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November 20, 2009

"The Real Price of Trying KSM: Defense lawyers will inevitably create bad law"

The title of this post is the headline of this provocative commentary by David Feige at Slate.  Here is how it starts and ends:

Sometime in the next few months, a small group of experienced criminal-defense lawyers will be assigned to what is likely to be the case of a lifetime: the defense of admitted 9/11 mastermind Khalid Sheikh Mohammed, or, to those enamored of sinister acronyms, KSM.  Their work will not be easy, obviously.  No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial. S o what's a team of hardworking criminal defense attorneys to do?

Everything they can, which, in this case, will mean a lot of futile maneuvering that will generate a tragic flood of bad law, rendering the defense team's valiant service not merely unsuccessful but actually hostile to the interests of all their other clients....

In an idealized view, our judicial system is insulated from the ribald passions of politics.  In reality, those passions suffuse the criminal justice system, and no matter how compelling the case for suppressing evidence that would actually effect the trial might be, given the politics at play, there is no judge in the country who will seriously endanger the prosecution.  Instead, with the defense motions duly denied, the case will proceed to trial, and then (as no jury in the country is going to acquit KSM) to conviction and a series of appeals.  And that's where the ultimate effect of a vigorous defense of KSM gets really grim.

At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent.  The judicial refusal to consider KSM's years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept.  The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity.  Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants.  Finally, the twisted logic required to disentangle KSM's initial torture from his subsequent "clean team" statements will provide a blueprint for the government, giving them the prize they've been after all this time — a legal way both to torture and to prosecute.

In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure.  Bringing KSM to trial in New York will still be far better than any of the available alternatives.  But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.

November 20, 2009 at 10:14 AM | Permalink

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Feige does a great job of explaining the true cost of the "henious crime" exception to the constitution.

Posted by: K | Nov 20, 2009 10:28:47 AM

I honestly don't think it is going to be so bad.

So long as the prosecutors stay on task and don't try to prove everything we know about KSM, such as involvement with the WTC bombing, involvement with the African embassy bombings, so long as they stay on task with showing his involvement with 9-11 the intelligence concerns will be greatly minimized. There isn't even much of a reason to bring up what he said under interrogation (material which should and likely will be excluded).

I also doubt there is very much in the way of Brady material.

I also believe that the judge, whoever it is, is going to make sure that KSM doesn't get a platform by riding the relevance to any defense hard. If it's not relevant it's not going to come into the trial.

This could likely be a very simple case if the government were willing to make it so.

I find the issues surrounding the trial far more compelling than what should happen during the trial itself.

Posted by: Soronel Haetir | Nov 20, 2009 10:51:32 AM

Yes, I can picture it now. "The 9/11 GUY couldn't get his trial moved from NEW YORK CITY, and you want your trial moved just because the Podunk Times ran a few weeks' worth of front-page articles on your case? Denied."

Posted by: Anon | Nov 20, 2009 11:17:11 AM

On the same day the trial of KSM was announced a non-lawyer "teabagger-type" friend of mine called me with these very concerns.

He believes that this is a plan by the Obama adminstration to establish the bad precedents the author writes about.

For me, considering how poorly Atty. Gen. Holder did under questioning I now have serious concerns about the long term impact of the trial of KSM.

I see several possible scenarios, but the primary ones that concern me are as follows:

1.The trial court actually follows the law and suppresses evidence and/or dismisses the case, the government appeals and then SCOTUS reverses setting really bad precedent (a denial of defense motions will probably be heard in the appeals court and answered with the non-precedential opinion and cert will then be denied thus not setting any usable precedent); or

2.The trial court and every other court grants and sustains relief for KSM and an outraged public seeks to change the law and / or amend the constitution.

I know there are other scenarios, but at this point in time we all have to ask: If they can seize, torture and detain KSM and then prosecute him in an Article III civilian court why can't they do the same thing to one us?

The black helicopter conspiracy theory crowd may be right.

Posted by: Michael R. Hadley, Esq. | Nov 20, 2009 11:20:29 AM

Michael R. Hadley, Esq. --

I noticed that you omitted from your list of concerns the prospect that KSM could escape the justice due him for his organizing role in the most horrific terrorist act on American soil ever.

Does that concern you at all?

