Thread by @MaryKostakidis

Extradition September hearing Day 5 Morning session

This is the 7th day of the hearing but the court has run for only 3 and a half. Lots of time wasted with the Covid non-event and technical difficulties.
First, a postscript on cross examination technique. Any comment from..

.. lawyers welcome.
James Lewis QC ‘s technique became crystal clear yesterday. He endeavours to discredit the evidence of witnesses in their statement by insisting they answer a very specific question succinctly, because it will elicit the answer he needs to go on the record,

.. even though the matter requires a fuller answer to do the question justice, and the fuller response in fact provides the opposite answer.
This strikes me as a technique to be used if winning is all that counts.
I am reminded of a long running case many years ago called..

.. The Greek Conspiracy Case where I acted as interpreter. There were half a dozen QCs in court daily for a year and a half. The purpose of cross examination from both the Prosecution and the Defence, was to establish the truth. You saw a witness being cornered into telling the

.. the truth.
But this here is often just herding the witness towards the goal of making a statement that may strictly be true but will be misleading. It is hence extremely anxiety provoking to watch.
Secondly, whereas previous witnesses received the Prosecution bundle ..

.. the day before, Eric Lewis received his on the day of the morning he was being cross examined. James Lewis shrugs that off, maintaining Eric can simply listen to his reference to paragraphs not seen by the witness, then answer a question, without being able to provide context

or request context. I am not a lawyer, so the cross examination technique used here may be considered entirely legitimate. The second issue I would think would undermine the legitimacy of the process.
Because both these approaches are causing problems and delays, James Lewis is

.. insisting on more time to cross examine & reprimanding the judge for not controlling the length of the answers the witness is providing (they were in fact not long at all). His apology to the judge after the break was perfunctory. He has put on record she is being unfair in

.. his view ie you are on notice, this may be grounds for appeal.
(This is of course my interpretation).

I’ll be joining the videolink shortly & expect the cross examination of Eric Lewis to continue.

Members of the European Parliament who, along with Amnesty & other groups, were given access that was revoked last minute, have made this short video about British justice

player.vimeo.com/video/457847618

We can see the court. Everyone there except the judge & JA. Eric is back on a split screen. Let’s hope it all works today.

Judge in

Eric owns up to & apologises for the news video that boomed into the court yesterday!

Lewis: goes back to Ahmad in ECHR.. his audio is fuzzy. Oh no. Lewis underwater.

Lewis: refers to a paragraph in the Ahmad decision. Eric received the bundle yesterday & just found the section.
Re effects of solitary confinement..
Eric trying to scroll & keep up with Lewis..

Lewis: ECHR deals with the American system
You say they did not have the benefit of more recent studies, such as the Danish report.
Would it have reversed the decision?
Eric: if they had before them the vast body of psych damage available today I would hope that it would affect

Their decision

Eric citing other ac academics.
Lewis: citing a paper that says the Danish paper had limitation.
Asks Eric why he didn’t mention the limitations in his report.
Eric: that body of psych research is large & I could have gone on forever but if you’re saying they aren’t are problem

I disagree.

Lewis quoting a report critical of the report Eric quotes.
Eric says the findings a4e qualified.
Eric says he did provide links to the two articles.
All rather underwater..

Lewis accusing Eric of being selective in the information & “fishing”
Eric said there were very large fish in there.

Lewis: answer the question, stay concise.
Matter has improved in prisons.. why didn’t you mention the Cummingham litigation.
Eric: They have either not been properly implemented or do not apply to Mr Assange.
Lewis: defence assets JA may go to ADX.

Impossible to hear all

Lewis goes to.... kromberg!
Who .. describes all these improvements.
More bundles, searching.
Lewis quotes.. but Eric says he doesn’t have that bundle but he asks for the name of the document because he has all of Krombergs docs himself.

Lewis summarises this class action alleged treatment of prisoners with mental illness failed in their care.. & quotes Kromberg. Eric has no idea which bundle we are talking about..

