By David Mora
This episode is the opening scene of Chapter 6 of a book in progress, “An Undocumented Tragedy: The Tale of the Unofficial Victims of 9/11.”
Judith Kaye saw the second plane hitting the World Trade Center on TV in Albany. Minutes after American Airlines Flight 11 crashed into the first tower, one of her clerks had rushed in and turned on a small TV that sat on a table in front of her, among piles of documents and files. In the time it took her to absorb the immediate horror of the images, dozens of colleagues, clerks and judges, had flocked into her chambers, with no one knowing the whereabouts of their loved ones[i].
New York City was home to Judith Kaye, but in those years she spent two weeks out of every five in the state capital, where the Court of Appeals met. That Tuesday, September 11, not only did the court have oral arguments from different cases listed on its agenda, but the entire state judicial system had scheduled a conference. Judith Kaye, a Court of Appeals judge and the chief judge of the State of New York, was keynote speaker for the night.
Before the first tower fell, she managed to contact her family, and learned they were safe. Watching the towers burn, however, she found herself bereft of answers to the question that colleagues were asking: “What are we going to do about the courts?”
As chief judge, it was her duty to provide an answer. The position, to which Governor Mario M. Cuomo had appointed her in 1993[ii], meant overseeing millions of cases a year and more than 1,200 judges, all members of what was one of the busiest court systems of the country[iii].
Whatever her decision was – either to keep open the entire system, trying to run business as usual, or to concede a period of mourning – she would have an enormous impact on the overall justice system and the lives of judges, court staff, prosecutors, lawyers, police officers, witnesses, victims, and all the other people who meet in the courts every day.
Lower Manhattan courts were “in the frontline of the disaster,”[iv] drowning in the cloud of smoke and debris. The Court of Claims, located at Five World Trade Center, had been destroyed, and many more courthouses were within walking distance from the towers, inside what would be later known as the “frozen zone.”[v] Thus, in terms of physical resources, many factors had to be weighed for deciding on the courts’ daily operations.
Communications were difficult. Land-line telephones were out, and faxes, pagers, and personal digital assistants had interrupted coverage. Physical access to the area was restricted, and there was no public transportation around it. Over 1,400 lawyers had offices in the World Trade Center, and more than 17,000 in the frozen zone, so many people had inaccessible records and offices[vi]. In addition, Judge Kaye could foresee a shortage of police officers as all the forces were to be deployed by the city government in the aftermath of the attacks, making them unavailable to testify at hearings and trials.
Court staff faced their own losses too, and that could impact the operation of the courts. In Albany, where the entire administrative arm of the local judicial system had convened[vii], people were desperate to contact and locate family members.
Judge Howard Levine, who saw the events unfold in Judge Kaye’s chambers, had a granddaughter who had just started at a high school blocks away from the towers that week, and no one had heard news from her that morning.
Other judges were also touching base with family members and colleagues among the larger judicial staff, in particular those working in lower Manhattan. Three court officers from the Court of Claims were missing, and a court clerk in Queens had two firefighter sons who died when the towers collapsed, and a third son, also a firefighter, who was searching the debris for his brothers’ remains[viii]. The toll of the judicial staff who lost children, spouses, cousins, would grow to 60.
Lastly, the court system would have to cope with the usual cadence of providing justice for the most populated city in the country, while dealing with all types of legal problems that the attacks would create: housing issues, failed businesses, family cases.
And it would have to deal with thousands of missing people whose families would have no way to establish their deaths, while the courts and the government lacked any protocol for a situation like this.
In the days following the attacks, the mayor’s office and the court system would have to take decisions on how to deal with “hundreds of adults, many accused only of petty crimes,” who had been stranded in jail “longer than the law would normally allow,” and “dozens of children, who had been locked in detention and accused of delinquent acts, deprived of their day in court.[ix]” They would also have to come up with answers for all the families who sought death certificates for the many people who died that day and whose remains would probably never be identified.
Yet, among the chaos and personal devastation in the moments after the attacks, the question remained: What was Judge Kaye to do with the courts?
