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In early April 2001, as a student in my office explains why he’s decided to major in anthropology, my mobile phone rings. It’s Mike, an FBI agent who has called before. He says he’ll be quick, so I excuse myself and step down the hall. It has been almost three years since my life and the lives of thousands of others were shattered by two bombs that exploded on the same morning in East Africa.
Mike is working with federal prosecutors in the case against the four men charged with murder, conspiracy, and other crimes related to the 1998 U.S. embassy bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania. Two defendants, Mohamed al-’Owhali and K.K. Mohamed, face the death penalty for their roles in the separate blasts, which killed more than two hundred people and injured five thousand. I survived the Dar bombing. My husband, Abdurahman Abdulla, who was waiting for me outside the embassy while I ran an errand, did not.
The two defendants confessed to FBI agents when they were arrested. In Nairobi, al-’Owhali rode in the bomb truck and threw initial stun grenades before running away as the bomb detonated; in Dar es Salaam K.K. helped the bombing crew by grinding the TNT, loading the bomb truck, and cleaning up afterwards.
The trial for both defendants had begun in late January 2001 in New York’s Southern District court, where those found responsible for the 1993 World Trade Center bombing had also been tried. By the time Mike calls me in April, convictions seem likely and prosecutors are already preparing the separate penalty phases required in capital cases. Mike knows that I have already refused prosecutors’ requests to testify in K.K.’s penalty phase: I maintain a lifelong opposition to the death penalty, even for this defendant. But my in-laws from Kenya have elected to participate, so Mike and I talk about the plans to bring two of them to New York. Before he hangs up, Mike tells me he has “a small request.”
“A picture of Jamal,” he says, using my husband’s nickname. “We’re making a collage for the penalty phase.” It sounds like a kid’s art project. I scribble down his address and return to the student in my office.
In the penalty phase of a capital trial, victims and their families inform the jury about the impact of the crime on their lives, so as to influence whether that impact, along with other factors—such as the gravity of the crime and the threat posed by the defendant—is sufficient to warrant the death penalty. To some extent jurors weigh the crime’s impact on victims against mitigating factors—e.g., abusive childhood experiences, lack of education, or indoctrination—introduced by the defendant. Part of the justification for impact testimony is that each victim’s “uniqueness as an individual human being” should have as much place in the penalty phase as the defendant’s unique qualities.1 The majority opinion in Payne v. Tennessee, a Supreme Court case which established the constitutionality of victim-impact evidence in capital murder cases, emphasized the jury’s need to appreciate the human consequences of the crime. Over the past few decades the victims’ rights movement has lobbied hard for impact evidence to be considered at all phases of criminal prosecution; many jurisdictions now allow oral and written statements from victims, particularly at sentencing.
Prosecutors, victims’ rights advocates, and the court itself depict the participation of victims and their families in the penalty phase as offering an important experience of agency that other parts of the trial—even eyewitness testimony in the guilt phase—cannot provide. Some victims come to believe that by participating in the penalty phase they will get back the personal control they lost through experiencing a debilitating tragedy. For victims, who face daily the struggle to regain control over their lives after the tragedy, telling their stories in court can be an important milestone toward reclaiming a sense of stability.2
However, victims’ statements are a double-edged opportunity. Recounting a story in public may allow it to veer out of the teller’s control. Victims may break down while testifying—crying, shaking, unable to complete the story. Less obviously, the state’s goals shape victims’ stories; the prosecution routinely focuses not on what had the most impact on a victim but what will have the most impact in convincing a jury to impose the harshest penalty.Whether they testify or not, victims hold many different understandings of the penalty phase and a variety of motivations for participating. Some hope to confront the convicted defendant with the horror of his crime. Other victims, through telling tragic stories in court, seek public acknowledgment of their pain or loss. Still others feel a solemn obligation to make a public representation of a dead loved one, to make sure that the dead victim is “present” in the legal proceeding.
Many victims who tell their stories in the penalty phase express surprise when faced with time limits and requests to control their emotions. They are urged to avoid outbursts and asked not to cry. Others are steered by prosecutors’ questions to areas they might not have wanted to speak about, such as personal emotional trauma, household intimacies, or their financial instability. By law, victims are not permitted to discuss their views of the death penalty and whether the jury should impose it or any other specific punishment.
Because some victims are less aware of, or interested in, the legal purposes behind the penalty phase, their attempts to tell their stories sometimes clash with the goals of the prosecution or judge. When one of the American victims of the Kenyan bombing asked me if I would be presenting my story, I said no without elaborating, not wanting to seem disrespectful of those who had chosen to do so. He told me he had agreed to participate: “Yes, I want to tell those bastards to their faces what they’ve done to me and my family.” I held back from reminding him that only one defendant would be present at his penalty phase and not all four. Moreover, he seemed unaware that victims’ testimony was supposed to be directed to the jury and not the defendant. The penalty phase promises victims agency but what it delivers—sometimes and for some victims—can be very different.
Over the next week Mike calls twice more to ask whether I’ve sent photos. “It can be anything,” he urges. “Even a passport photo. Even one that’s old or damaged. We can work with it.” I wonder why he thinks I would use a passport photo to represent my husband. If Jamal’s picture is to be shown in public, in court, wouldn’t I choose a beautiful photo?