Asks for time to search the bundles

Lewis: given what Kromberg says in paragraphs xx to yy, do you agree conditions have improved?
Eric: in some ways better & in other ways worse.
Lewis: Covid now. Have you read what Kromberg says?
Eric: recently or some months ago? I have today’s statistics.
Lewis:

Have you visited the Alexander detention centre since the Covid Pandemic?
Eric: no
Lewis: there are no cases of Covid at the ADC (earlier he said ADX)
Eric: that’s what Mr Kromberg says
Lewis: arguing that if that’s where they think he will go, all the statistics about other

Prisons are irrelevant.
Eric: he May be sent elsewhere & we have to look at the cases over the entire prison system

Lewis: apropos sentencing - you have said in May (year?) in he faces 340 year sentence (that sentence would apply in time of war).
Eric: saying he is happy to accept that was an error
Lewis: the 175 is a sound bite. You don’t expect that.
Eric: a reasonable likelihood & I’m

Happy to explain.
Fitzgerald objects that Eric should be able to explain.
OMGoodness he is discussing with the judge how to ask the question that will prevent him from supporting his opinion.
Eric: underwater, inaudible except for odd word about all the comments public figures

have made about JA. Talking about sentencing advisory - inaudible.
Lewis: look at cases under same provisions, espionage act sentences. Case of Sterling in Kromgerg’s declaration “critical flaws in Eric’s assessment - a tiny proportion of federal offendants receive Max Sentence”

Do you agree?
Eric: yes

Lewis now questioning Eric about comparisons in sentencing.
Are you familiar with the facts of Sterling?
Eric: I am
Lewis : he was a CIA operative who passed on info to a Russian & then on to Iran. Do you know his sentence? What was the max?
Eric: 100 years
Lewis: 130

Lewis : he appealed & what was the result? He got 30 months.
Eric: that’s what this particular judge decided on appeal, that’s not what the govt wanted.

Fitzgerald objects Lewis not giving Eric time.
Judge says it’s standard cross examination practice.
Lewis now asking him about another case: Albury (sp?)
He faced 2 counts, Max 20 years. Recent case in Minnesota.
Eric: not familiar with this case, looking for the page

In the material he received yesterday, “haven’t read it”.
Lewis: well let’s read it together he says, reading & jumping all over this doc

Lewis: continues to riffle through the bundle summarising the outcome in this case & raising the issue of base level sentencing.
Lewis: in JA case are there any Top Secret or just Secret docs (presumably this affects the base rate).
Eric: not certain.
Lewis: judge in this case

explains rational for sentencing in Albury .. 49 months in prison.
Eric: I haven’t read it because I received it yesterday

What is the longest sentence ever imposed for a defendant who has made unauthorised disclosures to the media? 63 months (either 63 or 43.. unclear audio)
Eric: there has never been a case like this one.
Lewis: recommendations are made for sentencing, decision is made by a federal

judge.
Lewis: District judge has life tenure, to ensure independence.
Eric: senate has impeached numerous judges
Lewis repeats question
Eric: yes
Claude Hilton is the judge assigned to JA case, has been sitting on the bench for 35 years.
Do you have any reason to believe he

would be unfair?
Eric: I don’t question his integrity
Lewis asks him why judge would fail to apply the guidelines.
Eric says there is a wide range of discretion

Lewis wants a break
Eric happy to
Short break.

Good to see other journos on the tech chat also now asking to see Assange. I have not had a reply to my email yesterday explaining why it was important to see more of the defendant.
Here is what I have asked for:

Is it possible for journalists on the videolink to see more of the defendant?
 
In the statement you read out to us daily before crossing to the court, you state it will not be possible to see the defendant at all times (or words very much along those lines).
 
In fact on each of

the three days the hearing took place we caught a glimpse of the defendant for a second, maybe 2 seconds. We cannot see whether he attempts to communicate with his lawyers, how often that occurs, how it occurs and whether it is successful. On day one we heard him shouting

something and it may be he has no form whatsoever of communicating with them during the hearing. As journalists, we do need
to see.”

Lewis: ref to article Lewis published in Independent saying Eric doesn’t want to see JA extradited, quoting wrong section & wrong number 340 years
Eric: apologises for the error
Lewis: refers to Rosen decision (conspiring to transmit national security info)

Eric points out this deals with disclosers not publishers.