Jose Pineda woke up to see the smoke billowing out of the first building on tv. His mother had just called him, and he rushed to turn the TV on, but it wasn’t until the second plane hit the tower that he fully woke up[x]. He had arrived from the Philippines a couple of months before. Since he hadn’t found a job yet, he stayed glued to the television all day long, unaware of how uncannily close the tragedy would get to him.
Months later, on his commute to a job he finally found, Pineda would remember the firemen he saw that day on TV, running into the towers. The tragedy was almost inextricable from his commute: every day he took the Staten Island express service bus, which brought him through downtown Manhattan. Most of the time, he got off on Franklin D. Roosevelt Drive and walked north, but sometimes he hopped on the bus that went up Trinity Place, passing just a block from where the towers once stood.
On his first day on that job, he would later remember, he was required to go to a tall white tent that stretched from 29th to 30th Street along FDR Drive. The first thing he noticed once there, apart from the size of the tent and the American flag hanging over it, were the more than a dozen trailers around set up around the tent.
A friend of his, Sheila, had been working there for a long time. She told him about a job opening in the city agency she worked for. They were hiring someone as a technician to help a medical examiner.
When he interviewed for the position, he was working as research assistant for the University of Medicine and Dentistry of New Jersey’s pharmacology department, grinding fish and fish bones. When the interviewer asked him whether he was ready to do the job offered to him, he hesitated but then thought there was not really much of a difference. The position he was being offered sounded similar, only with human and not fish bones.
Despite feeling eerie about it, he took the job.
On Saturday, June 22, when he started working for Zoran Budimlija, Sheila was in the white tent too. Having her around made him feel comfortable and calm, something he appreciated even more so when the heavy, half-rotten-half-burnt-steak smell of the place struck him. When Budimlija took him around to show him the place, he realized that the smell came from the sixteen trailers parked around the tent. Inside the containers, refrigerated and placed on shelves, there were hundreds of bags and red bins with body parts and bones inside them.
The tent was close to 520 First Avenue[xi], the place where the actual work happened. Pineda’s first task was to wash small but extremely heavy blenders, scrupulously cleaning them with bleach and brushing with alcohol to remove the smallest possible remains from the previous use. The grinders had to be cleaned, following the same steps, after each use. If Budimlija used them ten times a day, he had to wash them the same number of times.
Eventually, Jose Pineda would also be instructed on how to use the blenders. First, he needed to clean the last trace of muscle, tendon or soil from the bones—and remove the decomposing smell—and then mill them. Once the bones were in the blender, he could see them fragmenting as the blades spun, until all the fragments were reduced to powder.
José and Sheila were part of the Special Projects Group, a small division under the Medical Examiner’s Office, and Budimlija was in charge[xii].
Months before, as Budimlija watched on television as the towers burned and fell, he knew that a significant part of what was about to happen would unravel right in the place where he was standing. The place he worked had jurisdiction over all violent deaths for all five boroughs in New York City, so it was a matter of hours before the first victims—police officers, firefighters, and a priest, he would recall years after—arrived in the morgue and he and his staff would be called to perform autopsies on them.
The Special Projects Group, the unit he headed, was given the role of keeping the unidentified human remains gathered from Ground Zero. The first place that lodged the remains, the white tent set over an empty parking lot, soon known as Memorial Park, and it was the first place where mourning families gathered years before the downtown museum and memorial would open. In there, the bones and body parts were preserved for years, waiting for new identification techniques that allowed matches.
The amount of nuclear deoxyribonucleic acid—DNA—in bone cells is scarce, so genetic identification of people through osseous remains was rare at the time. However, the chances of a positive identification might increase with the amount of available material from which to extract DNA. So it occurred to Budimlija to use a lot of bone tissue, not just milligrams but grams of it, to increase the level of certainty of a match.
It was not “a big deal,” he would later say, and the process of extracting DNA from bone tissue had already been explored in other parts of the world. Yet no other place had been overwhelmed with such quantities of remains, so poorly preserved, nearly rotten. Blending the bones, and testing all the bone-powder gathered from them seemed, indeed, unusual. But satisfactory results—and maybe successful identifications—might come from it.
