Monday, March 13, 2006

Botched trials, part 2

Speaking of botched trials, Zacarias Moussaoui's has been halted by the judge after a TSA lawyer was found to have coached witnesses.

Brinkema said a lawyer for the Transportation Security Administration sent e-mail to seven Federal Aviation Administration officials outlining the prosecution's opening statements and providing commentary on government witnesses from the first day of testimony. That was in violation of her pretrial order barring witnesses from exposure to any opening statements or trial testimony. ...

She said the rule against witnesses hearing testimony in advance is "a very important protection of the truth-seeking process." Moussaoui appeared bemused as the lawyers debated how to proceed. Leaving the courtroom, he said, "The show must go on." ...

Defense attorney Edward MacMahon moved to have the judge dismiss the death penalty as a possible outcome, saying "this is not going to be a fair trial." In the alternative, he said, at least she should excuse the government's FAA witnesses from the case. Prosecutor David Novak replied that removing the FAA witnesses would "exclude half the government's case." Novak suggested instead that the problem could be fixed by a vigorous cross-examination by the defense.


Blogger Pirate said...

quit the dog and pony show and give the dolt life. then release his sorrow butt into the general population.

3/13/2006 12:14:00 PM  
Blogger desert rat said...

Government employees...
pirate's right.

3/13/2006 12:22:00 PM  
Blogger Ivan Douglas said...

desert rat
there are too many mistakes of government employees..........
to be suspect of intentions.

3/13/2006 01:11:00 PM  
Blogger John Aristides said...

The subject of witness coaching was analyzed extensively by Bennett L. Gershman, in his law review article, "Witness Coaching by Prosecutors", 23 Cardozo L. Rev. 829 (2002). Highlights:

1. There is a distinction between witness preparation, and witness coaching, though the distinction is not clear: It is virtually impossible to ascertain whether and to what extent witnesses have been coached by prosecutors and police to give false or misleading testimony.

2. Preparation is a common, indeed a necessary, element of a trial: Preparation of witnesses, when done properly, is an essential means of readying the prosecutor and witness for adversarial testing.

3. Distinguishing preparation from coaching is an art, not a science: The suggestion of coaching almost always rests on inferences based on the witness's actual testimony, in conjunction with any available evidence to demonstrate that the witness's account changed after being interviewed.

4. It all comes down to the intent of the prosecutor: Courts and commentators suggest that there is nothing inherently wrong with attempting, even aggressively, to change a witness's initial version of the facts when the attorney believes that the version is inaccurate or incomplete. See Resolution Trust Corp. v. Bright, 6 F.3d 336, 341 (5th Cir. 1993)

5. It is up to the judge to analyze the intent of the prosecutor: When a prosecutor's conduct is suspicious but not clearly improper, courts are more likely to inquire into a prosecutor's intent in an effort to determine what the prosecutor actually meant by the conduct or the remark. 26 Am. J. Crim. L. 153 (1999).

In summary, coaching is not necessarily a prosecutorial capital offense, and we should be mindful that any skilled defense attorney will scrutinize depositions and in-trial testimony, using any discrepancies and incongruities he finds to make a charge of improper coaching.

The context, not necessarily the substantive testimony, provides the strongest evidence of intent.

It is worth remembering that in a highly charged trial like this one, the defense attorney is usually better paid and better schooled than the prosecutor he is up against. That, more than any other reason, is why "terror" trials are highly problematic.

3/13/2006 01:22:00 PM  
Blogger John Aristides said...

This comment has been removed by a blog administrator.

3/13/2006 01:31:00 PM  
Blogger John Aristides said...

As for cross-examination, courts are inclined to use it as a default remedy for minor allegations of coaching.

If I had to bet money--with the limited knowledge I have on the case--I would say this is what will happen. The jury is tasked with judging the integrity of witnesses. The idea is to put everything out there in front of them, allow a rigorous cross-examination, and let them decide who is to be believed.

That's my two cents. I don't think it is "botched" just yet.

3/13/2006 01:34:00 PM  
Blogger John Aristides said...

Although, there is some precedent for reducing a death sentence to life in prison in a circumstance like this. I guess we'll see.

3/13/2006 01:36:00 PM  
Blogger desert rat said...

It was not the prosecuter, but a lawyer from a Fed Agency, giving transcripts of the testemony of others to the witnesses. Prior to that witness's Court appearence.

This, after the prosecuter asked question that had already been ruled "out of order".

The Judge seemed quite miffed. She had ordered that the witnesses should not be informed.

3/13/2006 01:36:00 PM  
Blogger Frank Conte said...

Does this open up an opportunity for M. to turn state's evidence?