Eric is inaudible half the time.

There is a discussion about “vagueness & ambiguity” but inaudible

Lewis talking about other cases where the judge had to balance harm to national Sec versus first amendment rights, incl Pentagon Papers. Eric’s responses inaudible.

(They have us a brief look at J)

Eric says.... which is why there has never been a successful prosecution pf a publisher. I’m sorry I couldn’t hear nearly all of what he said.

Lewis now differentiating between whistleblowers & journalists & jumping all over a bundle. “common sense says govt can punish journalists” because when the material is published, it replicates the damage.
Eric: agrees that is what “he “ is saying

Lewis asks if Pentagon Papers are most relevant precedent.
Eric: very relevant but there are others.
Lewis: the result may have been different had the govt decided to prosecute. Do you agree?
Eric: they acknowledge the possibility
Lewis: when you say legal precedent precludes

prosecuting JA, there is no legal precedent.
Eric: while the Supreme Court have never... balancing Nat sec interests against 1st.. plutonium bomb.. that is my analysis. Judge Ellis may take a different view. Impossible to work out what he said..

Lewis: provide one single precedent
Eric: quoting Holder, Miller. NYT is a precedent, the Minnesota case, ... continues inaudible. Leaks to appears every day that are not prosecuted.

Lewis: listen carefully, write down the question if you need to but I want a concise answer - The US Supreme Court has never said they are precluded from prosecuting journalists for publishing Nat defence info

They are going round in circles. The judge says she has understood the answer. Lewis moving on do journos have the right to go into the Whitehouse without authorisation?

Lewis:What degree in political science do you have
Eric: answers
Lewis: what academic peer reviewed articles have you written in pol sci.
Eric: none
Lewis quoting a judge about Eric’s evidence: re political motivation & abuse of process.

“Eric Lewis’s opinion is pure conjecture” so your evidence was not accepted by the High Court

Eric: exhaling about this case. Individual who said he was going to Syria to support a group battling Assad... (inaudible) policy had changed, not a change in political opinion

Lewis quoting Feldman, judge corrects him, Feldstein.
Lewis: he admitted there was no decision not to prosecute & did not withdraw the possibility of prosecution. Drawing distinction between a decision to not prosecute & a decision not to prosecute.
Do you agree?
Eric: no

Eric: I believe it reflects a misunderstanding of how the prosecution & DOJ works & not consistent with my long experience

Lewis: Miller left DOJ in 2011, 2 years before ha gave that interview to the Washington Post.
Eric: he would not have said anything that was not run past Holder, in my opinion.

Lewis: fed prosecutors are guided by the principles in their guidelines?
Eric: no they are guided by the AG
Lewis: they are barred from political motivation
Eric: if you look at the prosecutions & judges’ comments about them, they show they don’t follow the guidelines.

Lewis: re political motivation of Trump - asking if Eric left out a word, yes he was talking about the 2016 election campaign. Trumpet desperate to squash the problem to his legitimacy created by Wikileaks.
Are you saying it’s a politically motivated prosecution of someone who

helped Trump’ election?
Eric: relating how when & why Trump changed his comments/view of Wikileaks.
Lewis: if Trump wants to get rid of the problem, he is keeping it in the spotlights by prosecuting.
Eric: inaudible

Lewis: that’s pure conjecture
Eric: quoting Trumps closest to support his view. It is an informed assumption based on numerous sources he says.

Lewis: classified information covered by a procedural statute
Eric: it’s about the way material is handled in discovery.
Lewis : the govt cant withhold if it’s relevant to the case. The US can’t unilaterally withhold info
Eric: they can withhold classified info (more detail)

Lewis: do you agree the statute’s aim is not to create an unfair trial?
Eric: but that’s not the effect - makes it difficult for defendants to obtain docs & causes long delays to trial.

Fitzgerald now: re decision under Obama & decision to reverse that under Trump. Sarah Sanders interview: Trump said Obama did nothing about JA, we did. (That’s the video that intruded into the courtroom yesterday), & Miller, if the dept is not going to prosecute publishers,

then they are not going to prosecute JA.
The dept had “all but concluded” not to proceed. Article quoted an a DOJ official .. if it was untrue, they would have come out & said so.

