defendant's burden to establish any mitigating factors by a
25 preponderance of the evidence.
132
1 To prove something by the preponderance of the
2 evidence means -- is to prove it is more likely true than not
3 true. It is determined by considering all of the evidence in
4 deciding -- deciding which of the evidence is more believable
5 if on any issue in this case the evidence is equally balanced,
6 you cannot find that the issue has been proved beyond a
7 reasonable doubt.
8 Preponderance of the evidence is not necessarily
9 determined by the greater number of witnesses or exhibits
10 presented by the government or by the defendant.
11 Scope of permissible evidence. It making all of the
12 determinations you are required to make in this phase of the
13 trial, you may consider any evidence that was presented during
14 the guilt phase of the trial as well as evidence that is
15 presented at the sentencing phase of the trial. In deciding
16 what the facts are, you may have to decide what testimony you
17 believe and what testimony you do not believe.
18 You may believe all of what a said witness, only part
19 of what a witness said or none of what a witness said. In
20 deciding what testimony -- of any witness to believe, consider
21 the witness' intelligence, the opportunity the witness had to
22 -- have seen or heard the things testified about, the witness'
23 memory, any motives the witness may have for testifying in a
24 certain way, the manner of the witness while testifying,
25 whether the witness has said something different at an earlier
07/07/2017 02:10:08 PM
 133
1 time, general reasonableness of the testimony and the extent to
2 which the testimony is extent with other evidence that you
3 believe.
4 Additionally, because the law does not permit any
5 witness to state whether or she personally favors or imposes
6 the death penalty in this case, you should draw no inference
7 either way from the fact that no witnesses have testified as to
8 their views on the subject.
9 Introduction to final instructions. Regardless of
10 any opinion you may have as to what the law may be or should
11 be, it would be a violation of your oaths as jurors to base
12 your verdict on any view of the law other than that given to
13 you in these instructions. Some of the legal principles that
14 you must apply in this sentencing decision duplicate those you
15 followed in reaching your verdict as to guilt or innocence.
16 Others are different.
17 The instructions I'm giving you now are a complete
18 set of instructions on the law applicable to the sentencing
19 decision. I have prepared them to ensure that you are clear in
20 your duties at this extremely serious stage of this case. I
21 have also prepared a special verdict form that you must
22 complete. The form details special findings that you must make
23 in this case and will help you perform your duties properly.
24 Role of the jury. You have two duties as a juror.
25 Your first duty is to decide the facts from all of the evidence
134
1 that you have heard and seen in court during this trial. That
2 is your job and yours alone. I play no part in finding the
3 facts. You should not take anything that I may have said or
4 done during this trial as indicating what I think of the
5 evidence or what I think about what your verdict should be.
6 Your second duty is to apply the law that I give you to the
7 facts.
8 My role now is to explain to you the legal principles
9 that must guide you in your decisions. You must apply my
10 instructions carefully. Each of these instructions is
11 important, and you must apply all of them. In the jury room
12 you will discuss the case among yourselves, but ultimately each
13 of you will have to make up his or her own mind. This is the
14 responsibility that each of you has and that you cannot avoid.
15 Perform these duties fairly and impartially. Do not allow
16 sympathy, prejudice, fear or public opinion to influence you.
17 You should not be influenced by any person's race,
18 color, religion, national ancestry or gender. I'm going to
19 define evidence for you now .
20 I did in the guilt, innocence phase of the trial.
21 I'm going to give this instruction to you again. Evidence
22 defined. You must make your decision carefully based on the
23 evidence that you saw and heard in the courtroom. Don't let
24 rumors, suspicions or anything else you may have seen or heard
25 outside of the Court influence your decision in any way. The
07/07/2017 02:10:08 PM Page 133 to 136 of 177
135
1 evidence from which you are to find the fact consists of the
2 following, the testimony of the witnesses, documents and other
3 things received as exhibits and any fact or testimony that was
4 stipulated, that is, formally agreed to by the parties. The
5 following things are not evidence: The indictment, statements
6 and arguments of the lawyers for the parties in this case,
7 questions by the lawyers and questions that -- by the lawyers
8 -- objections by lawyers including objections to which lawyers
9 stated facts, any testimony I told you to strike or told you to
10 disregard and anything you may have heard or seen about this
11 case outside of the courtroom.
12 You should use your common sense in weighing the
13 evidence, consider it in light of your everyday experience with
14 people and events and give it whatever weight you believe it
15 deserves. If your experience and common sense tells you
16 certain evidence reasonably leads to a conclusion, you may
17 reach that conclusion. As I told you early in the preliminary
18 instructions, the rule -- there are rules of evidence which
19 control what can be received into evidence. During the trial
20 there have been -- the lawyers have objected when they thought
21 the evidence that was being offered was not permitted by the
22 rules of evidence.
23 These objections simply meant that the lawyers were
24 asking me to decide whether the evidence should be allowed
25 under the rules. You should not be influenced by the fact that
136
1 an objection was made. You should also not be influenced by my
2 rulings on objections or any sidebar conferences that you may
3 have overheard.
4 When I overruled an objection and the question was
5 answered or exhibit was received in evidence -- I'm sorry.
6 When I overruled an objection, the question was answered or
7 exhibit was received in evidence, and you should -- and you
8 should treat that testimony or exhibit like any other. When I
9 sustained an objection and the question was not answered or the
10 exhibit was not received in evidence -- I'm sorry.
11 When I sustained an objection the question was not
12 answered and that exhibit was not received in evidence, you
13 must disregard the question and/or the exhibit entirely. Do
14 not think or guess about what the witness may have said in
15 answer to the question, and do not think about or guess what
16 the exhibit might have shown. Sometimes a witness may have
17 already answered before an objection was made by the lawyer or
18 before I ruled on the objection.
19 If that happened and if I sustained the objection,
20 you must disregard the answer that was given. Also if I
21 ordered that some testimony or other evidence be stricken or
22 removed from the record, you must disregard that evidence.
23 When you are deciding the case, you must not consider or be
24 influenced in any way by the testimony or other evidence that I
25 told you to disregard. Although the lawyers may have called
34 of 79 sheets
 137
1 your attention to certain facts or factual conclusions they
2 thought were important, what the lawyers said is not evidence
3 and is not binding on you.
4 It is your recollection and the interpretation of the
5 evidence that controls your decision in this case. Also do not
6 assume from anything that I may have said or done during the
7 trial that I have an opinion about any of the issues in the
8 case or about what your verdict should be. I'm going to add
9 something here. I indicated to you that evidence that was
10 ordered disregarded you should disregard. I also told you to
11 disregard two things in closing arguments. The same rule
12 applies. They are to be disregarded.
13 I'm going to instruct you again on direct and
14 circumstantial evidence. You will remember I did this before.
15 There are two types of evidence that may be used in the trial.
16 Direct evidence and circumstantial evidence. You may use both
17 types of evidence in reaching your verdict. Direct evidence is
18 simply evidence which if believed directly proves a fact. An
19 example of direct evidence occurs when a witness testifies
20 about something the witness knows from his or her own senses,
21 something the witness had seen, touched, heard or smelled.
