1 J257SEG1 1 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x UNITED STATES OF AMERICA, 3 v. 18 Cr. 219 (AT) 4 JOSE SEGURA-GENAO, 5 6 Defendant. ------------------------------x UNITED STATES OF AMERICA, 7 v. 17 Cr. 513 (AT) 8 WILSON PEREZ, 9 Defendant. ------------------------------x 10 New York, N.Y. February 5, 2019 11:00 a.m. 11 12 13 Before: HON. ANALISA TORRES District Judge 14 15 16 17 18 19 APPEARANCES GEOFFREY S. BERMAN United States Attorney for the Southern District of New York BY: KARIN PORTLOCK EMILY BRETZ JEFFREY OESTERICHER DAVID JONES Assistant United States Attorneys 20 21 EZRA SPILKE GIDEON OLIVER Attorneys for Defendant Jose Segura-Genao 22 23 SARAH KUNSTLER Attorney for Defendant Wilson Perez 24 ALSO PRESENT: 25 Rachel Bass, paralegal David Mintz, Spanish Interpreter Erika De Los Rios, Spanish Interpreter Paul Gold, Spanish Interpreter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 J257SEG1 1 (In open court) 2 (Case called) 3 THE COURT: Good morning. We are here in the matters 4 of the United States v. Jose Segura-Genao and the United States 5 versus Wilson Perez. 6 please. 7 Counsel, would you make your appearances, MS. PORTLOCK: Good morning, your Honor. Karin 8 Portlock for the government. I'm joined by AUSA Jessica Fender 9 here on behalf of the government in Wilson Perez's case. To my 10 left are AUSA's Jeffrey Oestericher, Emily Bretz and David 11 Jones, who are assistant United States attorneys in the civil 12 division and represent the Bureau of Prisons in connection 13 with. 14 MS. BRETZ: Good morning, your Honor. 15 MR. JONES: Good morning, your Honor. 16 MR. SPILKE: Good morning, your Honor. Ezra Spilke 17 for Jose Segura-Genao who is not in the courtroom yet; he's 18 being brought out right now. 19 are Sarah Kunstler who represents Wilson Perez, Gideon Oliver, 20 a colleague who is assisting us, and Rachel Bass from the 21 Federal Defender's office, paralegal. 22 THE COURT: 23 joined us. 24 make are appearance. 25 Along with me at counsel table Please be seated. Mr. Segura-Genao has We also have an interpreter here. THE INTERPRETER: Would you please David Mintz, M-I-N-T-Z. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 J257SEG1 1 2 THE INTERPRETER: Erika Del Los Rios, staff interpreter. 3 THE INTERPRETER: 4 THE COURT: And Paula Gold, staff interpreter. Starting last Thursday, I received several 5 letters from Ezra Spilke, the attorney for Mr. Segura-Genao, 6 claiming that his client had been subjected to troubling living 7 conditions at the Metropolitan Detention Center in Brooklyn, 8 where he is housed in the West Building as a pretrial detainee. 9 In addition, Mr. Spilke complained that MDC had suspended 10 inmate visits with their attorneys. 11 that he was not able to communicate with or get any information 12 about Mr. Segura-Genao. 13 letter from Sarah Kunstler, the attorney for Wilson Perez, who 14 is also housed at MDC. 15 recovering from surgery to repair a collapsed eye socket -- an 16 injury he sustained as a result of being hit in the head with a 17 fire extinguisher. 18 conditions at MDC imperil her client's health. 19 complained about the suspension of lawyer visits. 20 Mr. Spilke also stated Last Friday, I received a similar Ms. Kunstler stated that Mr. Perez was Ms. Kunstler stated that the current She also At a conference I held last Friday, attorneys Nicole 21 McFarland and Adam Johnson appeared on behalf of the Bureau of 22 Prisons. 23 the MDC mechanical room on January 27th, "since that time there 24 has been heat, hot water and hot meals provided to the 25 inmates." Ms. McFarland said that although there was a fire in Transcript at page 5, lines 18 to 19. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 She also 4 J257SEG1 1 stated that the temperature in "the majority of the units 2 ranged from 67 to about 78 [degrees]" and that although some 3 units were in the 50s, this was "immediately rectified." 4 Transcript at page 6, lines 2 to 6. 5 Because the Bureau of Prisons and the defense offered 6 contradictory accounts of the conditions at MDC, I scheduled a 7 fact-finding hearing for this morning. 8 testimony from individuals who have experienced the conditions 9 at MDC firsthand -- corrections officers who work there, a 10 lawyer with clients housed there, inmates who are detained 11 there, and an inspector with the U.S. Attorney's office for the 12 Eastern District of New York who visited the facility. 13 Today, I will hear Yesterday, the Federal Defenders of New York filed a 14 civil lawsuit in the Eastern District of New York, against the 15 Bureau of Prisons and Warden Herman Quay. 16 yesterday morning, the Honorable LaShann DeArcy Hall granted 17 the Federal Defenders' request for a temporary restraining 18 order to the extent that she directed the Bureau of Prisons and 19 Warden Quay to reinstate lawyer visits at MDC. 20 Hall explicitly declined to make findings of fact concerning 21 the conditions described by the Federal Defenders in their 22 lawsuit. 23 24 25 At a hearing held Judge DeArcy Today, after this hearing is over, I will be visiting MDC. We will start the hearing with witnesses to be called SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 J257SEG1 1 by Mr. Spilke and Ms. Kunstler. 2 3 Barnwell - Direct Mr. Spilke, call your first witness. And I would like you to keep your examination to ten minutes. 4 MR. SPILKE: Thank you, your Honor. 5 Mr. Segura-Genao calls Rhonda Barnwell. 6 MR. JONES: Your Honor, in case this wasn't explained 7 to your Honor, the BOP employees who have been directed to 8 appear are present, and they are waiting in an adjoining 9 courtroom's facilities, and Mr. Oestericher has just gone to 10 get the called witness. 11 12 THE COURT: Would you please stand to be sworn. RHONDA BARNWELL, 13 called as a witness by the defendant, 14 having been duly sworn, testified as follows: 15 THE COURT: 16 THE WITNESS: 17 Please state your name for the record. Rhonda, R-h-o-n-d-a, Barnwell, B-a-r-n-w-e-l-l. 18 THE COURT: Would you please be seated. 19 And you may inquire. 20 DIRECT EXAMINATION 21 BY MS. KUNSTLER: 22 Q. Good morning, Ms. Barnwell. 23 A. Good morning. 24 Q. Where do you work? 25 A. MDC Brooklyn. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 J257SEG1 Barnwell - Direct 1 Q. And what is your rank and position at MDC? 2 A. I am the health information tech for medical records. 3 Q. And how long have you worked there? 4 A. 17 years. 5 Q. And what shift do you work currently? 6 A. I am on day watch. 7 Q. Day watch? 8 A. 8 to 4. 9 Q. And in what building do you work? 10 A. I'm in the West Building. 11 Q. And on what floor is your unit? 12 A. The third floor. 13 Q. Can you tell me about the problems that the facility has 14 been experiencing over the past week or so. 15 A. 16 as we had no electricity. Over the past week we experienced some heat issues, as well 17 THE COURT: Ms. Barnwell, I'm having difficulty 18 hearing you, so if you would get closer or bring the microphone 19 closer and speak up. 20 A. 21 we also had an electrical fire. 22 Q. Can you tell me when these problems started. 23 A. Before the electrical fire, maybe a week before, we was 24 experiencing very cold temperatures inside the institution 25 before the fire. OK. Over the past we've experienced heat -- no heat -- and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 J257SEG1 1 2 Barnwell - Direct THE COURT: And when did those cold temperatures start? 3 THE WITNESS: I'm not sure of the date, but I know it 4 was a week before that Sunday, before the fire. 5 of the date. 6 THE COURT: 7 THE WITNESS: I'm not sure About a week before the fire, you say. A week before the fire, yes, the 8 temperatures were cold. 9 Q. And did those temperatures make it difficult for you to do 10 your job? 11 A. 12 go on 3s, which is to make announcements to let the staff know 13 that it was cold in the building, and they also said for the 14 staff members to bundle up during that time. 15 Q. And you saw staff bundled up throughout the facility? 16 A. Yes, yes. 17 Q. And were you bundled up to stay warm? 18 A. Yes, I had my coat on. 19 Q. And did you notice that heat was a problem for the 20 incarcerated people at the facility also? 21 A. At that time, no, I wasn't sure. 22 Q. At some point did you notice any incarcerated people having 23 problems with the heat? 24 A. No. 25 Q. Now, what can you tell me about the light at the facility? Yes, we did wear coats. The lieutenants had the officers SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 J257SEG1 Barnwell - Direct 1 When did that go out? 2 A. 3 date, but it went out on Sunday, but I was at home, but I heard 4 that there was no electricity. 5 institution to try to assist or help in any way because they 6 had no lights. 7 Q. 8 staff? 9 A. The lights went out on Sunday. I'm not sure of the exact So, I went back to the And what kind of working conditions did that create for It was -- for me I felt as though it was a dangerous 10 environment, I stated, for the staff as well as for the 11 inmates, because we had blind spots, and officers were 12 stripping inmates in the dark. 13 building to the other, and there was still dark spots and 14 dark -- blind spots inside the institution. 15 THE COURT: 16 THE WITNESS: 17 They moved inmates from one Why is that dangerous? Because we're escorting inmates in blind spots. 18 THE COURT: So what makes that a problem? In other 19 words, is there something that would happen as a result of 20 being in a blind spot? 21 THE WITNESS: Well, there could be assaults. Even I 22 worked in a housing unit, and some of areas have blind spots, 23 and staff could be assaulted as well as inmates could be 24 assaulted. 25 Q. And what was done -- what was done to make things safer SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 J257SEG1 Barnwell - Direct 1 during this time? What did corrections officers do and staff 2 do to create a safer environment? 3 A. 4 on the generator, so we had emergency lights, but at that time, 5 before the media, nothing. 6 Q. 7 lives at risk at the facility? We had two officers on the housing unit. I think we were Do you think the problems with the heat and electricity put 8 MS. BRETZ: Objection, your Honor. 9 THE COURT: Sustained. 10 Q. Did you make any complaints about the lack of electricity 11 or lack of heat to your supervisors? 12 A. No. 13 Q. Did you see any -- did you see any work being done? 14 you see any work being done at the facility to fix these 15 problems? 16 A. I didn't see any work. 17 Q. Did you see contractors in the facility to fix these 18 problems? 19 A. 20 was doing. 21 Q. Were inmates locked down during this time? 22 A. After the fire, when I came to work on Monday, I assisted a 23 housing unit feeding, so that on that Monday after the fire, 24 yes. 25 Q. Did We've had contractors, so I'm not sure exactly what they I'm not sure. And why were they locked down? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 J257SEG1 Barnwell - Direct 1 A. I'm assuming for their safety, but I'm not sure. I would 2 think for their safety, as far as being that there was no 3 electricity, but I'm not really sure. 4 Q. Do you know how many days they were locked down? 5 A. Well, that was Monday the inmates were locked down, and 6 then I was assigned to a housing unit on Tuesday and the 7 inmates were out. 8 Q. So the inmates were out in the -- 9 A. In the common area the inmates were out, they weren't 10 locked down. 11 Q. 12 the inmates about the cold? 13 A. 14 so the inmates never mentioned to me that they were cold. 15 locking down my housing unit, which was G41, one of the inmates 16 stated to me he wanted me to move him because his cell, he 17 couldn't see inside of the cell, but there was something over 18 his window, and I moved him over two cells down, and he said 19 that he was able to see and he was fine with that move. 20 Q. 21 the vents? 22 A. I'm not familiar with the quality of the air. 23 Q. Do you know anything about the air temperature coming out 24 of the vents? 25 A. When you were assigned the unit, did you speak to any of No. I worked at housing unit G41, which is an intake unit, Upon What do you know about the quality of the air coming out of No, I'm not. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 J257SEG1 Barnwell - Direct 1 Q. Did you speak to me prior to this appearance about cold air 2 coming through the vents in the cells? 3 A. 4 really sure. 5 Q. 6 about heat? 7 A. 8 members as well as the inmates was in cold temperatures, 9 because we were inside the building. I'm not sure. OK. I've spoken to a lot of people, so I'm not Did you speak to the press about inmates complaining When I spoke to the press, I stated to them that the staff 10 Q. 11 well, they can't speak, their throats are hurting, were you 12 referring to the inmates or the guards? 13 A. 14 inmates came down, because I work on the third floor, and he 15 told me that his throat was hurting, that is correct. 16 17 And when you said they're complaining about the heat as That is correct, that's after the media came, one of the THE COURT: All right. So you say that the fire was on a Sunday. 18 THE WITNESS: 19 THE COURT: 20 THE WITNESS: It was on a Sunday, yes. When is it that the media came? 21 I don't recall. 22 Q. 23 disaster to happen? 24 A. Absolutely, yes. 25 Q. What did you mean? I can't -- I can't recall the exact day. And did you tell the press they're just waiting for a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 J257SEG1 Barnwell - Direct 1 A. Because I felt as a staff member nothing was being done, 2 and I felt as though actually if the media didn't come we 3 probably still would be in the same situation. 4 THE COURT: What needed to be fixed? 5 THE WITNESS: The electricity and the heat are 6 separate, but for years we've been having on and off air; it's 7 been the norm. 8 didn't have any -- the heat was a separate problem; we just 9 didn't have the heat. But because those were the coldest days and we But the facilities department, I feel 10 they've been patching up these things for years, and it's not 11 just the inmates, it's the staff as well that have to work in 12 these environments, and if they're patching them up, eventually 13 we're going to have a problem like we had when that happened. 14 And they put everybody at risk, that's what I feel. 15 was at risk. 16 Q. 17 electricity at the facility? 18 A. 19 years. 20 Q. 21 been problems with the heating/cooling system at the facility? 22 A. 23 had to wear coats, but it's been cold for years. 24 Q. 25 at the facility? Everyone And how long have there been problems with the heat and the Not so much the heat. It's been cold I would say for I'm not sure I understand that answer. For years. For years. How long have there It has never come to that where we And how long have there been problems with the electricity SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 J257SEG1 Barnwell - Direct 1 A. That's the first time we had this type of situation. 2 Q. And are there problems with leaks at the facility? 3 A. Yes. 4 Q. Can you tell us about the problems with the leaks at the 5 facility. 6 A. 7 are leaks throughout the institution. 8 couple of days ago from several floors. 9 Q. It leaks throughout the institution, massive floods. There We just had a leak a And in terms of the cold, when you were talking to the 10 press, did you describe the facility as a virtual ice box? 11 A. No. 12 Q. Did you talk to the press about corrections officers being 13 injured putting incarcerated people into their cells? 14 A. No. 15 Q. You didn't -- that wasn't a statement you made? 16 A. No, my statement was that the staff members in R&D were 17 stripping out inmates in the dark. 18 Q. 19 today trying to lock the inmates back into their cells" -- 20 A. 21 body alarms, yes. 22 Q. 23 electricity problem at the facility? 24 25 That was what I said. So that the statement "some of the officers got injured That is correct, yes. That is correct, yes. We had some And was that problem directly related to the heat and MS. BRETZ: Objection, your Honor. Just to clarify between heat and electric. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 Barnwell - Cross 1 THE COURT: Sustained. 2 Q. When you made that statement to the press, did you believe 3 those injuries were related to the electricity problem at the 4 facility? 5 A. 6 to the inmates being locked down, not because of the heat. It would be just my guess. 7 THE COURT: 8 MS. KUNSTLER: 9 Q. I would guess that it's related You have reached the ten minutes. Just one more question, your Honor. While the COs had access to hats and gloves and coats, did 10 inmates have access to extra material to keep them warm? 11 A. 12 they didn't give out extra blankets, no. 13 Q. And did inmates have access to hats and scarves and coats? 14 A. No, no. The inmates have blankets, but as far as while on my shift, 15 MS. KUNSTLER: Thank you, your Honor. 16 THE COURT: Cross-examination. 17 MS. BRETZ: Just a few questions, your Honor. 18 CROSS EXAMINATION 19 BY MS. BRETZ: 20 Q. 21 Monday and Tuesday of last week, was there light in the common 22 areas? 23 A. It was emergency lights. 24 Q. You were there during the day, correct? 25 A. Yes. Thank you, Ms. Barnwell. When you were in the units on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 J257SEG1 Barnwell - Redirect 1 Q. Could the inmates see in their cells during the day? 2 it light enough? 3 A. Was Yes. 4 MS. BRETZ: No further questions. 5 THE COURT: Any further questions, counsel? 6 REDIRECT EXAMINATION 7 BY MS. KUNSTLER: 8 Q. Were you in cells during the day? 9 A. One of the inmates, I went inside of the cell that the 10 inmate said he couldn't see out of because it had something 11 blocking it, so I went inside that cell, and no one -- I didn't 12 feel cold inside the cell, but I was moving around working, so. 13 Q. 14 the day in their cells? 15 A. No. 16 Q. So you didn't have any conversation with inmates about 17 their ability to see. 18 A. No, no. 19 Q. Did you check all the cells on all the floors for the 20 quality of light in those cells during the day? 21 A. Did you talk to inmates about their ability to see during It was light in the day, no. I did not check that, no. 22 MS. KUNSTLER: 23 THE COURT: 24 25 Thank you. You may step down. Please call your next witness. (Witness excused) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 J257SEG1 1 2 3 4 Barnwell - Redirect MR. SPILKE: Your Honor, Mr. Segura-Genao now calls Mr. Maffeo, the facilities manager at the MDC. THE COURT: Mr. Spilke, I would like you to be mindful of the time. 5 MR. SPILKE: 6 While we are waiting, can I make a record about some 7 Yes, your Honor. issues with some of our witnesses? 8 THE COURT: 9 MR. SPILKE: Go right ahead. As you know, we have a number of persons 10 who are currently incarcerated at the MDC who are willing to 11 serve as witnesses. 12 Kunstler's client and mine -- only one of those inmates was 13 brought over, one is because he is in the hospital at long last 14 and that's Sean Daughtry. 15 witness list, Zimian Tabb. 16 Court about what he knows about the conditions, but he called 17 on the federal defender phone today. 18 the R&D area -- that's where they're released to go to court -- 19 and he was told that four of the six of you here are for court 20 and -- sorry -- four of the six of you are here for court or 21 just for a legal visit. 22 that means, but he was trying to -- they tried to convince him 23 not to come, and Mr. Tabb said he wanted to come, and there 24 were words exchanged but no physical encounter. 25 still willing to appear later in the day, should that be I believe other than our clients -- Sarah The other is Mr. Tabb. He is on the He is very eager to inform the He was brought down to So only -- I'm not sure exactly what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Mr. Tabb is 17 J257SEG1 1 Maffeo - Direct possible. 2 THE COURT: I was told by the marshals that he refused 3 to come, that he assaulted one of the officers and that he spat 4 upon them. I will look into this. 5 MR. SPILKE: Thank you, your Honor. 6 THE COURT: Is the next witness here? 7 JOHN MAFFEO, 8 called as a witness by the defendant, 9 having been duly sworn, testified as follows: 10 DIRECT EXAMINATION 11 BY MR. SPILKE: 12 Q. Mr. Maffeo, what's your title? 13 A. Facility manager. 14 Q. And are you a correction officer? 15 also a correction officer? 16 Mr. Maffeo? 17 A. Mr. Maffeo. 18 Q. And how long -- what's -- so how long have you been the 19 facilities manager at the MDC? 20 A. 21 half. 22 Is that also -- are you Do you go by Officer Maffeo or just I've been a facility manager for a little over a year and a THE COURT: Sir, I'd like you to bring the mic closer 23 to you because I can't hear you. 24 Q. Where did you work before that? 25 A. MDC Brooklyn. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 J257SEG1 Maffeo - Direct 1 Q. In a different role. 2 A. Correct. 3 Q. What was your role? 4 A. General foreman. 5 Q. And did you report to the facility manager as general 6 foreman? 7 A. Correct. 8 Q. So now you have foremen reporting to you? 9 A. Correct. 10 Q. From different systems, let's say, like plumbing, HVAC, 11 electrical? 12 A. Correct. 13 Q. OK. 14 foremen for what systems are reporting to you? 15 A. 16 staff, electricians, plumbers, engineering tech, general 17 foremen and a facilities assistant. 18 Q. And you mentioned power house. 19 A. Power house, they oversee the operation of the boilers and 20 the cooling systems. 21 Q. And the engineers oversee what? 22 A. Those are the power house operators, utility system 23 operators, that's their official title. 24 Q. 25 more particularized foremen? And can you tell me who is reporting to you? What I have general maintenance staff, HVAC staff, power house What's that? And the general foremen are just there to supervise those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 J257SEG1 Maffeo - Direct 1 A. Correct, there are three general foremen. 2 Q. And how long -- withdrawn. 3 heat at the MDC recently? 4 A. Correct. 5 Q. When did that start? 6 A. We experienced issues I would say it was probably a week or 7 two prior to the fire. 8 looking at a calendar in front of me. 9 Q. When was the fire? 10 A. The fire was the 27th on a Sunday. 11 12 THE COURT: Was there a problem with the I don't have the exact date without What do you mean by you experienced issues? 13 THE WITNESS: 14 THE COURT: 15 experienced issues? 16 Can you repeat that? What do you mean when you say you THE WITNESS: The building is over 20 years old. The 17 mechanical systems had some heating air handler units where the 18 water runs through for the heating system, and the pipe coils 19 on that heating unit had a leak on it, so we had to isolate the 20 unit so we could make repairs. 21 THE COURT: 22 sir. 23 2019. 24 25 I'm going to hand out a calendar to you, You can see at the bottom there is January and February And, counsel, you can repeat your question concerning the dates. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 J257SEG1 1 Maffeo - Direct MR. SPILKE: Yes, your Honor. 2 Q. I was asking when the fire happened, and I believe -- 3 A. The fire was on January 27, approximately one o'clock in 4 the afternoon. 5 Q. 6 before the issues with the heat began, and that's with the air 7 handler units? 8 A. 9 coils experience some leaks on them, and we had to isolate them Right. And I think you said that about a week or two Correct. We had on the 21st of January a couple of heating 10 to make repairs. 11 Q. Did this affect the whole institution? 12 A. No, it did not. 13 Q. Where did it affect? 14 A. Certain areas throughout the institution. 15 unit has its own separate system. 16 living quarters and one is for the common area of that 17 quarters. 18 Q. Let me see if I understand. 19 A. Correct, one would be where they sleep in their cells, and 20 one would be for the open common area. 21 Q. 22 what part were down? 23 A. 24 issue. 25 team areas experienced a leak. Each housing One is for the inmates' So every unit has two? And so just help me understand. The air handler units for What part of the facility was affected? I know the one particular unit was I62, it experienced an Off the top of my head, another unit was for the unit The unit team area is a staff SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 J257SEG1 Maffeo - Direct 1 area. I know for 62 it was for the cell area where they sleep. 2 Q. Any other cell areas? 3 A. There was, and I can't recall off the top of my head which 4 one it was. 5 Q. 6 Withdrawn. 7 addition to I62 were affected? 8 A. 9 number on the top of my head. Do you know how many additional other than -- I'm sorry. Do you know how many additional cell areas in Off the top of my head, I can't come -- I don't have that 10 Q. More than five? 11 A. For the cell areas? 12 Q. Yes. 13 A. No, it was less than that. 14 at most three cell areas. 15 Q. 16 I62, correct? 17 A. 62 and possibly two other ones. 18 Q. And when you say issues, that I62 and these two additional 19 units experienced issues, what do you mean by that? 20 A. 21 piping, in the copper tubing, and that froze, so we had to make 22 repairs. 23 to repair it. It was a matter of maybe two, Two and at most three additional cell areas in addition to Where the coil -- the heating coil had a hole in the It bursted, so we had to take the unit out of service 24 THE COURT: When did you become aware of the problem? 25 THE WITNESS: I became aware of the problem on January SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 J257SEG1 Maffeo - Direct 1 21. 2 Q. 3 being made? 4 A. No. 5 Q. So it's completely taken out, right? 6 A. Correct. 7 Q. And what's the effect of these systems being taken out? 8 A. The units for the cells, we wouldn't be able to provide 9 heat in the cells during the time of the repairs. And is there partial functionality while these repairs are 10 Q. Did you discuss any contingency plan for providing heat to 11 those cells that weren't going to get any heat? 12 A. 13 the needed repairs and adjustment to the units as necessary, 14 and I do stay in contact with my supervisors, so if anything 15 needed extra, that they would be aware of it before lock-in 16 time at night. 17 Q. 18 portable heaters, anything that would provide warmth? 19 A. 20 in blankets, extra blankets to the housing units. 21 Q. Is that the extent of it, or anything else? 22 A. We cannot bring in portable heaters. 23 Q. But nothing else in addition to the blankets? 24 A. No, because the staff were working on that unit, and we got 25 it back up within 24 hours. We did -- I did have staff stay behind after hours and make Now, they were monitoring, but did they bring in any They did bring in portable -- excuse me -- they did bring SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 J257SEG1 Maffeo - Direct 1 Q. So, you found out about the issues with I62 and the other 2 cell units on January 31? 3 4 MS. BRETZ: Misstated. I believe that's a misstatement of the date. 5 THE COURT: 6 THE WITNESS: 7 MR. SPILKE: 8 Q. 9 hours? I understood the 21st. Correct, the 21st. I misspoke. Yes, the 21st. And it was repaired -- these issues were repaired within 24 10 A. Correct. We try to make any repairs needed immediately. 11 Especially we took priority for the cells where inmates sleep. 12 We made that a priority, so those were addressed first. 13 Q. 14 by the 23rd? 15 A. Correct. 16 Q. Any issues with heating after that at the MDC? 17 A. No. And so at the latest the repairs would have been completed 18 THE COURT: 19 heating unit was not working? 20 THE WITNESS: 21 Did you record the temperature while the the 21st. 22 THE COURT: 23 THE WITNESS: 24 25 For the 21st, I don't believe we did on Thereafter? We did take temperature readings in various different areas throughout the institution. MS. BRETZ: Your Honor, the government intended to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 J257SEG1 Maffeo - Direct 1 introduce as an exhibit a list of the temperature reports that 2 we have. 3 this time. I don't know if you would like us to introduce it at It would be helpful for Mr. Maffeo to look at. 4 THE COURT: Well, is he familiar with this? 5 MS. BRETZ: He is. THE COURT: If they will refresh his recollection, 6 Honor. 7 8 He created these documents, your that's fine. 9 MR. SPILKE: One moment, your Honor. 10 May I approach, your Honor? 11 THE COURT: You may. 12 Q. 13 identification as Defense Exhibit A. 14 Exhibit YY. 15 May I confer? Mr. Maffeo, I'm handing you what is marked for Do you recognize this. One moment. YY? Defense Mr. Maffeo, do you recognize 16 that document? 17 A. Yes, these documents, yes. 18 Q. What is it? 19 A. These are temperature readings that we took throughout the 20 institution. 21 Q. And when you say we, who do you mean? 22 A. Either myself or one of my supervisors or one of my line 23 staff took the temperatures. 24 Q. 25 the temperature, they would have entered it onto this document? And when -- and if anyone other than you took a reading of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 J257SEG1 1 A. Maffeo - Direct Correct. 