3/13/2006 01:41:00 PM  
Blogger desert rat said...

Less likely if the government cannot kill him.
Only negotiation is where he'd go. But Rules are Rules and he'll be "special" regardless.

3/13/2006 01:43:00 PM  
Blogger Ivan Douglas said...

Moussaoui is the only person charged in this country with the Sept. 11, 2001 attacks. While he has pleaded guilty to conspiracy, he specifically denies any link to 9/11 and says he was training to be part of a possible future attack. Prosecutors, to obtain the death penalty, must prove that Moussaoui's actions resulted in at least one death on Sept. 11.

3/13/2006 02:20:00 PM  
Blogger John Aristides said...


I believe the analysis is the same. Brinkema's statement seems to verify this:

"What that leads to is the very real potential that witnesses are rehearsed, coached or otherwise that the truth-seeking concept of a proceeding is significantly eroded," Brinkema said.

The discretion is Brinkema's on whether the violation was innocent, or whether a more nefarious result was intended, and also whether the rights of the defendant were violated.

Four (out of a total of seven) of the tainted witnesses are defense witnesses. And from what I have read, the press release emphasizes the defenses position that this is an "impossible position". There are still valid remedies available that would avoid a mistrial.

3/13/2006 02:33:00 PM  
Blogger Cedarford said...

Just more evidence of the incompetence of the Bush Administration and the global laughingstock our American legal system is.

4 1/2 years after 9/11, not a single trial and conviction.

1. The Bushies started this with their being all over the map on treatment of terrorists. Some would be tried in criminal court, with full due process rights - they decided. Others just like them would be held without trial as some sort of "modified POW". Others just like them would be repatriated to their home countries - but only certain countries. Others indentical in origin and deed would be given military tribunals. Others who did far more terrible things would be held incommunicado, like 9/11's Creator & Mastermind Khalid Sheikh Mohammed.

Naturally, the Jewish ACLU and other organs of the America-hating Left tied them up in legal knots.

Just another area where the Bushies booted it, big time.

2. For most of our history, our legal system was reasonably fast, fair, not overly expensive, meted out what was thought to be fair justice, and held lawsuits down. Now it is none of those things. It is slow, cumbersome, unfair, horrendously expensive, believes in endless process rather than finality of judgement and dispensation of justice, and is crippled by exploding tort litigation.

Rather than a vital arm of our society, our legal justice system has become a closed club of lawyer elites, who serve for the economic enrichment and political agenda interests of other lawyers - not the public.

And all that started in the late 50s. Recently, in our history..

3/13/2006 02:35:00 PM  
Blogger Senescent Wasp said...

He is two things. First he is a defendant. Secondly, he is an intelligence asset. Sentenced to death, the only leverage is commutation which is not going to leave him anxious to cooperate. Several years in Marion will make him more compliant. I don't think some people want him dead.

3/13/2006 05:10:00 PM  
Blogger fred said...

I wonder if we had to cut a deal with France to have Moussaoui in order to have him extradited and part of the deal was to take the death penalty off the table (this deal not publicly disclosed, naturally)and the government gave the judge the discretion as to when and how this would be facilitated. Of course, we will never know this for certain. Politically, for the 9/11 victims it was necessary for the appearance of the death penalty being on the table, but practically it was never really there in the first place. And I wonder if defense counsel may have been made privy to this deal.

I'm o.k. with life without parole for this mutt. It would indeed be nice if he was put in with other life without parole prisoners.

3/13/2006 08:13:00 PM  
Blogger Cedarford said...

Fred -

Moussaoui wasn't extradited from France. I'm surprised you know so little about Moussaoui's case given the high profile.

Want some fun? Get Khalid Sheikh Mohammed - the guy who came up with the 9/11 idea then was rewarded by being the man who was give full authority to take it from concept to execution - and bring him to the US to face "justice" in our "crown jewel" legal system.

There would be thousands of ACLU Jewish lawyers fighting for the prestige of defending him. A chance to attack America! Nothing would so vindicate our legal system as having to set KSM free because all evidence against him was obtained under duress.

3/13/2006 09:05:00 PM  
Blogger Voolfie said...

From the commander, black helecopter regiment, tin foil hat brigade:

What if Moussy's being put out on purpose to see where he runs and who he contacts?

3/14/2006 09:11:00 AM  
Blogger Zhang Fei said...

Leonie Brinkema is a liberal Clinton appointee who has sought out just about any reason to let the terrorists win. (Note that her previous attempt to dismiss the case was struck down on appeal). Looks like she may have found an excuse.

3/14/2006 03:54:00 PM  

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