22 Circumstantial evidence is evidence which if believed
23 indirectly proves a fact. It is evidence that proves one or
24 more facts from which you could reasonably find or infer the
25 existence of some other fact or facts. A reasonable inference
138
1 is simply a deduction or conclusion that reason, experience and
2 common sense lead to you make from the evidence. A reasonable
3 inference is not a suspicion or a guess. It's a reasoned
4 logical decision to find a disputed fact exists on the basis of
5 another fact.
6 I gave you the example of someone walking into the
7 courtroom wearing a wet raincoat and carrying a wet umbrella.
8 That would be circumstantial or indirect evidence from which
9 you can reasonably find or conclude that it was raining. You
10 may -- you would not have to find that it was raining, but you
11 could. Sometimes different inferences may be drawn from the
12 same set of facts.
13 The government may ask you to draw one inference, and
14 the defense may ask you to draw another. You and you alone
15 must decide what reasonable inferences you will draw based on
16 all of the evidence and your reason, experience and common
17 sense. You should consider all of the evidence that is
18 presented at trial both direct and circumstantial. The law
19 makes no distinction between the weight that you should give to
20 either direct or circumstantial evidence. It is up to you to
21 decide how much weight to give any evidence. I'm going to
22 instruct you now again on credibility of witnesses.
23 As I stated in my earlier instructions, during the --
24 at the beginning of the trial and at the conclusion of the
25 guilt phase, in deciding on what facts you must decide -- in
35 of 79 sheets Page 137 to 140 of 177
139
1 deciding on the facts, you must decide what testimony you
2 believe and what testimony you do not believe. You are the
3 sole judges of the credibility of witnesses.
4 Credibility refers to whether a witness is worthy of
5 belief, was the witness truthful, was the witness' testimony
6 accurate. You may believe everything a witness says, part of
7 what a witness says or none of what a witness says. You may
8 decide whether to believe a -- a witness based on his or her
9 behavior or manner of testifying, the explanations the witness
10 gave and all of the other evidence in the case just as you
11 would in any important matter where you are trying to decide if
12 a person is truthful, straightforward and accurate in his or
13 her recollection.
14 In deciding the question of credibility, remember to
15 use your common sense, good judgment and your experience. In
16 deciding on what to believe, you may consider a number of
17 factors. First, the opportunity and ability the witness -- of
18 the witness to see or hear or know the things about which the
19 witness testified, the quality of the witness' knowledge,
20 understanding and memory, the witness' appearance, behavior and
21 manner while testifying, whether the witness has an interest in
22 the outcome of the case or any motive, bias or prejudice. Any
23 relation the witness may have with the party in the case and
24 any effect the verdict may have on the witness, whether the
25 witness said or wrote anything before trial that was different
140
1 from the witness' testimony here in court. Whether the witness
2 testimony is consistent or inconsistent with other evidence
3 that you believe and any other factor or factors that bear on
4 whether a witness should be believed.
5 Inconsistencies or discrepancies in the witness'
6 testimony or between the testimony of different witnesses may
7 or may not cause you to disbelieve a witness' testimony. Two
8 or more persons witnessing an event may simply see or hear it
9 differently. Mistaken recollection like failure to recall is a
10 common human experience. In weighing the effect of an
11 inconsistency, you should also consider whether it was a matter
12 of importance or an insignificant detail. You should also
13 consider whether the inconsistency was innocent or intentional.
14 You are not required to accept testimony even if the
15 testimony was not contradicted and the witness was not
16 impeached. You may decide if the witness is not worthy of
17 belief because of the witness' bearing and demeanor or because
18 of the inherent improbability of the testimony or for other
19 reasons that are sufficient to you. After you make your own
20 judgment about believability of a witness, you can then attach
21 to that witness' testimony the importance or weight you think
22 it deserves.
23 The weight of the evidence to prove a fact does not
24 necessarily depend on the number of witnesses who testify or
25 the quantity of evidence that was presented. What is more
07/07/2017 02:10:08 PM
 141
1 important than numbers or quantity is how believable the
2 witnesses were and how much weight you think that testimony
3 deserves.
4 I'm now going to instruct you on the opinion of
5 expert witnesses. The rules of evidence ordinarily do not
6 permit witness to state their own opinions about important
7 questions in a trial, but there are exceptions. In this case
8 you heard the testimony from -- you heard testimony from Gary
9 Ross, M.D. because Dr. Ross' -- because Dr. Ross' knowledge,
10 skill, education and training in the field of anatomic,
11 clinical and forensic pathology, he was permitted to offer
12 opinions in that field and the reasons for those opinions. You
13 also heard testimony from Mark Bezy.
14 Because of Mr. Bezy's knowledge, skill, experience,
15 training and education in the field of Bureau of Prisons
16 practices, policies, procedures and conditions of confinement,
17 he was permitted to offer opinions in that field and the
18 reasons for those opinions. You also heard testimony from
19 Craig Haney, Ph.D. Because of Dr. Haney's knowledge, skill,
20 experience, training and education in the field of social
21 psychology with a specialization in the field of social history
22 and the effects of -- effects on people of imprisonment, he was
23 permitted to offer opinions in that field and the reasons for
24 those opinions.
25 Finally, you also heard the testimony from John
142
1 Oliver. Because of Mr. Oliver's knowledge, skill, experience,
2 training and education in the field of Bureau of Prisons
3 practices, procedures and conditions of confinement at the
4 Bureau of Prisons institutions where he worked including ADX
5 and the Federal Correctional Complex in Florence, Colorado, he
6 was permitted to offer opinions in that field and the reasons
7 for those opinions.
8 The opinions of these witnesses -- I'm sorry. The
9 opinions these witnesses stated should receive whatever weight
10 you think appropriate given all of the other evidence in the
11 case. In weighing these opinion -- this opinion testimony, you
12 may consider the witness' qualifications, the reasons for the
13 witness' opinions and the reliability of the information
14 supporting the witness' opinions as well as the other factors
15 discussed in these instructions for weighing the testimony of
16 witnesses.
17 You may disregard the opinions entirely if you decide
18 that the opinions are not based on sufficient knowledge, skill,
19 experience, training or education. You also may disregard the
20 opinions if you conclude the reasons given in support of the
21 opinions are not sound or if you conclude that the opinions are
22 not supported by the facts shown by the evidence or if you
23 think that the opinions are outweighed by other evidence.
24 Stipulation of fact. The government and the
25 defendant have agreed that certain stipulated facts are true.
07/07/2017 02:10:08 PM Page 141 to 144 of 177
143
1 You should, therefore, treat those facts as having been proved.
2 Testimony of law enforcement witnesses. You have
3 heard the testimony of law enforcement witnesses. The fact
4 that a witness -- the witness is employed as a law enforcement
5 officer does not mean that his or her testimony necessarily
6 deserves more or less consideration or greater or lesser weight
7 than that of any other witness. At the same time it's quite
8 legitimate for defense counsel to try to attack the
9 believability of a law enforcement witness on the ground that
10 his or her testimony may be colored by a personal or
11 professional interest in the outcome of the case.