When we lived in Dar es Salaam, Jamal bought a vinyl, pink-flowered album and filled it with photos of us smiling for the camera at our home and on trips. After the bombing friends and family in Malindi, Kenya, and the States passed the album around. Remembering Jamal, they cried for all we’d lost. I had looked at it only once since his death, and then with difficulty. I sit down with it and, turning its heavy pages, consider many beautiful options.
The first one I choose catches Jamal straight on, with just the right light highlighting his smile. But he shares the photo with someone we hardly knew, a controversial politician named Haji from Pemba, which happens to be defendant K.K. Mohamed’s island birthplace in Tanzania. About a year after we met him, Haji sought political asylum in Kenya. Rather than face questions from the FBI later, I cut Haji off with scissors. In the other photo I choose—from July 1997—we look so joyous that I had sent copies to friends when we announced our marriage later that summer. I wonder why I would send Mike a picture that includes me, since I’ve refused to participate in the penalty phase, but I can’t bring myself to cut us apart. I send both photos. If the FBI doesn’t want me, then they can cut me off.
During the next few weeks of the trial, I am relieved to find that despite my desire to have the defendants prosecuted, my reasons for opposing the death penalty remain compelling to me: error and discrimination pervade the current American legal system; capital punishment too closely resembles other forms of killing, which are condemned in any just society; and unleashing the state’s most awesome power—the ability to kill—on an individual weakens the line that separates tyranny and governance. In court, I am conscious of my government’s power as I watch the prosecution mount damning evidence: a Nissan executive from Japan who identifies the bomb truck; transcripts read aloud of wiretapped phone calls between co-conspirators; fingerprints that place K.K. in the house where the Dar bomb was built. But as other victims prepare for the penalty phase, I feel excluded from the process. By sending the wedding photo and refusing to testify, I have relinquished control over the public presentation of my own story. In the last weeks of the trial’s guilt phase, I start to think it was a mistake.
In the penalty phase, the prosecution depicts the unique qualities of the victims, including their normal, happy lives before the bombing. They also try to show, as graphically as the law permits, the suffering of the dead and living victims at the moment of the crime or soon thereafter. Depictions of the chaotic crime scene, victims’ bloody injuries, and the massive, frightening destruction further the prosecution’s goal of proving the crime’s severity, including the legally relevant aggravating factors (e.g., multiple deaths) that make it worse than other crimes and so might justify the death penalty.
In mid-May, while we’re waiting for verdicts in the guilt phase, defense attorneys move to block the prosecution’s planned use of certain photos in the penalty phases. One issue, raised by attorney Fred Cohn on behalf of defendant al-’Owhali, is that the photos are extremely gory and to show them would be more prejudicial than relevant, the latter being the legal requirement. Judge Sand schedules a hearing where I watch as attorneys for both al-’Owhali and K.K. argue vehemently against the photos. With the photos visible only to the judge and the attorneys, Cohn protests their number and bloodiness and argues that to display them would risk overwhelming the jurors’ reason with emotion. David Ruhnke, K.K.’s attorney, expresses similar concerns:
RUHNKE: I lodge an objection to the second photograph, which depicts a charred and disfigured corpse lying on the ground—[looking up] they are in different order? There is a photograph among the five of a charred corpse.
COURT: With burned out automobiles in the background.
RUHNKE: Yes, and the embassy fence in the background. (6351)3
Ruhnke goes on to argue that the photo is not relevant enough to the prosecution’s case to warrant display: “All this photograph does is show a horribly disfigured body of somebody who was killed in the bombing. It does not prove or move forward any of the aggravating factors alleged by the government that are not already in this case. So I object to that photograph.” (6352) He objects as well to a photograph of “what I can only describe as a pile of human corpses on the floor, it appears probably of some morgue in downtown Dar es Salaam, Tanzania.” (6352)
Interrupting Ruhnke early on, Judge Sand contends that the jurors, who are in their second week of deliberation, are sensible enough not to overreact to the photos. Even before hearing Ruhnke’s argument, Judge Sand had indicated his confidence in the jury because “this is a jury that hasn’t had a knee-jerk reaction to the magnitude of the losses.” (6350)
The objection is overruled, but Ruhnke’s graphic descriptions of the photos have hit me without warning. Thinking about a pile of bodies in the Dar morgue sickens me. Still suffering from traumatic stress syndrome, I’m afraid of seeing any image with blood or body parts. And I’m conscious of a cold, growing fear that Jamal could be depicted in the photo of the lone corpse or the other image Ruhnke describes.
In the hallway outside court, several prosecutors and FBI agents listen sympathetically to my concern that the photos might upset me when they’re shown in court. Each says he’ll check on what images they plan to show and get back to me.
