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To Make His Defense, Should Zacarias Moussaoui Have Access To Alleged Al Qaeda Members Detained by the Government?

Monday, May. 12, 2003

On Wednesday, May 7, U.S. District Judge Leonie Brinkema held a closed hearing to determine whether suspected terrorist Zacarias Moussaoui will be allowed to interview an alleged Al Qaeda member, who is currently being held by the U.S. government, to help build his defense. (Previously, in March, Judge Brinkema had allowed Moussaoui access to another detained alleged Al Qaeda member.)

However, Moussaoui's "standby" attorneys have suggested that such written statements are far from sufficient: "There is no precedent for denying a defendant facing the death penalty access to such witnesses." As their comments suggest, especially in a death penalty case, there are very strong reasons to allow the defendant access to all possible means of defense. Certainly, this country has executed enough innocent people in the past to be wary of cutting off a defendant's right to defend himself.

Who is correct - the government, or Moussaoui and his standby attorneys? Before answering the question, it's helpful to look at the ground rules that govern defendants' ability to call witnesses in a federal criminal trial.

Why Defendants Often Don't Call Their Own Witnesses In the First Place

First, it's important to remember that many defendants usually don't put on their own case at all. Rather, their lawyers cross examine the government's witnesses, and argue in their opening summation that the government has not met its burden of proof beyond a reasonable doubt.

Why don't defendants put on their own case? Sometimes public defenders' lack of resources are to blame: The defendant's overburdened attorney doesn't have the time to conduct a full investigation. But the real reason is usually related to the Fifth Amendment.

Defendants with prior criminal records often invoke their Fifth Amendment right not to testify. Once they've made that choice, putting on other witnesses on their behalf has a severe cost for them. It will inevitably raise this question in the jury's mind: "So why doesn't the defendant himself just tell us what happened?"

Although jurors know the defendant has a right not to take the stand, they also often wonder why he doesn't. Putting on an elaborate defense only make the defendant's own silence more conspicuous.

Putting on such a defense also means the attorney can no longer implicitly suggest the defendant might have taken the Fifth on principle, by suggesting the burden is on the government, not the defendant. The idea is that the defendant isn't speaking because he doesn't have to; the government is the one that has to convince the jury. But putting on a defense case without the defendant's own testimony suggests, instead, that the defendant prefers to have others make his case for him, because he fears trying to tell his own story.

That, then, is the situation in the typical case in which the defendant takes the Fifth.

If a Defendant Does Try to Put on A Defense, He May Run Into Trouble

First, witnesses who fear they may incriminate themselves with their testimony may refuse to speak to the defendant or his attorneys. Even if they are subpoenaed to give a deposition, they may take the Fifth. If they do, a defendant has little recourse.

That's because it is the prosecutor, not the defendant, who has the power to offer witnesses immunity and compel them to speak - meaning that the prosecution, in effect, has access to more testimony than does the defense. In a very rare circumstance, a defendant might convince a judge that his Sixth Amendment right to a fair trial requires the judge's granting immunity to the witness, and compelling him or her to speak, but this is unlikely.

Meanwhile, if the defendant is poor, he will face additional obstacles. If he can't pay witness fees, he can get the judge to subpoena witnesses anyway, but only if their testimony is found by the judge to be necessary "for an adequate defense." Moreover, even if a subpoena for a deposition or trial appearance is issued, witnesses can always move to quash it.

That brings us to Moussaoui, who appears to be in an unusual situation for a defendant. His verbosity so far seems to make it very likely that he will take the stand in his own defense, and it seems the witnesses whom he has wanted to speak to, probably actually want to speak with him - rather than taking the Fifth or moving to quash the subpoena. Instead, it is the government that is the major obstacle to his getting access to witnesses.

The Problem with the Written Statement Option

The government's national security concern, in this case, might be a plausible one. Its fear may be that Moussaoui would be a message-carrier among Al Qaeda prisoners - perhaps filling them on what the government does, and does not, know about Al Qaeda. There is every reason to think the angry Moussaoui would do this if he could - whether he is guilty, or simply furious at being wrongly accused.

Moreover, if Moussaoui went so far as to aid in terrorism, there would be little the government could do to penalize him further. It apparently expects to win the death penalty in this case. And if he is indeed guilty, then Moussaoui, too, may expect this too, and thus see no reason not to wreak havoc before he is executed. (This "nothing to lose" phenomenon is yet another problem with the death penalty.)

These concerns lead to the question of whether there might be a solution that balances the government's national security worries against Moussaoui's fair trial rights. The government's "written statement" option seems a weak one, but it's hard to propose another, because the balance is very difficult to strike.

Without the opportunity to observe demeanor and assess credibility, the defense's position is weakened. Before calling a witness, it's best to know not only what he will say, but how he will say it. Under ordinary circumstances, no attorney worth his or her salt would accept a written statement in exchange for an in-person interview. A trial is a human drama, not a paper battle.

The Problem Is Particularly Acute Since Moussaoui Is Representing Himself

Another alternative - having defense attorneys, not Moussaoui, do the interview, and restricting what they can convey to him based on security rules - is excluded here. The case is an unusual one, because Moussaoui is representing himself - with access to judge-appointed "standby counsel." Thus, the option of allowing Moussaoui's lawyers - but not Moussaoui himself - access to potential witnesses who might disclose sensitive information is not as feasible as it otherwise would be. In a sense, he is his own lawyer.

Of course, giving attorneys access to information that they cannot communicate to their clients is hardly an ideal solution anyway. But it's also not unheard of. For example, if an attorney, through no fault of his own, sees something he shouldn't - say, inadvertently produced information from the other side - he might have an ethical duty to keep it to himself. Typically, though, a criminal defendant ought to be allowed to see all the evidence that his attorney can.

An Ex Parte Proceeding May Be the Best Solution

Another option might be to have the interview presided over by the judge, with prosecutors excluded (the legal term for such a one-sided proceeding is "ex parte"). It seems unlikely that even Moussaoui would plot in front of Judge Brinkema.

This solution would not be completely unusual: Judges typically have experience in conducting ex parte proceedings, at least in civil cases where it is possible, for instance, to get an ex parte temporary restraining issue under some circumstances. They are also very used to overseeing, and controlling, witness testimony to make sure that it hews to external constraints, such as the rules of evidence - often, for instance, shutting down hearsay before it can be voiced.

This option would seem to be fair to both sides. Prosecutors could fill the judge in beforehand on their national security fears, so she could shut proceedings down if Moussaoui was attempting to misuse them. Meanwhile, Moussaoui would be able to have the benefit of an in-person interview of the Al Qaeda prisoner, and could also keep his defense strategy secret from the prosecution until trial begins, as he's entitled to do.

I'm sure Judge Brinkema's resolution of the dispute over access to the Al Qaeda witness will depend at least in part on the evidence on the magnitude and plausibility of the national security threat, and rightly so. But whatever approach she takes, my hope is that she offers Moussaoui greater due process, and a fairer trial, than the government's "written statement" would allow. With not only the U.S., but the world watching, it's important that Moussaoui's right to a fair trial is preserved insofar as that is possible.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her forthcoming novel, 3, will be published in the U.S. in August 2003 by Plume Books, in the U.K. by Bantam, and in French translation by Actes Sud.

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