Federal Judge Annalisa Torres Tours New York’s Metropolitan Detention Center

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

167 J257SEG5 that is blowing cold air. UNIDENTIFIED SPEAKER: So one of our facility's personnel is here with the thermometer, so we can check the temperature. PERSONNEL: 72.6 (in front of cell 204-114. THE COURT: So this is facing the water? We are standing outside of range 4, cell 114. It houses an inmate by the name of who has inmate register number Ms. von Dornum, this is the cell that you stated had the water damage; is that correct? MS. VON DORNUM: That's correct, your Honor. THE COURT: So just looking in the window, this very narrow window, I can see abundant water damage. Towards the back is a rectangular shaped cell. On the ceiling you can see copious amounts of paint peeling and hanging from the ceiling. The ceiling is painted white, but the water damaged area has a kind of a golden tone to it. It almost looks like wet tissues hanging from the ceiling. Ms. von Dornum, do you have anything that you wanted to comment own. MS. VON DORNUM: The day we were here we couldn't see it because it was dark in the cell, but the inmate described exactly what you're saying, and the lieutenant confirmed what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

168 J257SEGS you're saying, that he thinks that's prevalent through parts of the facility, but we were not able to visually see it that day. THE COURT: Was it this particular inmate that you spoke to? MS. VON DORNUM: It was. THE COURT: Did he state that there was water dripping in currently? MS. VON DORNUM: He said that there was water dripping whenever there was snow melting, or rain or condensation. That night it was quite cold so it was starting to drip down onto the sheets. He said the sheets were already soaking wet from prior days, and there had been no fresh sheets for a week, and Lieutenant Ramos confirmed all of that was the case. THE COURT: Excuse me. Warden, is there a way that I can ask him questions through the door? MS. VON DORNUM: Through the crack. THE COURT: Excuse me, Mr. -, my name is Annalisa Torres; I'm a federal district court judge, and I am inspecting this prison, and I heard that there was water damage on your ceiling. Could you comment on that? We are having a hard time hearing you, and I want the court reporter who is standing right here -- you can see him, right -- I want him to hear what you're saying, so I'm going to see if he can put his ear next to this little hole and hear you. Just wait a minute moment, please. When he is ready to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

169 J257SEG5 listen to you, he will tell you, and if you could just describe to him the condition. I just heard you say it was like sleeping under a waterfall, and you said that happened during the black-out, correct? INMATE: Yes. THE COURT: And what else do you have to say? You say it was freezing cold and you did not have any boxes? They did not give you briefs or correct clothing to wear under these conditions. Is that what you just said? INMATE: Yes. THE COURT: OK. Do you have anything else you want to tell me? One second. You said it was terrible because you could not see what it is. He says that he could not take a shower, he said you have to stink because the shower was freezing cold. What else? Basically he says they didn't care for you. If you tried to get an extra blanket, they ignored him. Anything else? One second. He says basically these were crazy conditions. I was sick with a chest cold. Is there anything further you want to say? He says, no, ma'am, that's it. Thank you, Mr. -. What's your name, sir? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

170 J257SEGS THE COURT: One second, Mr. -. Mr. - has inmate registration number - and he has pointed to me parts of his ceiling where there is water drippingabundant, it is plain as day. Did you want to say anything else? He says that they were here with no heat, no extra blankets. He said that during the whole time -- during the whole time he is a mental health patient, and he was feeling suicidal and no one came to help him. He said the temperature dropped to freezing, they had nothing in there, they had no thermal shirts. Anything else? No hot water. He said the food was cold. We couldn't see, we couldn't read. We couldn't read the Bible because we couldn't see. I couldn't do my legal work due to the fact that we had no electricity. And that's basically it. OK, thank you. And I had no medical attention. I had no medical attention. And you had no medical attention. And this is range 4, cell 113. OK, thank you. Sir, tell me your name. INMATE: My name is THE COURT: I want to note that Mr. _is a roommate with Mr. -, and his inmate registration number SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

171 J257SEG5 And what do you have to say, sir. He said he would like to elaborate his cell mate was going through a real mental breakdown here. He asked for attention because when the power was off the emergency buttons were not working. The officers were walking around only every hour or so. When we finally got the officer's attention -- I think his name is Gaymen, to be correct -- and I said the man is suicidal, and I think they took it as a joke. I physically had to take the -- literally had to take the noose out of his cellmate's hand he was trying to kill himself. I'm sorry to hear that. This box on my door, I was having chest pain and -- So, you were asking for medical attention, you had chest pains, you couldn't breathe. But you referred to a box. This box here. One day I asked him, and he said the medical attention is coming. It never came. So when I waited the next day, I asked him again, they never came, so when he was handing out, I literally had to stick my arm out to prevent him from closing the slot just so I could get some medical attention. Sorry to hear that. Thank you for telling me. INMATE: Thank you very much. Thank you for being worried about us, ma'am, and treating us like human beings. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