On May 22, I meet in the victim center with two prosecutors and Mike from the FBI, who ask again if I’ll be a witness in the penalty phase. I inquire instead about the photos. As one prosecutor nods in agreement, the other assures me that they are willing to do whatever I want with regard to displaying the photos in court. They can show me the photos beforehand to prepare me for viewing them in court. They can alert me, and anyone else, so that we can leave the room if something upsetting will be shown. He tells me to think about it, and I’m grateful for the time. As we return to the courtroom, Mike pulls me aside to say that if I’d like he will describe what actually is depicted in the photos. He suggests that knowing more about them might help me to make a decision. With the jury still out, we retreat to the back corner of the court. Slowly and evenly he describes each picture as he remembers it.
“There is one of a security guard. There’s another of a dead body, not a security guard. It’s hard to tell. There is another looking at the crowd and the smoke. You’re actually in that one, but most people wouldn’t notice you. I don’t even think the prosecutors noticed, but I knew it was you. There’s one—you can hardly see it—of bodies kinda piled up, in the morgue.”
I ask, “The one of the body, is it the gardener?”
“No,” Mike says slowly. “I’m not sure about that one.”
Mike’s virtue in this situation is that he treats this conversation as though it’s really hard for both of us, and really important. But the problem remains that he doesn’t know for sure who is actually depicted in the photos. The prosecutors have no idea whose dead bodies they are planning to use.
Again I focus on the lone corpse. What’s most upsetting is that no one has mentioned to me that it might be Jamal. Seeing the photo in open court, what would I do? Would I turn away as I had from the images of cars burning outside the Dar embassy? Would I lean forward, looking for signs of life or of suffering or of final peace? Would I become hysterical? That night I decide that I need to know if Jamal’s dead body will be shown. My reasons are incoherent and mostly self-protective. I focus on the belief that I should not have to face photos of my personal horror in the public space of the court.
The next day I tell Mike I will look at the photos and try to identify them if they will substitute different photos for any that depict Jamal. In his most solicitous voice he says that he doesn’t see a problem with that. When I see him a few days later he hands me a big manila envelope. “Thanks for the pictures,” he says. “Check this out.” Later, I open the envelope and pull out a blow-up of the wedding photo. My reward for giving us away to the government.
On May 29 the jury comes back with guilty verdicts on all the major counts. In spite of objections from the defense attorneys, who want more time to prepare, the first penalty phase starts the next day.
Twenty-nine people testify in al-’Owhali’s penalty phase. During victim impact testimony, prosecutors prompt witnesses to recount the horror of the attack in Nairobi, the pain of injuries, the loss of loved ones, and the financial and emotional impact of the crime on them as living victims, whether they experienced the bombing themselves or lost a family member:4
I drove Lucy ten kilometers into the city to the American embassy compound. She—I said—she opened the door of the car. I said bye to her for the day and she said bye. She never look at me, and walk into the American embassy. I saw her walk into the embassy, and I left satisfied that she was going to a very secure place.
—Mordecai Thomas Onuno, whose wife, Lucy Onuno, was killed while working in the embassy. (6819)
Through the darkness I made my way out of [Ufundi House]. I knew which way to go. As I got out of the building I saw people running from the direction of the embassy in the opposite way. They were bleeding and crying. Nobody was able to explain what had happened. I went down on my knees and prayed again. I thanked God for saving my life. I did not know that I was praying for my husband. I did not know that moment in time that he was dead. . . . I got the message that the body has been found when I was in church, and I went down to the mortuary, not knowing what to expect. I found him laying on the mortuary floor. The T-shirt he had insisted on wearing was my means of identifying him. Yes, he was wearing, ‘I am a Catholic and Jesus loves me.’ He was very broken but we identified him by the T-shirt he was wearing.
—Mary Kahenzi, whose husband was standing outside Ufundi House when it fell. (6725–26)
I handed all of my supplies I brought and just waited, and just I was dumbfounded, and I asked people as they were coming out, Have you seen, Ken, have you seen Ken. I know if he was alive he’d be helping people. And I guess some people knew but they couldn’t tell me. And Ken’s boss came out of the embassy and told me that he had died, and then I was escorted home and I handed over the keys to my jeep so they could use it for transportation for people.
—Deborah Hobson, whose husband, Ken, was killed at the embassy where they both worked. (6758)
The first day builds to a crescendo with the appearance of Ellen Bomer, an American assigned to the embassy’s commercial section. She describes coming to consciousness after the bombing and, when she realizes she is unable to see, praying that her sight will be spared. Months later, after many surgeries, she still has hope that she might regain her vision.
And I guess really—even to this day I don’t know that I accept the fact that I am blind. I keep thinking I’m going to see, I’m going to see, I’m not going to give up. My Lord is not going to take both eyes, he might take one but he isn’t going to take both, because I didn’t do any of this. I was innocent. I was doing my job, and I was supposed to leave Nairobi on the 6th of August, but Secretary Daley was bringing a delegation of 13 businessmen to Nairobi to increase trade exports, so he asked if I would stay another two weeks. And I said OK, I would. It was just one of those things, you’re in the wrong place at the wrong time. (6799–6800)
As Ellen Bomer finishes her story, nerves are raw and eyes wet all around the courtroom.