12 You must decide after reviewing all of the evidence
13 whether you believe the testimony of law enforcement witnesses
14 -- of a law enforcement witness and how much weight, if any,
15 you think it deserves.
16 Separate deliberations. You must deliberate and
17 determine the appropriate sentence for each capital count
18 separately. Although I will be discussing the capital counts
19 together, your findings regarding gateway factors, aggravating
20 factors and the other -- and all other issues pertaining to
21 these counts -- and all other issues pertaining to these
22 counts, you must treat each of these counts separately. The
23 instructions I am about to give you will first address your
24 eligibility findings.
25 These findings include, one, whether Mr. Con-Ui was
144
1 18 years either at the time of offense specified in each count
2 was committed; two, whether Mr. Con-Ui's actions and intent
3 satisfied one or more of the four so-called gateway factors;
4 and, three, the existence of one or more of the alleged
5 statutory aggravating factors. All of these eligibility
6 findings must be made unanimously and beyond a reasonable
7 doubt.
8 The instructions, therefore, address your findings
9 regarding the existence -- I'm sorry -- the instructions
10 thereafter address your findings regarding the existence of
11 non-statutory aggravating factors and mitigating factors as
12 well as the weighing of aggravating and mitigating factors.
13 I'm going to instruct you now on finding as to the
14 defendant's age. Let me walk you through the process step by
15 step. First, before you may consider the imposition of the
16 death penalty, you must first unanimously agree beyond a
17 reasonable doubt that the defendant was 18 years of age or
18 older at the time of the offense. The parties have stipulated
19 that the defendant was 18 years of age or older at the time of
20 the offense.
21 You must still indicate this finding on the
22 appropriate page of the special verdict form, which by the way,
23 I will go over with you at the end of these instructions.
24 Finding of the requisite mental state. Second, before you may
25 consider the imposition of the death penalty, you must
36 of 79 sheets
 145
1 unanimously find beyond a reasonable doubt the existence of at
2 least one of four so-called gateway factors or in other words,
3 that the defendant intentionally killed Eric Williams in one of
4 the manners I will describe momentarily. If you unanimously
5 make that finding as to the murder of Eric Williams, you should
6 so indicate on the appropriate pages of the special verdict
7 form and continue your deliberations.
8 If you do not unanimously find -- or if you do not
9 unanimously make a finding as to the murder of Eric Williams,
10 you should so indicate on the appropriate pages of the special
11 verdict form. The gateway factors as alleged by the government
12 and to which I just referred are as follows: One, that Mr.
13 Con-Ui intentionally killed the victim, Eric Williams, by
14 repeatedly stabbing and striking him with weapons and
15 repeatedly kicking, stomping and slamming him about the head,
16 face and torso.
17 To establish that the defendant intentionally killed
18 the victim, the government must prove that the defendant killed
19 the victim with a conscious desire to cause the victim's death.
20 Two, that Mr. Con-Ui intentionally inflicted serious bodily
21 injury that resulted in the death of the victim, Eric Williams,
22 by repeatedly stabbing and striking him with weapons and
23 repeatedly kicking, stomping and slamming Eric Williams about
24 the head, face and torso which resulted in Eric Williams'
25 death.
146
1 The government must prove that the defendant
2 deliberately caused serious injury to the victim's body which
3 in turn caused the victim's death. Serious bodily injury means
4 a significant or considerable amount of injury which involves a
5 substantial risk of death, unconsciousness and extreme physical
6 pain, protracted and obvious disfigurement or protracted loss
7 or impairment of a body member, organ or mental faculty.
8 Third, that Mr. Con-Ui intentionally participated in an act,
9 that being the repeated stabbing and striking of Eric Williams
10 with weapons and the repeated kicking, stomping and slamming
11 Eric Williams about the face -- about the head, face and torso
12 contemplating that the life of a person would be taken or
13 intending that lethal force would be used in connection with a
14 person other than a participant in the offense and that Eric
15 Williams died as a direct result of the act.
16 The phrase legal -- lethal force means an act or acts
17 of violence capable of causing death. Fourth, that Mr. Con-Ui
18 intentionally and specifically engaged in an act of violence
19 knowing that the act created a grave risk of death to a person
20 other than the -- other than the participant in the offense
21 such that participation in the act constituted a reckless
22 disregard for human life and that Eric Williams died as a
23 direct result of the act.
24 Your findings as to whether the government has proven
25 the existence beyond a reasonable doubt of a particular factor
37 of 79 sheets Page 145 to 148 of 177
147
1 among these four gateway factors must be separate and unanimous
2 as to count one -- as to each capital count, counts one and
3 two. And with regard to your findings you may -- you may not
4 rely solely on the -- your first stage verdict of guilt or your
5 factual determinations therein.
6 Instead, you must now each decide this issue for
7 yourselves again. Any finding that a gateway factor has been
8 proven as to a particular capital count must be based on the
9 defendant's personal actions and intent. Intent or knowledge
10 may be proven like anything else. You may consider any
11 statements made or acts done by the defendant and all facts and
12 circumstances in evidence which may aid in a determination of
13 the defendant's knowledge or intent.
14 You may but are not required to infer that a person
15 intends the natural and probable consequences of acts knowingly
16 done or knowingly omitted. In the event you -- you unanimously
17 find beyond a reasonable doubt that a particular gateway factor
18 exists as to any of the capital counts, you are to indicate
19 that finding in the appropriate space provided in the special
20 verdict form.
21 For either capital account , if you do not
22 unanimously find the government has proven beyond a reasonable
23 doubt the existence as to that count of any of the four gateway
24 factors, your deliberative task as to that capital count will
25 be over, and I will impose a sentence on that count of life
148
1 imprisonment without the possibility of release.
2 Now, I'm going to instruct you on statutory
3 aggravating factor. If and only if you unanimously find the
4 government has proven beyond a reasonable doubt that at least
5 one of the four gateway factors exist as to each particular
6 capital count, you must then proceed to determine whether the
7 government has proven beyond a reasonable doubt the existence
8 of any of the following alleged statutory aggravating factors
9 with respect to each capital count.
10 The first statutory aggravating factor alleged by the
11 government is that the defendant has previously been convicted
12 of a state offense resulting in the death of a person for which
13 a sentence of life imprisonment or death was authorized by
14 statute. The second statutory aggravating factor alleged by
15 the government is that the defendant has previously been
16 convicted of a state offense punishable by a term of
17 imprisonment of more than a year involving the use or attempted
18 or threatened use of a firearm against another person.
19 The third statutory aggravating factor alleged by the
20 government is that the defendant committed the offenses in an
21 especially heinous, cruel or depraved manner in that it
22 involved torture or serious physical abuse to Eric Williams.
