I think your Honor should also recall that I did not volunteer the statement deliberately. The government objected to the line of testimony I was pursuing at which time I was obligated to make an offer of proof. I had no intention to characterize where I was going at that point. My intention at that point was simply to ask the questions and to try to elicit information, and then if the information bore it out make a reference in my written brief to what we had alleged in our earlier presentation.

COURT: Let me see if we can't cut through this. Do I understand then when you use the word "deliberate," you were not using it in the sense of premeditated and evil but rather in the sense of failing to reveal something that you feel was sufficient of importance to be revealed? Is that correct?

DERSHOWITZ: Yes. Let me be candid and clear.

COURT: Yes.

DERSHOWITZ: It was my own view at the time that the government had made not an accidental but a deliberate decision. They had thought about it and decided not to turn over the Goe memorandum. Your Honor and I disagree as to the significance of the Goe memorandum, and the government and I disagree.

It was my view that there was a decision to withhold the Goe memorandum at that point. It was not my belief that the decision was necessarily made for bad purpose. Certainly, reasonable people could disagree as to whether the government had an obligation to disclose it, but I did not think on the basis of the conversations I had with people in the government that that was an accidental inadvertence. I had been told that the government knew about the Goe memorandum. It is possible that I was overexuberant about it.

I, as Mr. Sagor testified, was so excited when I had the Goe memorandum, that it seemed to me that it was the most critical point in this case. Here is the first piece of evidence that we had that the government had some knowledge in their files and I did tell Mr. Sagor, "That does it. That's the key."

It was with that state of mind that it occurred to me that this definition was met: failure to disclose evidence with high value to the defense and could not have escaped the prosecutor's attention.

COURT: Read the first part of the definition.

DERSHOWITZ: When the prosecutor's suppression is deliberate and includes not merely a considered decision to suppress taken for the very purpose of obstructing--

COURT: Stop right there. I take it you have not accused the government of the first part of the definition?

DERSHOWITZ: I did not intend to accuse the government of making a decision to suppress for the purpose of obstructing. No, I did not.

COURT: All right.

DERSHOWITZ: It seems to me that I was very excited about that. Mr. Sagor and I--

SAGOR: I will not make a statement as to what you told me personally. The Judge has precluded that. Don't take me as necessarily affirming--