Later that afternoon, out of the jury’s presence, defense attorney Cohn objects to the prosecution’s plan for a second full day of victim impact testimony. Following the same line of argument advanced in the earlier hearings, Cohn asserts that the Supreme Court’s decision in a case brought on behalf of Timothy McVeigh, convicted of the Oklahoma City bombing, warns against the cumulative effect on the jury of graphic testimony from multiple victims.
COHN: It is your discretion, but we have had enough. I say as somebody who bleeds for somebody and I want to weep and stop myself because I can’t do it in front of the jury, in front of the victims, where it is no longer factual, it is a roller coaster and it is enough. Seventeen more witnesses is beyond the pale. I don’t care whether it is another day or another hour. Ms. Bomer is enough to make anybody, make a stone weak. It’s enough.
COURT: I think you have made your point. (6810)
Though firm, Cohn’s plea for mercy on the jurors was less bombastic and high-handed than when, in a previous hearing, he had asked, “How many blind people do you need to testify? I don’t mean to be grotesque but that is what it is about.”(6343–44) At that time, Judge Sand had warned the defense that if the court followed the McVeigh formula, using the same proportion of victims testifying to victims killed or injured, victim testimony would last well beyond the two days planned.
Countering the defense claim that the first day of testimony in al-’Owhali’s penalty phase was overly emotional, lead prosecutor Patrick Fitzgerald defends the number of victims and their comportment: “The witnesses that have spoken have carried themselves with great dignity and restraint. They have made an effort not to cry and I have nothing but respect for how they have conducted themselves. They have gone out of their way to fight back emotion and restrain themselves. I think it is appropriate that another 15 tell their story to the jury.” (6810–11)
The restraint required of victims and praised by prosecutors exacerbates the already burdensome task of describing the crime’s impact. The assumption that emotion can be detached, even temporarily, from an account of the incident does not adequately reflect some victims’ experiences, and contrasts markedly with our behavior elsewhere in the court building where we victims sometimes break down. The jury does not see the Kenyan woman who collapses in hysterical sobs in a stairwell as some of us are headed to the restrooms during a break. We crowd around to help her; I sit down on the step behind to hold her head. Her reaction seems to me a true expression of the bombing’s impact: the utter inability to hold back the rush of tears.
Victim’s logic makes some of us shells of former strong selves. In public you are reminded of the tragedy, you cannot bear up under the pressure of thinking and speaking about it, you fear complete loss of control, you are undone by the bombing once again. Victims live out this logic, though less and less frequently as the months pass. Breaking down reminds victims that they have not yet healed. It requires massive effort for victims to narrate with dry-eyed clarity the devastating impact of the bomb; for some it is an impossible, or unbearable, contradiction.
On the second day of testimony in al-’Owhali’s penalty phase, the court is packed yet quiet. With his late wife’s picture displayed on screens around the courtroom, Lawrence Ndugire testifies about the bombing’s impact on him and their three children. Lawrence’s story is well known in Kenya. In the chaos after the bombing, the nation’s attention focused on his wife, Rose Wanjiku Mwangi, who lay buried but alive in the rubble next to the embassy. For the better part of four days Rose waited to be rescued. At intervals, rescue teams and other victims trapped near Rose heard her voice, but when the debris finally was cleared, she was dead. On the stand, Lawrence’s brief answers to prosecutors’ questions tell Rose’s story without embellishment and without conveying how even in the midst of hundreds dead and thousands injured, Rose’s protracted death was a horrifying loss for the whole nation, which dubbed her “Candle in the Wind.” Instead, Lawrence describes the impact of Rose’s death on their young daughter Diana, who still “cannot understand how or who caused her mother’s death, because they used to be so close.” (6860) As his testimony concludes, another photo is displayed. Taken shortly after Rose’s death, this one shows Diana and her brother looking solemn with grief as they hold up a picture of their mother. This photo, displayed for just a few seconds at the New York trial, had made the Kenyan newspapers in 1998.
Listening to Lawrence, I crane my neck to see a photo of his Rose, smartly dressed and smiling in life before the bombing. For victim after victim, it takes only a few moments to be wrenched from a pleasing image to the attack, the chilling uncertainty, the frantic search, and then the devastating pain of loss. The progression toward the finality of death plays out in a rhythm that becomes familiar to those of us listening, and I find that I eagerly anticipate the photos of happy, healthy victims as momentary relief from the dreadful monotony of tragic narratives. I am not alone; each photo sets off a soft chorus of “oh” and “tsk” and the “ahh” of sighs as these images make real the pleasure of life before the chaos. Most often a victim’s smiling photo is displayed first, just as the loved one begins the account. But prosecutors vary their routine, and by the end of some stories I am craving a concrete image of the deceased in that happier time. I’ve become an uneasy voyeur of happy lives lost.5
As the second day of testimony continues, prosecutors limit most victims’ accounts. They jump efficiently from the display of the initial happy photo to the question, “What has been the impact on you emotionally?” Few victims are asked to recount the whole story. When the prosecutor makes clear what he is leaving out—“we won’t ask you about what happened on the 7th”—we listeners fill it in and are grateful for the lack of detail. A few witnesses look startled and need to be thanked and dismissed by the judge. As testimony becomes more clipped and rote, victims are hard to distinguish from one another and their stories seem repetitive.