172 J257SEGS THE COURT: I'm very worried about you. MR. OLIVER: Back at 1121 there is a significant amount of moisture coming from the ceiling. THE COURT: My name is Analisa Torres. I am a judge in the Federal District Court, and I am coming to take a look at the conditions here. Sir, just tell me your name, please. THE COURT: So, I am looking into the cell, and I can see abundant water on the ceiling. You can tell that there is water damage. He's now showing me a very dingy yellowed blanket that is obviously water damaged. Yes, I see also mold on top of the florescent light. It's a black, blotchy mold. I also saw that in cell number 114. Mr. - is showing me his left arm that has a rash on it, and he says it's from the water dripping. He says that he thanks God for Ms. Webster who gives him supplies when he needs it. Mr. - says she is the only officer. He says -- Mr. -says they did not have heat or hot water for two weeks. Thank you both for giving me this information. Is there someone who can contact his family? We have a lawyer here who might assist you in contacting your family. We are on the seventh floor now, and this is the west side, correct? WARDEN QUAY: Yes. 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

174 J257SEG5 these windows. MS. VON DORNUM: On both sides on this floor. It was quite cold. THE COURT: Tell me your name. INMATE: -. THE COURT: My name is Annalisa Torres. I am a federal judge. INMATE: How are you doing, Annalisa? THE COURT: There was a time when there was a lack of heat. INMATE: Yes. THE COURT: Recently; is that right? INMATE: Yes. THE COURT: And can you describe to me what the conditions were like in your cell. INMATE: If was cold. We just now got blankets a couple days ago. What day was that? Yeah, Monday, we just now got the blankets. We went a whole week with it being freezing, no lighting, my toilet not working. You can flush the toilet right now, it's not working. It was cold. They're not letting us take showers. They're not feeding us properly. We supposed to come out at least one hour regularly. They keep us in the cell for 23 hours, and we didn't come out at all. THE COURT: What made you realize how cold it was? Was there anything that you could see? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

175 J257SEG5 INMATE: You could see your breath on the window. THE COURT: What is your name? THE COURT: And you say you could see your breath on the window? INMATE: Yes. It was so cold that we had to block the air vent. THE COURT: Tell me your name. THE COURT: And you're saying that the air vent needed to be covered; is that it? INMATE: Still covered right now. THE COURT: Let me take a look at that. Where is that? So walking into cell 13 on the right side, near the ceiling there is a vent which is covered. INMATE: Cardboard, cardboard and string. THE COURT: And why did you cover it? INMATE: Because it was too cold. THE COURT: Was it you who put the cover on? INMATE: Yes. THE COURT: Thank you. MS. KUNSTLER: Your Honor, this is unit J71. THE COURT: On the seventh floor, OK. Thank you. What is your name, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 I have been waiting to see

176 J257SEGS a doctor since we locked down. I have colitis, many medical issues along with mental health issues. I was locked in my cell, I used the bathroom maybe over the course of 15 to 20 times. My toilet was shut off all night. And then on top of that I have a rash. Now I have to try to make it to court tomorrow. I have a rash that's bleeding. I showed the officer my underwear, and they said it's above my pay grade. THE COURT: So sorry to hear that, sir. INMATE: Then on top of that I still haven't seen anybody for my issues. THE Can you tell me the name of your lawyer? INMATE: Karloff Comisho. THE COURT: Say that loud? INMATE: Karloff Comisho. THE COURT: OK. INMATE: I'm in the Southern District. THE COURT: I am going to contact him and let him know about what you're telling me. And I am certainly hoping that you feel better, sir. INMATE: I will try to make it to court tomorrow. I mean I'm bleeding, THE COURT: Sorry to hear that. I really do hope you get better. INMATE: Thank you, ma'am. THE COURT: Tell me your name. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

177 point that I have obstructive sleep apnea and was without my J257SEG5 machine for seven days. THE COURT: Why were you without the machine? INMATE: There was no power, no power to plug in. My cell is right over here, and the only power outlet is outside the cell and all the outlets were out, and so I -- it's a deadly condition if it goes the wrong way. And I'm not alone. I think there were eight other people in the building that had obstructive sleep apnea and were in the same condition I was. THE COURT: And when were you able to get the machine back? INMATE: I was only until -- the first Saturday when the event happened and the electrical fire, it was the next Saturday after they brought us over to the east building where they had electricity and we could plug in our machines. THE COURT: You were sleeping in the east building? INMATE: Only for one night. I spent an entire week without my machine and it was hard to sleep. It was very, very, you know, very anxiety because you have to worry about when you go to sleep and the apnea. THE COURT: Sorry to hear that. I hope that that doesn't happen again. INMATE: Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