A desperate young woman, mother of two, approached the Greenwich Village police precinct two days after September 11. Her husband, a Port Authority police officer, and nine other officers had been buried alive among the carnage and the rubble. She provided his name, badge number, and his approximate location too, which she had been able to establish through phone calls with him during the night[xiii].
If found alive, the men would join a dozen survivors already rescued. If not, they would be counted among the 124 bodies removed from the rubble during the days following the collapse of the towers. Thus far, while rescue workers kept digging into debris looking for them, they were just a few of the 4,717 people who had been reported missing[xiv].
But no cellphone conversation had been ever held with the man. Moreover, the woman had never had a husband, and there had never been a police officer with the name and badge number she had provided. Hers had just been a false report—one of the five crimes committed with direct connection to the September 11 events in the days after[xv].
By the night of September 15, when officers arrested the woman, Manhattan’s district attorney was asking Judge Kaye for a blanket two-week adjournment of all jail cases[xvi]. If granted, all defendants detained in the days following the attack, the falsely mourning wife included, would remain in jail beyond the usual time, while prosecutors could duly demonstrate their cases before the courts.
But Judge Kaye opposed the idea.
Once back in the city, having witnessed the smoke that still could be smelled and seen inside Lower Manhattan courtrooms and realizing that bomb scares were daily events, Judge Kaye had made up her mind: courts were to remain open. The justice system, she would later say, could not capitulate to terrorism.
To grant the blank adjournment prosecutors were demanding, which meant nothing more than closing the courts for two weeks, would create unbelievable backlogs. Thus, the courts were not to close—the judicial system would remain open for “business as usual.”
Yet, in many ways, business was far from usual.
The vast number of deaths, the low chances of recovering remains from under thousands of tons of debris, the even lower expectations of identifying them—less than half of the 124 bodies recovered thus far had been identified—and the large number of grieving families in need of establishing their deaths to move on with their lives—”so they could get hold of a bank account or insurance policy to pay the next month’s rent”—moved the Giuliani administration and Judge Kaye to devise a summary process for the courts to establish the deaths of the thousands who had disappeared.
All that would be required from the families would be papers.
A torrent of sheets, scraps, and bits of every kind of paper blew over the skies of Lower Manhattan and Brooklyn during the hours following the attacks. Faxes, bills, checks, letters, résumés, post-its, notes, slips, commingled in the air into a single “mundane poem of office life,” spreading verses across the streets, offering the smallest hints of the businesses that perished that day[xvii].
Just like papers, charred bodies commingled too. Three thousand people smashed into a single human puzzle. One that Budimlija and his team had to solve, finding out who was who and what belonged to whom[xviii].
September 11 is what physical anthropologists call an open mass tragedy. Contrary to closed disasters, where there is a way to determine exactly who was part of it, open tragedies have an unknown number of victims. Therefore, there is a theoretical chance that the very smallest human remains recovered could be the only piece of an unknown person. And as long as the probability of finding new remains or identifying the already recovered one exists, the final tally of victims would be only the closest possible approximation.
But in contrast to other open disasters, there is something particular to 9/11. A year into working with the remains kept under the white tent, Budimlija discovered commingling problems.
Due to the enormous forces introduced by the planes crashing into the buildings, and by the towers collapsing, one could not be absolutely certain that human remains recovered together, either the smallest bits of tissue or the largest fragments of bone or muscle, were connected to the same individual body.
Thus, to determine if human remains placed inside the same body bag belonged to each other, all the soft tissue had to be scraped off the bones. Tendons or cartilage, though on the surface of the bone, could be someone else’s. But relying on the bones also required the bones to be cleaned using enzymatic detergents, not just scraped, to be sure the surface had no other trace on it.
Then, the bones had to be milled with liquid nitrogen to pulverize them, and from this powder, the DNA would be extracted. If no anthropological evidence to link different remains could be found, the pieces had to be separated into different body bags as different cases. Soon the body bags reached 23,000.
One of these pieces would eventually lead to the identification of a missing person.
Three years without news from a missing person is the period of time required by the Department of Health to issue a death certificate under normal circumstances. The families of the 9/11 victims did not have three years to wait, and the events couldn’t be further from normal.