2 MR. SPILKE: Your Honor, I'm not certain I can offer 3 it as a business record. 4 himself. 5 6 MS. BRETZ: He didn't complete all the entries I actually have a point of clarification. Could I ask a question of Mr. Maffeo? 7 THE COURT: 8 BY MS. BRETZ: 9 Q. You may. Is it correct that your staff took the temperature readings 10 in the units and in the common areas? 11 A. Correct. 12 Q. But did you physically enter the numbers into the typed 13 spreadsheets? 14 A. Correct. 15 Q. But which days did you take the temperatures if you recall? 16 A. I took the temperature readings on January 23, 2019, 17 January 30, 2019, February 1, 2019, February 2, 2019, February 18 3, 2019. 19 certain point I had to step away for another issue, and he 20 finished taking the temperature readings. 21 Q. Is that his handwriting on the page dated February 3, 2019? 22 A. Correct, you see there are two different handwritings. 23 stopped writing after J73. 24 Q. 25 the same time that the temperatures were taken in the units in I also took the temperatures as well. I started to with my other general foremen and at a Thank you. I And were these taken and recorded at or about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 J257SEG1 Maffeo - Direct 1 the cells and the common areas? 2 A. We wrote them down, correct, on this form. 3 Q. At or about the same time that -- or shortly after you had 4 taken the temperatures? 5 A. Correct. 6 Q. And are these temperature reports things that are normally 7 kept in the business records of the Bureau of Prisons? 8 A. 9 because we knew we were coming into the cold weather, and we No, we took the temperature readings because we wanted it 10 wanted to make sure that we had adequate heat in all the areas. 11 Q. 12 seasons to make sure you maintain scheduled temperatures? 13 A. 14 an issue or they're not comfortable, we will go up to that 15 particular area and see if there is an issue and take a 16 temperature reading to see if we need to make any adjustments, 17 and we do it on a case-by-case basis. Do you ever take temperature readings in normal winter If we get either inmates or staff telling us that there is 18 MS. BRETZ: 19 MR. SPILKE: Thank you. Your Honor, I will let the government 20 offer this exhibit when they have the witness. 21 is up, but I would just ask for a few more minutes -- 22 THE COURT: 23 MR. SPILKE: 24 I see the time OK. -- to clarify a few things just in light of the -- in light of this exhibit. 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 J257SEG1 Maffeo - Direct 1 BY MR. SPILKE: 2 Q. 3 when you mentioned all of the, I guess, subcontractors under 4 you, or the trades under you, who report to you, the foremen, 5 which one of those foremen would be responsible for the 6 heating? 7 A. HVAC. 8 Q. And the power house who oversee the boilers, they have 9 nothing to do with the heating? Now, let's just turn to the electrical issue. By the way, 10 A. They make sure the boilers is operating, that it's on and 11 is producing the hot water needed to go to the handler units. 12 Q. Does that also provide hot water to faucets and showers? 13 A. No, it does not. 14 Q. Of those foremen that you mentioned, who would oversee 15 that? 16 A. 17 because it's a different system than the boilers. 18 Q. 19 outage. 20 A. 21 Sunday, I was notified by my staff on shift from the power 22 house via phone -- I was home -- and told me that there is a 23 fire in the area of the building on the first floor, that he 24 thought it was on the first floor, and I told him to contact 25 the operations lieutenant and to get with the operations The power house oversees the hot water for the showers, Now just turning your attention briefly to the power When did -- what happened? How did the power go out? On January 27, approximately one o'clock, which was on a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 J257SEG1 Maffeo - Direct 1 lieutenant in regards to the emergency at hand, and I told him 2 I'm on my way in. 3 Q. And what happened next? 4 A. Upon my arrival, the fire department of New York City was 5 on site. 6 the fire located on the second floor mechanical room, in the 7 electrical room; they extinguished the fire, and at that time 8 the power was knocked off service because the fire interrupted 9 the service panel that serves distribution number 3 of the They made entry into the building, they extinguished 10 building, priority 3 of the building. 11 Q. After the fire department left, was Con Edison called? 12 A. Correct. 13 Q. Did you do that? 14 A. The fire department contacted Con Edison prior to me being 15 there, and I followed up as soon as I got on site with Con 16 Edison, to have them come out and inspect the system, their end 17 of the system. 18 Q. 19 to coordinate? 20 A. I was on site within an hour of the fire. 21 Q. And ConEd told you that they would repair -- withdrawn. 22 How long after the fire was that that you arrived on site How long did you understand it would take to restore 23 power to the facility? 24 A. 25 damaged, I knew it was going to be a prolonged issue. Well, with the extensive damage to the equipment that was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 My 29 J257SEG1 Maffeo - Direct 1 background was electric. I was the electrician at MDC Brooklyn 2 prior. 3 electrical fire in it, and there was significant damage to 4 cables to that portion that needed to be corrected. 5 it was not going to be a quick overnight return to service type 6 of repair. 7 Q. 8 MDC, how does the power outage affect the phones? 9 A. I am familiar with the type of equipment that had the So I knew So given your background in the electrical system at the When a building is designed, especially a facility of that 10 magnitude, there are different priority levels. Priority 1 is 11 always life safety equipment, which would be your fire pumps, 12 your fire alarms, control panels for door patrols and equipment 13 like that. 14 construction guidelines, they figure what is needed to be 15 priority 1, priority 2 and priority 3. 16 system was put on priority 3 of the electrical load. 17 Q. When was that? 18 A. When the building was built and designed. 19 Q. Does the power affect the other phones -- the phones other 20 than the inmate phones? 21 A. They're two completely different systems. 22 Q. Can you elaborate on that. 23 A. Inmate phones is a completely separate system from staff 24 phones for security reasons and for monitoring purposes. 25 Q. And through engineering and Bureau of Prisons The inmate telephone When was it put on priority 3? So the power outage did not affect the staff phones? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 J257SEG1 Maffeo - Direct 1 A. Correct. 2 Q. And it did not affect the federal defender line? 3 A. I believe the federal defender lines -- the federal 4 defender line was still active. 5 Q. But only monitored lines were shut down? 6 A. Correct. 7 Q. Did you consider this power outage to be an emergency? 8 A. Of course. 9 Q. When did you believe it to be an emergency? 10 A. The second I was notified of the fire. 11 Q. And were you aware that -- help me understand. 12 power -- was there still power to certain parts of the West 13 Building? 14 A. Correct. 15 Q. And what parts were those? 16 A. It was anything that was priority 1 or priority 2. 17 stated, priority 1 is our life safety equipment, door patrols, 18 our security systems, our cameras, our elevators. 19 Q. 20 power? 21 The Like I And where were the sources -- what was the source of that Withdrawn. What was the source of power to power those systems, 22 priority 1 systems? 23 A. 24 second floor. 25 Q. They all come from the same mechanical room located on the But I thought the fire knocked it out. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 J257SEG1 Maffeo - Direct 1 A. 2 number 3 equipment. 3 Q. 4 with priority 3? 5 A. Right. 6 Q. And I think you mentioned there was a priority 2? 7 A. Correct. 8 Q. But that wasn't being powered either, right? 9 A. That was powered. 10 And what about -- and so distribution 3, it's synonymous Priority 1 and priority 2 were powered throughout the whole incident. 11 12 The fire knocked out priority 3 equipment, distribution THE COURT: Is that because the fire did not affect priority 1 and 2? 13 THE WITNESS: Correct. The way the room is laid out, 14 priority 1 and 2 is on a straight line, priority 3 is set on 15 pretty much like an L of the room, and it's a little bit -- 16 there is a space between where priority 1 and 2 and priority 3 17 equipment is because of spacing. 18 Q. 19 priority 2 plants to other areas, to say priority 3? 20 A. Can you repeat that question. 21 Q. Sorry, yes. 22 that powers priorities 1 and 2, to divert that to priority 3? 23 Is there a way to do that? 24 A. Priority 3 is the one that was damaged. 25 Q. Right. Is there a way to divert power from the priority 1 and Is there a way to divert power from the source If that is out, is there a way to divert power from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 J257SEG1 Maffeo - Direct 1 the power sources for priority 1 and priority 2? 2 A. 3 priority 1. 4 3. They don't intermingle. 5 Q. There is no way to borrow power from priority 1 and 6 priority 2 for priority 3 purposes. 7 saying? 8 A. 9 because the system doesn't operate like that. If the equipment wasn't damaged, we can't -- priority 1 is Priority 2 is priority 2. Priority 3 is priority Is that what you're I don't think I understand what you're trying to say, 10 I'm not understanding how it's coming out. 11 Q. 12 to really understand. I don't know if Right, I am not an expert in electrical, so I'm just trying 13 Priority 1 and priority 2 power sources were 14 unaffected by the fire. 15 A. Correct. 16 Q. Were they working at full operation? 17 A. Correct. 18 Q. Was there a way to borrow power from those sources for 19 priority 3 uses? 20 A. 21 equipment on priority 3, we couldn't just transfer stuff over 22 to that. 23 Q. 24 priority 3? 25 A. No, because the extent of damage that happened to the And is there a way to get generator power to power the No, there was not because of the fire damage. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 J257SEG1 Maffeo - Direct 1 Q. And the phones are powered by priority 3? 2 A. Which phones? 3 Q. The inmate phones. 4 A. Yes, they're powered by priority 3. 5 Q. And the computers are powered by priority 3? 6 A. For the inmates? 7 Q. Yes. 8 A. Correct, it's the same system. 9 Q. And it's called priority 1 because it's the most pressing 10 priority? 11 A. Correct. 12 Q. And priority 3 -- is there a priority below priority 3? 13 A. No. 14 Q. So priority 3 is the lowest priority? 15 A. Correct. 16 THE COURT: What is the status of the current 17 electrical repairs? Is that a temporary fix, or is it 18 permanent? 19 THE WITNESS: It is a temporary repair until we can 20 have -- we already had an engineering firm come on site, and 21 they are coming back to do further engineering work. 22 design -- because the equipment that's there is 25 years old, 23 so they have to come back, engineer what we need so it can be 24 manufactured. 25 but the building is fully powered at this time. The Right now we're on temporary electrical service, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 J257SEG1 Maffeo - Direct 1 Q. How long can that temporary -- 2 A. As long as needed. 3 equipment in place. 4 Q. And that could be months or years? 5 A. We are currently actively working on replacing it, and it 6 can possibly take up to a year to get the parts in. 7 THE COURT: 8 THE WITNESS: 9 THE COURT: 10 As long as until we get the new Who provided the temporary power? A contractor. And when did you contract the contractor? THE WITNESS: He was contacted -- he was contacted 11 late Sunday night. 12 the issue was and that it was going to be a long-term issue, I 13 immediately contacted an electrical contractor and had them 14 come in on site, evaluate what we need to do to get us to the 15 next step of restoring power. 16 THE COURT: 17 18 Once I realized where the fire was, what Did they offer more than one way of fixing it? THE WITNESS: Correct, there was talk of having 19 different ways of doing it. 20 with the most safest, the most quickest way possible to get 21 power back up to the building, and we also worked in 22 conjunction with the local utility company, Con Edison. 23 THE COURT: 24 MR. SPILKE: 25 THE COURT: Both ways were lengthy. We went Any further questions, counsel? Not at this time, your Honor, no. Cross-examination. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 J257SEG1 Maffeo - Cross 1 CROSS EXAMINATION 2 BY MS. BRETZ: 3 Q. 4 you have in front of you, I believe it was previously marked 5 Defense YY, but we're going to enter it, so we will mark it as 6 Government's 1. 7 that accurately summarize your findings -- you and your staff's 8 findings of the temperature readings at MDC Brooklyn? 9 A. Thank you, Mr. Maffeo, just a few questions. The five pages you have in front of you, does For those time periods, yes. 10 11 The document MS. BRETZ: The government would like to move to admit Exhibit 1. 12 THE COURT: Any objection? 13 MR. SPILKE: 14 THE COURT: 15 (Government Exhibit 1 received in evidence) No, your Honor. No objection. It is admitted. 16 Q. If you could turn to that first page, it should be MDC 17 Brooklyn temperature for 1/23/19. 18 A. Yes. 19 Q. Underneath G43, underneath that line, there are several 20 lines: 21 several floor team units. 22 A. Correct. 23 Q. Are any of those staff units? 24 A. Correct. 25 office, eighth floor unit team, seventh floor unit team, sixth Do you see that? Education, food service, medical, LT's office and then Do you see those? Education, food service, medical, lieutenant's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 J257SEG1 Maffeo - Redirect 1 floor unit team, fifth floor unit team, fourth floor unit team, 2 are all staff areas. 3 Q. Great, thank you. 4 And after the electrical fire took place, was there -- 5 what areas of the facility still had power? 6 A. 7 code, have emergency lights that are on priority 1 for egress 8 purposes. 9 So lights sporadically would be on in an area. Various locations throughout the building, per life safety We maintain those lights throughout the whole time. Exit lights 10 were maintained on. Certain wall packs between each cell would 11 remain on, and some of the lights in the common area would stay 12 on. 13 MS. BRETZ: No further questions. Thank you. 14 THE COURT: Any redirect? 15 MR. SPILKE: 16 REDIRECT EXAMINATION 17 BY MR. SPILKE: 18 Q. 19 Now, did you or anyone on your staff take the temperature 20 where -- withdrawn. Yes, your Honor, very briefly. Mr. Maffeo, let's just look at the Government Exhibit 1. 21 Did you or anyone on your staff take the temperature 22 in the medical records area? 23 A. Yes. 24 Q. And is that reflected in your -- in your notes in Exhibit 25 1? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 J257SEG1 Maffeo - Redirect 1 A. Yes. 2 Q. Can you point me to where. 3 A. Where it says medical. 4 Q. And what time of day was that reading taken? 5 A. On January 23 I do not have what time the temperature was 6 taken. 7 the temperature until February 1 when I realized that we should 8 be noting what time we take the temperature readings. 9 Q. I didn't start writing the time that we started taking And what instrument did you use to take temperature 10 readings? 11 A. 12 point-and-aim measuring gun. 13 Q. Something like this? 14 A. Something similar. 15 Q. I'm holding a Nicety infrared thermometer -- N-i-c-e-t-y -- 16 infrared thermometer. 17 18 We used a Fluke point-and-aim -- I'm sorry -- a laser And may I approach and hand the witness the thermometer? 19 THE COURT: You may. 20 Q. So the thermometer was something that looked like that? 21 A. Correct. 22 Q. Was it exactly -- was it actually that model? 23 A. No, it was not. 24 Q. And you can take readings -- explain to me how you would 25 take a temperature reading with that instrument. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 J257SEG1 Maffeo - Redirect 1 A. You could point it to any location you want within an area. 2 Q. Can you demonstrate that now. 3 A. Where would you like it? 4 Q. Perhaps on the wall. 5 A. 74.4. 6 Q. And can we see the laser when you pointed it? 7 about let's say how many feet up from the floor? 8 A. Probably six feet by the marshal. 9 Q. I see you're moving it along the wall. 10 A. Well, I was trying to get a gauge of the height of the 11 officer standing. 12 Q. 13 around like that? 14 A. No, I would keep it in one spot. 15 Q. Can you show me now. 16 A. Correct. 17 Q. What's the reading there? 18 A. 73.7. 19 Q. And could you please point it to where the wall meets the 20 ceiling. 21 A. 73.7. 22 Q. And could you please point it -- well, point it toward the 23 floor in front of the podium. 24 A. 73.6. 25 Q. And is it your experience that where you point the laser And that's But when you are taking a reading, you wouldn't move it You would hold it like that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 J257SEG1 Maffeo - Redirect 1 dot can change what temperature reading you get? 2 A. Can you repeat that? 3 Q. Where in the room you point the laser dot, could that 4 change what temperature reading you get? 5 A. 6 usually point it in the middle of the room. 7 Q. 8 ceiling? 9 A. You point it toward the general area in the room. We Meaning the middle of the floor or the middle of the No, we would do it at the mattress or the floor area right 10 in front of the beds. 11 Q. You say usually. 12 A. If an inmate is standing in front of the door and he 13 doesn't step to the side, we will take it right where we can 14 get it. 15 Q. 16 affect the temperature reading you get? 17 A. It can affect it slightly, but nothing by great degree. 18 Q. In what direction up or down? 19 A. It could be either or. 20 Q. An inmate leaving the bed could make the bed colder? Is there any reason you wouldn't do that? If an inmate had just gotten out of the bed, would that 21 MS. BRETZ: Objection, your Honor. 22 THE COURT: Overruled. 23 You may answer. 24 A. Can you repeat that again? 25 Q. An inmate leaving the bed -- withdrawn, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 J257SEG1 1 Maffeo - Redirect One last question. The only way you recorded -- you 2 or your staff recorded -- these temperatures was by writing it 3 down, right? 4 A. Correct. 5 MR. SPILKE: 6 THE COURT: 7 Nothing further. Prior to January 27, was there any indication that the priority 3 electrical equipment would fail? 8 THE WITNESS: We did have an issue with the circuit 9 breaker prior on, I would like to say, your Honor, I believe it 10 was January 21, where we experienced an electrical problem with 11 that distribution. 12 and look at the equipment from the manufacturer, which is 13 Square D, and they evaluated the system, and we were able to 14 get the system back online. 15 equipment, and we found no indication that we would have 16 further problems at that time. At that time we had a contractor come in We inspected all areas of the 17 THE COURT: 18 (Witness excused) 19 Counsel, you may call your next witness. 20 MS. KUNSTLER: 21 All right, sir, you may step down. Your Honor, defense would like to call Miguel Cruz. 22 MR. JONES: If I may, may Mr. Maffeo be excused for 24 THE COURT: Yes. 25 MR. SPILKE: 23 the day? May I approach the witness stand to get SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 J257SEG1 1 Maffeo - Redirect my thermometer? 2 THE COURT: You may. 3 MS. KUNSTLER: Your Honor, this is a witness who is 4 currently a defendant in this district. 5 are either incarcerated or not -- or non-incarcerated witnesses 6 who were previously incarcerated at the MDC and are defendant 7 witnesses, we just wanted to talk about the scope of their 8 testimony. 9 cases, their criminal histories, and we expect that they won't 10 11 For all witnesses who They're not going to be testifying about their be asked any questions in those areas. (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 J25nseg2 1 Cruz - Direct MIGUEL CRUZ, 2 called as a witness by the Government, 3 having been duly sworn, testified as follows: 4 5 THE COURT: Be seated. I want you to get close to the microphone because you are speaking in a very low voice. 6 THE WITNESS: 7 THE COURT: 8 DIRECT EXAMINATION 9 BY MS. KUNSTLER: All right. Speak up. 10 Q. Good morning, Mr. Cruz. 11 A. Good morning. 12 Q. Mr. Cruz, were you recently incarcerated at MDC Brooklyn? 13 A. Yes. 14 Q. The 30th of this month? 15 A. Yes, Wednesday. 16 Q. When did you arrive there? 17 A. The 17th. 18 Q. The 17th of what month? 19 A. Of -- I was released on the 30th. 20 THE COURT: 21 THE WITNESS: 22 Would you like to look at a calendar? Yes, please. I'm pretty sure it was January. 23 January 17. 24 Q. You arrived on January 17? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 J25nseg2 Cruz - Direct 1 Q. And what unit were you in? 2 A. 53. 3 Q. While you were at the MDC, were there issues with the heat 4 and electricity? 5 A. Before that, no, there was not. 6 Q. While were you there? 7 A. While I was there? 8 Q. There were not issues with the heat and electricity at MDC? 9 A. When I first got -- when I first went in, the lights went No, there wasn't. 10 off. The lights was off, and they locked us in until the next 11 day, the lights went back on, which was on the 17th. 12 Q. I want to direct your attention to Sunday, January 27. 13 You were at MDC that day, right? 14 A. Yes. 15 Q. And can you tell me what happened on that day? 16 A. That day was -- we was -- it was like around 1:44 that we 17 was on the, on the -- out of our cells, and the lights went 18 off. 19 that there is a fight or something going on, an emergency. 20 they locked us in, and we was locked in till -- till the next 21 day, until the next day in the morning -- no, not even. 22 apologize. 23 They came to our cells with our food, our breakfast, with our 24 breakfast. 25 Q. The lights went off and they locked us in. They said So I To the next day probably by the afternoon, yeah. They came with a banana, a banana and a cake. So you were locked in your cell all day from 1:44 on -SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 J25nseg2 Cruz - Direct 1 A. Yeah. 2 Q. -- on January 27 until the next day? 3 A. Yes. 4 Q. How do you know that it was about 1:44? 5 A. Because I went inside my cell and I looked at my radio and 6 it said 1:44. 7 we were going to be locked up because he was already there for 8 a long time. 9 know? 10 11 I told my bunkee that I wanted to know how long And I asked him does this, like, happen, you He was like, yeah, sometimes it happens, but not all the time. 12 And I was like, all right. 13 So, you know, I was expecting to be released out of 14 our cells again, and, you know -- 15 Q. When were you next released from your cell? 16 A. Excuse me. 17 Q. When were you released from your cell? 18 following day? 19 A. 20 not sure what time. 21 Q. Do you know how long you were out the following day? 22 A. It was after -- after -- after lunch we was out. 23 like, by 12-- 1 o'clock. 24 Q. What was it like in your cell? 25 A. It was, you know, it was -- it was cold. Yes. What time on the The next day we was released from our cells, but I am So that's They didn't have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 J25nseg2 Cruz - Direct 1 have AC like that first day. 2 lights went off, there was no heat. 3 no heat. 4 It was -- they didn't -- once the There was AC. There was And I was saying to my bunkee, like -- because he said 5 you know what you should do, just take a blanket off the, bed, 6 you know, because we was going to sleep. 7 I couldn't sleep because it was cold. So he said, 8 listen, I am going to try to cover up the vents with a book 9 cover. 10 So he covered up the vents, and he said hopefully it 11 gets warmer. But since it's like a metal room, you know, 12 the -- the walls is cold. 13 to stay cold. 14 and I was completely dressed. 15 slept with the sheet on the bed. 16 I slept with that blanket and -- the two blankets that they 17 give you, so it was cold. 18 Q. 19 the vents? 20 A. 21 air, so he put like a book cover on the vent. 22 Q. 23 that -- how many days did that last? 24 A. Until I was out. 25 Q. What day were you released? So inside, you know, they're going So I was sleeping with my jumpsuit, my jumpsuit, I had two pairs of socks on. I I took the sheet off the bed, I was uncomfortable. So you said that your bunkee was putting book covers over Yeah, over the vents, yeah, because it was blowing out cold The problem with the cold air coming through the vent, was I think you said this already. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 J25nseg2 Cruz - Direct 1 A. 1/30. 2 Q. The problem with the electricity, how long did that last? 3 A. I am not sure, because I was released on the 30th, you 4 know. 5 Q. But there was still no electricity when you left? 6 A. Right. 7 Q. And were you locked in your cell every day? 8 A. Not every day. 9 our cells for like an hour. We got -- we got released on our -- out of We only got like an hour out and 10 an hour out. They always said -- every time the lieutenant 11 comes inside the house, you know, we are locked in. 12 like, we -- 45 minutes the most we get to be out. 13 Q. So you were all bundled up in your cell? 14 A. Yeah. 15 Q. And did you see COs wearing coats? 16 A. Yeah. 17 Q. Hats and scarfs? 18 A. Yeah. 19 used to tell us like, listen, this ain't supposed to be out in 20 public. 21 talking to us, he know. 22 Q. So it was There was one CO we talk to, like a cool guy, he He didn't want to talk to us that much, but he was He said -- 23 THE COURT: What was he wearing? 24 THE WITNESS: 25 He was wearing -- he was wearing his jacket, his vest What he was wearing? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 J25nseg2 Cruz - Direct 1 over it, and he had -- he had a little skully on. 2 Q. 3 cell? 4 A. Yeah. 5 Q. And how were the meals? 6 A. Two sandwiches, a baloney and a cheese and another one, 7 yeah. 8 Q. Did you receive hot meals? 9 A. No, we didn't have hot meals. 10 Q. What was it like? 11 during the day in your cell as well? 12 A. 13 that window wasn't -- I was in the back like towards the water, 14 so I didn't have that much light. 15 Q. Was there air coming from the window also, cold air? 16 A. No. 17 Q. No? 18 night? 19 A. And what was the -- you were eating your meals in your And it was bags, we had bags. Was it dark only at night or was it dark It was always dark in there. We only got one window, and But your cell was dark during the day as well as at Yeah. 20 THE COURT: 21 electricity was on? Are you asking the witness whether the 22 Is that your question? 23 MS. KUNSTLER: Yes. I wanted to know -- 24 Q. During the day the sun was up, right? 25 A. Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 J25nseg2 Cruz - Direct 1 Q. But it was still dark in your cell? 2 A. Yes. 3 Q. And during the day -- 4 A. There wasn't no light inside the cell. 5 Q. What? 6 A. There wasn't no light in the cell. 7 Q. Even during the day there was no electricity and no light? 8 A. Right, right. 9 Q. And whats's it like to be locked in your cell in the dark 10 with no heat? 11 A. 12 don't know. 13 would. Being locked in, it's horrible, you know. It's horrible. 14 THE COURT: 15 THE WITNESS: I don't like it. That's -- I Nobody else What is horrible about it? Everything. You're in a cell with 16 another person, and you don't know how he feels, you know, 17 like, he could be in a mood, and you could be talking -- you 18 know, anything could happen. 19 can't even press the emergency button, because, you know, no 20 one would respond. 21 Q. Did you press the emergency button? 22 A. No, not at all. 23 but talk and just go by the day. 24 Q. Did you get clean laundry during this time? 25 A. No. You're locked in your cell you I just -- there wasn't much we could do No laundry. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 J25nseg2 Cruz - Direct 1 Q. Were you wearing dirty clothing during this time? 2 A. I wasn't wearing dirty clothes. 3 they asked us to take a shower, if you want to take a shower, 4 you are going to take a shower every 72 hours or something. 5 didn't want to -- I wanted to take a shower, but I didn't want 6 to take a shower because the water was -- I wasn't going to 7 take a shower in frozen water. 8 cell. I It was already cold in our I wasn't going to take a cold shower. 9 10 It was just the usual -- THE COURT: You are saying there was no hot water in the shower? 11 THE WITNESS: 12 THE COURT: 13 THE WITNESS: No, there was no hot water at all. How long did that last? I can't tell you. I got released on the 14 30th. 15 Q. Was it still a problem when you left, the hot water? 16 A. There was no hot water at all, period. 17 Q. What about the toilets? 18 toilets? 19 A. No. 20 Q. What about, did you notice any issues that any other 21 inmates were having with food? 22 A. We was eating the same thing, everybody, everybody. 