23 The fourth statutory aggravating factor alleged by
24 the government is that the defendant has previously been
25 convicted of violating title two or three of the Comprehensive
07/07/2017 02:10:08 PM
 149
1 Drug Abuse Prevention Or Control Act of 1970 for which a
2 sentence of five or more years may be imposed.
3 The fifth statutory aggravating factor alleged by the
4 government is that the defendant committed the offenses against
5 a federal public servant who is an employee of the United
6 States penal or -- of a United States penal or correctional
7 institution while he was engaged in the performance of his
8 duties. The sixth aggravating -- statutory aggravating factor
9 alleged by the government is that the defendant committed the
10 offenses after substantial planning and premeditation to cause
11 the death of a person.
12 The law directs that you consider and decide at this
13 point the existence or non-existence only -- of only the
14 statutory aggravating factors specifically claimed by the
15 government. You are reminded that to find the existence of a
16 statutory aggravating factor your decision must be unanimous
17 and beyond a reasonable doubt. Any finding that one or more of
18 these factors has been proven must be based on the defendant's
19 personal actions and intent.
20 In the event you -- in the event that you find beyond
21 a reasonable doubt unanimously that a particular statutory
22 aggravating factor exists as to any of the capital counts for
23 which you have found the existence of at least one gateway
24 factor, you are to indicate that finding on the appropriate
25 spaces on the special verdict form with respect to each capital
150
1 count. If you do not unanimously find that a particular
2 statutory aggravating factor has been proven beyond a
3 reasonable doubt with respect to any of the capital accounts
4 that you are considering, you should mark the appropriate space
5 -- spaces on the special verdict form.
6 For any capital count for which you unanimously find
7 the existence of at least one gateway factor, if you do not
8 unanimously find for that same count the existence of at least
9 one statutory aggravating factor, then your deliberative task
10 as to that count will be over, and the Court will impose a
11 mandatory sentence on that count of life imprisonment without
12 the possibility of release.
13 Let me now instruct you in detail on the specific
14 elements necessary for the government to prove each of these
15 statutory aggravating factors beyond a reasonable doubt. The
16 first statutory aggravating factor -- first statutory
17 aggravating factor alleged by the government is that Mr. Con-Ui
18 had previously been convicted of a state offense resulting in
19 the death of a person for which a sentence of life imprisonment
20 or death was authorized by statute.
21 The government alleges that this aggravating factor
22 applies to both capital counts, namely counts one and two. The
23 government alleges that on June 27th, 2008, in the Superior
24 Court of Arizona, Maricopa County, Mr. Con-Ui was sentenced to
25 a term of imprisonment of life with the possibility of parole
07/07/2017 02:10:08 PM Page 149 to 152 of 177
151
1 after 25 years for the offense of first-degree murder of Carlos
2 Garcia, also known as Garfield, with a firearm. The finding as
3 to this statutory aggravating factor must be indicated in the
4 appropriate space with respect to each capital account to which
5 it is alleged on the special verdict form.
6 The second statutory aggravating factor -- second
7 statutory aggravating factor alleged by the government is that
8 Mr. Con-Ui had been previously convicted in the state offense
9 punishable by a term of imprisonment of more than one year
10 involving the use or attempted or threatened use of a firearm
11 against another person. The government alleges that this
12 aggravating factor applies to both capital counts.
13 The government alleges that on June 27th, 2008, in
14 the Superior Court of Arizona, Maricopa County, Mr. Con-Ui was
15 sentenced to a term of imprisonment of life with the
16 possibility of parole after 25 years for the offense of
17 first-degree murder of Carlos Garcia, also known as Garfield,
18 with a firearm. Your finding as to this statutory aggravating
19 factor must be indicated in the appropriate space with respect
20 to each capital count to which it is alleged on the special
21 verdict form.
22 Third statutory aggravating factor -- the third
23 statutory aggravating factor alleged by the government is that
24 Mr. Con-Ui committed the offense charged in the capital counts,
25 counts one and two, in an especially heinous, cruel or depraved
152
1 manner in that it involved torture or serious physical abuse of
2 Eric Williams. The government alleges that this aggravating
3 factor applies to both counts one and two.
4 Heinous means extremely wicked or shockingly evil
5 where the killing -- where the killing was accompanied by
6 additional acts of torture or serious physical abuse of the
7 victim as to set it apart from other killings.
8 Cruel means that the defendant intended to inflict a
9 high degree of pain by torturing the victim in addition to
10 killing the victim. Depraved means that the defendant relished
11 the killing or showed indifference to the suffering of the
12 victim as evidenced by torture or serious physical abuse of the
13 victim.
14 Torture includes mental as well as physical abuse of
15 the victim. In either case, the victim has been -- must have
16 been conscience of the abuse at the time it was inflicted, and
17 the defendant must have specifically intended to inflict severe
18 mental or physical pain or suffering on the victim in addition
19 to killing the victim. Severe mental pain or suffering means
20 prolonged mental harm caused by or resulting from intentionally
21 inflicting or threatening to inflict severe physical pain or
22 suffering.
23 Serious physical abuse means significant or -- means
24 a significant or considerable amount of injury or damage to the
25 victim's body. Serious physical abuse unlike torture may be
38 of 79 sheets
 153
1 inflicted either before or after death and does not require
2 that the victim be conscious of the abuse at the time it was
3 inflicted. However, the defendant must have specifically
4 intended the abuse in addition to the killing.
5 Pertinent factors in determining whether a killing
6 was especially heinous, cruel or depraved include an infliction
7 of gratuitous violence upon the victim above and beyond that
8 necessary to commit the killing, the needless mutilation of the
9 victim's body, the senselessness of the killing and the
10 helplessness of the victim. The word especially means highly
11 or unusually great, distinctive, peculiar, particular or
12 significant when compared to other killings.
13 The fourth statutory aggravating factor -- the fourth
14 statutory aggravating factor alleged by the government is that
15 Mr. Con-Ui had been previously convicted of violating title two
16 or three of the Comprehensive Drug Abuse Prevention and Control
17 Act of 1970 for which a sentence of five or more years has been
18 imposed. The government alleges that this aggravating factor
19 applies to both counts one and counts two. The government
20 alleges that on June 20, 2005 in the United States District
21 Court, District of Arizona, Mr. Con-Ui was sentenced to 135
22 months' imprisonment following his guilty plea and conviction
23 for conspiracy to possess with intent to distribute five
24 kilograms or more of cocaine.
25 Your finding as to this statutory aggravating factor
154
1 must be indicated in the appropriate space with respect to each
2 of counts one and two to which it is alleged on the special
3 verdict form.
4 Fifth statutory aggravating factor -- the fifth
5 statutory aggravating factor alleged by the government is that
6 Con-Ui committed the instant offense against the federal public
7 servant who was an employee of the United States penal or
8 correctional -- of United States penal or correctional
9 institution while he was engaged in the performance of his
10 official duties.