The prosecution ends with the poignant testimony of Clara Aliganga, an American mother whose son was a Marine security guard on duty at the embassy and killed by the blast. Picture after picture of her smiling son Nathan illustrates her stories of the close, happy family that celebrated Christmas, weddings, and Nathan’s homecomings from duty. Her testimony reveals the complex identity of a young man who went by a nickname, lost fifty pounds to join the Marines, and loved to lay his head in his mother’s lap. Many of us are weeping as we view the last photo—four young, grim Marines carrying Nathan’s flag-draped body out of the embassy.
After dismissing the jury for the day, Judge Sand holds a hearing to determine which photos the defense will be allowed to show in its portion of the penalty phase. The prosecution has lodged an objection against the defense plan to use photos of deformed Iraqi babies to demonstrate why al-’Owhali might have been motivated to attack U.S. interests. Judge Sand is skeptical and refuses to allow “gore for the sake of gore.” (6961) For the defense, David Baugh responds:
BAUGH: I have trouble accepting that the concern is subjecting the jury to it. This jury, when Mrs. Aliganga testified today, I cried. When Mr. Fitzgerald asked her that last question—
COURT: He cried
BAUGH: —he cried. And further, when he asked the question about what—
COURT: So you’re in a contest as to who can cry more and people who cry over pictures of deformed babies?
BAUGH: No, your honor, I am not in a contest. Actually I am challenging you by saying, having heard that testimony, how can you say that those pictures cause you to be concerned about these jurors being subjected —they were subjected to gut-wrenching pain and suffering today and you said it wasn’t prejudicial. (6912–13)
Judge Sand sustains the objection; no dead Iraqi babies will be displayed. At the very end of the day, prosecutor Fitzgerald reads the following point into the record: “When [Clara Aliganga] testified she had wanted to put in pictures of her son and the way he looked when he returned to America with his face blown off. And we agreed with her to limit that so that we did not show that. I just want to put that on the record in terms of showing, not trying to put in her gory photographs.” (6961)
Afterwards, I shyly commend Mrs. Aliganga and others for testifying with such strength. They are almost radiant, having shouldered the tremendous burden of presenting a dead loved one to the public. But the toll of the burden shows. One witness, hours after her testimony, still clutches a Bible and wipes away an unceasing flow of tears.
The defense case in the al-’Owhali phase takes just two days. Even with Judge Sand’s offer to issue subpoenas, only former attorney general Ramsey Clark agrees to testify about mitigating factors. Clark describes how U.S. bombing and sanctions campaigns directed at Iraq in the 1990s made many people worldwide, especially Muslims, furious at America. The defense contends that other expert witnesses were all afraid to participate in a terrorism case. No one from the defendant’s family comes to court.
During the week of waiting for a decision on al-’Owhali’s fate and preparation for K.K.’s penalty phase, I once again ask prosecutors about the photos. During a conference call they tell me that they are unable to substitute photos; the ones I might object to have been through litigation, changes are impossible. Knowing that the prosecution has dropped several witnesses during al-’Owhali’s penalty phase, I feel manipulated by their answer. Trying a different tactic, I remind them that I willingly provided a beautiful photo of Jamal and myself that they are welcome to display. They explain that photos of victims before the bombing would show the impact of my loss, while the photos of dead bodies would attest to the horror of the crime scene. Legally, they need to make both points.
With little to say in response, I hang up frustrated and force myself to face the possibility that the prosecution might display a photo of Jamal’s dead body. The prosecution’s claim that Mrs. Aliganga was prepared to show photos of her son’s damaged body confronts me with my own weakness. But if Mrs. Aliganga was willing to endure the pain of displaying the photos, she must have seen and believed in a purpose that, despite my soul-searching, I did not share.
Relatives of victims can bear tremendous pain in the service of a righteous goal. My friend Ashraf Rushdy has written about the bravery of Mamie Till Bradley, who insisted on showing the lynched and broken body of her son Emmett Till and allowed it to be photographed. The published photos galvanized an African American movement against white supremacy. In an elegant essay, Rushdy argues that this strategy could be useful to combat the hatred beneath current, racially motivated crimes such as the murder by dragging of James Byrd. Photos of Byrd, displayed in the jury trial, were never published. While acknowledging that published pictures of Byrd might have wounded the Byrd family, Rushdy advocates using photos of racist attacks to prevent future violence:
The past teaches us that images of terror—used responsibly—can foster a climate in which terror is no longer tolerated. I suggest that we aspire to the courageous example of Mamie Till Bradley, not the cautious compromises of newspaper editors who fear to offend their readerships. A citizenry alert to the horror of hate crimes would be compensation enough.6
I admire those who would be willing to bear the pain of displaying images of their dead relatives, in court or even more publicly. Yet the political struggles in which the Till and Byrd families were engaged perhaps defined more clearly what positive goals could be achieved by displaying those graphic images.