23 Q. What about people with special diets? 24 the food they needed? 25 A. Were there any issues with the The toilets, no, the toilets was flushing. Yeah. They wasn't getting nothing. Were they getting They was eating what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 J25nseg2 Cruz - Direct 1 we was eating. I was actually talking to a Hindu guy. He said 2 that when he came in that he put a slip in for the nurse and he 3 was supposed to be on a diet, a special diet, and he said he 4 haven't ate nothing, just water and bread all those days. 5 was trying to give him, like, some of my soups and my 6 commissary, you know, but he said he can't eat most of the 7 things, so he couldn't eat much. 8 Q. 9 working on your unit? I What was it like not being able to -- well, were the phones 10 A. No. No phones was working, no computers was working. 11 the only phone working was the attorneys' phone. 12 that phone that was working. 13 Q. Was it a phone you could use to call your attorney? 14 A. Yeah, that was working. 15 Q. What was it like -- you could call your attorney on that 16 phone? 17 A. Yeah. 18 Q. Were you able to get in contact with your family? 19 A. No. 20 Q. What was it like not being able to get in contact with your 21 family? 22 A. 23 only people that make me feel comfortable, you know -- uh-huh, 24 like, when I talk to them and stuff, I go about my day by 25 talking to them. But I didn't call. Stressful. And It was just The other phones wasn't working. I didn't make no calls. That's -- it was stressful. Like, they are the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 J25nseg2 Cruz - Direct 1 Q. 2 for about an hour -- 3 A. An hour, yeah. 4 Q. Were you able to go to recreation? 5 A. What you mean? 6 Q. Yes, to outside. 7 A. They didn't let us go outside. 8 into the yard. 9 Q. Were you able to go to the law library? 10 A. No. 11 Q. Were you able to get commissary? 12 A. No. 13 were supposed to get our commissary, and, yeah, they didn't 14 take the sheets. 15 When you said that you were allowed out of your cell daily No longer than an hour. Like to -- to -- to outside? They didn't want us to go I was -- I was signed up for commissary. THE COURT: On Monday we Counsel, your ten minutes are up. 16 Q. What was it like -- how did it feel to be released? 17 A. It feels great, you know. 18 Q. Can you describe your reaction. 19 A. I was surprised. 20 Q. Why were you crying? 21 22 THE COURT: me. I was crying. Ms. Kunstler, I don't know if you heard Your ten minutes are up. 23 MS. KUNSTLER: Thank you. 24 THE COURT: Cross-examination? 25 MS. BRETZ: We have no questions for this witness. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 J25nseg2 Guevara - Direct 1 THE COURT: I assume there is no redirect then. 2 All right. You may step out, and you can call your 3 next witness. 4 THE WITNESS: 5 (Witness excused) 6 MR. SPILKE: 7 8 Thanks. The defense calls Vivianne Guevara, a mitigation expert with the Federal Defenders of New York. VIVIANNE GUEVARA, 9 called as a witness by the Defendants, 10 having been duly sworn, testified as follows: 11 DIRECT EXAMINATION 12 BY MR. SPILKE: 13 Q. Ms. Guevara, where did you work? 14 A. I work at the Federal Defenders of New York in the Eastern 15 District. 16 Q. And that's in Brooklyn? 17 A. Yes. 18 Q. And what do you do there? 19 A. I am the director of social work. 20 Q. Very briefly, what is your background in -- withdrawn. 21 Very briefly, what are your qualifications for that? 22 A. I have a master's degree in social work, and I am a 23 licensed master of social work. 24 Q. 25 standards at the MDC? Did you come to know that there was a an issue with living SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 J25nseg2 Guevara - Direct 1 A. Yes. 2 Q. How did you know that? 3 A. I learned that over the weekend. 4 to the date, a week ago this past Sunday. 5 THE COURT: 6 THE WITNESS: 7 THE COURT: 8 THE WITNESS: 9 THE COURT: 10 I am trying to think back Would you like to look at a calendar? Yes, please. There is a calendar right there. Thank you. On the very bottom you will see January and February on the left. 11 THE WITNESS: Around January 27 or 28th our office was 12 alerted that there were issues at the jail, and that's when I 13 became alerted. 14 BY MR. SPILKE: 15 Q. And do you usually visit clients at the jail there? 16 A. Yes, I do. 17 Q. And that's the MDC? 18 A. Yes. 19 Q. Did you attempt to visit during that week? 20 A. No, I did not attempt to visit. 21 updates as an office that there were no visitations allowed, 22 and so I did not try. 23 Q. Who notified you generally? 24 A. The director of my office, Deirdre von Dornum. 25 Q. Right. I -- we kept getting Did you learn that why there were no legal visits? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 J25nseg2 Guevara - Direct 1 A. Yes. I believe the e-mail said that there were -- there 2 was a power outage due to a fire, and that was the reason. 3 Q. 4 for yourself? 5 A. Yes. 6 Q. And what did you do when you were there? 7 A. I went to the MDC. 8 was going there, and I also wanted to check on conditions, not 9 believing that I would be able to go in, but just to check on Right. And at some point did you go down to the MDC to see On Friday, February 1, I went to the MDC. I heard that the director of my office 10 how things were going on the outside. 11 arrived at the corner of 29th Street and Third Avenue -- 12 Q. 13 When I arrived, I Sorry to interrupt you for one moment. At what time was that? 14 A. That was between 5:15 p.m. and 5:30 p.m. 15 Q. Right. 16 A. When I first arrived and turned the corner at 29th Street 17 and Third Avenue, I immediately started to hear the echoing of 18 clicking or -- it sounded like clicking echoing off the walls 19 that are there. 20 realized that it was people banging from inside the west 21 building. 22 Q. And did you make a recording of that? 23 A. Yes, I did. 24 25 Please continue. And as I started to walk down 29th Street I MR. SPILKE: I'm showing the witness what's in evidence -- I'm sorry, what's marked for identification as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 J25nseg2 Guevara - Direct 1 Defense Exhibit CC. 2 Q. Did you take this video? 3 A. Yes, I did. 4 MR. SPILKE: 5 THE COURT: 6 I would offer it, your Honor. Counsel, then you will have to get it authenticated. 7 MR. SPILKE: Yes, your Honor. 8 Q. Is it a true and correct copy of a video you took? 9 A. It's -- yes. 10 I don't know if it's playing there. 11 12 It seems like it's -- it's not playing here. MS. BRETZ: the video. 13 Objection, your Honor. She hasn't seen How does she know if it is a true and correct copy? THE COURT: Well, we could play the video first and 14 then have her authenticate it. 15 MR. SPILKE: Thank you, your Honor. 16 Q. Is this the video you took? 17 A. Yes. 18 Q. It is a true and correct copy of that video? 19 A. Yes. 20 MR. SPILKE: 21 THE COURT: I would offer it. You should ask her what it depicts. 22 Q. Does it fairly and accurately depict what you saw? 23 A. Yes. 24 video where you could not see the lights coming out because it 25 was daylight. This is actually a later video. There was an earlier But this video shows -- you can hear the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 J25nseg2 Guevara - Direct 1 clicking sound that I mentioned and you can hear what I later 2 learned were reading lights that not everybody had, but whoever 3 had a reading light and wanted to light that through the 4 window, they were doing that, and that's what that shows. 5 Q. This depicts the scene that you were describing? 6 A. Yes. 7 MR. SPILKE: I would offer it, your Honor. 8 THE COURT: Any objection. 9 MS. BRETZ: No, your Honor? 10 THE COURT: It is admitted. 11 What is the label that goes with that? 12 MR. SPILKE: 13 (Defendant's Exhibit CC received in evidence) 14 MR. SPILKE: It is Defense Exhibit CC. Your Honor, just for the sake of 15 efficiency, we have four additional videos that Ms. Guevara 16 made and that depict what she witnessed the night of February 17 1. 18 19 THE COURT: Are they different from what we've already seen? 20 MR. SPILKE: 21 THE COURT: 22 MR. SPILKE: 23 MS. BRETZ: They are. So are you seeking to admit them? I am seeking to offer all of them. Your Honor, we haven't seen these videos. 24 I don't think we can agree to see them -- are you going to ask 25 to have her authenticate them all? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 J25nseg2 1 2 MR. SPILKE: I was hoping for the sake of efficiency I could offer them. 3 4 Guevara - Direct MS. BRETZ: We haven't seen them. We don't know what is on them. 5 MR. SPILKE: 6 THE COURT: 7 MR. SPILKE: 8 THE COURT: 9 MR. SPILKE: I will show them one by one. Counsel, they are not cumulative? No, they are not, your Honor. All right. Then what's the next one. This is Defense Exhibit GG. 10 Q. Does this depict what you witnessed at the MDC? 11 A. Yes. 12 THE COURT: On what date and at what time? 13 Q. On what date and at what time? 14 A. On February 1, between 5:30 and 5:45. 15 Q. You took this video? 16 A. Yes, I took this video. 17 Q. At that time? 18 A. Yes. 19 MR. SPILKE: I would offer it. 20 THE COURT: Any objection? 21 MS. BRETZ: No, your Honor. 22 THE COURT: What title, what label shall it be? 23 MR. SPILKE: 24 THE COURT: 25 (Defendant's Exhibit GG received in evidence) Defense Exhibit GG. It is admitted. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 J25nseg2 Guevara - Direct 1 BY MR. SPILKE: 2 Q. What is that noise that we were hearing? 3 A. That's the sound of incarcerated people banging on the 4 window from the inside. 5 MS. BRETZ: Objection, your Honor. 6 THE COURT: Sustained. 7 MR. SPILKE: 8 THE COURT: 9 Your Honor, we would ask for some leeway. Counsel, she's hearing a noise, and she's now essentially guessing how the noise was produced. 10 MR. SPILKE: You can take that down, Ms. Bass. 11 BY MR. SPILKE: 12 Q. How long were you outside the MDC? 13 A. I was outside from about 5:30 -- 5:15, 5:30 to 7, 6:30 or 7 14 p.m., and I can tell you that in visiting the MDC multiple 15 times I have never heard that sound outside of the MDC ever. 16 And I've never seen people shine lights from inside the window, 17 and I've -- I don't have any other explanation for why there 18 would be multiple clicking sounds echoing off the walls at the 19 MDC. 20 Q. How did that make you feel? 21 MS. BRETZ: Objection. 22 THE COURT: Overruled. It was shocking to hear. You may answer. 23 A. It's not a sound that you 24 normally hear when you are walking to visit people at the jail. 25 I mean, there's lots of things down there, there's lots of cars SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 J25nseg2 Bencebi - Direct 1 and there's an overpass and there's a shipyard or something, 2 but you never hear that sound when you walk down there. 3 doesn't sounds like birds; it doesn't sound like anything 4 human. 5 It It's -- to me as a social worker and working with my 6 clients, it sounds like -- it sounded like a cry for help, and 7 I don't know Morse code or anything, so I couldn't tell if 8 anybody was trying to send a message, but it sounded desperate, 9 and it sounded like people who wanted to be heard. 10 Q. Did it ever stop that whole time were you there? 11 A. No, it never stopped. 12 MR. SPILKE: 13 THE COURT: Cross-examination? 14 MS. BRETZ: No questions. 15 THE COURT: You may step out. 16 (Witness excused) 17 THE COURT: 18 MS. KUNSTLER: 19 Correction Officer June Bencebi. 20 No further questions. Please call your next witness. Your Honor, the defense calls HAI JUNE BENCEBI, 21 called as a witness by the Defendants, 22 having been duly sworn, testified as follows: 23 DIRECT EXAMINATION 24 BY MS. KUNSTLER: 25 Q. Good afternoon, your Honor -- good afternoon, Ms. Bencebi SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 J25nseg2 1 Bencebi - Direct rather. 2 Ms. Bencebi, can you tell us where you work. 3 A. I work at MDC Brooklyn. 4 Q. What is your rank and position at MDC? 5 A. I'm the case manager. 6 Q. For what unit? 7 A. For the G unit. 8 Q. And where is G unit? 9 A. It's on the fourth floor. 10 Q. And do you also have a position with your union? 11 A. Yes. 12 Q. How long have you worked at MDC? 13 A. 18 years 7 months -- 19 years, 7 months. 14 Q. And what shift do you work? 15 A. I work during the day, 6 a.m. to 4 p.m. 16 Q. And what building do you work in? 17 A. In the west building. 18 Q. Have there been problems with the heat and electricity in 19 the west building at the MDC? 20 A. Yes. 21 Q. When did the problems with the heat start? 22 A. On the first day that it was going to be really, really, 23 really cold, where the temperature dropped like 20 degrees. I'm the local treasurer. 24 THE COURT: There's a calendar right there and -- 25 THE WITNESS: I couldn't even tell you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 J25nseg2 Bencebi - Direct 1 THE COURT: OK. 2 THE WITNESS: I really don't remember the exact day. 3 I just remember it was supposed to be the coldest day of the 4 year. 5 Q. Was that in January? 6 A. Yes. 7 Q. Did that predate the fire in the facility? 8 A. Yes. 9 Q. And how long -- and what was the problem at that time? 10 MS. BRETZ: Objection. 11 THE COURT: Overruled. You may answer. 12 A. It just got really cold in the building. 13 Q. Was it cold throughout the building to your knowledge? 14 A. I wouldn't know. 15 building, so on my floor it was cold. 16 Q. Were you on any floors where you noticed the cold? 17 A. On the fifth floor I did. 18 was cold. 19 Q. 20 yourself from the cold? 21 A. 22 I might have put on my winter hat. 23 that I put on a pair of gloves. 24 know, I put on a coat. 25 Q. I don't really go throughout the I was on the fifth floor, and it And were you wearing outerwear? What did you do to protect First I kept my scarf on, and then a couple of hours later A couple of hours after And then towards the end, you Did you see other staff members bundling up? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 J25nseg2 Bencebi - Direct 1 A. Yes. 2 Q. How long did that problem last? 3 A. It might have been a day or two, and then when the weather 4 got warmer then it went back to normal. 5 Q. 6 facility? 7 A. 8 It was extremely cold that day. 9 Q. There was no heat in the facility? 10 A. On my floor in my office. 11 Q. So the first time -- the first incident you are talking 12 about was before Martin Luther King Day? 13 A. Yes. 14 Q. But in the month of January? 15 A. I believe so. 16 Q. And the second incident was around Martin Luther King Day? 17 A. Well, I remember on Martin Luther King Day it was extremely 18 cold. 19 Q. And how long did that incident last? 20 A. Probably for like two days. 21 Q. And then when was the next time you noticed -- And when was the next problem with the heat at the The next time I remember was Martin Luther King's holiday. 22 23 24 25 THE COURT: How did you dress on Martin Luther King Day? THE WITNESS: I had on my hat and my gloves, my two scarfs and my coat. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 J25nseg2 1 2 Bencebi - Direct THE COURT: And did you observe other people in your working area? 3 THE WITNESS: I observed -- not in my area, on the 4 fifth floor they had a little space heater, so they used their 5 little space heater. I didn't have one. 6 THE COURT: 7 THE WITNESS: 8 Who was using a space heater? on -- 9 THE COURT: You are saying people who were employed -- 10 THE WITNESS: 11 THE COURT: 12 THE WITNESS: 13 THE COURT: 14 Some of the unit team staff that worked Yes, employed -- -- at the MDC? Yes. They had a heater, but you did not have a heater? 15 THE WITNESS: 16 THE COURT: 17 MS. KUNSTLER: No, I did not. Go ahead. Thank you. 18 BY MS. KUNSTLER: 19 Q. 20 the incarcerated people on your unit? 21 A. 22 of my elderly inmates stated that they were cold. 23 24 25 You are on the -- the problem, was it also a problem for A couple of the inmates stated that they were cold. THE COURT: Some Other than what they said, was there any physical manifestation of the cold? THE WITNESS: I am not on the units, so it was just SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 64 J25nseg2 Bencebi - Direct 1 when I would go make rounds and they would come and speak to 2 me. 3 Q. 4 incident and the Martin Luther King Day incident? 5 A. 6 to them. 7 on a unit that day. 8 Q. When was the next time it was cold? 9 A. Maybe the Sunday of the fire incident. 10 Q. What do you attribute to this? 11 goes out? Did you speak to inmates during both the early January The Martin Luther King Day incident I don't believe I spoke 12 I was running around that day. I don't believe I got I mean, is it that the heat Like, what is your understanding of what's happened? MS. BRETZ: 13 Q. 14 where you are? 15 A. Objection. Is there any heat at all coming into the fourth floor area Yes. 16 MS. BRETZ: Objection. 17 THE COURT: Overruled. 18 So you feel heat? 19 THE WITNESS: 20 THE COURT: 21 THE WITNESS: Yes. And where did the heat come from? I would assume the vents. 22 Q. And during these incidents you felt no heat coming into 23 your area? 24 A. During what incidents? 25 Q. When the heat went out in January, in the early January SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 J25nseg2 1 Bencebi - Direct incident and the mid-January incident. 2 MS. BRETZ: Objection. 3 THE COURT: Sustained. 4 You described three cold days. 5 Was there heat coming out of the vents? 6 THE WITNESS: No. 7 Q. And when was the next time it was cold on the unit? 8 third incident you described was, began on June -- excuse me, 9 your Honor -- January 27? Yes. It was a little cold. The 10 A. 11 a little colder. 12 Q. Were you on the -- were you at the facility on January 27? 13 A. Yes. 14 Q. And it was a little cold? 15 the vents? 16 A. 17 remember too much. I wouldn't remember. 18 THE COURT: 19 THE WITNESS: 20 21 22 It wasn't extremely cold, just Was there heat coming through It was a crazy day. I wouldn't What were you wearing on that day? A jacket, a scarf, I am not even sure if I had a hat on. THE COURT: When you say a jacket, you mean something -- 23 THE WITNESS: 24 THE COURT: 25 THE WITNESS: This. Something that you wear outside? This jacket. No. This is a jacket. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 66 J25nseg2 Bencebi - Direct 1 THE COURT: An indoor jacket? 2 THE WITNESS: Yes. 3 BY MS. KUNSTLER: 4 Q. How long did that problem with the heat last? 5 A. I couldn't tell you. 6 when you're moving, it gets -- 7 Q. Was it just that one day, or was it over a series of days? 8 A. I just remember that one day and for me just that one day. 9 Q. When you spoke to the press, to the New York Times and you I was running around, so, you know, 10 said you -- you told the New York Times they just stay huddled 11 up in bed, you were talking about the inmates? 12 A. Yes. 13 Q. And when did you observe the inmates huddled up in bed? 14 A. On one of the extremely cold days. 15 Q. Was that after the January 27 fire? 16 A. No. 17 Q. So you were talking about an earlier incident -- 18 A. Yes. 19 Q. -- where you saw them huddled up in bed? 20 A. Yes. 21 Q. When you told the New York Times, I have several inmates 22 that are very elderly, one of them complained that he had been 23 sick for the last few days, he looked sickly, he's walking 24 slower, talking slower, when were you referring to? 25 A. Before the January 27 incident. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 67 J25nseg2 Bencebi - Direct 1 THE COURT: In what areas of the building did you 2 observe the inmates huddled? 3 THE WITNESS: 4 THE COURT: In their cells on the fourth floor. On the fourth floor. 5 Q. What measures were taken to ameliorate the situation, to 6 make it better for the incarcerated people you observed on the 7 units? 8 A. I don't know. 9 Q. Did you see any extra blankets being given to them? 10 A. No. 11 Q. Were there any space heaters on the unit? 12 portable heaters on the unit? 13 A. No. 14 Q. Did you see any extra clothing provided to them? 15 A. No, I didn't see. Were they given extra blankets? 16 THE COURT: 17 they were, is that correct? 18 Did you see So you were wearing more clothing than THE WITNESS: I couldn't really say. 19 suits, they have thermals. 20 wearing under their jumpers. 21 Q. 22 the electricity? 23 A. Yes. 24 Q. And was electricity out on your floor? 25 A. Partial, yes. They have sweat So I couldn't say what they were Now, on the day of the fire, it also caused a problem with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 68 J25nseg2 Bencebi - Direct 1 Q. Were the lights out on the unit that you are -- on your 2 unit? 3 A. Partially. 4 Q. And when you say partially, what lights were on? 5 A. What I have been told, they're called twenty -- emergency 6 lights, emergency 24-hour lights. 7 Q. Did those provide full illumination, or is it a dim light? 8 A. It's a dim light. 9 Q. Is this a safe situation for staff on the unit to be -- 10 MS. BRETZ: Objection. 11 THE COURT: Overruled. 12 She can opine as to the safety as she sees it. 13 A. I would say no. 14 Q. As a union rep -- 15 THE COURT: It is not a safe situation for the staff. Why is it not safe? 16 Q. Why is it not a safe situation? 17 A. Since the government shutdown, we have been working a lot 18 of hours. 19 more hours than they're used to, then they are not as alert as 20 they can be, and because of the lighting, it is a little 21 darker, so it creates an atmosphere where it makes you more 22 tired. 23 Q. 24 hear complaints from union members about either the lights or 25 the heat? When you have staff that are working multiple days, As a union rep, in your capacity as a union rep, did you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 69 J25nseg2 I did. Bencebi - Direct 1 A. A few members complained about that it was cold, 2 particularly at night. 3 Q. 4 complaints? 5 A. 6 complaints are. 7 Q. 8 cells like? 9 A. And as a union rep is it your job to do anything with those I spoke to the union president and let him know what the Now, without light, without electricity, what were the Were the cells on your unit dark? I don't know, because I'm there during the day, and there's 10 light from the windows during the day. 11 Q. 12 bring electricity to the units? 13 A. I wouldn't know. 14 Q. Did you see any? 15 A. I didn't see anything. 16 Q. Now, were there any issues with medical, with inmates 17 getting to their medical appointments? 18 A. Not that I am aware of. 19 Q. Were inmates taken to rec? 20 A. They rec on the unit. 21 Q. Were the incarcerated people on your unit allowed out of 22 their cells after the fire, if you know? 23 A. Yes. 24 Q. Were they locked in their cells for any period of time? 25 A. They were locked in the cells during their normal periods, Do you know if any portable generators were brought to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 70 J25nseg2 Bencebi - Direct 1 and they were let out a little later than we normally let them 2 out. 3 Q. So for most of the time they were out of their cells? 4 A. While I was there, we let them out after breakfast until it 5 was time to lock in for the count. 6 Q. Were incarcerated people able to go to the law library? 7 A. I don't know. 8 Q. You don't know? 9 A. No. 10 MS. KUNSTLER: One moment, your Honor. 11 Q. How do inmates request medical attention? 12 A. They can do an inmate request to staff on paper and put it 13 in the mailbox, or they can request it through the computer. 14 Q. 15 of the fire after the fire? 16 A. 17 I don't know when they went out. 18 Q. During the week after the fire, were there family visits? 19 A. Not that I am aware of. 20 Q. Have family visits been restored, to your knowledge? 21 A. I have no idea. 22 Q. During the week after the visit, after the fire were there 23 legal visits? 24 A. I don't believe there were. 25 Q. During the week after the fire, were inmates able to Were computers available after the fire -- during the week Sometime after the fire I believe the computers were out. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 71 J25nseg2 Bencebi - Direct 1 shower? 2 A. Yes. 3 Q. Do you know -- strike that. 4 Do you have any inmates on your unit who use 5 respirators or ventilators? 6 A. I wouldn't know. 7 Q. Do you have any inmates on your unit who take multiple 8 medications. 9 A. I wouldn't know. I don't distribute medication. 10 THE COURT: 11 MS. KUNSTLER: 12 THE COURT: Cross-examination? 13 MS. BRETZ: We have no questions, your Honor. 14 THE COURT: All right. 15 THE WITNESS: 16 (Witness excused) 17 THE COURT: 18 MR. SPILKE: 19 Your time's up, counsel. Yes. No further questions. Thank you. You may step out. Thank you. Please call your next witness. Your Honor, the defense calls Anthony Sanon. 20 While the government is getting Mr. Sanon, I just had 21 a question about whether the Court is going to be putting on 22 Ms. von Dornum. 23 24 25 If not, we'll do so. THE COURT: If you would like to call her, that's fine. MR. SPILKE: OK. Thank you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 72 J25nseg2 Sanon - Direct 1 THE COURT: 2 MR. SPILKE: 3 Will you also be calling Inspector Ross? No, your Honor. ANTHONY SANON, 4 called as a witness by the Defendants, 5 having been duly sworn, testified as follows: 6 DIRECT EXAMINATION 7 BY MR. SPILKE: 8 Q. Mr. Sanon, where do you work? 9 A. Excuse me? 10 Q. Where do you currently work? 11 A. I work at the Metropolitan Detention Center in Brooklyn, 12 New York. 13 Q. And what do you do there? 14 A. I am a senior officer specialist and I am also the 15 president of the union. 16 Q. Of the local chapter? 17 A. Yes. 18 Q. Which union is that? 19 A. The FGE Local 2005. 20 Q. As the president of the union, people report to you? 21 A. Yes, they do. 22 Q. Regularly? 23 A. Yes. 24 Q. That is part of your job? 25 A. Yes. That is part of my job as well. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 73 J25nseg2 Sanon - Direct 1 Q. Any member of the union can approach you? 2 A. Yes. 3 Q. And bring any grievance they might have or any fear they 4 might have to you, right? 5 A. That's correct. 6 Q. And you are aware of the problems at the MDC, right? 7 A. Yes, I am. 8 Q. Now, when did the problems with the electricity start? 9 A. It started I believe -- if I'm not mistaken, two weeks 10 prior of the fire that took place. 11 12 THE COURT: there. Sir, I have a calendar that's sitting On the lower left you will see January and February. 13 You can consult that you would like. 14 THE WITNESS: Thank you. 15 Q. The fire was on what day -- 16 A. The fire was on -- 17 Q. -- to your memory? 18 A. -- Sunday, the 27th. 19 Q. So the problems with the electricity started a couple of 20 weeks before that? 21 A. That's correct. 22 Q. And you learned that from your members or working there? 23 A. Actually, I was out of the institution when I received a 24 call, and I was told that the institution was in blackout. 25 Q. Was it how long did that blackout last? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 74 J25nseg2 1 A. Sanon - Direct It wouldn't -- 2 THE COURT: 3 MR. SPILKE: When did you receive the call? Yes, your Honor. 4 Q. When did you receive the call? 5 A. I am not too sure of the date that I received the call. 6 don't have the exact date, but I did receive the call that the 7 institution actually -- actually the power actually went down. 8 Q. That was approximately two weeks before the fire? 9 A. Yes. 10 Q. And you said you don't know how long that outage was? 11 A. No. 12 passed on to my chief and my deputy chief steward of the local 13 to handle the situation. 14 Q. And do you know what floors were affected? 15 A. From what I was told, they told me that the entire building 16 was affected at that time. 17 Q. That includes staff-only floors? 18 A. That includes everybody. 19 Q. And does that include security -- withdrawn. 20 I That's correct. I wasn't in the institution at the time. That was Does that include cameras? 21 A. I am not too sure, because I didn't inquire about the 22 cameras. 23 to be running in some type of emergency power. 24 sure -- I'm not sure regarding what was actually on because I 25 can't attest to it because I wasn't at the institution at the I know when the power usually goes down we supposed So I am not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 75 J25nseg2 1 time. 2 Q. Sanon - Direct And let's just go to the fire on the 27th. 3 When did you first hear about that? 4 A. As soon as it happened that Sunday I was called around 12 5 p.m., around 12, 12:30 p.m., and I was told that we had a fire 6 the institution. 7 Q. What systems did that affect? 8 A. What do you mean, systems? 9 Q. Meaning electrical. 10 A. Well, they told me that the electrical panel actually 11 caught on fire when I received the call. 12 rushed to the institution to see what was happening. 13 Q. When you got there, what did you see? 14 A. When I got there I saw the institution pretty much in the 15 dark. 16 actually on, and all of the other lights, the main lights were 17 actually off. 18 Q. Main lights meaning what? 19 A. Meaning that we have, we have about four or five lights 20 let's say in the hallway, we probably would have at least one 21 or maybe two that was on that would give us enough light until 22 we could see where we were going, because it wasn't completely 23 bright. 