Renee Roth had been a Surrogate Judge in Manhattan for two decades when the World Trade Center was attacked[xix]. Over those years, her daily business dealt with people who had died in the city’s wealthiest borough: probating the wills of people who had actually made wills before dying, and appointing public administrators for those who had died without wills or heirs. Issues of this kind were also adjudicated by Judge Eve Preminger, Manhattan’s other Surrogate.
Not long after September 11, however, another duty was added to their daily duties: establishing the deaths of the thousands who disappeared without physical trace.
Designated by Judge Kaye, Renee Roth devised an expedited procedure, in which the two Surrogates would go through the applications from the families who claimed that their loved ones were victims, vetting the evidence provided on their identity, their loved ones’ absence, and their connection to the World Trade Center site on the morning of the attacks.
The procedure, welcomed by the Giuliani administration, was soon put in place.
By September 28, judges Roth and Preminger had ordered the Health Department to grant over 2,400 death certificates for cases in which “the facts and circumstances of each alleged victim’s disappearance were sufficient for filing a report of death.” Families included in this fist group provided the judges with all types of documents, from birth certificates to World War II military certificates, including passports, driver’s licenses, and affidavits of relatives concerning the absentee’s whereabouts prior to the attacks.
A second group consisted of about 50 denials, “proved to be a sham or a mistake.” More than just the handful of cases that Judge Kaye had expected, the courts relied on NYPD investigations into the alleged absentees, who were found alive or apparently never existed. Judges also counted on probes carried out by the Medical Examiner’s Office staff, ruling on cases where a victim had died prior to the events.
A positive identification of someone always carried great emotion in the Medical Examiner’s lab. Even for the biggest lab of its kind in the country, to connect some part of the thousands of fragments of human remains to a 9/11 victim was such an infrequent success that moods improved with every new person identified.
Almost half the victims were identified in the months after the attacks. In one case, there were over 200 pieces from a single body. In others, the identification came from just “a single shard of bone.”[xx]
After a year had passed, identifications became rarer, so José Pineda did not immediately understand why people in Memorial Park got upset when the latest identification was confirmed.
Judges Roth and Preminger considered a third group of cases, made up of only two names. Neither victims nor shams, they caught Judge Roth’s interest with particular force. The connection of these two people to the terror attacks and their consequent disappearances did not meet “the evidentiary tests but appear to have a ring of truth,” she would rule.
These two cases were not suitable for the express procedure. Their absence was not explainable in terms of the attacks on the towers.
There had been no sworn statement from anyone with direct knowledge that they were physically present “near the World Trade Center on the morning of that day.” Nor was there “any documentary evidence for which they might otherwise be traced.”
Jose Pineda was shown the bone after somebody took it from the collection and brought it to him. It had been the latest bone from which DNA had been successfully extracted. Seconds after this he learned whom the bone belonged to.
It was not a remain of one of the over 2,100 people who died in the towers, the 136 passenger and crew members of the two planes, nor the 414 first responders who rushed to the scene. One of the 10 New York hijackers had just been identified[xxi].
Judge Roth had not declared them legally dead, but their remains had not been identified by Budimlija’s team either. Yet their families faithfully claimed they had disappeared in the towers.
The existence of Fernando Jiménez and Sneha Philip was left in limbo.
[i] All the accounts regarding Judge Judith Kaye were taken from “Reminiscences of Judith S. Kaye, Chief Judge of the State of New York and Chief Judge of the State of New York Court of Appeals,” interviewed by Carol Arber on February 18, 2002 and on April 21, 2004. September 11, 2001 Columbia University oral history narrative and memory project.
[ii] The New York Times, “Cuomo Nominates Judith Kaye For Top New York Judicial Post,” Feb. 23rd, 1993. An online version of the article is available at https://www.nytimes.com/1993/02/23/nyregion/cuomo-nominates-judith-kaye-for-top-new-york-judicial-post.html
[iii] The number of judges within New York courts is taken from the Judge Kaye interviews in Columbia’s oral history project. For the caseload, see the National Center for State Courts, Court Statistics and Information Management Project.
[iv] Vera Institute of Justice, “The Administration of Justice under Emergency Conditions. Lessons Following the Attack on the World Trade Center,” Dec. 2001.