11 The Federal Death Penalty Act states that a federal
12 public servant includes an employee of the United States penal
13 or correctional institution. The government alleges that this
14 aggravating factor applies to both counts one and two. The
15 government alleges that Eric Williams was employed by the
16 United States Bureau of Prisons, a federal agency of the United
17 States Government, as a correctional officer at United States
18 penitentiary located in Waymart, Pennsylvania and was engaged
19 in the performance of his official duties when he was murdered
20 by Mr. Con-Ui.
21 The sixth aggravating factor -- sixth aggravating
22 factor alleged by the government is that Mr. Con-Ui committed
23 the offenses under the particular counts, counts one and two,
24 after substantial planning and premeditation to cause the death
25 of a person.
39 of 79 sheets Page 153 to 156 of 177
155
1 The government alleges that this aggravating factor
2 applies, as I said, to both counts one and two. Planning means
3 mentally formulating a method of doing something or achieving
4 some end. Premeditation means thinking or deliberating about
5 something and deciding whether to do it beforehand.
6 Substantial planning or premeditation means a
7 considerable or significant amount of planning and
8 premeditation. Now, I am going to instruct you on the
9 non-statutory aggravating factors.
10 If you have found the existence of one or more
11 statutory -- one or more of the statutory aggravating factors
12 unanimously and beyond a reasonable doubt, you must then
13 consider whether the government has proven the existence of any
14 non-statutory aggravating factors. As in the case of statutory
15 aggravating factors, you must unanimously agree that the
16 government has proven beyond a reasonable doubt the existence
17 of the alleged non-statutory aggravating factors before you may
18 consider such factor or factors in your deliberations on the
19 appropriate punishment for the defendant in this case.
20 In addition to any statutory aggravating factor that
21 you have found, you are permitted to consider and discuss only
22 the non-aggravating factors specifically claimed by the
23 government and listed below. You must not consider any other
24 facts in aggravation which you think of on your own.
25 Specifically, the government has not alleged in this case that
156
1 if sentenced to a lifetime imprisonment with no possible
2 release Mr. Con-Ui would pose a danger to those around him in
3 the future.
4 Accordingly, consideration of future danger must not
5 influence your own personal decision making and must never be
6 discussed in the jury room. In both counts one and two, the
7 government alleges two non-statutory aggravating factors. The
8 first non-statutory aggravating factor alleged by the
9 government is that the defendant has committed and participated
10 in serious acts of violence or attempted violence as follows:
11 One, in September, October, 1999, the defendant threatened to
12 harm other inmates at Arizona State Prison Complex Florence
13 located in Florence, Arizona. Two, on June 2nd, 2000, the
14 defendant assaulted another inmate with a metal food tray at
15 Arizona State Prison Complex Winslow located in Winslow,
16 Arizona. Three, on October 23rd, 2009 while an inmate at the
17 United States Penitentiary Victorville, the defendant
18 threatened to physically harm a federal corrections officer.
19 Four, on November 21, 2010, the defendant while an inmate at
20 the United States Penitentiary Pollock assaulted and stabbed
21 another inmate with a homemade weapon.
22 In determining whether the government has proven the
23 first non-statutory aggravating factor, you need to unanimously
24 find that the government has established more than one of the
25 separate acts just enumerated in one through four beyond a
07/07/2017 02:10:08 PM
 157
1 reasonable doubt.
2 The second non-statutory aggravating factor alleged
3 by the government is that as demonstrated by Eric Williams'
4 personal characteristics as an individual human being and the
5 impact of the death upon Eric Williams and his family and
6 friends Mr. Con-Ui caused injury, harm and loss to Eric
7 Williams and his family and friends.
8 At this point you must record your findings regarding
9 whether you unanimously find that the government has proven
10 beyond a reasonable doubt the existence of any of these
11 non-statutory aggravating factors with respect to each of
12 counts one and two. Please enter the finding on the
13 appropriate page of the special verdict form and continue your
14 deliberations.
15 I now am going to instruct you on mitigating factors.
16 Before you may consider the appropriate punishment, you must
17 consider whether the defendant has -- has established the
18 existence of any mitigating factors. A mitigating factor is a
19 fact about the defendant's life or character or about the
20 circumstances surrounding the offense that would suggest in
21 fairness that a sentence of death is not the appropriate
22 punishment.
23 Unlike aggravating factors which you must unanimously
24 find prove beyond a reasonable doubt in order to consider them
25 in your deliberations, the law does not require unanimous
158
1 agreement with regard to mitigating factors.
2 Any juror persuaded of the existence of a mitigating
3 factor must consider it in this case. Further, any juror may
4 consider a mitigating factor found by another juror even if he
5 or she did not find that factor to be mitigating. It is the
6 defendant's burden to establish mitigating factors but only by
7 a preponderance of the evidence. As I indicated before, this
8 is a lesser standard of proof than proof beyond a reasonable
9 doubt.
10 The fact established by a -- a fact is established by
11 a preponderance of the evidence if its existence it shown to be
12 more likely so than not so. In other words, a preponderance of
13 the evidence means such evidence as when considered and
14 compared with that which is opposed to it produces in your mind
15 a belief what is sought to be established is more -- is more
16 likely than not true.
17 On the appropriate pages of the special verdict form
18 relating to mitigating factors, you are asked to report the
19 total number of jurors that find the particular mitigating
20 factor established by a preponderance of the evidence. The
21 mitigating factors which the defendant alleges he has proven by
22 a preponderance of the evidence are as follows:
23 First, the alternative -- I'm going to give you a
24 number of these. There are several. There are 61 to be exact.
25 I will tell you the number, and I will read the mitigating
07/07/2017 02:10:08 PM Page 157 to 160 of 177
159
1 factor. One, the alternative to a sentence of death is
2 lifetime incarceration without the possibility of release.
3 Two, upon completion of his federal sentence for a drug
4 conviction, Jessie Con-Ui would have been turned over to the
5 State of Arizona to complete a life sentence for which he was
6 eligible for release on parole after 25 years.
7 Three, at the time of the murder of officer Williams,
8 Jessie Con-Ui was eligible for release on parole by the State
9 of Arizona in 2031. Four, because of his federal conviction
10 for the murder of officer Williams, Jessie Con-Ui will never be
11 eligible for release. Five, parole was abolished in the
12 federal system 30 years ago. Six, Jessie Con-Ui offered to
13 plead guilty to the murder of officer Williams, waive all
14 appeals and submit to a sentence of lifetime imprisonment
15 without release under conditions or -- of confinement to be
16 determined by the Federal Bureau of Prisons.
17 Seven, the federal conviction for the murder of
18 officer Williams means that Jessie Con-Ui will be subject to
19 increased punishment including more severe restrictions on his
20 liberty and the loss of many privileges attended -- extended to
21 maximum security prisoners in general population.
22 Eight, more than two decades of incarceration
23 contributed to Jessie Con-Ui's state of mind on the night he
24 killed officer Williams. Nine, at age 17 Jessie Con-Ui had a
25 number of problems that were not addressed by the Arizona
160
1 juvenile justice system. Ten, at the time Jessie Con-Ui was in
2 the Arizona juvenile justice system who was under the
3 supervision of the federal courts because of its inadequate and
4 improper treatment of juveniles under its supervision. Eleven,
5 Jessie Con-Ui was not offered any services at the time he left
6 the Arizona juvenile justice system.