24 Q. What about the cells? 25 A. The cells, to my knowledge, when I inspected the cells the Did it affect electrical? So I immediately I We had partial lighting, the emergency lights were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 76 J25nseg2 Sanon - Direct 1 cells had no lights at all. 2 Q. So you inspected the jail yourself, right? 3 A. Yes. 4 officers and I got a full detail of basically what was going on 5 within their working environment, and I was told that the cells 6 had no lights. 7 Q. And what day was that? 8 A. That was on Sunday. 9 Q. Sunday what date? 10 A. The 27th, the date of the fire. 11 Q. On this tour, who accompanied you? 12 A. On this tour I did it myself. 13 immediately went to the fourth floor. I saw the officers 14 there. I believe that they, 15 they had held up the shift prior because of the situation, and 16 I spoke to them and they were giving the information that they 17 had. 18 Q. 19 receive any complaints about the power outage from your 20 members? 21 A. 22 power outage as well. 23 working conditions, and they were asking me as the union 24 president what was I going to do regarding these conditions 25 that they are working in. When I came in, I went upstairs, I checked on the The date of -- When I came in, I They had additional officers. And what was your understanding of -- withdrawn. Yes. Did you My members suffered a great deal throughout this You know, they were complaining of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 77 J25nseg2 Sanon - Direct 1 THE COURT: What were their specific complaints? 2 THE WITNESS: Well, they were complaining that they 3 were actually working without any lights, that it was actually 4 a very dangerous situation for them as well, working inside of 5 the prison, and they were asking me for answers which I didn't 6 have -- I mean, questions -- I mean, they were asking me 7 questions, which I didn't have any answers at the time because 8 the emergency actually just had taken place. 9 a chance to speak to the management officials yet. 10 11 THE COURT: I didn't even get What is the danger if there is not sufficient light? 12 THE WITNESS: Well, it's a security issue, because we 13 need the lighting to actually see for any type of contraband 14 that's coming into the institution. 15 do our job efficiently. 16 Q. Were your members also worried about lockdowns? 17 A. Yes. 18 of my members during the lockdown, and they were also worried 19 about, about the lockdowns and the movements that was taking 20 place in the institution. 21 Q. Can you just explain briefly what a lockdown is? 22 A. A lockdown is when we have an emergency situation in the 23 institution and not only for the officers' safety but also for 24 the inmates' safety that we have to lock down the institution 25 so we could actually have some type of control of the prison. So we can see, so we could During the lockdowns we spoke -- I spoke to a couple SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 78 J25nseg2 Sanon - Direct 1 Q. And were your members also -- did you receive complaints -- 2 withdrawn. 3 well? 4 A. 5 for the inmates' morale, because of the security of the 6 institution. 7 institution from the inmate population and also to -- also the 8 correction officers as well. Did you receive complaints about inmate morale as Inmate morale, yes. 9 My concern was also for the inmates, I mean, all of that affects the running of an I spoke to management officials regarding that, but we 10 needed to, because of the lighting, I guess they needed to 11 actually keep the institution locked down to protect not only 12 the staff, but also the inmate population. 13 Q. 14 as well? 15 A. So are you saying that inmate morale affects your members Yes. 16 MS. BRETZ: Objection. 17 THE COURT: Overruled. 18 Q. And were you concerned about efforts being undertaken to 19 restore power to the cells? 20 MS. BRETZ: Objection. 21 THE COURT: Overruled. You may answer. 22 A. Yes, I was very concerned about the power coming back on. 23 Q. And did you think that management was taking it seriously 24 in your opinion? 25 MS. BRETZ: Objection. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 79 J25nseg2 1 Sanon - Direct THE COURT: Sustained. 2 Q. Did you bring those concerns to the attention of 3 management? 4 A. Yes, I did. 5 Q. And did anything happen? 6 A. Well, to my knowledge, management told me that they were 7 going to take care of it. 8 president to actually know what management actually is doing. 9 My powers are limited. I don't have the power as the It is just to actually ask a question 10 and making sure that things are being done, but from my end I 11 could only hear what they tell me. 12 Q. 13 responses you were getting from management? 14 A. No, I was not. 15 Q. And on your tour -- how many tours did you do while the 16 lights were out. 17 A. 18 entire day. 19 Congress officials. 20 Q. And what is the temperature like on those tours? 21 A. Well, it varies. 22 were cold, and some areas were actually normal temperatures. 23 Q. 24 colder? 25 A. And as local president, were you satisfied with the I did many tours. I did a tour Sunday throughout the I came back Monday. I did tours Tuesday with I did many tours. When we actually did the tour, some areas Can you just briefly -- what areas would you describe as Well, we have numerous cells inside of the ins -- inside of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 80 J25nseg2 Sanon - Direct 1 these housing units. 2 than others within the same unit, and that was a concern. 3 Q. 4 Were the cells colder than elsewhere on the unit? 5 A. 6 temperature we had actually two separate issues. 7 power issue, and we also had a heating issue. And were the cells colder than the -- were -- withdrawn. Well, we had two -- I mean, if you are asking for the 8 9 10 Some of these cells were actually colder I specifically informed management prior of the fire that we had a heating issue in the institution so they could fix it. 11 THE COURT: 12 THE WITNESS: 13 We had a When did the heating problem arise? I would say sometime between January 14 to the 16th, if I am not mistaken. 14 THE COURT: Could you describe the problem? 15 THE WITNESS: When I spoke to management regarding the 16 heating issue, they informed me that they had an actual -- the 17 coil actually froze up, which caused the heating not to 18 actually give any heat. 19 that was blowing into the institution was actually cold air, 20 and I spoke to the -- I spoke to the warden about it, and I 21 told him that the air that's coming into the institution is 22 actually cold air. 23 couldn't close -- for some reason, something was going on 24 mechanically with the system, they couldn't close the air 25 vents, so which was allowing the air from outside to actually But my main concern is that the air I was instructed by management that they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 81 J25nseg2 1 come inside of the institution. 2 3 THE COURT: From what date until what date was there cold air blowing? 4 5 Sanon - Direct THE WITNESS: I'm not too sure, your Honor. I'm really not too sure of the dates. 6 THE COURT: You can estimate. 7 THE WITNESS: I would say between the 14th through the 8 16th, I believe, between those three days, if I'm not mistaken. 9 BY MR. SPILKE: 10 Q. How many units were affected by these heating problems? 11 A. Well, at the very beginning the entire building was 12 affected by that. 13 themselves that they were actually cold. 14 somewhat fixed. 15 Q. When? 16 A. After I spoke to the warden, it was somewhat fixed. 17 believe maybe about -- don't quote me because I'm really -- you 18 know, everything -- there's been a lot of things going on, so 19 I'm really, like, the dates are really confusing to me right 20 now. 21 17th, if I'm not mistaken, you know, we had actually got some 22 type of heat coming into the building. 23 building, which had the unit team officials the case managers 24 and the unit managers and so forth, that part didn't have any 25 heat. I had gotten complaints from the officers Then the issue was I But I believe that maybe sometime on Thursday, maybe the But the middle of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 82 J25nseg2 1 Sanon - Direct I immediately called the regional vice president and 2 informed them, which he called the regional director, and it 3 just went up the chain from there. 4 I've gotten a call by the warden after those calls 5 were made to actually tour the institution to check the heating 6 within the institution, which we did. 7 warden and the facilities manager, Mr. Maffeo. 8 Q. About how long ago? 9 A. We did this last week, the week prior of the fire, I would I did that with the 10 say Wednesday, the 23rd, or Thursday, the 24th, we did this 11 tour. 12 Q. 13 now? 14 A. 15 has -- I went in there today, and the institution has heat. 16 Q. 17 the heat during winter? 18 A. 19 actually had this problem in the institution when it comes to 20 heat. And did you say that the heat is temporarily fixed right The heat is completely fixed right now. Have there been chronic issues throughout the years with I mean, from my knowledge, this is the first time that we 21 MR. SPILKE: 22 THE COURT: 23 24 25 The institution I have nothing further, your Honor. During the periods when there was no heat, how were the corrections officers dressed? THE WITNESS: All the corrections officers were actually with scarfs and coats and their hats. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 83 J25nseg2 1 Sanon - Direct Numerous of the correction -- I would say maybe all of 2 the correction officers actually called and were complaining 3 that it was freezing in the building. 4 THE COURT: How many days do you think that the 5 correction officers were wearing their coats and their scarfs 6 and their hats? 7 THE WITNESS: 8 THE COURT: 9 10 I would say about two or three days. And what about the inmates? What were they wearing? THE WITNESS: Well, the inmates were wearing their 11 clothing, they had blankets that they had, they wrapped 12 themselves with blankets that we usually give them when they go 13 to sleep. 14 knowledge, I can't really say for sure because I don't work the 15 housing unit, but that's what I was told. 16 17 They wrap themselves with it as well. THE COURT: To my Can you tell me what the initials SHU stand for? 18 THE WITNESS: 19 THE COURT: 20 THE WITNESS: That's special housing unit. And what is that? This is where we keep inmates that don't 21 oblige by the rules and regulations of the Bureau of Prisons. 22 It's like a jail within the jail. 23 THE COURT: 24 THE WITNESS: 25 So is it a form of punishment? I wouldn't say it is a punishment, but it's a form -- it's a segregation where we keep the inmates SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 84 J25nseg2 Sanon - Direct 1 that don't really want to behave themselves accordingly inside 2 of the prison. 3 They will go through some type of disciplinary action 4 where we have a disciplinary officer which is called a DHO, 5 which would come out and do a hearing and see if they actually 6 are found guilty of the charges that they have been charged 7 with in the facilities. 8 9 THE COURT: Do you know anything about the conditions in the SHU? 10 THE WITNESS: 11 THE COURT: 12 THE WITNESS: Somewhat. In terms of the heat? Well, I haven't really heard the SHU 13 complaints about the heat. 14 your Honor, I didn't get any complaints from the SHU myself. 15 16 THE COURT: Now, if they did, to my knowledge, Any other types of complaints concerning the conditions? 17 THE WITNESS: 18 The special housing officers usually have a lot of 19 complaints regarding special housing. 20 THE COURT: 21 ambient conditions. 22 The conditions, yes. I am talking about the physical or the THE WITNESS: I mean SHU is ran -- I mean, you have 23 two officers there that actually conduct rounds every half an 24 hour that check on the inmates. 25 logbook on the computer system, and if anything would happen or They note that into their SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 85 J25nseg2 Sanon - Direct 1 anything would -- if any needs, the officers would have any 2 needs to have any complaints, they usually have a SHU 3 lieutenant which is there, which is a management official, 4 where they could actually address their situation for them. 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 86 J257SEG3 Williams - Direct 1 2 THE COURT: 3 MR. SPILKE: 4 5 Call your next witness. The defense calls City Coucil member Jumaane Williams. JUMAANE WILLIAMS, 6 called as a witness by the defendant, 7 having duly affirmed, testified as follows: 8 9 DEPUTY COURT CLERK: name for the record. 10 11 Please state and spell your full THE WITNESS: Jumaane Williams, J-u-m-a-a-n-e, Williams. 12 THE COURT: You may inquire. 13 DIRECT EXAMINATION 14 BY MR. SPILKE: 15 Q. Council Member Williams, good afternoon. 16 A. Good afternoon. 17 Q. Where do you work? 18 A. New York City Council. 19 Q. And in what borough? 20 A. I represent the 45th District in Brooklyn. 21 Q. And that encompasses what neighborhoods? 22 A. East Flatbush, Flatbush, Midwood and Flatlands. 23 Q. And at some point did you tour the MDC? 24 A. Yes. 25 Q. And why did you want to tour the MDC? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 87 J257SEG3 Williams - Direct 1 A. We heard about -- saw some things in the news that things 2 weren't going well there, and a lot of people I know were at 3 the scene, and it didn't sound too good, and we went down to 4 check it out for ourselves. 5 Q. And you actually entered the institution, right? 6 A. Yes. 7 Q. Now, were you admitted right away? 8 THE COURT: 9 THE WITNESS: 10 11 THE COURT: On what day did you visit? Saturday. I don't remember the date. There is a calendar right there. On the lower left you will see January and February. 12 THE WITNESS: I guess that's Saturday the 2nd. 13 Q. Now, on February 2nd, about what time did you get there? 14 A. Roughly 2, 3ish. 15 Q. And how did you get in? 16 A. How did I get in? 17 Q. Yes. 18 A. When we got there, there were some electeds that were led 19 by a delegation of Congressional members, and we went in with 20 them. 21 Q. Who were those other electeds? 22 A. Congress members Velazquez, Nadler and Maloney, Council 23 Member Brad Lander, State Senator Zelma Myre, Council Member 24 Keith Powers. 25 Q. All right. And I may be forgetting someone. And were you led around the institution by BOP SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 88 J257SEG3 Williams - Direct 1 staff? 2 A. Yes. 3 Q. And who is that? 4 A. There was a few people. 5 Warden Quay. 6 Q. And how long were you in the institution? 7 A. I would imagine it was over an hour. 8 Q. And where did you go in the institution? 9 A. I don't remember the floors. The only one that I remember was I know we went to two 10 different places, one where people were I believe were serving 11 some sort of time and one where people were pretrial. 12 Q. And how were the conditions there? 13 A. Wasn't very good. 14 lockdown for about 40 hours and hadn't showered in a few days. 15 Q. So you talked to some people incarcerated there? 16 A. Yes, a number. 17 through the doors. 18 astonishing actually. 19 Q. What jumped out to you the most? 20 A. Well, just seeing how long people hadn't had showers, how 21 long they were on lockdown. 22 connect to get medical attention. 23 physically who had an eye infection, and we tried to connect 24 with him. 25 to see a psychiatrist; he hadn't seen one since he got there. By then most of the folks had been on We just went to try to talk some folks We got into a few. It was pretty There were people who we tried to There was one gentleman There was one person who was told he would be able SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 89 J257SEG3 Williams - Direct 1 Probably the most astonishing thing was the lack of urgency 2 from anyone. 3 to fix the conditions that were there. 4 lot of questions that were asked. 5 warden what about CPAP machines, and the warden said he hadn't 6 thought of that. 7 Q. What's a CPAP machine? 8 A. It's for people with sleep apnea. 9 Q. And why would that have been affected by the conditions? 10 A. Because electricity was out. 11 about -- in particular the city had offered emergency blankets 12 and emergency warmers, and we kept asking why would you not 13 receive those. 14 finally said it wasn't an emergency; now that it's an 15 emergency, perhaps we will. 16 Q. 17 that aid to the MDC? 18 A. 19 Mayor's office to say we need to push again, just get the 20 trucks there, at least have them there. 21 night they finally did receive them, but when we went the next 22 day they had not even distributed them the next day. 23 It was literally amazing. There was no urgency That was evidenced by a Congressman Nadler asked the We asked a lot of questions There wasn't an answer for a while, and then he It was just astonishing. As a council member, you were involved in trying to deliver Yes. After we found out the answer, I reached out to the And apparently that One of the things that was most astonishing as well 24 was there seemed to be no emergency plan, and there seemed to 25 be no plan to create a plan, just a matter of waiting. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 The 90 J257SEG3 Williams - Direct 1 warden kept saying the contractor came, left, may be back on 2 Monday. 3 another contractor out here. 4 adequate heat and hot water and haven't showered and medical 5 attention; get it done. We were like, what are you talking about? Like get There are people who don't have 6 Also, there was no plan at all to communicate with 7 people who were there and let their families know that they 8 were OK. 9 numbers as I could and connected with those families, and they 10 were very grateful because they had heard absolutely nothing to 11 that point. 12 Q. Were they surprised by what you had witnessed? 13 A. They were. 14 get across from what I could see to loved ones at least 15 physically were OK except for the two people I saw. 16 Q. 17 the MDC. 18 something like that. 19 A. 20 understood, and generators, some portable generators. 21 Q. And what agency arranged that? 22 A. I reached out to the Mayor's office. 23 Q. And how quickly after you reached out to the Mayor's office 24 were those trucks ready to go? 25 A. Just no one cared about that. And I took as many But they were just thankful. I just tried to Let's just go back to the attempts to deliver materials to You said let's just get the trucks there, or The trucks were carrying what? Hundreds of blankets and hand warmers, from what I Very quickly. I assumed it was OEM. So my understanding is they had offered them SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 91 J257SEG3 Williams - Direct 1 before and they didn't receive them. I'm sure a lot of other 2 folks made calls in addition to myself, but when I called they 3 said they're working on it, you have to call back, that they 4 were on their way. 5 honest. 6 Q. 7 Quay, and he said now it's an emergency -- 8 A. Yes. 9 Q. -- did you ask whether he considered it an emergency before It was probably less than an hour, to be And on February 2, when you're doing the tour with Warden 10 that day? 11 A. 12 repeated asking now it's an emergency? 13 is your plan, you don't seem to have a plan, this doesn't seem 14 to be urgent to you at all. 15 motions -- some folks seemed to be annoyed that we were there, 16 even annoyed that we cared about the prisoners and the people 17 who were there. 18 there but it just rose to the level of an urgent situation. 19 Q. He wouldn't answer some of my questions. The question is where He seemed to -- there was just He went through the motions of allowing us And what did Warden Quay say he would do? 20 MS. BRETZ: Objection. 21 THE COURT: Sustained. 22 There were Counsel, let's get to the condition at the prison. 23 MR. SPILKE: 24 Q. 25 the lockdowns. Yes, your Honor. Now, I believe you mentioned that a common complaint was What did you learn the length of the lockdowns. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 92 J257SEG3 1 Williams - Direct To be? 2 MS. BRETZ: Objection. 3 THE COURT: Sustained. 4 Q. Now, you spoke to how many -- approximately how many 5 inmates? 6 A. I would say in the neighborhood of eight to ten. 7 Q. And was there any light in the cells? 8 A. There didn't seem to be any light. 9 during the day, but there was no -- it didn't seem like any We happened to go in 10 lights worked. 11 it was too hot, there was another person saying there was 12 inadequate heat. 13 it did seem to have inadequate heat, and I can imagine if it 14 was a few days before they would have been freezing. 15 Temperatures fell that night. 16 Some of the cells ranged from one person saying When we went in to at least two of the cells There were also boarded up vents in most of the cells. 17 We asked them why, and they said because cool air keeps coming 18 through, they were trying to stop the cool air from coming 19 through. 20 Q. What did they use to block the vents? 21 A. It seemed like some sort of cardboard. 22 of makeshift way to hold it. 23 what we saw. 24 I can't say it was freezing cold, but it did feel cool. 25 didn't feel like there was really heat coming through. They made some kind That was kind of ubiquitous from We got one of them lifted up, and we did feel -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 It 93 J257SEG3 Williams - Direct 1 Q. And when you were touring, did you see any inmates out of 2 their cells? 3 A. 4 the point we had been there -- for 40 days -- sorry, 40 hours, 5 and they hadn't showered for three days. No. They said they were on lockdown. At that point, at 6 THE COURT: 7 MR. SPILKE: 8 THE COURT: Cross-examination. 9 MS. BRETZ: We have no questions, your Honor. 10 THE COURT: You may step down. 11 (Witness excused) 12 MS. KUNSTLER: 13 14 15 Counsel. My time is up Council Member Williams. Your Honor, the defense calls Donnell Murray. DONNELL MURRAY MR. OESTERICHER: Your Honor, if I might just raise a 16 scheduling issue before the witness testifies. 17 assistant warden here who is also under order to testify in the 18 Eastern District at 2:30. 19 to call the assistant warden, but we bought him here in case 20 there were questions he could answer, and I don't know if they 21 intend to call him. 22 this witness, we would greatly appreciate it. 23 MR. SPILKE: 24 THE COURT: We have an We were not affirmatively planning But if we could take him out of turn after No objection. All right. 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 94 J257SEG3 Murray - Direct 1 2 DONNELL MURRAY, 3 called as a witness by the defendant, 4 having been duly sworn, testified as follows: 5 DIRECT EXAMINATION 6 BY MS. KUNSTLER: 7 Q. 8 incarcerated at MDC Brooklyn? 9 A. Yes. 10 Q. And when did you arrive there? 11 A. January 13th of 2017. 12 Q. And what unit are you on? 13 A. Unit 51. 14 Q. And can you tell me about your experience -- were you aware 15 of a fire at the facility on January 27? 16 A. Yes. 17 Q. Can you tell me about your experience after that fire? 18 A. The lights was out, the heat was off, and we was locked in. 19 Q. And what was that like for you, sir? 20 A. It was pretty bad. Good afternoon, Mr. Murray. 21 THE COURT: 22 THE WITNESS: I'm right here. So are you How so, sir? Well, it was hard on me because it was 23 dark, it was cold, I was nervous because I didn't know what 24 really was going on. 25 Q. Were you able to shower during this time? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 95 J257SEG3 Murray - Direct 1 A. No, I wasn't. 2 Q. How long were you without a shower? 3 A. I didn't get a shower until that -- until Monday. 4 Q. So you didn't get to shower until the following day? 5 A. No, until Monday of this week. 6 Q. So from Sunday, January 27 to Monday of this week you went 7 without a shower? 8 A. Yes. 9 Q. Now what about the temperature? 10 What was the temperature in your cell during this time? 11 MS. BRETZ: Objection. 12 THE COURT: Overruled. If he knows. 13 Q. If you know. 14 A. 30 to 40 degrees. 15 Q. How do you know the temperature in your cell was 30 to 40 16 degrees? 17 A. 18 us. A CO came in there with a temperature reader, and he told 19 20 MS. BRETZ: Objection to the response, your Honor. believe that's hearsay. 21 THE COURT: I'm going to allow the answer. 22 Q. So the CO took a reading in your cell? 23 A. Yes. 24 Q. And he told you what that reading was? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 We 96 J257SEG3 Murray - Direct 1 Q. Now, what was the CO wearing at this time when he came into 2 your cell? 3 A. 4 his head. 5 Q. And what were you wearing? 6 A. A sweat suit. 7 Q. Did you see COs bundled up during this time other than this 8 one CO who came to your cell? 9 A. Yes. 10 Q. What were they wearing? 11 A. Jackets, hoodies, hats. 12 Q. Were you bundled up during this time? 13 A. No. 14 Q. Why not? 15 A. I didn't have anything to bundle up with. 16 Q. Did you have access to commissary during this time? 17 A. No. 18 Q. Now, apart from the CO checking the temperature, did you 19 notice the temperature changed during the week, or was it 20 consistently cold? 21 A. Yes, it was cold. 22 Q. Did it get any better? 23 the temperature? 24 A. No. 25 Q. Did you notice during the course of the week the He had on a hood, a jacket, and he like a skull cap over Do you know what day the CO tested SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 97 J257SEG3 Murray - Direct 1 temperature in your cell get better? 2 A. Get better? 3 Q. Yes, improve. 4 A. No. 5 Q. What was the air -- was there air coming from the vent in 6 your cell? 7 A. Yes. 8 Q. What was that air like? 9 A. Cold air. 10 Q. How was your mental health during this period? 11 A. I was struggling trying to stay -- you know, like stay warm 12 and stay, you know -- keep my spirits up. 13 THE COURT: How did you stay warm? 14 THE WITNESS: We had to like walk around in a cell and 15 wrap my blanket around me and get under the covers. 16 Q. And this situation continued for how many days? 17 A. It didn't improve until Sunday. 18 THE COURT: So how many days was that? 19 THE WITNESS: About a week. 20 Q. Did you ask for medical attention during this time? 21 A. No. 22 Q. Did you ask for mental health treatment during this time? 23 A. Yes. 24 Q. When did you ask for mental health treatment? 25 A. Monday, yesterday. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 98 J257SEG3 Murray - Direct 1 Q. And have you received mental health treatment? 2 A. No, I didn't. 3 Q. Now, you're about to go to trial, sir; is that correct? 4 A. Yes. 5 Q. When is your trial scheduled to start? 6 A. February 19. 7 Q. When was the last time you saw your lawyer? 8 A. The beginning of January. 9 Q. Have you seen the 3500 material in your case? 10 A. No, I haven't. 11 Q. Is this a cause of stress for you not seeing your lawyer 12 and not seeing the 3500 material in your case? 13 A. Yes, it is. 14 Q. Is this the reason that you asked for mental health 15 treatment? 16 A. Yes. 17 Q. Now, how many days of trial are scheduled, if you know? 18 A. I don't know. 19 MS. KUNSTLER: One moment, your Honor. 20 Q. How many weeks of trial are scheduled, if you know? 21 A. I don't know. 22 Q. Did you have access to -- what was the water like in your 23 cell? 24 A. It was cold. 25 Q. Did you have access to hot food during this period? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 99 J257SEG3 Murray - Direct 1 A. The food was cold when it came to my cell. 2 Q. Do you feel ready for trial in your case, sir? 3 A. No, I don't. 4 MS. KUNSTLER: 5 THE COURT: 6 Did you observe other inmates while you were feeling cold? 7 THE WITNESS: 8 THE COURT: 9 THE WITNESS: 10 Only the person that was in my cell. And what was that person wearing? He was wearing the same thing, sweatshirt. 11 THE COURT: 12 THE WITNESS: 13 THE COURT: 14 THE WITNESS: 15 No further questions. Did you complain about the cold to anyone? Yes. Who did you complain to? To the officer that was on duty at the time. 16 THE COURT: 17 THE WITNESS: 18 THE COURT: 19 THE WITNESS: 20 THE COURT: Cross-examination. 21 MS. BRETZ: We have no questions, your Honor. 22 THE COURT: Sir, you may step down. 23 (Witness excused) 24 MR. SPILKE: 25 And when did you make your complaint? I told him it's cold, and he said -- When? When did you complain? On that -- on that Monday, the 28th. The defense calls the assistant warden, to be identified by the government. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 100 J257SEG3 Garcia - Direct 1 2 ELEAZAR GARCIA, 3 called as a witness by the defendant, 4 having been duly sworn, testified as follows: 5 DIRECT EXAMINATION 6 BY MR. SPILKE: 7 Q. Mr. Garcia, where do you work? 8 A. MDC Brooklyn. 9 Q. What's your title? 10 A. Associate warden of operations. 11 Q. Associate warden of operations? 12 A. Correct. 13 Q. How many associate wardens are? 14 A. There's three. 