178 J257SEG5 INMATE: I was stuck in the cell. I wasn't getting my medicine properly. THE COURT: When did this happen, sir? INMATE: During the whole lockdown. It was like a week. A week, a whole lockdown. And they wasn't feeding us right. THE COURT: What is your name. INMATE: Like at 6:30, they were feeding us at 10 o'clock. That was breakfast. And at lunch we supposed to get at 11 o'clock, we was getting that at 5 o'clock. And that's dinner time. Then at 7:30, you know, the food is cold. There was days the lunch they wanted to give it to us as dinner at night. The same lunch, they wanted to give it to us as dinner. THE COURT: And what is your name? THE COURT: Thank you very much. I appreciate you giving me this information? INMATE: On officer the officer jammed the arrest button. So Sunday morning I passed out, I had to go to the hospital, I could have bust -- I couldn't press the arrest button because they jammed it. We was told we shouldn't be pressing the button. THE COURT: Are you all right now? INMATE: No I still haven't been seen yet. I still SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

179 J257SEG5 don't know. I am still in pain. THE COURT: Do you know the name of your lawyer? INMATE: Jacob Mitchell. THE COURT: So I'm going to contact your lawyer and tell him about having these problems. All right. Thank you, sir. I'm going to go to inmates on the sixth floor now. INMATE: My name is I had a host of medical problems. I haven't gotten my medication. I couldn't get the medication until Monday. THE COURT: Today is Tuesday. You are talking about yesterday? INMATE: Last week. THE COURT: Last week. INMATE: Last weekwheel chair, and I have some problems with stuff, a lot of things, and off the record I will speak. THE COURT: I understand, sir. INMATE: It's serious. Serious problems. THE COURT: Well, I hope that you are feel better and I hope the conditions improve. Thank you for telling me. I'm going to the sixth floor. We're now on the sixth floor on the west side. Ms. von Dornum, is there a particular location you would like me to look in? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

180 J257SEG5 MS. VON DORNUM: Your Honor, this is unit 61 where many inmates complained of medical problems including the man with the bandages that hadn?t been changed in two weeks with the gunshot wound and the emaciated man. And it was quite cold in this unit. So we could compare the conditions. I don't think you're going to learn anything different than you learned above. But there were many medical cases on this particular unit that Investigator Ross and I saw. THE COURT: OK. ms. vow DORNUM: This 15-. THE COURT: Hi, Mr. -. INMATE: How are you doing. THE COURT: How are you? INMATE: I'm fine, but my situation is that I got glaucoma, and I needed to go to the hospital because the pressure in my is high, and they haven't taken me yet. And then I also got these bandages on for over three weeks. They still didn't take me out the building to change the bandages. And like the situation here was just really ridiculous, you know, it's cold in the room, there is no shower, no laundry. THE COURT: When was that? INMATE: All last week. You know, I kept asking them I seen flashes in my eyes and I'm supposed to go immediately if I see flashes in my eye. And I was telling the officers, and they was just completely ignoring me. So like I don't know SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

181 J257SEG5 what's is going to happen. They still haven't taken me out yet to see any medical situation. THE COURT: Perhaps you can take the name of an attorney? MS. VON DORNUM: We're his attorneys, your Honor. We brought it to the attention of the Court. I also brought it to the attention of Ms. McFarland on Friday when we were standing here, and Assistant Warden King, and pointed out the bandage and the glaucoma. That is Friday when Investigator Ross and I were here. But you haven't received medical attention since Friday? INMATE: No, no. THE COURT: Sorry to hear that. INMATE: And I told them -- I explained to them like my doctors told me if I see color or floaters, that I'm supposed to immediately go to the hospital. And I seen it a few times already, and I told them that, and they just completely ignored me. I may have a retina detachment and not know it right now. THE COURT: All right. I'm certainly hoping you get to see the doctor soon. INMATE: Thank you. Excuse me. My name is and I have a mean headache and my chest be hurting me. I have been spitting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

182 J257SEGS blood. Every time I cough, this right here on this left side I got a ball, you know. I have sent e-mail for medical. Today I sent an e-mail for medical, and nobody called me, you know. I don't know what's going on, and I really need medical attention. THE COURT: Very sorry to hear you're not feeling well. If you would please take down the name of his attorney and contact him, I would appreciate that. INMATE: My name is reason the food was coming up undercooked and cold. Now for some THE COURT: When was this? INMATE: This was Saturday, and I think Friday night. One of them, Friday, Saturday or Sunday. It was two days in the nighttime it came up cold, so I caught a bad stomach ache with a bunkie in the cell, so I'm trying to explain to the officer, listen, I need to see medical attention. They would not see me see, medical attention. Two days later and the stomach ache is gone, so I'm just nasty. THE COURT: Sorry to hear you weren't feeling well, but happy to hear that you are better. Thank you so much. MR. SPILKE: I believe the sixth floor is also where Tabb is, and he was going to be a witness today. He was the one who wasn't brought over because he allegedly spit at a marshal. 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