Wednesday, March 15, 2006

Moussaoui Mess

Recent coverage of the federal sentencing trial of the so-called twentieth hijacker Zacarias Moussaoui (spelling?) gives the impression that prosecutorial misconduct will be the primary reason Moussaoui likely will receive a life sentence (if that) in lieu of the death penalty. After U.S. District Court Judge Leonie Brinkema ruled that she would permit the prosecutors overseeing his case to pursue the death penalty, she nevertheless instructed the prosecutors they would be forbidden from using certain prosecution witnesses who were allegedly coached prior to trial. To quote one blunt member of the prosecution team, Brinkema's ruling essentially made it "impossible for us to present our theory of the case to the jury."

Relax, kids. I am not blaming the coverage here; the problem here is not media slant on an issue. The problem here is loss of focus on some key issues. Allow me to adjust the lens.

1) Prepping Witnesses. Any prosecutor worth his (or her) salt will tell you that there is nothing fundamentally wrong with talking with your witnesses before they testify.

Rules pertaining to witnesses can be complex, and no doubt vary from state to state, so forgive me if I speak in generalities, but the basic rule is: Preparing a witness for testimony is okay, even desirable; outright telling them what to say is not. That means you can speak with your witnesses, review what they can expect upon testifying, and even do mock direct and cross examinations in order to give witnesses an idea of what it will be like on the stand. In a somewhat grayer area are situations where you shape a witness's testimony by emphasizing what you will be seeking to bring out, or where you intimate that you wish to avoid certain areas of discussion. Clear no-no's include telling your witnesses exactly what you want them to say, talking to them about their testimony while their testimony is in progress (for instance, during an overnight recess that bisects direct examination), and giving your witnesses information about what was said at trial by other witnesses. Indeed, these latter three behaviors could be loosely construed as coaching (although I can also tell you that well-intentioned prosecutors can do one or all of the above in good faith, with no intention to skew results in an unfair direction).

There have been allegations that transcripts of prior testimony were shown to witnesses that had not yet testified. If so, that is problematic for the prosecution, and Brinkema was right to exclude those witnesses from testifying. Before there is any more discussion on the subject, someone should get to the bottom of just what happened with these witnesses.

(As an aside: with regard to the last sentence, please do not construe it as a call to prosecute the prosecutor who allegedly coached witnesses. Again, I can tell you from contact with colleagues that these types of things are done good-naturedly on a daily basis in prosecutor's offices around the country. That doesn't mean it is okay, but it also doesn't mean someone should herself be prosecuted for slipping up.)

2) The Larger Lesson. We can bicker about evidence and judges all day long, when it comes to this case. I welcome such debate. There is, however, a larger issue here, which is whether or not terrorists should even be brought into the civilian, peacetime criminal justice system. This case is a screaming example of the pitfalls of employing best intentions in lieu of the latitude permitted by the federal Constitution.

While it is true that Moussaoui was arrested prior to September 11, and that he once had permission to be in the United States (he allowed his visa to lapse), his status should have been re-evaluated in the wake of the events of September 11, and he should have been shipped forthwith to a location where a military tribunal could have dispensed swift justice. Our nonsensical insistence in bestowing upon foreign terrorists the rights belonging to citizens only may eventually be our undoing.

Consider this latest episode People's Exhibit Number One.

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