15 Q. And there is operations and what else? 16 A. Custody and programs. 17 Q. And operations also -- operations oversees the facilities? 18 A. Correct. 19 Q. And the function of the facilities? 20 A. Correct. 21 Q. And I imagine that you toured the facility after the fire 22 on January 27, right? 23 A. 24 o'clock. 25 fire, and I immediately responded. I was actually there at one o'clock and left at one I left and I got the phone call that there was a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 101 J257SEG3 Garcia - Direct 1 Q. At one o'clock p.m. or a.m.? 2 A. P.m. 3 Q. And you immediately got there? 4 A. Yes. 5 Q. And what did you observe? 6 A. I observed NYPD fire department there. 7 time. 8 home to get to MDC Brooklyn. 9 Q. And operations also oversees phone systems, right? 10 A. Correct, which falls under inmate trust fund. 11 Q. All right. 12 operational, right? 13 A. Staff phones were operational. 14 Q. And phones to the Federal Defenders? 15 A. Yes. 16 Q. And what about inmate phones? 17 A. They were not. 18 Q. And why is that? 19 A. They are on a software which is accessed through 2 Net 20 which are monitored, because we monitor those phone calls for 21 security concerns. 22 Q. 23 the functionality of the phones. 24 A. Can you explain that a little bit in regards to that? 25 Q. Yes. Correction on the The time was I think approximately 3 p.m. when I left my So after the fire, some phones were still And can you please just explain more why that would affect So I asked why the inmate phones weren't working, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 102 J257SEG3 Garcia - Direct 1 I think it might be fair to summarize that there is a software 2 system that operates those phones. 3 the software system affect the phone's functionality? 4 A. 5 guess you call it the number 3 system, which provides the power 6 to that software system or computer system. 7 computer system. 8 that inmates function -- inmate trust fund part of it. My question is why would To explain to you, they're on a different breaker system, I 9 It's a very big It also covers commissary and other areas In order to monitor the phone, we have to monitor for 10 the safety of staff and inmates alike and public officials 11 because inmates could actually use these phones to solicit, you 12 know, other crimes or threats to the community. 13 down. 14 phones. 15 Q. 16 power outage knocked out the computers. 17 A. Yes. 18 Q. And not having the computers meant that the facility 19 couldn't monitor the phone calls. 20 A. 21 power to the computer system. 22 Q. No power to the computer system. 23 A. Correct. 24 Q. But the phones could have still worked without being 25 monitored during that time? Those were That's why the inmates didn't have access to those So let me just see if I understand. Correct. The outage -- the But it wasn't that -- the reason there was no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 103 J257SEG3 Garcia - Direct 1 A. I'm not the expert in that area, sir. 2 Q. Understood. 3 outage. 4 A. 5 effective with Super Bowl Sunday, right before the Super Bowl 6 kicked off. 7 Q. So February 3. 8 A. Correct. 9 Q. So 1 p.m. January 7 -- January 27 through February 3? 10 A. When I was notified it was about 3 p.m. there was a fire, 11 so I responded. 12 Sunday. 13 Q. 14 commissary when the computers are down, right? 15 A. That's right. 16 Q. Does the facility distribute thermal underwear to the 17 inmates? 18 A. 19 have them or not to distribute to the inmates. 20 made available for purchasing through the commissary. 21 Q. 22 And the computers are out because of the power How long did the power outage last? From the fire until yesterday. OK. So we had the power I would say from 3 until 1:30 p.m. Super Bowl And the computer systems, you said there is no I don't want to speculate in regards to that, whether if we Not for free? I know they're Withdrawn. Certain things like socks and shoes are provided? 23 A. Socks, shoes, are standard basic issue, correct, we do make 24 those available. 25 Q. Thermals are not standard basic issue. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 104 J257SEG3 Garcia - Direct 1 A. Correct. 2 Q. You would have to get them through commissary? 3 A. You would purchase them through commissary. 4 Q. Now, what else do you need to do with the computers as an 5 inmate? 6 A. 7 also. 8 Q. 9 family? You also utilize the e-mails through the computer system And those e-mails are used to communicate with lawyers and 10 A. Yes. 11 Q. And friends, I imagine. 12 A. Yes. 13 Q. So no computer means no e-mails. 14 A. Correct. 15 Q. Whatsoever. 16 A. That is correct. 17 Q. Does the facility distribute stamps? 18 Withdrawn. Outside of commissary, does the facility distribute 19 stamps? 20 A. 21 request if the inmate does not have stamps. 22 Q. How many? 23 A. Depends. 24 inmate has a legal package that weights a certain thing that 25 they need to weigh it, that's going to take more stamps than a To inmates they distribute stamps to indigent inmates upon It depends on the situation. I mean if the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 105 J257SEG3 Garcia - Direct 1 letter that goes out, just a basic letter. 2 Q. 3 letters out during the week of the outage? 4 A. 5 for mail. Do you know if the facility was sending more than average Mail was still being sent out. 6 THE COURT: 7 MR. SPILKE: 8 Q. 9 What else? There was normal operations Counsel, let's keep to the conditions. Yes, your Honor. Now, no computer means no commissary, no e-mail, no phone. 10 A. No intelligence for us. 11 intelligence research, we were not able to use the system. 12 also ties our hands to if an incident were to happen, we were 13 unable to generate an incident report that we have to report. 14 THE COURT: 15 THE WITNESS: If we had to do some form of It What do you mean by intelligence? For example, if we received an inmate 16 that comes in from another institution, if we had to do some 17 research on that particular inmate as to any type of -- if he 18 was either an STG, which is gang affiliated to any other gangs, 19 or if he was involved in any other incidents or disturbance, we 20 would utilize this system to look into it, which is called True 21 Links. 22 Q. 23 reason for 20 plus hour lockdowns every day? 24 A. No, sir. 25 Q. What was the reason for that? Now, the loss of intelligence functionality, was that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 106 J257SEG3 Garcia - Direct 1 A. In regards to the lockdown, after the fire we did a 2 modified operation in the institution. 3 come out for breakfast one tier at a time, and if breakfast 4 went fine, then the inmates were allowed to be out among the 5 flats, which is the common areas to shower, to use the public 6 defender phone, sit around and play cards or anything they 7 wanted to do. 8 Throughout the night and the afternoon, because we had access 9 to hot meals, inmates were given hot meals for lunch and 10 dinner, and that was the protocol, the standard practice. 11 was the field for Monday. 12 Inmates were allowed to That's how we started operating after Monday. Now we went into Tuesday. That If we didn't have any 13 issues, we opened up, inmates were allowed to be out and about. 14 Once the count cleared, they came out and ate breakfast and 15 were able to sit at the common area tables. 16 process throughout the week, until Friday when the elevator 17 system went down. 18 That was the I was acting warden at the time, ma'am, and once we go 19 to one elevator I secured the institution due to security and 20 safety concerns of staff and inmates. 21 secure the institution. 22 Q. Now, turning back to the computers. 23 A. Yes. 24 Q. Can you explain to the Court what a cop-out is? 25 A. Inmate cop-out, there are two forms of putting out a That's when I decided to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 107 J257SEG3 Garcia - Direct 1 cop-out. I have been doing this for over -- it will be 24 2 years in July. 3 cop-out. 4 requesting anything they wanted. 5 know, stamps or anything like that, we would put it in there, 6 it's called an inmate request to staff. 7 of the form. 8 electronically. 9 Q. But e-mail is down. 10 A. The e-mail is down, but they can also submit it in writing. 11 Q. And were inmates doing that? 12 A. To my knowledge, without walking through the units, a 13 couple of inmates handed me handwritten notes to see what the 14 issues were, and they were explained to them when I was there. 15 Q. And the handwritten notes were cop-outs? 16 A. Cop-outs, that's what they're called. 17 Q. And there are medical cop-outs? 18 A. The ones I received, they just wanted to say, hey, what's 19 going on, can you tell me what's happening. 20 Q. Did they get a response? 21 A. Yes, right there in person. 22 Q. But no medical cop-outs were submitted? 23 A. Not to me, sir. 24 Q. So you don't know. 25 A. I'm not going to speculate or respond to that. Before the inmates used to submit a form on a They also can do it on a plain piece of paper, If it had to do with, you That's the main title Now they have access to e-mail, they submit it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 108 J257SEG3 Garcia - Direct 1 Q. Right. And what about refills of medication? 2 A. When staff coming to the units, they were passing out 3 medication. 4 while another staff member went around and picked up cop-outs 5 or what we call sick call forms. 6 Q. 7 refills? 8 A. 9 allowed to carry, med carry, and he needed a refill, he would 10 turn that refill in, and they would bring that refill back to 11 the inmate. They would go around and provide medication, and Can you explain the difference between the pill line and If an inmate -- depends on the situation. 12 If an inmate is OK? If the inmate is on pill line, then he would have to 13 come out to the pill line and say now we have pill line, or the 14 staff member, if they were secured in their cells, they would 15 actually physically bring the pills to the inmate's cell. 16 Q. 17 can keep those -- that medication in your cell? 18 A. That is correct. 19 Q. But for a pill line, that's not medication you can keep in 20 your cell, you have to take it right there, right? 21 A. Yes. 22 Q. Pill line was still going, right? 23 A. Pill line was still going. 24 operation, if the inmates were out and about and they were 25 delivering the pills and they see the inmates are out and Right. So is it fair to summarize that for a refill you Now, if we're on modified SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 109 J257SEG3 Garcia - Cross 1 about, the inmates would come to the staff member to receive 2 the pills. 3 would go to the cell. 4 Q. 5 were still able to refill their prescription. 6 A. Correct. 7 Q. But they couldn't request it over the computer. 8 A. That is correct, sir, the computers were not operational. Now, if they were still secured, the staff member Now, as far as you know, the people incarcerated at the MDC 9 MR. SPILKE: Nothing further. 10 THE COURT: Cross-examination? 11 CROSS EXAMINATION 12 BY MS. BRETZ: 13 Q. 14 lockdown on Friday, February 1; is that correct? 15 A. That's correct, ma'am. 16 Q. Why did the institution go on lockdown? 17 A. It went on lockdown due to the operations of the elevators. 18 We were limited to one operator at the time, and we had an 19 agreement with the local union that should we go down to one 20 elevator, we will secure the inmates in their cell for security 21 and safety concerns. 22 Q. 23 would be. 24 A. 25 inmate on the seventh floor, if the elevator was being utilized Good afternoon. I believe you mentioned there was a Can you explain what those security and safety concerns Should we have an emergency, for example, if we had an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 110 J257SEG3 Garcia - Cross 1 for other things like to run food carts, that would tie it up. 2 It would also impede staff to respond to the seventh floor, 3 including medical and the operations lieutenant, so that would 4 impede the staff member in responding and providing that 5 emergency aid, so that's why we limit it to one. 6 limited to one elevator, we secure the inmates in their cells. 7 Q. Thank you. 8 A. The lockdown went on the Friday. 9 modified operation as soon as the count cleared, and that's 10 when we started having a lot of these issues in regards to 11 assaults. 12 caused a lot of problems and we went into a secure lockdown. 13 Q. So the lockdown was reinstated? 14 A. Correct. 15 Q. When was that? 16 A. That was later on that evening, Friday. 17 Q. And how long did that go on for? 18 A. It went on until the next day, because then that's when the 19 protests and everything else started, and the threats towards 20 of course myself, the administration, the institution, so we 21 went ahead and locked the institution down. If we are And how long did that lockdown go on? Then we opened up for a We had a couple of emergency situations, and that 22 MS. BRETZ: Thank you very much. 23 THE COURT: Redirect? 24 MR. SPILKE: No, your Honor. 25 THE COURT: You may step down. None. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 111 J257SEG3 von Dornum - Direct 1 (Witness excused) 2 MS. KUNSTLER: 3 4 Your Honor, the defense calls Dierdre von Dornum. DIERDRE VON DORNUM, 5 called as a witness by the defendant, 6 having been duly sworn, testified as follows: 7 DIRECT EXAMINATION 8 BY MS. KUNSTLER: 9 Q. Good afternoon, Ms. von Dornum. 10 A. Good afternoon. 11 Q. Ms. von Dornum, where do you work? 12 A. The Federal Defenders of New York. 13 Q. And what is your title at the Federal Defenders of New 14 York? 15 A. Attorney in charge. 16 Q. And how long have you been attorney in charge? 17 A. Three years. 18 Q. And how long have you been at the Federal Defenders of New 19 York? 20 A. 21 of Law. 22 23 16 years with a two year hiatus to teach law at NYU School MS. KUNSTLER: as Defense Exhibit C. 24 THE COURT: 25 MS. KUNSTLER: Your Honor, I have here what is marked May I approach? You may. The government has consented to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 112 J257SEG3 von Dornum - Direct 1 admission of this document, but I will authenticate it with the 2 witness. 3 Q. 4 document in front of you? 5 A. I have. 6 Q. And can you tell us what it is? 7 A. Yes, it's a declaration I submitted in support of a civil 8 suit filed on behalf of the Federal Defenders in the Eastern 9 District of New York yesterday. Ms. von Dornum, have you had a chance to review the 10 Q. 11 other documents appended at the back? 12 A. 13 constitute e-mails sent by my office by Adam Johnson and Nicole 14 McFarland, the legal department of the BOP. 15 e-mails are several assistant United States attorneys including 16 Mr. Oestericher, Mr. Eichenholtz who sits there in the back, 17 and other defense lawyers and prosecutors. 18 Q. 19 the author of these e-mails? 20 A. 21 22 And are there -- aside from the declaration, are there any Yes, there are a number of exhibits, most of which Also on the And were you a party to these e-mails either on cc or as I was. MS. KUNSTLER: Your Honor, I move to admit Defense Exhibit C. 23 THE COURT: 24 (Defendant's Exhibit C received in evidence) 25 Q. It is admitted. How did you become aware, Ms. von Dornum, that there was a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 113 J257SEG3 von Dornum - Direct 1 fire at the MDC? 2 A. 3 afternoon when lawyers began contacting me saying that they had 4 been in the visiting room of the MDC when they were alerted 5 that a fire had occurred. 6 meeting with were herded into a single room together and locked 7 in in the visiting room. 8 against the wall. 9 smell. I first became aware that on Sunday, January 27, in the All of the clients they had been The lawyers were made to line up They started to smell acrid electrical And after about half an hour they were led out. There 10 were firefighters trying to get in, but there were I guess 11 issues with how to do the security on that. 12 lawyers went out, there were four fire engines outside. 13 Q. And how did this fire affect your ability to do your job? 14 A. It affected it in several ways. 15 point on, after the lawyers were escorted out, there were no 16 legal visits permitted to MDC Brooklyn until yesterday. 17 for a full week we were not able to visit with our clients, 18 including people that we had hearings for, sentencings for, 19 preparing for trial, and people in my personal case who I was 20 trying to file first act motions on behalf of people with 21 medical and psychiatric problems who I would ordinarily visit 22 with. 23 people in our offices. 24 there at any one time, so a large part of the population is 25 represented by my office. Then when the First of all, from that So, Obviously, that then is multiplied by all the other We have between 500 and 600 clients None of us were able to see a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 114 J257SEG3 von Dornum - Direct 1 client. 2 Q. 3 situation? 4 A. 5 lack of information. 6 the BOP at all. 7 legal visiting is canceled tomorrow. 8 immediately and said I've heard there is a fire; are the 9 inmates OK; what are the conditions there; was anyone injured; And what is your measure of the BOP's response to this Well, I would say the first problem with the response was a We were not notified about the fire by What we were told is a simple e-mail saying And I wrote back 10 were any COs injured? 11 subsequent response that was like there is an institutional 12 situation. 13 information about other conditions, heat, or light, or 14 lockdown. 15 And there was no response, and then a No response on how the inmates were. No And as the clients got let out occasionally and our 16 federal defender phone was working, we were hearing truly 17 alarming reports. 18 who were brought to court for a prescheduled court appearances, 19 and they were still able to come. 20 multi-day bail hearing on an inmate at the MDC who has only one 21 kidney and already the magistrate judge in Brooklyn was very 22 concerned even before all of this happened and was asking for 23 reports, so Judge Orenstein in Brooklyn was pursuing the 24 conditions already, and we were hearing from the inmates about 25 being on lockdown and the heat and the lack of light, no food. Most of our information came from defendants I was in the middle of a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 115 J257SEG3 von Dornum - Direct 1 And the BOP still was telling us nothing. 2 repeatedly can you just let us know how long is it going to go 3 on, what's happening, what's the conditions there. 4 response we got was, you know, either none, or to say heat has 5 not been affected, yes, some of the lights are out, but we have 6 emergency lights, and medical care is fine. 7 So we were asking And the And it was hard to reconcile what we were hearing. I 8 was hearing from inmates all over the building with no 9 connection to each other, English, French and Spanish speakers, 10 all saying the same things, and that gave me a real feeling of 11 this is not an isolated unit who is upset, or one problem. 12 I felt badly for the prosecutors in our criminal cases because 13 they would read from their phones and say Nicole McFarland says 14 there are no problems at the institution, your Honor, and the 15 judges would just be puzzled about how to reconcile that. 16 And So I would say to me the problem with the BOP response 17 to us was the lack of information and then the denial, which 18 turned out to be some of it not true. 19 And then I guess there is the other part of the 20 response that when Chief Judge Arrizar ordered me and 21 investigator Ross into the institution on Friday, if anything, 22 more alarming, the Bureau of Prisons may have no responsibility 23 to report to me on conditions and they may not be able to 24 control power, but I do think they can provide blankets; they 25 can provide flashlights. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 116 J257SEG3 1 von Dornum - Direct MS. BRETZ: Objection, your Honor. I just would move 2 to strike a few parts of this response. 3 Ms. von Dornum mentioned that some of the responses were not 4 true. 5 knowledge that's been indicated in this response, including 6 where we were I believe just going. 7 Q. 8 untrue? That's conclusory. The first I believe Then there is some lack of personal Well, did you have a basis to know that the responses were 9 THE COURT: You may answer. I will rule, but you may 10 answer. 11 A. I did, yes. 12 Q. And what was that basis? 13 A. Well, for example, Nicole McFarland represented that 14 medical care continued without problem. I spoke to clients 15 with open wounds not getting treatment. I spoke to clients who 16 had bloody sheets from colitis and couldn't change their sheets 17 and couldn't get care for the colitis. 18 clients not getting psychiatric medications. 19 some of those clients with Nicole McFarland standing next to me 20 indifferently, and so I had personal knowledge. 21 At the time I was taken aback. I spoke to numerous And I spoke to As to other 22 statements, I mean Warden Quay informed the Southern District 23 District Executive directly that the heat was unaffected. 24 went in the building. 25 New York Bay, there was frost on people's windows. I On the side facing the water, the Upper SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 They were 117 J257SEG3 von Dornum - Direct 1 covered in blankets, in towels and on their beds. 2 black, and people were begging me to call their lawyers. 3 inspector Ross and I went cell to cell taking down people's 4 names and lawyer numbers. 5 what the warden said was false. 6 THE COURT: 7 MS. KUNSTLER: It was pitch And So, I have personal knowledge that The objection is overruled. Thank you, your Honor. 8 Q. Now, can you describe -- what reports did you get about 9 lack of medical treatment and how medical treatment was 10 working, if at all, on the units? 11 A. 12 was down, the Core Link system, that's the way in which inmates 13 request medical care and request refills of their 14 prescriptions, so I saw one when Investigator Ross and I were 15 there -- and we were there for almost four hours together -- I 16 saw what they call the pill line, which is a guard coming 17 around with a cart of pills, and people were receiving those 18 medications. 19 also joined us on some of the other floors, confirmed that 20 people who were out of their medication, people who have it in 21 their cells -- and that's usually high blood pressure, heart 22 medication, some psychiatric medications -- if they had run 23 out -- and they don't give them large supplies for reasons you 24 can understand -- they were unable to get refills because the 25 computer system was down. So, one basic problem was that because the computer system But Lieutenant Ramos, the SHU lieutenant, who SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 118 J257SEG3 1 von Dornum - Direct Also people who had medical needs, usually you put in 2 that request to get a wound cared for, or something else 3 through this computer system, and so there was not a system in 4 place for that. 5 I talked to people who said they had seizures and 6 pressed the emergency button and no one came. I talked to a 7 man, there was one unit where -- everybody was mostly on 8 lockdown, but there was one unit where the inmates were let 9 out, I believe it was 61 when I visited, unit J61, and a man 10 came over to me, a young African American man, with his hand 11 wrapped in bandages, and you could see the puss coming through 12 it, and he said it hadn't been changed in the two weeks since 13 he had been there; that he had been shot in the hand during his 14 arrest, taken to Kingsbrook Hospital, and that he kept asking 15 for someone to change it because he was so scared of the 16 infection. 17 help him? 18 paper. 19 his bandages had not been changed, and that was as of 20 yesterday, when, yes, the lights were on, but the medical care 21 problems have continued. 22 Q. 23 On that page you have a report from Warden Quay about the 24 conditions at MDC that was issued on -- when was that report 25 issued? And I turned to Nicole McFarland and said, can we And she just wrote something down on her piece of I spoke to him yesterday when he called our office, and I'm going to ask you to look at page 5 of your declaration. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 119 J257SEG3 1 2 von Dornum - Direct THE COURT: Does your declaration make specific references to individuals who are identified? 3 THE WITNESS: Your Honor, in the affidavit, because it 4 was publicly filed, I did not reference for their privacy 5 reasons the client's name. 6 Chief Judge Arrizar, which contains the same information but 7 specifies person by person the inmate's name, register number 8 and lawyer. 9 District has a copy of that memorandum as well, and it goes I filed a formal memorandum with And the government at least in the Eastern 10 through each person, and I can certainly provide a copy of that 11 to the Court. I didn't want to publicly file that. 12 THE COURT: Go ahead. 13 MS. KUNSTLER: Back to the warden. Thank you, your Honor. 14 Q. So, when was that statement issued? 15 A. My understanding is that Warden Quay spoke directly to the 16 District Executive here in the Southern District on February 1. 17 That was at the time when Chief Judge McMahon and Chief Judge 18 Arrizar were concerned about the conflicting reports, and 19 District Executive Ed Friedland had called Warden Quay and 20 asked him for a report of what was happening, and this was what 21 Mr. Friedland reported to our chief judge. 22 Q. 23 identify for us how many inconsistencies you see with what you 24 saw on your tour of the facility or what you learned from phone 25 calls with inmates, not just how many, but what the Now I'm going to ask you to look at that. And could you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 120 J257SEG3 von Dornum - Direct 1 inconsistencies are. 2 A. 3 the third to fourth lines of Warden Quay's statement, which 4 says "What this means is that there is no power to the outlets, 5 which includes lighting in the cells, however, the rest of the 6 cell blocks have lights." 7 misleading. 8 and so there was lighting, but it was dim, and it was pitch 9 black in the cells. I guess the first place I would at least pause over is in So, I would say that's not false but When I was there, the emergency lights were on, The showers were also dark, and a lot of 10 the other auxiliary rooms like the recreational rooms, so it 11 was a lot more than just outlets, because there was no way for 12 the emergency lights to penetrate the cells or showers or other 13 areas. 14 The second part which I would say is false is the 15 continuing on, "Inmates have not been confined to their cells 16 and are still allowed leisure recreational activities." 17 It is my understanding from talking to over 60 inmates 18 that from the time of the fire that inmates were confined for 19 about 24 hours entirely, and then over the next few days let 20 out for brief periods to eat or have showers, and then confined 21 again, starting Thursday afternoon. 22 afternoon they were confined or over 24 hours. 23 Starting Thursday I can confirm that through what I would call is strong 24 circumstantial evidence, which is the only phone that was 25 working in the jail was our federal defender phone. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Every unit 121 J257SEG3 von Dornum - Direct 1 has a white phone on the wall that says Federal Defenders over 2 it, and it rings directly to my front desk, and I can tell you 3 that every single morning that I've worked there 16 years at 4 nine a.m. that phone starts ringing because people immediately 5 want to call as soon as they have access to us, and this is 6 just on a normal day. 7 the phone did not ring at all, not once, and then on Tuesday it 8 would ring in these one hour blocks, just everybody over and 9 over gathering around the phone talking to us, and then it From the time of the fire until Tuesday, 10 would go dead again. And then I got worried because on 11 Thursday it went totally dead and nobody called, not even -- I 12 mean I have people who have called me basically every morning 13 for years, and not even they called. So I believe it is false. 14 And I will say when I was walking around with the 15 assistant warden and Ms. McFarland, and Ms. Prutazy, who I 16 believe may be here from MDC legal, when I was walking around, 17 the line COs were saying it's awful when we have to lock them 18 down on this; it's hard on us, it's hard on them; it really 19 makes things difficult on everyone. 20 SHU certainly confirmed that there had been lockdowns. 21 And Lieutenant Ramos on And then I guess next in terms of what is false, "Heat 22 has never been impacted." I mean not only were there 23 consistent reports of it being very cold in there, but 24 certainly on the western side of the building facing the water 25 when I was there, inside the cells it was quite cold. