"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Monday, March 13, 2006

Judge Asked to Violate Separation of Powers

Maybe it's something in the water in Northern Virginia. Recall, if you will, how a state judge in Fairfax attempted to preclude the prosecution from seeking the death penalty in a case because the government had violated the defendant's rights under the Vienna Convention. That attempt was slapped down by the Supreme Court of Virginia as exceeding the judge's authority and violating the separation of powers (the way it works is: prosecutors [the executive branch] get to decide what to charge and what punishment to seek; judges get to interpret laws and make evidentiary rulings, not decide what punishments the prosecutors can seek).

Apparently tearing a page from the defense's playbook in that case, attorneys for Islamic terrorist Zacarias Moussaoui have convinced the judge at his death penalty sentencing trial to consider barring the government from seeking the death penalty. Why? It seems that a Transportation Security Administration lawyer, not one of the prosecution team, coached FAA witnesses about what had been happening in court, in violation of a common trial practice called a "rule on witnesses" or some similar phrase, which simply means that witnesses cannot be told what other witnesses have said in court, in order to ensure that their testimony is not tailored to fit what has already been said in court.

Now the defense thinks the remedy should be barring death as a potential sentence. Never mind that no precedent exists for such an exclusion. If the offense is really that prejudicial to the defendant, then there should be a mistrial. After all, if, as the defense attorney claims, "this is not going to be a fair trial," then imposing life imprisonment in lieu of death is not the appropriate remedy. The correct remedy is not for the judge to decide which punishment from among all the lawful punishments may be imposed. If there really is some fundamental unfairness, then her duty is to declare a mistrial and start over again, perhaps sanctioning any party who may have violated the rule on witnesses.

UPDATE: Find the defense motion to dismiss here. Interestingly, the remedies sought by the motion do not include preclusion of the death penalty, and the motion implicitly acknowledges that preclusion is not a recognized option. The defense is seeking to have the witness testimony excluded, and makes what seems like a fairly muted push for a mistrial. I had not particularly followed the facts of this case before, but it seems the government has a steep uphill climb in any event, since their case rests on asking the jury to sentence this guy to death for failing to cooperate with the authorities in identifying the methods used by the 9/11 hijackers. It's probably a good tactical move by the defense to seek the witness preclusion, further weakening an already weak government case, instead of strongly pushing for a mistrial, which would give the government another crack at putting together a better case.

UPDATE II: Here's the government's response to the defense motion. They shift all the blame for the witness coaching to the TSA lawyer, calling her actions "egregious" and a "flagrant violation" of the sequestration order. Their brief also notes there is no precedent for precluding the death penalty, and that the court can basically 1) sanction the witness for violating the rule; 2) instruct the jury that the violation can be considered in assessing the witnesses' credibility; 3) exclusion of the witnesses' testimony. #3 is the most extreme sanction, and is only imposed when there is both connivance by the party and actual prejudice to the other side. The gov't obviously is taking the position that the TSA lawyer is not part of the prosecution team, so there is no connivance, and any prejudice to Moussaoui can be cured by vigorous cross examination of the witnesses. My prediction: The judge will exclude the witnesses who actually were tainted; apparently one of the witnesses did not read the stuff the TSA lawyer sent, and in fact, sent it to the prosecution with a statement that she had not read the material. That witness should be allowed to testify.


Anonymous said...

Tom, I think you are confusing a rule of decision with a jurisdictional issue.

Fashioning relief from government misconduct does not violate separation of powers. Whether striking the death notice is the proper relief is a different story. No court has ever held that, either.

Moreover, on a routine basis courts preclude the government from using witnesses or taking some action because of their misconduct.

Some examples: 4th amendment exclusion of illegally obtained evidence
Supervisory power used to suppress grand jury testimony because of failure to warn target: United States v. Jacobs, 547 F.2d 772 (2d Cir.1976), cert. granted, 431 U.S. 937 (1977), cert. dismissed, 436 U.S. 31 (1978).

“we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights.” US v. Toscanino, 500 F. 2d 267 (2d. Cir. 1974).

(There are a number of civil cases against the government in this area, but I am not going to cite them here.)

Whether the relief should be granted or not is a different story.

Moreover, it is worth nothing that this trial is only over whether the death penalty should be applied. There is very little post-Apprendi supervisory power caselaw, so whether the proper remedy is simply denying the government the ability to execute someone (which is the only issue in the trial) has never been decided. But to say that a court is being asked to violate “separation of powers” purely because it would impede the government’s ability to seek a certain sentence is not supported by the federal caselaw, and there is precedent for it.

Anonymous said...

Tom, I just reread the story, and checked the docket. She asked the parties to brief to the issue of what the remedy should be for repeated violations of her orders. (Which are pretty standard, and if they are not given, the government usually requests them.)