7 Twelve, the Arizona juvenile justice system did
8 nothing to assess Jessie Con-Ui with his problems. Thirteen,
9 at age 19 Jessie Con-Ui entered the Arizona prison system.
10 Fourteen, the Arizona correction system was so dangerous and
11 out of control at the time Jessie Con-Ui entered it that a
12 federal court found it could not ensure the safety of its
13 prisoners. Fifteen, during the years he was there, the Arizona
14 prison system was poorly administered. Sixteen, during the
15 years he was there, the Arizona prison system did not provide
16 rehabilitative services.
17 Seventeen, Jessie Con-Ui's experiences in the Arizona
18 prison system changed him for the worse. Eighteen, Jessie
19 Con-Ui was exposed to risk factors or adverse childhood
20 experiences that had a negative effect on the course of his
21 life. Nineteen, as young children, Jessie Con-Ui , Jim Con-Ui
22 and Maria Con-Ui witnessed their father beat their mother.
23 Twenty, Jessie Con-Ui's father, Jaime Boado, abandoned the
24 family when Jessie Con-Ui was three years old. Twenty-one,
25 after his father left the family, Jessie Con-Ui had no
40 of 79 sheets

1 relationship with him. Twenty-two, Jessie Con-Ui had a special
2 relationship with his baby brother, Ritchie Con-Ui.
3 Twenty-three, Ritchie Con-Ui, died at age three when Jessie
4 Con-Ui was four and a half years old, a family tragedy that
5 deeply saddened him.
6 Twenty-four, for the first five years of his life,
7 Jessie Con-Ui lived in poverty in Tondo, a notorious slum in
8 Manila. Twenty-five, Jessie Con-Ui was especially close to his
9 grandmother Paulina, who suffered from life-long mental
10 illness. Twenty -six, Jessie Con-Ui and his immediate family
11 moved to Rome, New York in 1987 when he was nine years old.
12 Twenty-seven, the move to New York cut off Jessie
13 Con-Ui's ties with his extended and loving Filipino family.
14 Twenty-eight, because of his Filipino ethnicity, Jessie Con-Ui
15 was subjected to racial slurs in upstate New York.
16 Twenty-nine, despite the difficulties of moving from the
17 Philippines to upstate New York, Jessie Con-Ui additionally --
18 initially did well in school and sports.
19 Thirty, in the eighth grade Jessie Con-Ui was named
20 most valuable player M. V. P. on his school's lacrosse team.
21 Thirty-one, because of family problems, Jessie Con-Ui's family
22 lost their home in Rome, New York and relocated to Syracuse.
23 Thirty-two, the move to Syracuse was a difficult transition for
24 Jessie Con-Ui. Thirty-three, although the family briefly begun
25 -- began counseling at this period, there was no follow-up.
1 Thirty-four, Gary Sliney punished his children by locking them
2 out of their house. Thirty-five, at approximately age 15,
3 Jessie Con-Ui's life began a downward turn.
4 Thirty-six, at approximately age 15 Jessie Con-Ui
5 began using drugs. Thirty-seven, the family's sudden move to
6 Arizona when Jessie Con-Ui was 16 had a negative impact on him.
7 Thirty-eight, because of ongoing difficulties with his
8 stepfather, Gary Sliney, Jessie Con-Ui began spending more and
9 more time away from home. Thirty-nine, Jessie Con-Ui has
10 maintained a loving relationship with his family. Forty,
11 Jessie Con-Ui is important to his sons, Jessie Con-Ui, junior,
12 age 14 and Jadin Con-Ui, age 13.
13 Forty-one, Jessie Con-Ui and Jadin Con-Ui value the
14 relationship they have with their father. Forty-two, Jessie
15 Con-Ui and his sons love one another. Forty-three, Jessie
16 Con-Ui and his mother Teresita known as Tess Sliney love one
17 another. Forty-four, Jessie Con-Ui and his sister Maria Mask
18 love one another. Forty-five, Jessie Con-Ui and his brother
19 Jim Con-Ui love one another. Forty-six, Jessie Con-Ui's family
20 and friends in the Philippines love Jessie Con-Ui.
21 Forty-seven, if Jessie Con-Ui is executed, his mother Tess
22 Sliney will suffer grief and loss.
23 Forty-eight, if Jessie Con-Ui is executed, his sister
24 Maria Mask will suffer grief and loss. Forty-fine, if Jessie
25 Con-Ui is executed, his brother Jim Con-Ui and his family will
41 of 79 sheets
161 163
1 suffer grief and loss. Fifty, if Jessie Con-Ui is executed,
2 his brother-in-law Mark Mask will suffer grief and loss.
3 Fifty-one, if Jessie Con-Ui is executed, his nieces Hailey and
4 Hannah will suffer grief and loss. Fifty-two, if Jessie Con-Ui
5 is executed, his step-sister Sarah Sliney will suffer grief and
6 loss. Fifty-three, if Jessie Con-Ui is executed, one or more
7 of his childhood friends and others in Rome, New York including
8 Jane Padron, Brian Evans, Eric Ducharo, Joseph Martin and
9 Christine Rudd will suffer grief and loss.
10 Fifty-four, if Jessie Con-Ui is executed Virginia
11 Moore, his friend from Tempe, Arizona will suffer grief and
12 loss. Fifty-five, Jessie's execution would have a devastating
13 lifetime impact on his sons. Fifty-six, Jessie Con-Ui is
14 remorseful for having -- for having taken officer Williams'
15 life. Fifty-seven, Jessie Con-Ui is remorseful for the impact
16 his actions have had on officer Williams' family and loved
17 ones.
18 Fifty-eight, Jessie Con-Ui is ashamed of his actions.
19 Fifty-nine, Jessie Con-Ui behaved respectfully in court.
20 Sixty, executing Jessie Con-Ui will not undo the harm he has
21 caused the Williams' family. Sixty-one, other factors that
22 weigh in favor of a life sentence.
23 Mitigating factors one, two, three, four, five and
24 six have been established. And I am instructing the foreperson
25 to enter the number 12 as to each of them on the verdict form
162 164
1 and further instructing each of you that you are required to
2 weigh these factors in the balance of aggravating and
3 mitigating factors.
4 You are permitted to consider anything else about the
5 commission of the crime or about the defendant's background or
6 character that would mitigate against imposition of the death
7 penalty. If there are any other mitigating factors whether or
8 not specifically alleged by the defendant which have been
9 established by a preponderance of the evidence, you are free to
10 consider them in your deliberations.
11 On the appropriate pages of the verdict -- special
12 verdict form you are to identify any mitigating factors that
13 any one of you finds has been proved by a preponderance of the
14 evidence. Weighing aggravating and mitigating.