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 And I 122 J257SEG3 1 von Dornum - Direct know that -- 2 THE COURT: When were you there? 3 THE WITNESS: I was there on February 1. I was inside 4 the facility from 4:30 p.m. until 8 p.m. And Investigator Ross 5 and I went into many cells, a lot of them on the east side the 6 heat seemed fine, and inmates were dressed what I would call 7 normally, just a thermal and a shirt. 8 facing the water, you could feel the cold wind coming out of 9 the door, and people were just wrapped and wrapped in clothes. But on the west side 10 And obviously the inmates hadn't known we were coming, so it 11 wasn't as though they were dressing for us. 12 up. 13 They were covered So certainly in that period, which is the afternoon of 14 what Warden Quay is speaking of, it was quite cold, and I know 15 that the day before that obviously was the coldest day of the 16 year, so I was not in there then, but the inmates certainly 17 reported a lot of cold. 18 THE COURT: How were the correction officers dressed? 19 THE WITNESS: So, when I first entered the lobby, the 20 first correction officer I saw had her head fully wrapped in 21 her winter scarf and was layering three or four layers. 22 Another CO came from the door in the back, from the back of the 23 facility or up to the units. 24 from, and she also was wearing a winter hat pulled down and 25 several jackets. I don't know where she was coming When we were on the units, anything SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 123 J257SEG3 von Dornum - Direct 1 Ms. McFarland, all the employees seemed to be wearing several 2 layers. 3 4 THE COURT: So you personally observed this on February 1. 5 THE WITNESS: 6 THE COURT: 7 Yes. But did you receive complaints of severe cold with respect to other dates? 8 THE WITNESS: Yes. In particular, Thursday, January 9 31, when the inmates -- before they were locked down in the 10 afternoon, when they were out in the two hour block, I mean 11 people were frantic, and I contacted the U.S. Attorney's office 12 about it. 13 they say they're freezing, what's happening, can you help. 14 15 I contacted Nicole McFarland immediately and said THE COURT: What makes you draw the conclusion that they were frantic? 16 THE WITNESS: Because they would get on the phone and 17 beg. And these are not clients who ordinarily talk to me in 18 that way. 19 anymore clothes. 20 don't have any money and could never have afforded extra 21 clothes -- whether the commissary was up or not -- and they 22 were expressing real terror in a way I haven't heard. 23 these are people who I've talked to about facing very long 24 sentences and other things, and I haven't felt that kind of 25 emotional reaction. People said things like I'm scared; I don't have There were a few personal clients of mine who And And I got very scared for them given the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 124 J257SEG3 1 2 von Dornum - Direct temperature outside. And on that day, on Thursday, we were hearing it from 3 several floors, but particularly the sixth and seventh floors 4 were reporting just extremely cold temperatures. 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 125 J25nseg4 1 2 von Dornum - Direct THE COURT: So you received the reports concerning the 31st, and your personal observations were on February 1? 3 THE WITNESS: 4 THE COURT: 5 Correct. Please continue with regard to the warden's representations. 6 THE WITNESS: Yes. 7 So, continuing on, getting past heat has never been 8 impacted, hot water has not been impacted, as it is on the same 9 system as the heat. 10 When I was there, there were some showers -- we ran 11 several of the showers, Investigator Ross and I -- there were 12 some showers that after they ran for a bit did get hot water, 13 but other showers never got over tepid, really sort of, you 14 know, camping-temperature water. 15 So I certainly -- there was not hot water in some of 16 the showers. 17 still receiving hot meals. 18 There are no problems with meals. Prisoners are Now, this is something that we got calls on from the 19 start, of people saying, you know, we are only getting cold 20 meals, there's no hot meals and the meals are severely delayed 21 while we are on lockdown, some days not getting any food at all 22 until 2 p.m. 23 When I personally visited on February 1, when we went 24 to the 8th floor unit, all the inmates were on lockdown except 25 for three orderlies, and they were working on the food to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 126 J25nseg4 von Dornum - Direct 1 serve. 2 getting hot food, and they said today is the first day that we 3 are getting hot food. 4 sandwiches. 5 And I asked them directly, you know, have you guys been On the prior days it was all cold Then they looked -- the associate warden came and said 6 we are not going to get in trouble for saying that, are we, 7 because she had said to me in front of them they are getting 8 hot food every day. 9 So this was a consistent complaint, particularly for 10 people with special meals, people with kosher meals. We got a 11 lot of calls from the people with kosher meals saying all they 12 had to eat was sardines from the can. 13 "There is no problem with medical." 14 I mean, to me that -- I have already spoken about 15 that, but I think that was the most disturbing and harrowing 16 thing that I saw was the problems with medical and the people 17 describing -- I mean, elderly people, people with longstanding 18 conditions, people with heart conditions just really hoping 19 that they could get care. 20 And I think one thing the inmates were expressing on 21 that point is they didn't know when this would end, so they 22 didn't have a sense of when that might change, when they might 23 be able to get care for their seizures and their colitis. 24 There is a guy who told me he had Crohn's disease who just 25 looked frail and had big circles around his eyes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 127 J25nseg4 von Dornum - Direct 1 THE COURT: What do you mean by frail? 2 THE WITNESS: He was about my height, about five eight 3 or five nine. 4 pounds, and his arms were very skinny and his eye sockets were 5 hollowed out, and he told me he thought he lost about five or 6 six pounds in the last few days and really needed treatment and 7 hadn't been taken to medical. 8 THE COURT: 9 He looked to me like he was weighing about 120 Did he say that he had requested treatment? 10 THE WITNESS: He said he had repeatedly requested 11 treatment, as did each of these people that I spoke to, and 12 when I asked Nicole McFarland about it, the lawyer, she said, 13 again, that because the computer was down that it was hard to 14 get that, the medical care, that they were doing the best they 15 could. 16 And I said that I understood that, but couldn't they 17 have a person go around and talk to the people in each cell, as 18 I assume they did before it was on the computer system. 19 she told me they were working on that, but the men I talked to 20 with the medical problems said that they had repeatedly asked, 21 repeatedly pressed the emergency buttons. 22 had come and opened the door and looked at them and then just 23 shut it again. 24 and they told me he needed an oxygen mask. 25 said that he was really worried about him because he could hear And Some said that COs There was one man who was gasping for breath, And his cellmate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 128 J25nseg4 von Dornum - Direct 1 him gasping at night. 2 care. 3 repeatedly asked legal if he was receiving care. 4 And that man had asked repeatedly for And, in fact, my office represents him and we had Another man, the one with colitis and the bloody 5 sheets and the open wound, he had personally asked for medical 6 care, and his lawyer had spoken to Ms. McFarland the morning I 7 was there, February 1, and Ms. McFarland had told his lawyer 8 that he was receiving care. 9 And then when Investigator Ross and I saw him you 10 could see the open wound with pus on it and he needed 11 antibiotic cream and they couldn't bring it to him. 12 his medical records through the door so we could see what his 13 issues were and his medical records from Brooklyn Hospital 14 reflected that he had colitis, this open wound that would not 15 heal. 16 plus seizure disorder. 17 the medical records and asked Ms. McFarland to make sure this 18 man received medical care. 19 And he put I guess it's called an ulcerative wound that won't heal Investigator Ross and I both looked at It was a constant refrain, particularly for people 20 with psychiatric medications. 21 ability to provide that, which worried me for them, for my 22 other clients, for the other inmates and for the correctional 23 officers. 24 25 THE COURT: There seemed to be a lack of With respect to this deprivation of medical care, how long did that last? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 129 J25nseg4 1 von Dornum - Direct THE WITNESS: So, my understanding from speaking to my 2 clients is it lasted from the time of the fire, so Sunday 3 afternoon, January 27, until today. 4 5 THE COURT: Do you know the status of these individuals at this point? 6 THE WITNESS: So, the individuals that I particularly 7 identified in my memorandum to chief Judge Irizarry, I have 8 spoken to each of their lawyers about them. 9 know -- for example, the man with colitis and the open wound, Some of them I 10 he did not -- I sent my memo to the chief judge on the weekend, 11 and the government received it on Sunday. 12 defense witness list yesterday, and then he went to the 13 hospital last night, so he's not available to testify here 14 today. 15 He was put on the Some of the other people -- another man who I 16 identified was taken to the hospital as well on Thursday. 17 of the -- I'm sorry, not on Thursday, on Sunday. 18 Some Some of the other people have called me or called 19 their lawyers and said they still haven't received the care. 20 do understand -- I know that our United States Attorney from 21 the Eastern District went there personally on Sunday, and he 22 said he saw two-person medical teams going around and talking 23 to people. 24 a medical assistant, but they were apparently Sunday evening 25 trying to get on top of the situation. I It later turned out that that was not a doctor, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 130 J25nseg4 1 von Dornum - Direct And that was when the U.S. attorney was there 2 personally and witnessed that. 3 THE WITNESS: 4 warden's statement? 5 THE COURT: 6 A. 7 8 Yes. Should I continue on the Go ahead. "Medical still can be requested through their units." I mean, that is accurate in the sense that it can be requested, but that it wasn't able to always be provided. 9 "The attorney visiting should be up today." 10 11 Sorry. That was February 1. We were not allowed into the facility to visit until February 3. 12 MS. KUNSTLER: Your Honor, I have -- it's not marked, 13 but it's been admitted into evidence as the Government's 14 Exhibit 1. 15 May I give this Exhibit to Ms. von Dornum? 16 THE COURT: You may. 17 BY MS. KUNSTLER: 18 Q. 19 it previously? 20 A. 21 second, third, and fourth pages were offered to Judge DeArcy 22 Hall, and I saw it then. 23 pages before. 24 Q. And what does this exhibit purport to show? 25 A. It shows readings, temperature readings on each housing Ms. von Dornum, have you seen this exhibit or any part of Yesterday, in the hearing in the Eastern District, the I haven't seen the first or last SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 131 J25nseg4 von Dornum - Direct 1 unit in the cells, and then in the common room, at least as to 2 the first page -- there's no time reflected for the second 3 page, but on some of the later pages it gives a time 4 approximation of when it was read. 5 how those were taken, but it does list by unit the 6 temperatures. 7 Q. 8 February 2, the day you were at the facility? 9 A. I was there February 1. 10 Q. I'm sorry. There is no indication of I am going to direct your attention to the report page from 11 Excuse me. February 1. Do these temperature readings comport with your 12 experience at the facility? 13 MS. BRETZ: Objection, your Honor. 14 THE COURT: Overruled. 15 A. 16 only to the units I was personally on and not to the other 17 units. 18 floor, and the sixth floor as well as the lobby. 19 other areas, so I can't speak to that. 20 Yes. You may answer. I mean, anticipating Ms. Bretz, I can speak obviously I was on all of the SHU, the eighth floor, the seventh I was not in I would say that as to the common areas, it generally 21 reflects my experience of it. Of course, it is a little hard 22 to gauge temperature, but I purposely did not wear a coat into 23 the facility. 24 say, based on that, it was slightly cool in parts of the common 25 areas, but not uncomfortable. I was dressed basically as I am now, and I would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 132 J25nseg4 1 von Dornum - Direct In the cells, obviously most of the cells I was not 2 able to go into, but the officers did help us by opening some 3 of the cells, and then for empty cells they let us go in. 4 would say there was a great temperature variation. 5 were -- certainly on each of the floors I went into on the west 6 side of the building, it was significantly lower than recorded 7 here. 8 be even a recording here for that -- sorry. 9 So I won't speak to that because I think SHU is not recorded 10 11 I There For example, in the SHU on the west side, there may not Let me just see. here. On the eighth floor we only approached a couple of 12 cells because the count was happening at that time, but on the 13 west side, I could feel cold air coming from the cells and 14 people were wrapped up quite significantly. 15 On the east side of the building which, faces Third 16 Avenue, it felt OK. 17 think you would have been fine in the cells on that side. 18 19 20 THE COURT: Again, if you were dressed as I am, I Does the chart distinguish between east and west side? THE WITNESS: It does, your Honor, in the sense that 21 different housing units are on different sides of the building, 22 so that if you had a chart it would show you which side. 23 is odd to me about this is it's showing basically the same 24 range of temperatures in both sides. 25 THE COURT: What If you could just specify for me where you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 133 J25nseg4 1 von Dornum - Direct feel that this chart is incorrect, that it's inaccurate. 2 THE WITNESS: Yes, your Honor. 3 Where I think it's inaccurate is as to the west side 4 units -- I would have to look at the floor plan, but, for 5 example, on the sixth floor, which I'm most familiar with in 6 terms of the unit numbers and their placement, if I had the 7 layout of it I could be more specific. 8 THE COURT: One moment. 9 Do we have a chart showing the layout? 10 MS. BRETZ: We don't. 11 THE COURT: Is there a witness who could testify as to 12 the layout? 13 MS. BRETZ: 14 check. 15 District. 16 certainly check. I believe they may have left. I know that the warden had to go to the Eastern I am not sure if Mr. Maffeo is still here. 17 THE COURT: 18 MS. KUNSTLER: I would appreciate that. Your Honor, Adam Johnson, who is in the courtroom, may be able to testify as to the layout. 20 of the legal team for the BOP. 22 23 THE COURT: I can Thank you. 19 21 I can He's part Mr. Johnson, can you testify as to the layout. MR. JOHNSON: No, your Honor, I cannot. I am actually 24 located at MCC New York, so my knowledge of the housing units 25 and the cells I wouldn't be able to recall where all of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 134 J25nseg4 1 von Dornum - Direct housing units are located. 2 THE COURT: Very well. 3 MS. BRETZ: Can I check, your Honor, and see if 4 Mr. Maffeo is here? 5 THE COURT: 6 MS. KUNSTLER: 7 Ms. Pertazi? 8 Q. 9 sees -- 10 11 12 Yes, please do. Is there an attorney here from MDC, Perhaps Ms. von Dornum can continue to identify areas she THE COURT: I want to permit counsel to come back before we move forward. MS. KUNSTLER: May I ask another question of the 13 witness while we are waiting? 14 THE COURT: No. I want to allow Ms. Bretz -- I want 15 her to have the opportunity to be here during the entire 16 proceeding. 17 (Pause) 18 THE COURT: Ms. Bretz. 19 MS. BRETZ: Your Honor, according to Adam Johnson, 20 Holly Pertazi, who is the attorney at MDC, Holly has been only 21 working at MDC for six weeks. 22 testify as to the specific location of all the units. 23 other attorney who has been referenced, Nicole McFarland, I 24 have been advised is testifying right now in the Eastern 25 District, as are many, if not all of the management officials. She does not feel competent to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 The 135 J25nseg4 von Dornum - Direct 1 We are trying currently to get on the phone of somebody at MDC, 2 who is not in court who would be available to give the layout 3 to your Honor. 4 5 THE COURT: When you say testifying, do you mean they are before the board of judges? 6 SPEAKER1: It was my understanding that Judge Garaufis 7 had ordered several management officials to appear at a hearing 8 before him. 9 THE COURT: 10 All right. So to the extent that you can, identify the units that 11 you say you are on and seem to have an inconsistent 12 temperature -- 13 THE WITNESS: Yes, your Honor. 14 THE COURT: 15 THE WITNESS: 16 So, the sixth floor is the -- first of all, I will -- as compared to the chart? Yes, your Honor. 17 just note that SHU is not represented on February 1. 18 quite aware of the temperatures there, but it is not reflected 19 there. 20 I am not Unit 62, which is reflected, I know to be on the west 21 side of the building, and I do note that on this chart that one 22 does have the lowest reading, 63.8. 23 overstates, at least for the cells in the corners, where 24 throughout the building there are leaks coming down from the 25 roof in the corners of the building, and water is coming down. However, even that I think SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 136 J25nseg4 von Dornum - Direct 1 And those cells tend to be much colder because of this leak 2 problem. 3 here, 63.8, even though it's lower than the others, I believe 4 that there are cells that were lower than that. 5 So I do not believe that the temperature reflected Similarly, if I am remembering the layout correctly, 6 72 is also on the west side, and in 72, again, I remember 7 there's one cell in the corner, 723, where there was a 8 significant leak and where the temperature felt to me to be far 9 closer to 50 degrees when I was there and it is reflected on 10 this chart as 68.2. 11 Now I will say there was variation, your Honor, that 12 some cells, particularly on the east side, seemed to have heat, 13 and other cells, particularly on the west side, seemed to have 14 less heat and that there seemed -- some of the cells I and 15 Investigator Ross went into had cold air blowing from the 16 vents, and I believe that was on the sixth floor. 17 this out to the Associate Warden King, and she said that she 18 would call mechanical and have them take a look at that. 19 20 THE COURT: I pointed Ms. Bretz, I would like you to find a floor plan for me today. 21 Go ahead. 22 BY MS. KUNSTLER: 23 Q. 24 federal defender's phone on the units -- 25 A. Now, Ms. von Dornum, your office, as you testified, has a Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 137 J25nseg4 von Dornum - Direct 1 Q. -- that your clients can call? 2 A. On every unit except for SHU. 3 Q. What about clients, people incarcerated at the MDC who are 4 not your clients? 5 A. 6 phone is a free unrecorded line that, when the inmates are out 7 on the unit, they can use it at any point to call our office. People who are not our clients -- so, the federal defender 8 The other inmates who are represented either by CJA 9 lawyers or private lawyers have to use what we would call the 10 social phone or the regular phone, which is a monitored line, 11 and you have to have money on your commissary in order to make 12 calls there. 13 From the calls we were receiving in our office, which 14 ordinarily really is quite limited to federal defender clients, 15 there's a lot -- it seems like there's inmate self-policing on 16 that. 17 to many CJA and private clients who said they had no way to 18 contact their lawyers, no way to contact their families, and 19 asked if we could give messages to their lawyers and families 20 that they were OK. 21 Q. 22 when was the first time that incarcerated people at the MDC who 23 had private or CJA lawyers were able to speak with or visit 24 with their attorneys? 25 A. Last week there was not. Everybody called, and I talked To your knowledge, from the time of the fire until now, Yesterday Lieutenant Ramos, who walked around with us, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 138 J25nseg4 von Dornum - Direct 1 confirmed that that social phone, which has some connection 2 that I am not sure of to the electrical system, unlike the 3 federal defender phone, that social phone along with the 4 CorrLinks e-mail system was out of commission until the power 5 went on. 6 Q. Has legal visiting been restored at the MDC? 7 A. Legal visiting was restored for a brief period on Sunday 8 and then ended after about three hours. 9 to see one client each. 10 Each lawyer was able Ordinarily, when we go, we try to see as many people 11 as possible in a visit for efficiency, and obviously we hadn't 12 seen people in a long time so we were hoping to see more 13 people. 14 Yesterday legal visiting was started around 8:30 a.m., 15 and then was again suspended around 10:30 a.m. for a security 16 reason. 17 who were in the facility today, and they were able to visit, 18 family were able to visit for the first time last night, which 19 was great. 20 Q. 21 have gone through issues that you observed. 22 suggestions to the BOP about ways to ameliorate these 23 conditions? 24 A. I did. 25 Q. And -- It is happening today, and I have spoken to lawyers Now, you discussed a number of issues at the facility. You Did you make any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 139 J25nseg4 von Dornum - Direct 1 A. 2 represent us in the civil suit, and they had reached out to the 3 government to make suggestions, so initially on the legal 4 visitation problems there had already been issues during the 5 shutdown which we had already been in communication with them 6 about, and then there, you know, started to be the issues with 7 the fire immediately after that. 8 9 I and others in my office, as well as we have lawyers that So we had asked if we could see clients in the east building, where the women are housed, and whether inmates could 10 be brought over there. That's already done regularly when you 11 have a codefendant meeting. 12 over to that building. 13 to bring them there. Often the codefendants are brought So we had asked if it would be possible 14 First there was no response to that, and then 15 Ms. McFarland responded I believe on Wednesday the 30th that if 16 visitation was not back up by Monday, so another five days, 17 that they would start to use that procedure. 18 I know at least two judges in the Eastern District 19 ordered in specific cases with defendants preparing for trial 20 or hearings that that be done this weekend that those 21 particular clients be brought over. 22 we made on legal visitation. 23 So that was the suggestion It was not ever instituted, and to my understanding 24 there was never a problem with light or heat in the east 25 building. They did have phone problems, but there was never a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 140 J25nseg4 von Dornum - Direct 1 light or heat problem there. 2 made on legal visitation. 3 So that was the suggestion we had On medical care there wasn't such an ability to make 4 suggestions because we had heard it was fine. When I was 5 there, I asked Ms. McFarland and the assistant warden when I 6 was there on February 1 whether, when they said it was a 7 computer problem, whether people could go around in person. 8 And I indicated that if they needed help we have social 9 workers, we have paralegals, they could take down the 10 information and pass it along, whatever would be useful or, you 11 know, get other help from outside. 12 That was not responded to. On the family visits, we also asked if it would be 13 possible for those to be conducted in the east building. 14 was not responded to. 15 That On the food, you know, there was nothing we were 16 really able to offer on that. 17 that the heating units themselves, usually the food is prepared 18 in the kitchen at the MDC, and then each floor, each unit has 19 its own heating unit, like a small, almost, you know, warmer, 20 like you see at hospitals, and when the food comes out they 21 usually heat the food on each unit Lieutenant Ramos explained 22 to me for about an hour before serving it. 23 I know part of the problem is So, instead of doing that, they were bringing it up 24 from the kitchen and trying to serve it as fast as they can, so 25 it was often cold before it got there. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 141 J25nseg4 1 von Dornum - Direct You know, as to the heat, the question I asked several 2 times was whether they could be given additional blankets or 3 clothing. 4 that wasn't necessary. 5 They said there wasn't a problem with the heat, so As to the light, which I know we haven't really 6 touched on, but my impression from the inmates I spoke to was 7 that the darkness in their cells actually was very difficult 8 because they were locked in with another person in the pitch 9 black. 10 I asked if they could have flashlights. 11 inmates had been able, prior to this, to purchase from the 12 commissary battery-operated lights. 13 the 1st they reported to me that they were all out of batteries 14 and they weren't able to get more. 15 A few of the By the time I got there on I was asking, if they could purchase battery-operated 16 lights at the commissary why can't they be given flashlights or 17 battery-operated lights? 18 Also, when I came in through the lobby, the part where 19 you show your hand for the security stamp, I had noticed that 20 there was a big light source there, and I had asked if those 21 could be placed on the units, but they said they thought the 22 power would be fixed shortly, and that was on Friday. 23 Q. 24 visited the facility? 25 A. Now, on February 1, when you visited the facility, who else I arrived there at the same time as Congresswoman Nydia SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 142 J25nseg4 von Dornum - Direct 1 Velazquez, who was also there to visit the facility, and she 2 asked Ms. McFarland if she and I and Investigator Ross from the 3 Eastern District U.S. Attorney's Office could walk around 4 together. 5 could not go with the congresswoman, that she had to go on her 6 own. 7 Ms. McFarland said that Investigator Ross and I So Investigator Ross and I went in together. The 8 entire time we were escorted by Ms. McFarland, Holly Pertazi 9 from legal, and assistant -- I apologize, I don't know whether 10 it's assistant or associate -- but A.W. King. 11 Lieutenant Ramos from SHU, who I will say was very concerned 12 about the inmates and very straightforward about wishing he 13 could do more, he was with us at various times, and then in 14 particular units there would be different COs who were 15 escorting us. 16 THE COURT: 17 THE WITNESS: At certain times What did you observe specifically in SHU? So, in SHU obviously it is a different 18 situation because people ordinarily are locked down all the 19 time, although usually with light. 20 So I noticed on the west side that it was quite cold. 21 There was one inmate -- I believe it was cell 114 but I can 22 look that up in my notes -- who reported that there was water 23 dripping actively from the top floor of the building, water 24 dripping actively either from rain or melting snow or 25 condensation onto his bed, and because there was no clean SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 143 J25nseg4 von Dornum - Direct 1 laundry he hadn't been able to get dry sheets and he was 2 wrapped up quite a bit and said that sleeping on the wet sheets 3 in the cold was very uncomfortable. 4 Lieutenant Ramos from the SHU confirmed that there are 5 a number of leaks in the SHU on the roof and some of those are 6 directly over people's beds. 7 people on those beds could be moved somewhere else, and he said 8 he would, you know, see if he could figure that out. 9 what the inmates reported, that had been continuing throughout 10 11 I asked Lieutenant Ramos if the But from this period and without the heat. On the SHU, I also spoke to several inmates with 12 medical issues who had not been treated. 13 who was not there for any disciplinary reason, but because he 14 had come into the facility several days before with sickle cell 15 anemia and they didn't want to put him into the general 16 population until he was checked by a doctor. 