Fitzgerald referring to evidence that pressure was put on Prosecutors.
Eric: yes & Sessions confirmed it by saying it is a priority for us.
Fitzgerald : you said 1,000 prosecutors wrote protesting about the decision in the Stone case.
Eric: Trump makes the decisions &

Barr has articulated it, that they are the “hands” of the President.

“Merely his hands.. his discretion is absolute & not reviewable”

Eric: This is how things have changed. Prosecutions are triggered by the President.

Fitzgerald referring to Trump commuting Stone’s sentence & JA would be tried under an administration where the AG takes his orders from the President.
Superseding indictment in May issued 4 months after Barr took office. Many prosecutors resigned in protest at political

interference but Barr did not. Fitzgerald is summarising Eric’s statement.
Eric: prosecutors don’t say they are closing a case, they let the time frame lapse. In case someone walks in the door with info that would change things. Nothing like this has happened, there is no change

Eric discussing leaks from within DOJ as to why they did not proceed to prosecute.
The NYT problem applies to the 17 counts under the Esp Act

Fitzgerald: re whether you are qualified to comment ..
Kromberg makes all sorts of comments about prison conditions.. is he more qualified than you?
Eric: I’d be surprised if he has spent more time than me in prosons. When prisoners are unhappy they don’t go to him, they come

to me. The guidelines look good on paper but my experience is the reality is different.

Fitzgerald : on length of time it will take.
Eric: if the US regards all the Wikileaks docs as classified, it will take a very long time. And throughout the time he will be in solitary.
Fitzgerald : Mandela rule = solitary for 22 hours, without meaningful contact with others

Fitzgerald: review procedure for SAMs
Eric: not aware of any court challenge, the AG has discretion
Fitzgerald: referring to evidence submitted in cases In ECHR Lewis quoted.. decision in Ahmed might be decided differently today.. what factors would make it different?

Eric: there has been extensive research into effects of solitary confinement
(Inaudible)

Eric: re prison JA will be in - they do not keep records of how many inmates have mental health issues, reviews have shown an alarming lack of knowledge / interest about/ in mental illness

Eric: reviews say 80% of prisoners diagnosed with mental illness get no treatment.

Fitzgerald: a former warden said there is no treatment available for Aspergers for prisoners under SAMs where as Lewis stated if Aspergers is confirmed, there is treatment available for it.
Breaking for lunch
Fitzgerald needs 20 more minutes, then next witness.

Whoa, apologies for my spelling of names/ cases.

I may tweet a little less frequently.
It’s challenging to type one thing while listening & evaluating the next thing that’s being said.

Eric is back. What a marathon for him.

It seems Mr Lewis is having a better day today & this witness has made a few concessions. However when you think about the concessions, they are not on substantive matters & the essence of his arguments remain very strong. In my view.

Judge in but all frozen now

I have no sound or movement on my screen, just a frozen picture

Trying to reconnect

I have reconnected but I’m not being admitted to the room by the host

Hah! Back in

Eric: discussing how the sentence is arrived at.. whilst 175 is the maximum sentence, you could reach the 175 by more convictions under fewer of the counts.
Says Manning could have been given the death sentence or life - it was discretionary.
Lewis is finished.

10 min break before next witness

The witness is Tom Durkin, on video

He is American & sports a massive moustache

Fitzgerald: qualifications - attorney licences to practice in numerous jurisdictions, practicing criminal law for 47 years, incl as Assist District Attorney for Illinois ..... teaches law at Chicago Uni plus awards for his work incl for Guantanamo
Summarise problems facing

Tom: classified docs only available to people with clearance & cant be discussed, even with your client. You can’t take anything off their premises. Not discussing the material with the defendant is an incredible handicap.

Fitzgerald: is there a real risk he will spend life in jail?
Tom: very likely. Sentencing guidelines ... He would be looking at a conviction on all counts by a jury. The govt likely to take a position that JA is more liable than Manning.
Can the court take into account relevant

of which he hasn’t been convicted but alleged against him, to enhance the sentence.
Tom: Yes, used in aggravation - the court has discretion what it will take into account.

