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Defending Due Process Susan Estrich "In all the years I have been on the bench," Judge Leonie M. Brinkema, presiding in the life-or-death determination for Zacarias Moussaoui, said, "I have never seen such an egregious violation." Sadly, she was not referring to Moussaoui's participation in the 9/11 conspiracy, but the government's overzealous prosecution of the confessed terrorist. Violating the most fundamental precepts of fairness at a stage where they could not be more vital, a government lawyer e-mailed transcripts, summaries of prior testimony and instructions to seven witnesses to help prepare them to overcome the problems in the prosecutor's case. These are harsh words from a federal judge for the government. But they are no harsher than the words the conservative appellate judge, J. Michael Luttig, had for the government in another key terrorism case. That case involved Jose Padilla, who was supposedly involved in a dirty bomb plot and was held without charges in a military brig for four years, only to be transferred to a civilian prison and indicted on far lesser charges on the eve of Supreme Court review. And then there are the string of losses the government has suffered at the hands of juries when it has strained the line between action and speech, as it did in the trial of a Web site designer in Boise, Idaho, and a college professor in Florida, and the overturned verdicts in Detroit when prosecutors failed in their duty to disclose to the defense that a key witness admitted he lied to the FBI. Story Continues Below
This time, the government's excuse is that it's all the fault of the Transportation Security Administration (TSA) lawyer, who was the one coaching witnesses, not the prosecutors themselves. That's true enough, except that she explained the coaching by writing that she was "very concerned" that the prosecutor's opening statement, and indeed his whole theory of this part of the case, "has created a credibility gap that the defense can drive a truck through." The government was claiming too much, in this case, about the abilities of her agency, and expecting her witnesses to back it up. Moreover, this was not the government's first run-in with the judge in this stage of the proceeding. Earlier, the prosecutor had, in his questioning of an FBI agent, intimated that the defendant should be executed because of his failure to confess at a time when he had invoked his right to remain silent and be represented by counsel. What all of these cases have in common is the overzealousness of the government in claiming too much, and reaching too far. That is also what happened in the case of an Oregon lawyer held in custody for almost three weeks as a material witness in the Madrid bombings after an ambiguous fingerprint identification that subsequently led to an apology. In the wake of 9/11, we were promised terrorism prosecutions, and we've gotten them - whether there are terrorists to be found or not. It is precisely where the public is most outraged and most afraid that prosecutorial restraint is most essential. What the Justice Department has done, in creating special offices devoted to terrorism, is to force prosecutors to come up with the cases and deliver on the penalties, whether or not they have the goods. Lawyers fight the war on terrorism not by overreaching, but by refusing to do so. The prosecutor brings his action in the name of the people, but he is not the voice of the frightened mass - he or she is supposed to be an officer of the court, bound to follow the rule of law, especially where the challenge to do so is greatest. Merely to label someone as a terrorist is to destroy his life. Political and religious freedoms should not easily be swept aside. The right to counsel and to due process must be respected. In this war, the results matter less than the way you get there, because it is the fairness of the process that will determine the willingness of the world to credit its result. COPYRIGHT 2006 CREATORS SYNDICATE INC.
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