17 was held in the SHU cell with no medical treatment in the dark 18 for that period. 19 There was a man there So that meant he The SHU lieutenant told me that ordinarily they are 20 allowed out for one hour a day for rec, and I think that's 21 actually by BOP regulation, but that they hadn't taken them out 22 the entire week so no one had been out of their cells. 23 lieutenant confirmed there was no clean laundry, which also 24 means several inmates pointed out they were wearing the same 25 underwear the entire week, the same socks, and they weren't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 The 144 J25nseg4 von Dornum - Direct 1 able to make any legal calls. 2 one family call a month. 3 week either. 4 Ordinarily each SHU inmate gets Obviously that hadn't happened that And the SHU head told me that day laundry was 5 delivered and he hoped to distribute it. I did see hot meals 6 being passed out when I was there on the cart. I felt them, 7 and they were warm, so I was glad to see that. And that 8 lieutenant seemed to be speaking to each inmate individually to 9 know of their condition and to wish he could do more, which I 10 very much appreciated. 11 Q. 12 Velazquez? 13 A. 14 Spanish is pretty good, but hers is a lot better, and many of 15 the inmates are Spanish-speaking, so I thought that would be 16 useful. Why did you want to tour the facility with Congressperson I wanted to tour it with her I guess for two reasons. My 17 The other reason was I had a concern that, since she 18 had never been in the facility before, that she wouldn't know 19 what to ask or where to go or how to assert herself in that 20 situation. 21 Q. 22 your visit? 23 A. I did. 24 Q. And after you compared notes, what was Congressperson 25 Velazquez' response? Did you compare notes with Congressperson Velazquez after SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 145 J25nseg4 von Dornum - Direct 1 A. 2 speak to any inmate directly because of the count and that she 3 could not approach anyone's cell. 4 30 minutes, so obviously she could have waited it out, or -- I 5 mean, they told me the same thing when I first got there. 6 said, Fine, let's go to the SHU because I know that in the SHU 7 the count operates differently, since people are locked in all 8 the time. 9 count will clear and I can go to the other units. 10 She said that they had told her that she was unable to The count only lasts 20 to I So I said let's go to the SHU, and by that time the And she had been told by the person who took her on 11 the tour that they were only locked in because of the count and 12 that otherwise they had been out all day. 13 the next day and talked to many people herself. 14 Q. How did you feel after leaving the facility on February 1? 15 A. I felt like I wished I could do more. 16 asking me when it would end, and I think part of what was 17 happening for them is they had been given very little 18 information. 19 were talking to them, but they weren't told exactly what was 20 happening and when it would end. 21 situations are harder if I don't know what's coming. 22 badly that I couldn't answer them. 23 couldn't speak to everybody, because everyone really wanted to 24 talk to me and tell me what was happening for them. 25 powerless and, you know, wishing I could do more. She then went back The inmates kept Some knew it was from a fire. Some of the COs At least for me tough So I felt I felt badly that I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 So I felt 146 J25nseg4 von Dornum - Direct 1 Q. What do you think needs to happen now? 2 A. I mean -- 3 MS. BRETZ: Objection, your Honor. 4 THE COURT: Sustained. 5 MS. KUNSTLER: 6 Your Honor, we have no more questions for this One moment, your Honor. 7 witness, although we ask to be able to re-call this witness if 8 a chart is made available so this witness is able to take us 9 through her experience at the facility using that chart. 10 11 THE COURT: Ms. von Dornum, what would you have this Court do? 12 THE WITNESS: 13 first answer to that. 14 problem here is the lack of transparency. 15 reporting problems on Tuesday when they were able to get to the 16 phones, and I think if the MDC had said there was a fire, we 17 are having a hard time coping with it, here's what we're going 18 to try to do, you know, we are going to call in FEMA, whatever, 19 that would be one thing. 20 is fine, I think it made it, at least in the Eastern District, 21 very difficult for the courts to know how to help. 22 It is hard to know I guess would be my I think, you know, to me the biggest The inmates starting But here, for them to say everything So I think if your Honor -- I don't have a creative 23 idea on this, but you might -- could think of a way for there 24 to be a reliable source of information, you know, we rely on 25 MDC legal and the warden to tell us what's happening, and they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 147 J25nseg4 von Dornum - Direct 1 didn't do that here. 2 AUSAs -- well meaning, I'm sure -- well, I wouldn't trust an 3 inmate over a lawyer. 4 assumption. 5 And I repeatedly heard in Court from That turned out not to be an appropriate So I think if there is a way, you know, the MDC, BOP 6 generally is unusual, unlike Rikers or other institutions there 7 he's no overseeing body, there's no one who can arrive 8 unannounced and see what's happening. 9 committee where lawyers can go in and do that. Even at Rikers there's a Here the Bureau 10 of Prisons has no oversight body, and I think the U.S. 11 Attorney's Office is in a difficult position in that regard 12 because the BOP is their client. 13 So, at least in our hearing yesterday, I certainly saw 14 the civil division attorneys having a hard time, because they 15 had to represent the interests of their client while also 16 explaining to a federal judge why people were kept in these 17 conditions. 18 person who had the Court's authority to enter the facility at 19 irregular periods and see what's happening. 20 So I think it could be useful to have a neutral We had raised this last year, as your Honor may be 21 aware. There were a number of forcible rapes at the MDC last 22 year. Two lieutenants and a guard were convicted of raping a 23 number of female inmates, and at that point we had asked, 24 because the inmates had been describing this to us for 25 sometime, and my office brought it to the U.S. Attorney's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 148 J25nseg4 von Dornum - Direct 1 Office, we asked isn't there a way for someone to go in at 9 2 p.m. occasionally and see what's going on here. 3 I do think if the guards knew, if the management knew 4 that someone could show up at any time, things might be 5 different, but also that person could report to your Honor or 6 the courts generally so that we could have a neutral person 7 describing the condition there. 8 9 10 THE COURT: So you're looking to have the Court establish a new position? THE WITNESS: Not a new position, your Honor. I think 11 the Court has frequently in other situations, including at the 12 request of this U.S. Attorney's Office for Rikers, put special 13 masters in place, and I think that's obviously an established 14 procedure. 15 understood what their role is. 16 Attorney's Office -- I'm so glad -- asked for to happen at 17 Rikers, and I think there has been progress at least on 18 information thanks to that. 19 Someone could be appointed and approved. It's That is exactly what the U.S. And I think here, if there were a special master, 20 which there has never been for the MDC, despite an 21 unfortunately long history of problems there, that that's 22 something that the Court knows how to manage. 23 who could do it, including former AUSAs with great familiarity 24 already with the facility, and I think that would certainly be 25 a step forward and one well within this Court's authority. There are people SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 149 J25nseg4 von Dornum - Direct 1 THE COURT: 2 MS. KUNSTLER: 3 I make the same request, that we can re-call Ms. von 4 Any further questions? No, your Honor. Dornum should the schema of the facility become available. 5 THE COURT: Yes. 6 MS. BRETZ: Can we just have a moment, brief moment to 7 8 9 10 11 12 13 confer? MR. OESTERICHER: Your Honor, we would like just about five minutes just to confer. Is it possible to take a brief break and resume? THE COURT: Yes. We will take a ten-minute break. You may step down. MR. JONES: Your Honor, if I may, this won't affect 14 the proceedings, I have a hard stop for a family medical 15 proceeding that I need to be at. 16 unobtrusively, but I wanted the Court to know. 17 to chambers staff previously. 18 THE COURT: All right. 19 MR. JONES: Thank you, your Honor. 20 (Recess) 21 THE COURT: 22 MR. JOHNSON: 23 I will try to do that I mentioned it Good luck. Please be seated. Your Honor, Ms. Bretz is in the Hallway. I am going to go get her and take my leave. 24 Thank you. 25 THE COURT: All right. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 150 J25nseg4 von Dornum - Cross 1 (Recess) 2 THE COURT: 3 Are you going to cross-examine at this time? 4 MS. BRETZ: Yes. 5 THE COURT: Go right ahead. Please be seated. 6 CROSS-EXAMINATION 7 BY MS. BRETZ: 8 Q. Good afternoon? 9 A. Good afternoon. 10 Q. Just a few questions. 11 Are you aware of the current conditions at MDC 12 Brooklyn? 13 A. 14 some units. 15 waited outside as well as receiving some reports from people in 16 my office. 17 Q. 18 the power was back on at MDC? 19 A. Yes, it was back on before this morning. 20 Q. Great. 21 A. Correct. 22 Q. Lights? 23 A. Correct. 24 Q. Computers? 25 A. Correct. I am aware of the conditions until I took the stand from I was receiving phone calls from inmates while I Before you took the stand this morning, were you aware that And that includes phones? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 151 J25nseg4 von Dornum - Cross 1 Q. Were you aware that the heat was generally back on? 2 A. Yes. 3 Q. And were you aware that legal visitation had fully resumed? 4 A. I am aware that some lawyers got in today, yes. 5 Q. And what about social visits? 6 A. Yes, social visits were held last night. 7 Q. And were you aware that the heating issues at MDC were 8 separate and apart from the electrical fire that took place on 9 January 27? Yes. I heard there was some inconsistency, but yes. 10 A. I had heard that the heating issues started 11 significantly beforehand, and, in fact, I have had an e-mail 12 exchange with Nicole McFarland at least a week before the fire 13 when she e-mailed and said legal visiting was cancelled because 14 the power was out, and I wrote back and asked, OK, but do the 15 inmate have heat and light and she wrote back we have backup 16 generators. 17 inmates weren't receiving heat from those backup generators. 18 Q. When was that? 19 A. I can find the e-mail for you, but I believe it was Martin 20 Luther King Day weekend, which you may recall Martin Luther 21 King Day itself was quite cold. That turned out to be a true statement, but the 22 MS. BRETZ: Thank you very much. 23 THE COURT: Any redirect? 24 MS. KUNSTLER: 25 Just briefly, your Honor. REDIRECT EXAMINATION SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 152 J25nseg4 von Dornum - Redirect 1 BY MS. KUNSTLER: 2 Q. 3 that you received in the hallway? 4 A. Yes. 5 Q. Are there any conditions that you didn't cover on your 6 cross-examination? 7 A. 8 people who are waiting for medical care, particularly for 9 medications, and most of those were our clients who were You said that you were aware of conditions from phone calls Yes. My understanding is that there still are several 10 calling, so I informed their lawyers. 11 whom it was CJA lawyers, I have informed those lawyers as well. 12 And for the people for I also learned while I was out in the hallway that 13 Congresswoman Velazquez last night had visited two inmates in 14 the SHU who she was told by the inmates that they had been 15 placed in SHU from unit 53 because of protesting, nonviolently, 16 but protesting vocally the conditions and that Congresswoman 17 Velazquez had visited them yesterday evening. 18 Q. 19 visiting has been suspended? 20 A. 21 throughout the shutdown I think there were 13 days in January 22 when there was no legal visiting. 23 morning of. 24 and he would contact us between 7 or 8 a.m. and let us know if 25 it was up or not. When do you normally find out that visiting or legal Well, normally it's not suspended. But when it is, like We would learn often the Adam Johnson is usually the first one to arrive, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 153 J25nseg4 1 von Dornum - Redirect If we hadn't heard from him, we would reach out 2 affirmatively, and I certainly appreciated that. 3 say here that I believe Mr.Johnson has made every effort to be 4 helpful in this situation based on the information he 5 personally had. 6 And I will But, for us, when we have experts, interpreters, court 7 dates, to learn the morning of is not helpful because we have 8 to plan when we are going, and it can take three or four hours 9 to see one client, and we have to arrange for interpreters and 10 experts to go with us, so learning the morning of is difficult. 11 I would imagine that it is even more difficult for CJA 12 lawyers, who often are solo practitioners, whereas at least I 13 have a staff. 14 including I think Mr. Ostericher, we had inquired about whether 15 it would be possible, even if there was a need to curtail 16 attorney visits whether for shutdown or for fire whether it was 17 possible to have set periods when we would know when it would 18 happen, even if that was just 10 to 2, whenever it was, so we 19 could be sure of that. 20 So one of the things we had asked about, Obviously the other part of that is it frays the 21 attorney-client relationship if we tell the client I'll see you 22 tomorrow, I'll be there, and then we can't come and they don't 23 know why we can't come, particularly people who already have 24 appointed counsel. 25 understandably, and to not show up when you say you will, They already have trust issues with us, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 154 J25nseg4 von Dornum - Redirect 1 especially when someone has a court date coming up, can really 2 fray that relationship. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 155 J257SEG5 von Dornum - Redirect 1 BY MS. KUNSTLER: 2 Q. 3 seek a TRO in the EDNY? 4 A. 5 repeated denial of attorney/client visitation, or such late 6 notice that we weren't able to get there, and no plan for 7 remediating that. 8 9 And is this the reason that you thought there was a need to Yes. We sought the TRO in the EDNY because there was So, while Ms. McFarland said on Wednesday the 30th if things aren't better in five days, we will think about bringing 10 people to the West Building, from my practice and my 11 understanding of the case law and the APA, we have a right to 12 see our clients every day, and not just a right but a necessity 13 to see them. 14 hard situation. 15 They are facing a lot of time, and it's a very So, we sought the TRO because we need to be sure we 16 can get in there, and we were unfortunately no longer able to 17 trust the representations of the MDC legal department about 18 when we would get in or why we weren't getting in. 19 DeArcy Hall put a procedure in place where there will be a 20 cancellation -- which at times there may be for security or 21 other reasons -- that if the facility does that, a facility 22 official has to put in a sworn statement to the court within 24 23 hours justifying why that closure took place, and we will have 24 an opportunity to challenge it if necessary, but that way it 25 can't just be we don't have enough staff -- which was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 And Judge 156 J257SEG5 von Dornum - Redirect 1 understandable during the shut-down, but we still needed to see 2 the clients. 3 same with the fire, obviously that made things hard on the 4 facility, but legal visitation should be a priority and, 5 instead, they were just saying, sorry, we can't do it. So some other plan needed to come about. 6 MS. KUNSTLER: 7 THE COURT: 8 THE WITNESS: 9 THE COURT: 10 11 The Thank you, your Honor. You may step down. Thank you, your Honor. The Court calls Inspector John Ross of the Eastern District U.S. Attorney's office. JOHN ROSS, 12 called as a witness by the Court, 13 having been duly sworn, testified as follows: 14 THE COURT: Inspector Ross, where are you employed? 15 THE WITNESS: I'm a supervisory special agent with the 16 Department of Justice U.S. Attorney's Office Eastern District 17 of New York. 18 19 20 THE COURT: And can you give me information concerning your employment history. THE WITNESS: So, from January of 1983 through March 21 of 2003 I was a New York City police detective, and then from 22 March 2003 to present I'm with the Department of Justice as a 23 supervisory special agent. 24 THE COURT: What are your responsibilities? 25 THE WITNESS: I supervise the special agents assigned SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 157 J257SEG5 von Dornum - Redirect 1 to the U.S. Attorney's office of the Eastern District of New 2 York and any of the investigations that they're involved in. 3 4 THE COURT: I understand that you made a visit to the MDC on February 1; is that right? 5 THE WITNESS: 6 THE COURT: Yes. I would like you to first comment about 7 the temperature inside the building. 8 where you were and what you observed in terms of temperature. 9 THE WITNESS: 10 THE COURT: 11 THE WITNESS: And if you will describe In general, or throughout each area? Well, each area. OK. So on initial entry into the main 12 lobby in the West Building, the 29th Street entrance, it was 13 cool to cold in the intake area where the visitors come in. 14 And then after I met other people who were going to accompany 15 me on the tour, I think the first floor we went to was the 16 eighth floor, we visited the various units on the eighth floor, 17 the inmate units. 18 me. 19 The temperature seemed, you know, fine to It was normal, I would say. After that, we went up to the special housing unit on 20 the ninth floor. There were two units up there, or two ranges 21 they call it, on either side of the building, and that's when 22 we started to walk through the common hallway where the cells 23 are all located. 24 OK to me. 25 cell itself, and the temperature was also OK. The temperature up in the common areas seemed I was able to go into I think one cell to check the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 158 J257SEG5 1 von Dornum - Redirect After that, I believe we proceeded down to the seventh 2 floor, and again we visited the various units on the seventh 3 floor, and as far as the temperature goes, the temperature 4 seemed fine to me. 5 believe I might have checked a cell, an open cell in that 6 floor, and the temperature was OK also. 7 We were in the common areas. I also Then we went down to the sixth floor, and again we 8 went to the various -- the units on the floor. 9 part all those areas seemed OK, normal. For the most One unit -- I believe 10 it's I62 -- seemed cooler -- or was cooler. 11 was cooler. 12 door that lets out to the rec -- outside rec area, and that 13 door was propped open. 14 was just some smoke, so that door was open, which I think 15 caused the temperature obviously to be cooler because it was 16 cold that day. 17 18 19 20 21 22 23 24 25 The common area But I also noticed that they had -- they have a There was a smoke condition, so there And then we never got into a cell on that particular unit, so I couldn't check the temperature myself within a cell. THE COURT: And did you go anywhere else in the facility? THE WITNESS: Let's see, we went to the SHU, the eighth, the seventh and the sixth. THE COURT: And how were the correction officers dressed on that day? THE WITNESS: Well, the corrections officers in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 159 J257SEG5 von Dornum - Redirect 1 main lobby had winter coats on. 2 building, you know, in various states of dress. 3 had -- some had vests on, long sleeve shirts. 4 them walking around, you know, bundled up. 5 one or two with coats on. 6 THE COURT: 7 THE WITNESS: 8 I didn't notice There may have been So definitely coats in the entrance. THE COURT: Yeah, the entrance I'm sure they had Maybe some coats elsewhere. 10 THE WITNESS: 11 THE COURT: Yes. But there was a mix of dress you're saying. 13 THE WITNESS: 14 THE COURT: 15 Some just winter coats on. 9 12 The officers throughout the Yes. What about the inmates, how were they dressed? 16 THE WITNESS: Again, there was a mix on the different 17 units. 18 the cells, the ones that we looked into, some had T-shirts on, 19 some were dressed, some were dressed, you know, had blankets 20 over their heads. 21 noticed that had, you know, more clothes on within the cells. 22 I mean the only thing I would say is the inmates within Unit 62 probably had the most inmates that I THE COURT: What about with respect to medical 23 treatment, do you have any observations concerning medical 24 treatment for the inmates on that day? 25 THE WITNESS: Yes. I mean many of the inmates we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 161 J257SEG5 Ross - Cross 1 would say for the most part was fine, but the medical issue was 2 what concerned me most. 3 4 THE COURT: Counsel, do you have any questions for this witness? 5 MS. BRETZ: 6 MS. KUNSTLER: 7 CROSS EXAMINATION 8 BY MS. KUNSTLER: 9 Q. No, your Honor. Just briefly, your Honor. Mr. Ross, how were you dressed during your tour of the 10 facility? 11 A. I had a suit on as I have now and a light offer coat. 12 Q. Do you have that offer coat with you today? 13 A. No. 14 MS. KUNSTLER: 15 THE COURT: 16 THE WITNESS: 17 (Witness excused) 18 THE COURT: 19 20 21 22 No further questions. All right, you may step out. Thank you. Counsel for the Bureau of Prisons, do you have witnesses? MS. BRETZ: We have no further witnesses beyond those two that have already testified today. THE COURT: All right. Then I am going to visit MDC 23 at this time, and I indicated to the attorneys that I would 24 like them to come along with me, as well as Inspector Ross and 25 Ms. Von Dornum, and we may be resuming the hearing after the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 162 J257SEG5 1 visit, depending how things unfold. 2 UNIDENTIFIED REPORTER: Excuse me, on behalf of the 3 journalists present, is it possible for one of us to accompany 4 you on your trip? 5 THE COURT: 6 MR. SPILKE: No. Anything further? Yes, your Honor. We just ask that the 7 Court take judicial notice of the weather the week starting 8 Sunday, January 27 through February 3. 9 HH that we passed up that records the temperature taken from 10 And we have an Exhibit The Weather Channel. 11 THE COURT: Have you shown that to your adversary? 12 MR. SPILKE: 13 THE COURT: Is there any objection? 14 MS. BRETZ: No, your Honor. 15 THE COURT: All right then, if you would hand up the Yes. 16 exhibit, it's been marked as Defendant's Exhibit HH, it is 17 admitted, and I will take judicial notice of the temperature 18 recorded on the exhibit. 19 (Defendant's Exhibit HH received in evidence) 20 All right then we are going to adjourn for now, and we 21 may be resuming later. 22 (Recess) 23 (Continued on next page) 24 THE COURT: 25 to five. We are now at the MDC. It's five minutes Because of the disparate accounts offered by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 163 J257SEG5 1 defendants and the Bureau of Prisons, I ordered evidentiary 2 hearing and visit to the MDC in order to assess the conditions 3 facing inmates housed here. 4 the sixth and seventh floors and the SHU. 5 like me to tour another area of the MDC, please tell me now. 6 7 9 MS. KUNSTLER: Ezra Spilke, along with -Sarah Kunstler on behalf of Wilson Perez. 11 MR. OLIVER: 12 MR. OESTERICHER: Gideon Oliver. Jeff Oestericher with the U.S. Attorney's office, Southern District of New York. 14 15 MS. BRETZ: Emily Bretz, U.S. Attorney's office of the Southern District of New York. 16 THE COURT: I would like the non-attorneys to identify 17 themselves one by one. 18 MS. PASCULLI: 19 MS. KENYON: 20 MR. MONTGOMERY: 21 MS. GOLD: Paula Gold, court interpreter. 22 MR. ROSS: Supervisor Special Agent John Ross from 23 24 25 I would like the attorneys to make their appearances, please. MR. SPILKE: 13 If someone would We are accompanied by an official court reporter. 8 10 I plan to inspect the west side of We will start to my left. Victoria Pasculli. Emily Kenyon, law clerk. Dan Montgomery, law clerk. EDNY. MS. VON DORNUM: Deirdre von Dornum, attorney in charge Federal Defenders. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 164 J257SEG5 1 MS. JAMES: 2 MS. LEVY: 3 Jennifer Levy from the office of the Attorney General. 4 5 Letitia James, Attorney General. MR. CHERNOFF: Harry Chernoff from the U.S. Attorney's office criminal division, and I am an attorney. 6 THE COURT: If I or an attorney would like to make a 7 comment or ask a question, we will stop so that the 8 stenographer may record such comments or questions. 9 ask questions of inmates. 10 You may I just want to make sure that they are taken down by the stenographer. 11 When we return to the courtroom, I'm going to call 12 Ms. von Dornum back to the stand so that she may compare the 13 current conditions with those she observed during her visit to 14 MDC on February 1, 2019. 15 same purpose. I will recall Inspector Ross for the 16 Should I be calling you Special Agent Ross? 17 MR. ROSS: 18 Either way, that's fine, your Honor. It's OK. 19 THE COURT: I am focusing on the status of lighting, 20 heat and medical attention. 21 to ask Mr. Spilke and Ms. Kunstler what specific relief they 22 are seeking from the Court. 23 courtroom after Ms. von Dornum and Special Agent Ross testify. At the end of the tour I'm going I will repeat that question in the 24 Any questions before we start? 25 OK. Let's go. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 165 J257SEG5 1 MS. VON DORNUM: I'm sorry. I would just ask that if 2 any defendant plans to speak about their criminal case, that we 3 stop that. 4 5 6 THE COURT: Absolutely, I will not permit them to speak on that. All right. So we are now in the SHU with warden Quay, 7 and I would like Ms. von Dornum and Special Agent Ross to point 8 out to me anything that you think that I should take note of as 9 we tour the facility. 10 MS. VON DORNUM: Yes, your Honor. I would already 11 note that when we were here before it was dark in this area, 12 dimly lit and significantly cooler. 13 MR. ROSS: This is warm. 14 MS. VON DORNUM: This is warm compared to what it was. 15 The medical room also did not have lights at all, and the 16 lieutenant had indicated to us that it was difficult to give 17 medical treatment to the SHU inmates because there wasn't even 18 light in that medical room. 19 THE COURT: 20 MS. VON DORNUM: 21 your right behind your law clerk. You are pointing to the medical room? Yes, the medical room is there to 22 MR. ROSS: And I agree, and also I see the med cart, 23 prescription cart just left. 24 THE COURT: 25 MS. VON DORNUM: Warden? Should we start with the west side, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 166 J257SEG5 1 your Honor, the side facing the water? 2 THE COURT: 3 WARDEN QUAY: 4 So we are now where? Unit. 5 THE COURT: 6 WARDEN QUAY: 7 Inside range 3 of the Special Housing And is this the direction going west? Yes, it's U-shaped, so we will start here and we can walk all the way around. 8 THE COURT: 9 MS. VON DORNUM: 10 Very well. Is the food heating unit working now? It looked like it was. 11 WARDEN QUAY: 12 THE COURT: Yes. Ms. von Dornum and Special Agent Ross, if 13 there is a particular space you would like me to look into, 14 please point that out to me. 15 16 MS. VON DORNUM: I think -- correct me if I'm wrong -- I think the cell with the leak was cell 114 on this range. 17 MR. SPILKE: I'd just like to note that we just heard 18 someone shouting from one of the cells, "They punish us when we 19 talk. We would like to talk to someone." 20 THE COURT: 21 MR. SPILKE: 22 THE COURT: 23 I don't feel the need to do so. Yes, your Honor. Thanks. So I just wanted to observe that we're standing where? 24 WARDEN QUAY: 25 THE COURT: Range 4 of the Special Housing Unit. Range 4. And I am standing under a vent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 173 J257SEG5 1 THE COURT: All right. Is there anything that you 2 want to point out, Ms. von Dornum? 3 MS. VON DORNUM: Yes. It's significantly brighter 4 both in the common area which only had emergency lighting 5 previously, and even more notably in the cells. 6 warmer in the common area, which I already thought was 7 comfortable when we were here on Friday February 1, but now is 8 significantly warmer. 9 everyone was locked in when we were here before. People are out. Significantly There was nobody out; And they 10 appear to be allowed to move around freely, and people are 11 wearing far less clothing than when I last saw them. 12 13 THE COURT: shorts. 