Therefore, unless you know for certain that there is absolutely no precedent on the issue, and the defense relied on simple bald assertions; it is unfair to claim that such relief is unprecedented.

Whether is it wise is a different story. You can argue that perhaps the remedy for government misconduct is monetary sanctions, contempt, or perhaps a mistrial, but that is a different story.

Tom McKenna said...

I don't profess to be an expert on federal sentencing law, but I would like to see what specific precedent there is for this type of remedy. I would be surprised if any existed. The exclusionary rule analogy is inapposite, since that remedy was fashioned as a derogation from the general rule of admissibility of relevant evidence, purportedly to vindicate the 4th Amendment. It has never been broadly used to dictate what charges or punishments the people can seek in a case. Exclusion in criminal cases has not been extended beyond the very narrow context of particular pieces of evidence derived from specific 4th Amendment violations.

My comments about separation of powers were meant to underscore the problem with a judge forcing the government to pursue only one punishment option when by law more than one punishment option is available. The Virginia Supreme Court had it right when they held that such an attempt by a judge is an improper excursion into the prosecution's discretionary powers.

Whether the federal courts will view it that way is, of course, unknown, but I would hazard a guess that the Fourth Circuit (where this case is being tried) would take a dim view of a judge taking the unprecedented step of pulling the plug on a death penalty trial, not by declaring a mistrial, which is within her rights, but by forcing the people to forgo a shot at the death penalty.

Of course, it would be acceptable and unremarkable if she simply forbade the witnesses in question from testifying and let the case play out without the "tainted" witnesses.

Anonymous said...

The Virginia Supreme Court isn’t binding here, and it is hardly considered a leading court when it comes to constitutional issues since it doesn’t particularly care about them. Even if they did, they interpret the state constitution, and state constitutions often don’t have same type of separation of powers that the US Constitution does. (They may be analogous, but they are different.) While I sympathize with Virginian’s desire to executive as many people as possible, the Virginia Supreme court is not the authority on what the scope of Apprendi (and probably Blakely and Booker) is, in this case.

In order to see whether there is precedent or not, we would have to look at the defense brief, too. Relying on the executive’s briefs as a statement of the law (like relying on a newspaper for legal information) is obviously unAmerican.

But, it might be in the inner workings of this case, that the government doesn’t have the evidence to sustain a death verdict without the tainted witnesses. As I see it, this email was given pretty wide circulation. Perhaps all of the witnesses are now tainted. The judge therefore has an obligation to evaluate whether the remaining witnesses could possibly offer non-tainted evidence that would support the death verdict.

While the 4th has distinguished itself recently for overly-political decisions (which went both for and against the government, and got slapped 8-1 when they went FOR the government), unless there is a specific precedent that would prevent a judge from striking evidence and concluding that there is no evidence to support a certain charge or a certain penalty, then it is overly vague to say that they take a “dim view” of something. Though, I am unsure what sort of review they can exercise.

Because we live in an age of global terror we must be very very careful to always research and find cited because the enemies of freedom speak only in slogans.

patty poo said...

BINGO--anon couldnt opssibly remain coherent for long! He finally broke with the last paragraph. Which proves, when it comes to anon--stupidity always wins.

Anonymous said...

Tom, Congrats. I guess I goaded you into doing a good job on this post. It took three tries, but you 1) provided citations; 2) researched what actually happened; and 3) provided at least some insightful commentary. Your cheering section doesn’t know what to think of you, but you will be rewarded for your even-handed approach to a case that is very difficult for all. (Let’s face it, his defense team and him do not get along too well, because he is a nut.)

There are a few other issues floating around. If jeopardy has attached, a mistrial might result in actually a vacation of the underlying guilty plea. (There isn’t much law on this.) Therefore, I am beginning to think that a mistrial is not the best remedy.

I don’t particularly like the fact that the government is hanging this lawyer out to dry. Coaching of witnesses goes on all the time. She, not being a litigator, was just a little more flagrant about it! It is a shame that the government is calling her behavior “egregious” rather than “unfortunate” or “naive.”

Anyway, I like your post, because you have mellowed out considerably. You might not get as many marriage offers in the comments, but at least lawyers will respect you.

pattypoo said...

What an asswipe,anon.

Anonymous said...

Tom is not an ***wipe. He is sometimes misguided, but he showed the world that, when he is properly goaded he can do some neat legal analysis.

Anyway, no matter how this situation concludes it won't be good. If they get the death penalty, it won't deter terrorists, nor will it result in the death of a particularly heinous one. This guy is a crazy nut by even terrorist standards.

If they don't, it will mean life in prison, because everyone wanted to be a hanger-on to the prosecution team.

At the beginning of this case, the government leaked a lot of stuff about how they would "never let him go" no matter what any court decided. This didn't help anyone, anyway.

pattypoo said...

I wasnt referring to Tom.