While I knew that the embassy bombings had caused terrible suffering, I came to believe that I did not share the prosecution’s goal of demonstrating the horror of terrorism through display of the bodies of my husband and other African victims. I could not apply Rushdy’s justification for showing photos of lynching victims in this case. Jamal was not brutally disfigured because he was African, nor because he was Muslim. Quite the contrary, the criminal intent—at least by the prosecution’s submission—was to kill Americans. Would showing Jamal’s body do the work of sensitizing the citizenry? Or would he provide a physical example full of irony? What other meanings would his body convey to the jury and to other Americans?
The condemnation of terrorism is but one of several contexts for viewing photos of the embassy bombing victims. For me, the role of victims’ photos in impugning terrorism is partly eclipsed by another political struggle involving photos of Africans. In courts and in the media, photos of unidentified African bodies in the wake of crime or disaster illustrate an Africa that is “chaotic” in comparison to a “civilized” West. The use of depersonalized photos, even for the important goal of showing the seriousness of a crime, robs individuals of personal identity. That the prosecution seemed unconcerned that a body had not been identified, despite the fact that eleven people—rather than hundreds—had died in Dar, seemed an indefensible consequence. I was sure that the body of a white person would not be left unidentified and would certainly not be shown in court in that dehumanized state. That the prosecution was using these photos to encourage jurors to favor the death penalty became for me an especially repugnant political goal. Though grateful for the competence and dedication of the prosecutors, by the time of the penalty phases I came to believe that anyone can be brought low by the relentless pursuit of a death sentence.
In my final meeting with prosecutors, an FBI agent describes the photo of the lone corpse in such detail that I’m convinced the victim is Jamal. I urge the prosecutors not to use it. Patrick Fitzgerald refuses my previous offer: “We don’t want to put you through the pain of looking at the photo. But if you saw it and it was someone else, then this problem would go away.” Technically, I think, that’s not true. They still wouldn’t know whose body they were using. “But if you look at it, we can’t say we won’t use it,” he adds. My face shows so much anger, or pain, that as I leave he says they’ll do “some more homework” and get back to me.
Though the jury took days longer than expected, we are surprised to be told that they’ve reached a verdict. Trembling at what it might feel like to hear a man sentenced to death, I steel myself and stare at the special verdict form. Quickly the clerk moves through the findings that the government has proved its case, and also the statutory aggravating factors. So far their findings point to death. The jury rejects the claim that al-’Owhali poses a future danger. Splits emerge around the various mitigating factors, and this begins to cast doubt. Then, in an unusual addition, the jurors read their own mitigating factors. Several victims stiffen when the foreperson declares: “The next mitigating factor is that executing al-’Owhali may not necessarily alleviate the victims’ or victims’ families suffering and the number of jurors who so find is nine.” Weighing this and the other findings, the jury could not unanimously agree to impose the death sentence. They offer this verdict with the knowledge that al-’Owhali will be sentenced to life imprisonment without the possibility of release. I am limp with relief and find it hard to face the other victims, whose statements to the media will express anger and frustration.
Maybe it is my own frustration with prosecutors, or the sheer need to tell my story and Jamal’s, that leads me to accept journalist Melissa Block’s request to interview me for a National Public Radio piece on how victims and their families take widely different approaches to the trial’s penalty phases.
In the days after al-’Owhali’s fate is decided, I anticipate the arrival of Jamal’s relatives from Kenya to represent the family in K.K.’s penalty phase. My pleasure at the prospect of a reunion with Jamal’s nephew Mohamed and a brother-in-law named Saidi is mixed with uncertainty about my role in facilitating their visit. How will I make them comfortable in the foreign contexts of America, the court, New York City? An FBI agent offers to take me along to JFK when she goes to meet their flight, which will also bring witnesses from Tanzania. “An extra Swahili speaker always helps with a group” is her offhand rationale. The excitement of walking in back doors of the airport and watching federal agents expedite group members through customs impresses me, even though I know that special favors might obligate me later.
The morning after the group arrives, prosecutors host a breakfast meeting to prepare the victims and family members who will testify in K.K.’s penalty phase. I sit through the welcome speeches and, instead of listening, resolve any lingering doubts about where I stand. I will accompany and host my relatives; prosecutors will have to prepare Mohamed for his testimony without my help.
After some general introduction to the physical layout of the court and the progress of the trial, the lead prosecutors interview the witnesses separately. They take Mohamed first, disappearing into the back offices. When he emerges after just fifteen minutes, we’re told that we can go.
The night before victim impact testimony is scheduled to begin, I leave a message for an FBI agent asking if they plan to use the disputed photo. In the morning, as we hurry from the hotel into vans for the trip to court, an agent pulls me aside to say that they’ve decided not to display it. Coming at the last possible moment, this is a big relief.
After the prosecution’s opening statement in the Tanzania penalty phase, K.K.’s attorney argues that prosecutor Mike Garcia has left jurors with the idea that every victim offering impact testimony approves of the death penalty and believes it should be applied to K.K. Allowing that Ruhnke can make this argument to the jury later on, Judge Sand refuses to instruct jurors on the issue and reiterates that victims’ views of the death penalty must remain unknown and unexpressed during testimony.