15 If you find unanimously and beyond a reasonable doubt
16 that the defendant was 18 years of age or older when he
17 committed the offense, that he acted with the requisite intent
18 as alleged in the so-called gateway factor and that the
19 government has proved the existence of at least one statutory
20 aggravating factor and after you then determine whether the
21 government has proved the existence of the non-aggravating --
22 the non-statutory aggravating factor submitted to you and
23 whether the defendant proved the existence of any mitigating
24 factors, you will then engage in a weighing process.
25 You are to conduct this weighing process separately
Page 161 to 164 of 177 07/07/2017 02:10:08 PM
 165
1 with regard to each of the two counts, counts one and two for
2 each -- for which each of you have found at least one gateway
3 factor and at least one statutory aggravating factor. Each
4 juror must individually decide whether the facts and
5 circumstances in the case as to each count call for the -- for
6 death as the appropriate sentence.
7 In determining the appropriate sentence, all of you
8 must weigh the aggravating factor or factors that you
9 unanimously found to exist whether they are statutory or
10 non-statutory, and each of you must weigh and mitigating
11 factors or factors you individually found to exist and may
12 weigh any mitigating factors that your fellow jurors found to
13 exist. In engaging in the weighing process, you must avoid any
14 influence of passion, prejudice or undue sympathy.
15 Your deliberations should be based upon the evidence
16 that you have seen and heard and the law on which I have
17 instructed you. Again, whether or not the circumstances of
18 this case justify a sentence of death is a decision that the
19 law leaves entirely to you. The law never requires the
20 imposition of a sentence of death and never assumes that any
21 defendant found guilty of committing capital murder must be
22 sentenced to death.
23 In carrying out this weighing and balancing process,
24 the members of the jury are not mere fact finders. Instead
25 jurors are called upon to make a unique individualized personal
166
1 moral judgment about the appropriateness of sentencing another
2 human being to death. This is not a mechanical process.
3 Neither is the decision determined by raw numbers. Members of
4 a death penalty jury do not simply count factors.
5 Instead individual jurors consider such factors
6 qualitatively assessing the weight and value of each factor.
7 The law contemplates different factors may be given different
8 weights or values by different jurors. Thus, any single
9 mitigating factor may outweigh several aggravating factors. On
10 the other hand, one aggravating factor proved may outweigh
11 several mitigating factors. In short what is called for in
12 weighing the various factor is not an arithmetic calculation
13 but an individual juror's careful considered and mature
14 judgment as to the weight to be given to the aggravating and
15 mitigating factors present in this case.
16 It's up to you how much weight you individually
17 assign to each particular mitigating factor. You can give it a
18 lot of weight, a little weight or something in between. You
19 may not give an established mitigating factor no weight. In
20 the event you unanimously find that the balancing process leads
21 you to the conclusion that a death sentence is called for as to
22 the particular capital count you are considering, please mark
23 the appropriate space on the special verdict form.
24 If after engaging in the balancing process you do not
25 unanimously find the defendant should be sentenced to death,
07/07/2017 02:10:08 PM Page 165 to 168 of 177
167
1 then you may not impose the death penalty. In that event, the
2 defendant will be sentenced to life imprisonment without the
3 possibility of release.
4 Consequences of deliberations. At the end of your
5 deliberations if you unanimously determine that the defendant
6 should be sentenced to death or life imprisonment without the
7 possibility of release, the Court is required to impose that
8 sentence. If you cannot unanimously agree on whether the
9 defendant should be sentenced to death, the Court will sentence
10 the defendant to life imprisonment without the possibility of
11 release.
12 Justice without discrimination. In your
13 consideration of whether the death sentence is justified, you
14 must not consider the race, color, religious beliefs, national
15 origin or sex of either the defendant or the victim. You are
16 not to return a sentence of death unless you would return a
17 sentence of death for the crime in question without regard to
18 race, color, religious beliefs, national origin or sex of
19 either the defendant or the victim. To emphasize the
20 importance of this consideration, section seven of the special
21 verdict form on each count contains a certification statement.
22 Each juror should carefully read the statement and
23 sign in the appropriate place if the statement accurately
24 reflects the manner in which each of you reached your decision.
25 Special verdict. I have prepared a special form
168
1 entitled special verdict form to assist you during your
2 deliberations. You're required to record your decisions on
3 this form. The special verdict form contains two capital
4 counts, count one, first-degree murder, count two, first-degree
5 murder of a United States corrections officer. Each count has
6 seven sections.
7 Section one contains a space to record your findings
8 as to defendant's age. Section two, has a space to record your
9 findings on the requisite gateway factors. Section three
10 contains space to record your findings on statutory --
11 statutory aggravating factors. Section four contains a space
12 to record your findings on non-statutory aggravating factors.
13 Section five contains space to record your findings
14 on the mitigating factors. Section six contains your space to
15 enter your determination on sentence. And section seven
16 requires to you certify by signature that you did not consider
17 race, color, religious beliefs, national origin or sex of
18 defendant or victim in your consideration of whether a death
19 sentence is justified. You are each -- you are each required
20 to sign the special verdict form.
21 I'm going to go over that with you in a second. My
22 concluding instructions. If you do want to communicate with me
23 during your deliberations, please write down your message or
24 question and pass the note to the guard or court security
25 officer who will bring it to my attention. I will respond as
42 of 79 sheets
 169
1 promptly as possible either in writing or have you return to
2 the courtroom so I can orally address it.
3 I caution you with any message or question you might
4 send to me, you should not reveal to me or anyone else any
5 details of your deliberations or how many of you are voting in
6 a particular way on a particular issue.
7 Let me remind you again that nothing I have said in
8 these instructions and nothing that I have done during the
9 trial has been done or said to suggest to you what I think your
10 decision should be. That decision is your exclusive
11 responsibility.
12 At this time -- beginning Monday actually, because
13 we're not going to -- I am not going to have you begin
14 deliberating tonight. Monday at 9:30 you will be returning.
15 You will begin to deliberate in this case. However, the
16 alternate jurors are not excused. While the jury conducts its
17 deliberations, you alternate jurors should continue to report
18 on Monday at 9:30. During this time, you must continue to
19 observe all of restrictions I have that instructed you on
20 throughout the trial.
21 That is, must you not discuss the case with anyone,
22 including your fellow regular or alternate jurors, other people
23 involved in the trial, members of your family, friends or
24 anybody else. Don't speak at all with any of the parties,
25 witnesses or the lawyers. Do not permit anyone to discuss this
170
1 case with you. Do not even remain in the presence of anyone
2 discussing it. If anyone approaches you or tries to talk to
3 you about the case, report it to me through my courtroom
4 deputy, Ms. Malave, immediately.
5 Do not watch or listen to any news reports concerning
6 this trial on television, radio, and don't read any news
7 accounts of this trial in the newspaper or on the internet. Do
8 not use the internet to search for information about the
9 parties, the witnesses, the lawyers or anything else associated
10 with the trial or this case.