Effect on his freedom of choice to defend.
Tom: if you plead guilty it massively reduces the sentence - a built in incentive to plead guilty.(sound breaking up)

Tom: most clients cannot risk the exposure & take a plea.

Tom: oh dear, he is frozen

Judge walks out while they find a technician

Which gives me the chance to tell you Tom is what you might call a very chilled dude.

He is back & animated

Judge: the issue was at your end
Fitzgerald: if defendant is induced to plead guilty would the requirement be they would have to cooperate with the authorities, including revelation of sources of information?
Tom: yes (inaudible)

Tom: I think it was likely there were political considerations when he was first charged, similarly for the superseding indictment & second superseding indictment.
Kromberg says grand jury has to give the go ahead. Is the jury a protection against an overzealous prosecutor.

Sound & picture breaking up

He is frozen

Judge walks out

Tom has changed computers.
Tom: no the decision is made by DOJ, in this case by the Nat Sec division - the defence have no right to make representations to the grand jury.

Lewis: are you saying he will not get a fair trial or that it will be difficult?

Tom: he would not get what I’d consider a fair trial.
Lewis: seeing classified docs is an inconvenience
Tom: worse than that - you can’t discuss it with your client, the most important person in the case.
Lewis: go to Kromberg
Tom : I can’t on this computer

Lewis: Kroeber says JA will be able to access the info
Tom: I don’t accept the fact that the defendant would be able to review classified evidence. The govt could declassify the material but theres no way he’d be allowed in to the Skiff(sp? It’s the space they are allowed

To view classified docs
Lewis: do you know t( sissies he will raise in his trial?
Tom: I’m not his lawyer, no.
Lewis: if you don’t know the issues how can you know it will be a problem
Tom: the issue of discovery (not all classified) is it is very expensive.

Lewis: defence has had access to 500,000 pages of Wikileaks docs he has put on the internet.
Tom: I don’t know but regardless of what it is you still have to discuss it with him
Lewis quoting from a document that he says Durkin is confused about.
Tom: I don’t have the doc in

front of me.
Lewis: on levels of sentencing - the base level if he pleaded guilty would be reduced
Tom: the judge can’t ignore enhancements
Lewis arrives at a base level he is happy with & Durkin agrees.
Lewis: have you read the case of Rush?
Tom: no

Lewis: the court said other conduct was irrelevant to sentencing. Asks about political motivation -& decision by Obama n9t to prosecute. He quotes Feldstein who backtracked on his evidenced (not not a decision, just not a decision) apologises for the double negative.

Tom: I don’t necessarily agree. Obama made a decision not to charge JA. Obviously they can always go back but that doesn’t mean it’s not a political decision. Mr Kromberg says the jury was ongoing but that’s not that important. I think it was declined by the prosecutors.

Tom: the grand jury didn’t charge him, it wa s the AG.
Lewis: all your knowledge derives from news articles.
Tom: of course
Lewis informing him Miller’s comments came 2 years after he left

Lewis: are you being paid.
Tom: I’m being paid by the hour
Lewis: may I ask how much?
Tom: only if the judge agrees t9 redact it so my other clients don’t see it.
General mirth

Fitzgerald: asks Tom about the media reports, Miller etc

Essentially the witnesses are all being asked to justify how they can rely on media reports when formulating an opinion about the reasons for not prosecuting by Obama & prosecution by Trump.

Tom makes the point that when info is leaked & its not uncommon, if the govt disagrees it will correct the record & they haven’t. If the Obama administration intended to prosecute JA, they would have corrected the record, in some way.

Lewis objects because a reference is being made to something in a doc the witness doesn’t have before him, but in fact he does. (Can’t understand the basis of the objection as Lewis has incessantly referred to docs which witnesses have got before them nor read at all)

Tom: All the power is in the hand of the prosecutor who decides which counts JA would be able to plea

Tom Durkin finished.
Tomorrow’s witnesses are Goetz (?) in the morning and Daniel Ellsberg in the Afternoon.
Court ends.
Goodnight