The first witness is an American woman who was trapped in her embassy office after the bombing. Describing how she got under her desk and then pounded on the door until colleagues came to free her, she narrates the horror of experiencing the bombing. Her story is sadly poignant, mentioning how she helped others—holding a friend’s hand at the hospital—and how ordinary Tanzanians helped her—putting a hand on her shoulder and saying “pole,” which means “sorry.” Her story returns several times to another American victim, who had been seriously injured. She describes the depression this young woman continues to suffer and says that, with respect to the bombing, her friend “feels like she relives it a lot.”(7512) Under the loose rules of victim impact testimony, she and other witnesses who describe the impact on children and other victims who have chosen not to testify are not asked when they last spoke to the victims they quote or how they can know what another victim feels.
Wearing a suit of my brother’s, Mohamed takes the stand looking much younger than his twenty-eight years. He is shy, responding through the Swahili interpreter in one-word answers and volunteering little. Immediately our wedding photo is displayed, and he is asked to identify us. Prosecutors want him to say “Jamal” or Jamal’s full name, “Abdurahman Abdulla,” but out of respect Mohamed can say only “Uncle.” I am “Susan.” Probably concerned about his pronunciation, the prosecutor doesn’t insist on a last name. Mohamed forgets the ages of Jamal’s sons. His description of Jamal’s role in the community builds him up larger than life. He is a teacher, a healer, a preacher, a businessman, the pillar of the family. When the interpreter says “Yes, he gave many lectures in the mosque,” I struggle to remember if Jamal told me about even one. Is it Mohamed’s desire to please, or the interpreter’s tendency to embellish? Yet I am proud that Jamal is depicted as important and influential, which he was, and that it’s clear that people depended on him. The chance to tell this story in court, in the United States, is the reason why his family agreed to participate, and they can appreciate this tribute.
I imagine the story I could have told, a true and emotional one: As we neared the embassy that day, Jamal started skipping down the sidewalk, rejoicing that his visa had come through the month before. He laughed about being “legal,” ready to leave in two weeks for the U.S. Unspoken then and in court was the new life we planned together. My story would have emphasized Jamal’s connections to family and community. I could have told how cousins borrowed a car, bribed border guards, and drove all night to make sure his body was returned for burial in Kenya. How hundreds of people turned up in the middle of the night for the funeral in his hometown of Malindi. How Mohamed refused to eat for a week after Jamal was buried. I would have told of the mothers who cried to me that Jamal’s wise counseling was the only help for their schizophrenic children. My story would have conveyed the family’s emotions: the terrific sadness of Jamal’s sisters and their fear that his sons—living with their mother in another city—would grow distant from the family. My story would have partially concealed the financial difficulties faced by my in-laws after Jamal’s death; the Swahili cultural imperative to conceal family problems might have led me—like Mohamed—to gloss over this part, devastating though it was. I craft this story in my head, knowing that I want to tell it publicly but could never do so to secure K.K.’s execution.
I look at our wedding photo displayed in court and come to appreciate that my motive for sending the pictures was not simply a desire to ensure Jamal’s presence. I also hoped to send a message about our relationship. I was—no differently than other victims—using the trial as a public forum to make political and personal statements important to me. The photo of us represented an unlikely but successful love, partnership, and understanding across continents, races, religions, cultures, languages, and ways of life. While the bombings marked a severe rupture between the Islamic and Western worlds, I want our relationship to demonstrate the possibility of connections.
Most of the victims and their family members who testify that day are ordinary Tanzanians, relatives of the guards and drivers who were killed. On the whole, their monosyllabic answers contrast with the more vivid accounts given by the Kenyans and Americans in al-’Owhali’s penalty phase. The flatness and distance of their testimony is partly an artifact of using an interpreter, but education, class, and culture operate to homogenize them into stereotypic depictions. Young widows of the guards and drivers are especially reticent in their testimony, and the prosecution seems not to push them. Even with little elaboration, the stories they tell are bleak. Most of the Tanzanians testify about living in quite desperate circumstances, before and after the bombings. I wonder if jurors have a hard time relating to these victims in contrast to the middle-class Kenyans who told of dropping a loved one off at work or watching the horror unfold on TV.
Prosecutors seem grim all day. These stories can’t, and in the end won’t, convince the jury to impose the death penalty when more vivid accounts failed to do so for al-’Owhali. In late afternoon I go to the prosecutors’ chamber to pick up my relatives. Mike looks dismayed. To be polite I ask, “How do you think it went?” “Okay,” Mike says. “People did their best.” “Mohamed was nervous,” I say, knowing that his clipped answers were probably not what Mike and others wanted from our story. “It’s hard,” I add. “Yeah,” Mike says. “We ask victims to do really hard things.” Trusting the law, victims of terrorism turn to it for many reasons; for the solace of knowing that the perpetrators are identified and contained, for the satisfaction of a public trial’s attention to their suffering, and for the closure that punishment promises. But not all victims, with their own personal stories, cultural identities, and political views find comfort or resolution in legal institutions.