11 Should you be asked to participate in reaching a
12 sentence in this case, the only information you will be allowed
13 to consider in deciding the case is what you learned in this
14 courtroom during the trial. Now, as far as the verdict slip --
15 verdict form is concerned, it's actually two verdict forms. It
16 looks a lot thicker than -- it's because it's a duplicate.
17 Each count has a separate -- is a separate form.
18 And you will find the instructions in the verdict
19 form to be very easily understood. You will note that there
20 are questions asked that are basically following these
21 instructions that I gave you that call for various answers on
22 various -- first of all, on the age of Mr. Con-Ui and the
23 gateway factors and then the statutory aggravating factors and
24 then the non-statutory aggravating factors and then the
25 mitigating factors. And at the end of the mitigating factors,
43 of 79 sheets Page 169 to 172 of 177
171
1 there is a space in the event that you -- you determine that
2 there are any other factors that -- that are not enumerated you
3 think are mitigating factors, you should write them down. You
4 will see a space for them and the number of jurors who find the
5 existence of such a mitigating factor -- and then determination
6 of sentence for count one.
7 And it follows along same instructions I gave you,
8 and then there's the -- then there's the place for signature.
9 And the foreperson should date and sign the form as well.
10 Every juror will sign it, and the foreperson will date it.
11 There's also the certification. The foreperson will date that
12 as well, and everybody will sign it. I don't think you'll have
13 any trouble following that.
14 And when I give you -- on Monday when you come in, I
15 will give each of you -- so you can take it into your
16 deliberation room -- normally I record my instructions. But
17 I'm going to each give you each a copy of these instructions
18 that I just read to you that you will be permitted to take into
19 the deliberation room in case you want to refer to the
20 instructions again for any particular reason.
21 You will find, however, that the verdict form is --
22 follows the instructions in terms of sequence pretty much
23 accurately, and I don't think you will have any trouble
24 following them. But if you do, I'm sure I will find about it.
25 That said, remember don't talk about the case. You don't have
172
1 it yet. Do not begin to discuss it with your -- among
2 yourselves. Certainly don't talk to anybody else about it. If
3 anyone tries to talk to you about it, bring it to my attention.
4 Same admonitions I gave to the alternate jurors, do
5 not read newspapers, watch television, radio, anything on the
6 internet, any other source of information of any kind because
7 you're to decide this matter solely on what you've seen and
8 heard in this courtroom and not any other outside information.
9 That said, we're going to adjourn until Monday at 9:30.
10 At which time, you will come in and report as usual.
11 You will be brought up here. I will give you copies of the
12 verdict form and the instructions. I'm only going to give you
13 one verdict form. The foreperson will be in charge of that.
14 You will write -- however, you conduct your deliberations,
15 that's up to you. The foreperson will be responsible for
16 recording the particular responses on the verdict form, which
17 you all will end up signing. That said, enjoy the next three
18 days. We will see you Monday at 9:30.
19 (The jury was dismissed at this time.)
20 MR. RUHNKE: Your Honor. I am wondering if -- I'm
21 sorry. I am wondering if we might be able to just put our
22 objections to the charge on Monday morning before the jury
23 begins deliberating so we have a chance to look over what
24 exactly was said today. We want to renew our objection.
25 THE COURT: I would like to hear them now. We have
07/07/2017 02:10:08 PM
 173 175
1 been over this how many times? I mean, we did go over it 1 objection to the language found on page 38 of the final
2 yesterday. I also gave you a copy of the instructions which 2 instructions, but actually it appears under instruction number
3 you had overnight. 3 24 entitled mitigating factors enumerated. Specifically we
4 MR. RUHNKE: My understanding of the law unless we 4 object to the language as follows: Quote, mitigating factors
5 renew our objections to the charge we stand the risk of waiving 5 one, two, three, four, five, and six have been established and
6 the objections. 6 I'm instructing your foreperson to enter the number 12 as to
7 THE COURT: I don't have any problem with that. You 7 each of them and further instructing each of you that you are
8 can do that. Go ahead and renew it. 8 required to weigh these factors in the balance but -- excuse me
9 MR. RUHNKE: So we renew the offer of any charge that 9 -- of aggravating and mitigating factors, closed quote. I
10 was proposed that Your Honor rejected. One particular thing -- 10 think I adequately addressed the reasons for that objection
11 problem I noticed during the charge this afternoon is that when 11 yesterday in the charging conference. I won't elaborate any
12 you were defining mitigating factors at page two you defined 12 further but just to renew that objection today. Thank you.
13 mitigating factors as anything about the character, 13 THE COURT: It will be overruled in accordance with
14 circumstances, background or the circumstances of the offense 14 our discussion yesterday.
15 and any other relevant fact or circumstance which might 15 MR. RUHNKE: Do you want us in the courtroom at 9:30
16 indicate the defendant should not be sentenced to death. When 16 on Monday?
17 you defined mitigating factors later in the case, the Court did 17 THE COURT: Well, that's really up to you. But I
18 not include the statement of any relevant fact or circumstance. 18 would think you'd want to be here, wouldn't you?
19 This is something that we fought out throughout the -- 19 MR. RUHNKE: Do you bring the jury in?
20 THE COURT: Tell me where this is. 20 THE COURT: Yeah, they will come in because I am
21 MR. RUHNKE: Page 33. 21 going to give them the -- the instructions and the verdict
22 THE COURT: Page 33. 22 slip. I just want to tell them you're going to begin your
23 MR. RUHNKE: Yes, sir. At the top of page 33 at 23 deliberations. I haven't officially said that. I think you
24 paragraph 43, you know -- that's -- actually you included it at 24 should be here.
25 that point. At page 38, you defined mitigating factors one, 25 MR. FLEMING: We will be here.
174 176
1 two, three, four, five and six and then say you are permitted 1 THE COURT: All right.
2 to consider anything about the commission of the crime or about 2
3 the defendant's background or character that would mitigate 3
4 against imposition of the death penalty, and I would ask if you 4
5 can send that back to the jury that you add the statement to 5
6 include or any relevant fact or circumstance that might suggest 6
7 that death is not the correct -- the correct punishment, the 7
8 defendant should not be sentenced to death just to make it 8
9 consistent. 9
10 Other than that, I reiterate the objections we made 10
11 previously, reiterate the offers of instructions that were 11
12 presented to the Court previously, adopt the arguments we made 12
13 in chambers yesterday and in papers that were submitted and 13
14 assume but need to know that Your Honor's rulings will remain 14
15 the same. 15
16 THE COURT: All right. They do remain the same. I 16
17 will take a look at the additions you want. 17
18 MR. RUHNKE: Just a matter of informing so it's the 18
19 same each time it's defined. 19
20 THE COURT: I am not sure of -- all right. I will 20
21 take a look at it. 21
22 MR. RUHNKE: Thank you, Your Honor. Have a pleasant 22
23 weekend. See you Monday. 23
24 THE COURT: You have something? 24
25 MR. FEITEL: Thank you. The government renews its 25
07/07/2017 02:10:08 PM Page 173 to 176 of 177 44 of 79 sheets