[v] According to Judith Kaye and the Vera report, the court located at Five World Trade Center was destroyed. “Frozen zone” is a term extracted from Judge Kaye interviews.
[vi] According to Judith S. Kaye’s interviews.
[vii] An online version of the conference’s program is available at https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ATJReports/ls_NY_ATJConference_2001.authcheckdam.pdf. The number of attendees is taken from Judge Kaye’s interviews.
[viii] All the personal losses of people connected to the judicial system are taken from Judith S. Kaye’s interviews.
[ix] Vera Institute of Justice Dec. 2001 report.
[x] All the accounts regarding José Pineda were taken from “Reminiscences of José A. Pineda, Lab Associate,” interviewed by Gerry Albarelli on May 13, 2005. September 11, 2001 Columbia University oral history narrative and memory project.
[xi] The New York Times, “Renovating a Sacred Place, Where the 9/11 Remains Wait,” Aug. 29, 2006. An online version of the article is available at https://www.nytimes.com/2006/08/29/nyregion/29morgue.html. See also “City Discloses New Location of 9/11 Victims’ Remains,” May 30th, 2013, in the blog City Room by The New York Times, available at https://cityroom.blogs.nytimes.com/2013/05/30/city-discloses-new-location-of-911-victims-remains/
[xii] All the accounts regarding Zoran Budimlija were taken from “Reminiscences of Zoran Budimlija, Forensic pathologist,” interviewed by Gerry Albarelli on March 25 and April 19, 2005. September 11, 2001 Columbia University oral history narrative and memory project.
[xiii] The incident of the false report comes from the Vera Institute of Justice Dec. 2001 report, complemented with two newspapers articles. See The New York Times, “Woman Gets 3 Years for Tale Of Victims Trapped in Rubble,” January 24, 2002 (an online version is located at https://www.nytimes.com/2002/01/24/nyregion/woman-gets-3-years-for-tale-of-victims-trapped-in-rubble.html), The Washington Post, “Bush Encourages N.Y. Rescuers,” September 15th, 2001 (online version available at https://www.washingtonpost.com/archive/politics/2001/09/15/bush-encourages-ny-rescuers/558f844c-3193-4a28-b1df-b1b06b65f3d6/?utm_term=.6957a0dd7bc7), and New York Daily News “Nab Woman in Phony Rescue Plea,” September 15th, 2001 (online version available at http://www.nydailynews.com/archives/news/nab-woman-phony-rescue-plea-article-1.929543).
[xiv] The figures of survivors found, bodies recovered, and people reported as missing comes from The Washington Post, “Bush Encourages N.Y. Rescuers,” September 15th, 2001.
[xv] The five crimes committed come from the Vera Institute of Justice Dec. 2001 report.
[xvi] The request for a blank adjournment comes from the Vera report and Judge Kaye reminiscences.
[xvii] “mundane poetry of office life” comes from The New York Times “AFTER THE ATTACKS: RELICS; Trade Center’s Past in a Sad Paper Trail,” September 14th, 2001. An online version is available at https://www.nytimes.com/2001/09/14/us/after-the-attacks-relics-trade-center-s-past-in-a-sad-paper-trail.html
[xviii] Budimlija’s accounts come from “Reminiscences of Zoran Budimlija, Forensic pathologist,” at the Columbia oral history project.
[xix] Accounts regarding Judge Renee Roth and the expedited proceeding devised to provide families with death certificates come from Surrogate’s Court records on Sneha Philips, filed under index 754000/01. The document summarizes how the procedure eventually centered on two victims: WTC 2393 and WTC 2394.
[xx] “a single shard of bone” and the victim who was recognized through 200 body pieces come from The New York Times, “At Morgue, Ceaselessly Sifting 9/11 Traces,” July 14, 2002. An online version is available at https://www.nytimes.com/2002/07/14/nyregion/at-morgue-ceaselessly-sifting-9-11-traces.html
[xxi] The figures provided here come from “The 9/11 Commission Report.” The hijacker’s identification episode is according to “Reminiscences of José A. Pineda, Lab Associate.”