At the end of the day, four of us sit at South Street Seaport waiting for orders of fish and chips. My close friend and fellow anthropologist Mary Porter has supported me by attending much of the trial, and now we share the headphones of my small radio to hear me on Melissa Block’s NPR report. It is fitting that I speak out on the very day when I would have testified. Noting with appreciation the “definitive answer” offered by the guilty verdict, I express my frustration that, as a death penalty opponent, there is “no space for me in the trial.”
I listen to my statements about the terror I experienced in the bombing, my views of the trial, and my reasons for refusing to testify; I feel I’ve made the public statement of my views that I could not accomplish in the courtroom. For victims, every telling can mean some loss of control over the story; I’m grateful that Melissa captures this dilemma—the heart of her story—and yet lets me conclude with what’s really at stake for me. “In the end we will none of us get what we really want, and that’s to have the people we loved back, to have our lives back, to have the plans that we’d made that we thought we would be able to enact in our lives back. That’s not going to come from a judicial process. It’s not going to come from a particular form of punishment. And for that I’m sorry for myself and for everyone.”7
Later, as we eat, I tell Mary and my relatives that the Kiswahili-language interpreter said he wanted to cry when he saw our wedding picture displayed in court, and that the other interpreter had to take over for him. Then Mohamed looks at me sideways and asks if I’ve seen “that other picture.”
Thinking that he means the other one I’d sent to the FBI, I say, “The one where he’s smiling?”
“No,” he says, and glances at Saidi and then down. He looks terrible. “The one at the bombing.”
My hair stands on end. “They showed you a picture of him after the bombing?” He nods. Saidi tells me, “the lawyer put it in front of him and he looked and he just cried. Then they started to ask him questions.”
“I just turned it over,” Mohamed says.
I rail against the prosecutors; they should never have shown him the photo. I am devastated that I couldn’t protect my family from the state’s zeal for revenge. Then it dawns on me that they showed the photo for a simple reason: to make this vulnerable, sensitive young man angry enough to want K.K. Mohamed put to death and to be ready to tell a story to achieve that end.
On a break during closing statements the next week, I follow Mike out of court. In front of the elevators, I confront him: “How could you have shown Mohamed that photo?” “We wanted to spare you,” he tells me. I choke back “bullshit” as my response, because I know it will come out too loud. But I tell him that they’ve done something very wrong. Does he realize that Mohamed bears this sadness so far away from his home and family? That he’ll return to Kenya where no one will understand what he’s gone through? That no one can say for certain that his testimony—or any victim’s—was worth all this pain?
Later the next week we are standing in Mary Porter’s kitchen, and Saidi looks at the photo display of friends and family on her refrigerator. His eyes tear. In a fluid motion he lifts our tiny wedding photo from under the magnet, brings it to his lips, kisses Jamal, and gently secures us back in our place, an intimate and heartfelt expression of reverence for dead and living victims.
I am grateful for insightful suggestions made on earlier versions of this essay by Sara Cobb, Mary Porter, Ashraf Rushdy, Mark Shire, and Richard Weisman.
1. The Supreme Court’s decision in 1991 in Payne v. Tennessee, 501 U.S. 808 (1991), affirmed the constitutionality of victim impact statements in penalty phases. The Payne decision is a startling example of the expansion of the victims’ rights movement into all areas of a murder trial and of the volatility of the Court, which only a few years before had stood firm against impact evidence in capital cases. There is a large literature in this area, see especially Susan Bandes, “Empathy, Narrative, and Victim Impact Statements,” University of Chicago Law Review 63 (1996): 361; Martha Minow, “Surviving Victim Talk,” UCLA Law Review 40 (1993); and Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton Univ. Press, 2001).
2. Philosopher Susan Brison, writing about her need to narrate the trauma she experienced as a rape victim, makes an important point about the connection between narrative and agency: “But one can control certain aspects of the narrative and that control, repeatedly exercised, leads to greater control over the memories themselves, making them less intrusive and giving them the kind of meaning that enables them to be integrated into the rest of life.” Susan Brison,Aftermath: Violence and the Remaking of a Self (Princeton Univ. Press, 2002), 54. For general discussions of narrative in courtroom contexts and the relation of narrative to agency, see for example John Conley and William O’Barr, Just Words: Law, Language, and Power (Univ. of Chicago Press, 1998) and Gregory Matoesian, Law and the Language of Identity (Oxford Univ. Press, 2001).
3. All courtroom transcripts in this essay are from U.S.A. v. Usama bin Laden, et al, (U.S. embassy bombing trial), 2001.
4. Supreme Court decisions in Payne v. Tennessee and other cases broadened the concept of “victim,” allowing family members not present at the crime scene to testify as to the impact on them of the death of a loved one.
5. See Vivian Berger, “Payne and Suffering—A Personal Reflection and a Victim-Centered Critique,” Florida State University Law Review 20 (1992). Berger and other critics of victim impact statements have argued that those testifying are placed in a difficult position when the lives before the crime were not happy ones or the personal qualities of the deceased leave something to be desired.
6. Ashraf Rushdy, “Exquisite Corpse,” in Robert Atwan, ed., Best American Essays 2000 (Boston: Houghton Mifflin Co., 2001), 269.
7. “All Things Considered,” National Public Radio broadcast, June 19, 2001.
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