14 15 16 17 18 19 20 21 22 Yes, there are a lot of people dressed in Is there anything else you wanted to point out beyond that? MS. VON DORNUM: Can we go in a cell? invade anybody's privacy. When we were in here the last time we were here the cells windows had frost on the glass. THE COURT: This is cell 13. Do you know what direction this is facing? MS. VON DORNUM: It looks like this is facing the 23 street, Third Avenue. 24 And the west side is those cells. 25 I don't want to THE COURT: This looks like it's the east side here. And you say you saw frost on the inside of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 183 J257SEG5 1 THE COURT: Do you know if he is here? 2 MS. VON DORNUM: 3 THE COURT: 4 Hello, sir. All right. district court judge. 6 expecting you to come. INMATE: 8 THE COURT: 9 INMATE: So let's go see him. My name is Annalisa Torres, I'm a federal 5 7 He is in unit 62. I am had a hearing today, and I was What happened? I went downstairs. Before you say anything, what's your name? Zimian Tabb. 10 THE COURT: 11 INMATE: OK, go ahead. I went downstairs. I was waiting for like an 12 hour or two. 13 legal visit, it's not court; do you still want to go? 14 The marshals came and said do you know it's a INMATE: I said of course I want to go. He's like, 15 well, if you want to go, just wait in the bullpen. 16 and the next thing he is saying I can't go with my sneakers. 17 changed out of my sneakers, I changed into blue shoes. 18 that he is like -- he had like an attitude, so I got an 19 attitude back to him. 20 next thing he's like I'm not taking him at all; you're going to 21 have to call somebody else to come get him, or whatever. 22 THE COURT: 23 INMATE: I waited, I After I didn't curse at him or anything. The So did you want to come? Of course. I was down there. I kept telling 24 him after he was saying he wasn't going to take me, I kept 25 saying I want to go, I'm not refusing. Because they kept on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 184 J257SEG5 1 saying either you refuse or you're not. 2 refusing, I want to come. 3 somebody else for someone to get you. 4 hours, nobody ever came. 5 go back to your house, it was canceled. 6 MS. VON DORNUM: I said I'm not He is like we just going to call I waited another three The next I know they said you got to Mr. Tabb, was there anything in 7 particular that you wanted to tell the Judge if you came to 8 court today? 9 10 INMATE: water. 11 12 I wanted to tell her if we get some hot THE COURT: Are you saying currently you do not have hot water? 13 INMATE: It's like mild, it goes in and out, keeps 14 going in and out basically like the showers, like the cells 15 have hot water but the whole week we didn't have anything. 16 was crazy. 17 THE COURT: 18 INMATE: It So during the week what about the showers? They didn't give us no showers at all. We 19 were locked inside the cell since Thursday. 20 everybody started getting on the public defender phone. 21 that we couldn't come out after that, they locked us in after 22 that. 23 Before that there was no hot water to take a shower before 24 Thursday at all. 25 After this After So from Thursday on we weren't able to do anything. THE COURT: Do you know when the hot water went out? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 185 J257SEG5 1 INMATE: Oh, about Saturday? 2 THE COURT: 3 Saturday before? 4 INMATE: 5 THE COURT: 6 INMATE: 7 Saturday night. You're talking about last Saturday or the Last Saturday. So today is Tuesday. Not the Saturday just passed, the Saturday before that. 8 THE COURT: 9 INMATE: OK, all right. Thank you for telling me. All right. 10 THE COURT: OK. 11 MS. KUNSTLER: Your Honor, both Mr. Spilke's client 12 and my client are on unit 42, the same unit, so we would 13 request that we go to that unit since we're here. 14 MR. SPILKE: 15 THE COURT: 16 MS. KUNSTLER: 17 Yes. And what is the purpose of going there? Well, to talk to other people on the unit about how their medical conditions are being addressed. 18 MR. SPILKE: 19 THE COURT: That's for you. So your client and your client were both 20 in the courtroom today. 21 have put them on the stand. 22 talk to them now. 23 MR. SPILKE: If you wanted them to talk, you could That's why I don't see a need to Not necessarily to talk to them, Judge. 24 Just to see what the conditions are on the unit and in their 25 cells. I think it makes sense. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 186 J257SEG5 1 2 3 THE COURT: Well, if you wanted to put evidence on, you should have put it on today. All right. Let's go. It's 6:15, and we have come to the end of 4 our tour of the MDC. 5 like to know what your application is at this point. 6 the relief that you're seeking, Mr. Spilke? 7 MR. SPILKE: As I stated at the beginning, I would Yes, your Honor. What is On behalf of my client, 8 we request an immediate transfer to another institution because 9 of fear of retaliation, incredible fear of retaliation that my 10 client brought to my attention. 11 punitively transferred to the SHU for no reason, and the 12 understanding was -- at least what was said -- was he was being 13 made an example of. 14 THE COURT: 15 MR. SPILKE: 16 can bring him to. Another man on his unit was So transfer to where? Any other institution that the marshals I know that Valhalla, for instance, MCC. 17 THE COURT: 18 MR. SPILKE: And retaliation for what? For bringing this motion, for bringing 19 this to this level of scrutiny, to the attention of this Court, 20 and, might I add, to several presidential candidates, media 21 outlets, international news. 22 institution because of the many letters that criminal lawyers 23 sent complaining about inability to access our clients. 24 that's really the genesis of this. 25 this whole thing, that I just could not see my client; I did There is intense scrutiny on this And That was the genesis of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 187 J257SEG5 1 not know what was going on with him. I want to do a welfare 2 check, and I wasn't able to do that. And I think that -- 3 THE COURT: 4 MR. SPILKE: But you did see him today. I did, but we've seen throughout the 5 course of this hearing that the problems here are bigger than 6 any one person, any one team of staff members, and it's 7 endemic. 8 when is the next thing going to happen? 9 been a Bandaid fix and not permanent. Yes, it's warm today, it's warm outside today, but And everything has And just the only reason 10 why I think people are getting medical attention today and hot 11 food and seemed pretty happy relatively to what the reports 12 were is because of the scrutiny. 13 So, I think that scrutiny needs to continue. I think 14 that my client needs to be transferred because of fear of 15 retaliation, and I think a special master needs to be appointed 16 for the reasons stated by Ms. von Dornum on the stand today. 17 MS. KUNSTLER: Your Honor, based on what we saw here 18 today and on Ms. von Dornum's testimony, I have no confidence 19 in this facility's ability to provide adequate medical care to 20 any inmate who needs care, including my client. 21 the Court with medical records from my client through 22 October -- through November 22. 23 medical records for him from that date forward, so I was unable 24 to question him and speak with him about any care -- 25 corroborate anything he would tell me post that date in terms I can supply I subpoenaed but did not get SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 188 J257SEG5 1 2 of the care he was or was not receiving at the facility. I have been told by Adam Johnson that he will try to 3 get me the records today, tonight. 4 Nicole McFarland. 5 be returned to the hospital for follow-up care with the place 6 that put in his eye socket, and that he has not been taken out 7 to receive that care. 8 that reason. 9 He was going to talk to I know from my client that he is supposed to And I remain concerned about him for So I join in Mr. Spilke's request for a special master 10 to be appointed on behalf of my client and everyone 11 incarcerated here. 12 I do want to take time -- I know this hearing today 13 was not about my client's bail application, but I do want to 14 take time to consider that. 15 facility that can take him, if he cannot be taken to a 16 hospital, then he should be released so he can get the medical 17 care he needs. 18 return to the hospital for follow-up. 19 20 21 If there is not another suitable Somebody who has orbital surgery needs to THE COURT: So you're saying that you want his transfer to a hospital or transfer to another facility? MS. KUNSTLER: Well, I would like him to be taken to a 22 hospital to evaluate his eye socket, but I don't have any 23 confidence that he can get medical care here, so I would like 24 his transfer to another facility. 25 MR. SPILKE: Might I note that Ms. McFarland is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 189 J257SEG5 1 present and has joined the tour and might be able to speak on 2 the medical aspect. 3 THE COURT: The time for direct on medical records was 4 during the hearing today, and inexplicably you put on no 5 evidence. 6 feeling. 7 You did not even call your client to say how he was All right. We're going to return to the courtroom. 8 As I said again, I'm going to ask you to repeat the remedy that 9 you're seeking, and I will make a ruling at that time. 10 (Recess) 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 190 J25nseg6 1 (In open court) 2 THE COURT: 3 I will now re-call to the stand Ms. von Dornum. 4 5 6 Please be seated. DEIRDRE von DORNUM, resumed. THE COURT: I just want to remind you that you are still under oath. 7 THE WITNESS: 8 THE COURT: 9 THE WITNESS: Yes, your Honor. You may be seated. Thank you. 10 THE COURT: 11 from a tour of MDC. 12 conditions are different, if they are, from your visit on 13 February 1. 14 Ms. von Dornum, we are just getting back I would like you to describe how the THE WITNESS: Yes, your Honor. Beginning with the 15 entry into the lobby, it was far warmer and it was bright. 16 There were multiple COs, correctional officers, there. 17 When I was there on February 1, it was dark and cold 18 in the lobby, so that was the first difference. 19 regular processing seemed to be up and the regular security 20 systems seemed to be up. 21 And the And then when we moved into, I guess I would call it 22 the vestibule, where we had our hands checked, when I was there 23 on February 1, there was a big backup source of light that had 24 been placed there, because otherwise it was quite dim, and that 25 was fully lit. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 191 J25nseg6 1 2 I saw that the visiting room was now fully lit. It had the emergency lights on when I was there before. 3 When we went through into the elevator bank, it was 4 still significantly warmer than when I had gone up to the SHU 5 and the housing units on February 1, and the lights were on 6 fully. 7 So those were the major differences on the first floor. When we went up to the SHU to start with, just as I 8 did on February 1, when we went up to the SHU, the first thing 9 I noticed was, again, it was much brighter, much warmer, I 10 would say almost getting a little uncomfortably warm at times. 11 When we went in to the units I noticed again it was much 12 brighter. 13 The medical facility -- it's really an examination 14 room that they have on the SHU floor -- was lit, whereas 15 previously it was dark, and the lieutenant who was the SHU 16 lieutenant had previously explained to me that it was difficult 17 to give medical care during last week because of it having no 18 light. 19 to be fully lit. So it was harder to examine people then. Now it seemed 20 I saw the heating unit for the food plugged into the 21 wall in the SHU, and I confirmed with the Warden Quay that it 22 was indeed working now, whereas when we went on February 1 the 23 SHU lieutenant had told us that the food heating equipment was 24 inoperable on the floors, leading to the food being served 25 colder than ordinarily. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 192 J25nseg6 1 The lights in the hallways were much brighter. 2 Previously it was all emergency lighting. 3 clearly been scrubbed. 4 quite dirty and there was a lot of water on them when 5 Investigator Ross and I previously toured on February 1. 6 that had clearly been cleaned. 7 The floors had When we were there before they were Now It was significantly warmer, the air coming out from 8 the cells particularly on the west side. 9 cell, so I didn't see that temperature, but when we looked into 10 We didn't go into a the cells they were quite bright, unlike before. 11 Some of the things that seemed to be the same were the 12 leaks in the ceilings both in cell 114, as I mentioned earlier, 13 but also in other cells that we were able to observe, this time 14 with the lights on, dripping water, currently dripping water as 15 well as evidence of a great deal of water damage inside the 16 cells, and, you know, inmates describing being cold and the 17 water dripping on them and showing us mold on their lamps, 18 which we weren't able to previously see, as well as describing 19 how hard it was to be in the dark and cold. 20 Also consistent with my last visit was the statements 21 by inmates about medical care, that they still weren't 22 receiving it, and in fact one inmate described how when he was 23 trying to receive medical care and urgently asking for it for 24 his cellmate, who was having psychiatric issues and suicidal 25 issues, he then was disciplined for that by having the security SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 193 J25nseg6 1 2 box placed on the outside of the door. So it was much warmer, much brighter, but it was clear 3 that the medical situation had not been rectified, and the 4 inmates seemed to be expressing a lot of concern about how they 5 had been treated, with the exception of CO Webster, who they 6 singled out as having provided very good care to them during 7 this period. 8 We didn't have a chance to ask them -- and that was 9 probably my fault, your Honor -- about whether they had been 10 out for rec since the power went on, so I don't know about that 11 part of it, but they did tell us they had no social or legal 12 calls up in SHU so far. 13 Down on the seventh floor, which was our next stop, 14 again it was much, much brighter, both in the vestibule areas 15 and the corridors, far more than the emergency lights that had 16 been on when Investigator Ross and I went on February 1. 17 was also significantly warmer both in the common rooms and in 18 the air coming out from the cells. 19 It We went to -- J71 was the unit we went to on the 20 seventh floor, so definitely the light and heat were far 21 better, although in the one cell that we were able to go into, 22 which belonged to an inmate named Clarence Clark, he described 23 how still they could feel cold air coming out of the vents and 24 they still had their vents covered with cardboard, so that was 25 consistent with what we had seen when I went with Investigator SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 194 J25nseg6 1 2 Ross on February 1. The phones were clearly up. In fact, we saw inmates 3 making social calls while we were there, inmates on the 4 computers, inmates able to exercise. 5 All of that was quite different from when I was there 6 and the people were locked down. 7 out, so I would say that was a significant difference. 8 Now on the units people were One thing that remained very much the same, according 9 to the inmates that spoke to us, including inmates that 10 Investigator Ross and I spoke to on February 1, was the 11 continuing lack of medical care, including for inmates that 12 Investigator Ross and I had specifically pointed out to Nicole 13 McFarland and the assistant warden and asked that they get them 14 medical care. 15 doctor since our visit on Friday. 16 Even those people had still not been seen by a And a number of people noted concerns about the 17 longstanding nature of what they suffered last week. 18 test a shower, unlike when Investigator Ross and I went, but 19 several of the inmates noted to us that the shower water is 20 still quite cold, but that there is hot water in their cells. 21 We didn't I should note that when we went to the SHU -- I 22 forgot, your Honor -- the inmates in the SHU, where they're 23 only allowed to shower inside their cells, said that the water 24 is still cold in those showers inside the cells in the SHU. 25 We then went to the sixth floor, and there, again, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 195 J25nseg6 von Dornum - Redirect 1 lighting was far brighter. 2 were out. 3 calls and on the computers. 4 with significant medical problems, including, again, people who 5 Investigator Ross and I had sought specific care for, and they 6 had not received that medical care. 7 The heat was far warmer. Inmates Inmates were exercising and making social phone But again we encountered people In fact, I don't think we encountered anyone during 8 the visit who said that in the intervening days they have 9 received the medical care that they sought. 10 So that continues to be a concern. 11 I did not see any legal visits taking place, but I did 12 see social visitors when we were exiting the facility who were 13 clearly coming in to see their family members. 14 see that. 15 16 I was glad to I think those are the significant similarities and differences, your Honor. 17 THE COURT: Any questions from counsel? 18 MS. BRETZ: May I confer one moment, your Honor, just 19 briefly. 20 No further questions, your Honor. 21 MS. KUNSTLER: Just one, your Honor. 22 REDIRECT EXAMINATION 23 BY MS. KUNSTLER: 24 Q. 25 from the Court, you were discussing the need for a special Prior to when we left for MDC in response to a question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 196 J25nseg6 1 master. 2 3 von Dornum - Redirect Did this visit today in any way change your opinion that a special master is needed? 4 MS. BRETZ: Objection. 5 THE COURT: Overruled. 6 You can give your opinion. 7 THE WITNESS: Go ahead. Thank you, your Honor. 8 A. It did not, because what struck me, again, was our 9 inability to get reliable information. So in the time since 10 the power has gone back on, which I'm grateful for, the MDC and 11 the U.S. Attorney's Office, no doubt relying on the MDC, have 12 repeatedly represented to the Court, at least in the Eastern 13 District that medical care is now being provided, that medical 14 care is consistent, that there's no longer, to the extent there 15 ever was according to them, problems with medical care. 16 What we saw tonight made clear that was not accurate, 17 so it again raises my concern about, if we continue to just 18 raise the issue in individual cases how do we get accurate 19 information. 20 It seems to me that a neutral fact-finder, again, who 21 could go unannounced at any time and could talk to people 22 directly and could have the authority to ask for medical 23 records or you know to check on the provision of medical 24 services and have, you know, food and psychiatric medications, 25 would be a least a way to try to obtain the information that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 197 J25nseg6 1 von Dornum - Recross right now makes it hard for us to even inform the Court. 2 I had many court appearances last week where I was 3 making representations based on the inmate and the government 4 was making representations based on the BOP, and the Court had 5 no ability to figure out what was happening. 6 having a special master, while obviously they can't meet with 7 every person and solve every problem, at least we would have 8 far greater insight into the systemic problems like the medical 9 care. 10 MS. KUNSTLER: 11 MS. BRETZ: May I ask one question on redirect, your 13 THE COURT: Yes. 14 RECROSS-EXAMINATION 15 BY MS. BRETZ: 16 Q. 17 tour today. 18 A. 19 be referred to as a medical faculty was the CO who was pushing 20 the medications out of the SHU. 21 believe from prior conversations with her that she is in fact a 22 correctional officer and not a medical faculty. 12 Thank you. So I do think No further questions. Honor. Did you speak to any medical faculty while you were at the I did not see any doctors. The only person I saw who might I did not speak to her, but I 23 MS. BRETZ: Thank you. 24 THE COURT: You may step down. 25 THE WITNESS: Thank you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 198 J25nseg6 1 (Witness excused) 2 THE COURT: 3 Special Agent Ross. 4 5 I am now going to re-call to the stand JOHN ROSS, resumed. THE COURT: Special Agent Ross, just remember that you 6 are still under oath. 7 THE WITNESS: 8 THE COURT: You may be seated. I do. Thank you. Would you comment on whether there are any 9 differences in the conditions at MDC compared to February 1 10 when you were there, having just come back from MDC today? 11 THE WITNESS: Yes. I mean, the obvious thing, the 12 heat is higher. For reference, I would consider the heat today 13 as warm, you know, throughout most of the building, and, of 14 course, the lighting is on in the -- full power in the common 15 areas and now also in the cells. 16 actual cell. 17 THE COURT: 18 THE WITNESS: So we could see into the Anything else? The inmates are out. You know, you 19 could see most of the inmates are out and about as, you know, 20 the normal routine. 21 THE COURT: Any questions for Special Agent Ross? 22 MS. BRETZ: No, your Honor. 23 MS. KUNSTLER: 24 THE COURT: 25 THE WITNESS: No, your Honor. You may step down. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 199 J25nseg6 1 (Witness excused) 2 MS. KUNSTLER: 3 THE COURT: 4 Last Thursday and Friday, after receiving letters from 5 defense counsel alleging conditions at MDC that, if true, could 6 rise to the level of constitutional violations, I felt it 7 imperative that I conduct a full evidentiary hearing and an 8 inspection of MDC. 9 Your Honor -- One moment. Starting this morning, I heard over four hours of 10 testimony. 11 conditions they experienced during the power outage and cold 12 spell. 13 floors 6 and 7 and the special housing unit. 14 Eleven of the witnesses testified about the From 5:05 to 7:15 p.m. today I visited the west side of A court stenographer accompanied me along with the 15 following people: My three law clerks, Ezra Spilke, Sarah 16 Kunstler, Gideon Oliver, Jeff Ostericher, Emily Bretz, Paula 17 Gold, the interpreter, John Ross, Deirdre von Dornum, Letitia 18 James, Jennifer Levy, Harry Chernoff, and Warden Herman Quay. 19 I spoke with at least a dozen inmates, some in their 20 cells and some in the common areas. 21 cells. 22 I inspected about seven At the MDC this evening on the record I asked both 23 defense attorneys to state the remedy that they are seeking for 24 their clients. 25 from the MDC, Mr. Segura-Genao claims that MDC administrators Both request that I transfer the defendants SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 200 J25nseg6 1 will retaliate against him for complaining publicly about the 2 conditions there. 3 to a hospital for treatment. 4 Mr. Perez claims that he must be transferred What I find utterly inexplicable is that neither 5 defendant offered a shred of evidence to support their claims. 6 If Mr. Segura-Genao fears retaliation, why didn't he take the 7 stand and say so? 8 9 10 If Mr. Perez feels that he should be hospitalized, why did he sit back and remain silent during several hours of witness testimony? 11 Those are my questions. 12 MS. KUNSTLER: Your Honor, I have spoken with my 13 client and circumstances have changed and he would like to take 14 the stand and testify about his medical condition and care. 15 THE COURT: We had an evidentiary hearing that lasted 16 over four hours. 17 deny the application without prejudice to renewal on papers 18 offering an explanation for why it is that you think your 19 client should have this relief. 20 hour, after all of the evidence is in, and make such a request. 21 That was your opportunity. MR. SPILKE: I am going to You don't come at the 11th Your Honor, if I might offer an 22 accommodation, that we be allowed to submit an affidavit within 23 48 hours. 24 25 THE COURT: I stated you may submit a writing that supports your request. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 201 J25nseg6 1 2 MR. SPILKE: meant briefing. Understood, your Honor. Now I understand. Thank you. 3 THE COURT: 4 Are there any further applications? 5 MS. KUNSTLER: 6 MR. SPILKE: 7 Ms. Kunstler. 8 MS. KUNSTLER: 9 I thought you So those applications are denied. Yes, your Honor. Yes, your Honor. Yes. We also -- sorry. We also request that the Court appoint a special master to supervise the MDC. Now, frankly, 10 your Honor, I don't think -- I think this emergency situation 11 shined a light on a continuing problem that has been tolerated 12 for way too long. 13 client and the 1599 some-odd other inmates incarcerated there 14 at the MDC. 15 There's a big problem here. It impacts my A special master, as Ms. von Dornum indicated, would 16 be able to serve as an intermediary. The Court went there 17 tonight, but the Court cannot go there on every occasion to 18 check out every situation and every allegation. 19 We heard testimony today from Ms. von Dornum that 20 clearly indicated there is a problem not only with medical 21 treatment at the facility, but a problem in communication with 22 the jail. 23 unreliable about this entire incident. 24 25 The reporting from the jail has frankly been Given the unreliability of the BOP in this emergency situation to relay accurate information about what was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 202 J25nseg6 1 happening there, how can we trust the BOP to report accurate 2 information about our client and their medical needs. 3 As we saw today when we went to the facility and as 4 Ms. von Dornum testified, those needs are still not being met 5 not even after Ms. von Dornum highlighted the problem on 6 Friday, and here we are back today visiting the same unit and 7 the same inmates. 8 9 Frankly, your Honor, there is a crisis of confidence here, a crisis of confidence for all of our clients, and the 10 U.S. Attorney's Office is simply not in a position to play the 11 role that a special master would play. 12 They have a client. 13 step in and someone needs to step in. 14 They have a conflict. Their client here is the BOP. They cannot The fix of this problem the utilities manager Maffeo 15 testified was not a permanent fix. 16 There is a part that still needs to be ordered that may take 17 much as a year to get here. 18 It's a temporary fix. Officer Barnwell testified that this is a problem that 19 has been ongoing for many years. There's just -- it's too 20 much, your Honor. 21 jail talking to incarcerated people about their needs not being 22 met. 23 today in this courtroom.I'm overwhelmed by the inconsistencies 24 identified by Mr. Von Dornum in her efforts to seek the truth 25 here. I am overwhelmed by our experience at the I am overwhelmed by the inconsistencies we have heard SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 203 J25nseg6 1 For all of these reasons this Court in its power as a 2 steward of criminal cases, I ask you to consider appointing a 3 special master to take care of all of our clients. 4 Thank you. 5 THE COURT: So that specific relief is requested in 6 the complaint filed by the Federal Defenders in the Eastern 7 District of New York. 8 that addressed. 9 it is appropriate to seek that relief. 10 At page 10, paragraph 44E, you will see It is in the context of that civil action that I don't think that it is an appropriate remedy in the criminal context. 11 Are there any other applications? 12 MR. SPILKE: 13 application. 14 up quite eloquently. 15 Your Honor, I join in Ms. Kunstler's I don't have much to add. I think she summed it I think that, yes, your Honor is correct, of course, 16 that that civil action does provide for a special master. 17 However, this Court has supervisory power over its defendants, 18 and we've seen over and over again that this is bigger than one 19 CO, one captain, one warden. 20 we saw that when the people who are entrusted to the MDC are 21 suffering, so do the COs. 22 several of the witnesses, and I believe your Honor saw that 23 tonight in our tour of the MDC. 24 does have the power to do that, and I join Ms. Kunstler. 25 And, you know, it's not just -- We saw that in the testimony of So I do think that this Court That's it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 204 J25nseg6 1 2 3 THE COURT: Well, I adhere to my decision. The application for a special master is denied. You may submit the affidavits that you mentioned 4 concerning your clients' requests for transfers, and I will 5 consider them. 6 The matter is adjourned. 7 MR. SPILKE: 8 MS. BRETZ: 9 (Adjourned) Thank you, your Honor. Thank you, your Honor. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300