Posted by: Bill Otis | Nov 20, 2009 11:59:14 AM

If anyone really thinks that KSM will somehow be acquitted, that the case will be reversed on appeal, or even that a jury will hang, that person has gone far beyond silly into some sort of delusional alternate reality. THERE IS NO WAY ON THIS EARTH that will happen, and the fearmongering that it might is simply that and nothing else.

Please, let's live in the real world and not some paranoid right-wing fantasy where the only way to get justice is through abandoning the justice system.

Posted by: Ohio PD | Nov 20, 2009 12:10:15 PM

I don't know. It is possible that there is not enough evidence to convict KSM. In that case, would an acquittal not be proper? The government might have been pulling the wool over our eyes (I know, with the Bush administration, this is a ridiculous suggestion).

Isn't that why we have trials in the first place, to make the government prove its case?

Posted by: Allan | Nov 20, 2009 12:33:54 PM

An interesting piece on this topic:

http://www.philly.com/inquirer/opinion/20091119_Case_s_main_question_will_be_about_torture.html

Spotted on scotusblog

Posted by: Soronel Haetir | Nov 20, 2009 12:59:54 PM

It would be absolutely ridiculous for Holder to decide, at this late date, to try KSM in a US Court if there wasn't more than enough untainted evidence to convict. It is in the Obama administration's interest to convict him! Why would they try him if they couldn't do it?

No county prosecutor that I've ever met is dumb enough to take a high-profile case to to trial where the evidence isn't strong enough to convict. The AG didn't have to try KSM, he could have just let him sit in a military prison indefinitely. It's not as though there was some great public outcry about it, aside from a few easily-ignored civil libertarians and criminal defense attorneys like myself. The vast majority of the US public was perfectly content to let him rot without a trial. It would be a major and totally avoidable fiasco for the AG and the President if KSM walked. As much as I participate in, and believe in, the US judicial system, I'm not naive about how it works. "Innocent unless proven guilty" is rhetoric, not reality--only the most educated of jurors even thinks about it. Most jurors think that the accused must have done something or else (s)he wouldn't have been arrested in the first place. Jurors, prosecutors and police, as well as a fair number of judges, are perfectly willing to put the real burden on defendants to prove that they are innocent. And let me assure you that reversal on appeal is a tiny exception to the affirmance rule--check the original Slate article for more on that.

For these reasons, and a dozen others, it is nothing but fearmongering to suggest that KSM won't be convicted and sentenced to death.

Posted by: Ohio PD | Nov 20, 2009 1:14:13 PM

1. Thoughtful but sounds a bit overwrought. I think he gives the judges too little credit, but time will tell.
2. If the rulings in the case really go as he says they will, perhaps the US v. KSM decisions will become the Bush v. Gore of criminal law and procedure in terms of precedential value. Not that it's ever a good thing for judges to bend the law to suit preferred policy outcomes, but one accepts Feige's premise that the law will be bent against KSM, it might be some small comfort to consider that stare decisis won't necessarily require the law to be bent in the same way against every other criminal defendant in the Second Circuit.

Posted by: anonymous | Nov 20, 2009 1:19:13 PM

Look for each opinion to start with: "The Court wishes to note that this case involves an exceptionally unique set of facts and circumstances," followed by a holding that reads like a Justice O'Connor opinion. The precedent, if any, will be self-limiting.

That notwithstanding, Feige's concern about the change of venue problem is hogwash. In what venue, exactly, could KSM get any more sympathetic of a jury? 9/11 was an attack on America. Yes, New Yorkers still remember it more vividly, but any jury will vote to hang this guy. So, the official precedent will be: when you are rearranging deck chairs on the Titanic, we're not going to let you change seats. That in and of itself distinguishes this case from practically any criminal defendant in the country.

Posted by: Res ipsa | Nov 20, 2009 2:16:54 PM

The Greek tragedy, Fate-has-determined-it tone to the article, predicting as though recounting a past event, is good. One casualty of this prosecution will be the public's attention to anything else BUT the trial: the ever-continuing dumbing-down of the nation. I tend to agree with res ipsa--this is easily swept into that nearly empty bin of the extraordinary case, and the legal tool box of ad hoc justifications is a full one. And, there will be a conviction--look at the "Liberty City Six" convictions, those poor dopes.

Posted by: t | Nov 20, 2009 2:50:01 PM

I am not convinced he will be sentenced to death. (If I had to bet, I would bet on the sentence being death; I'm just saying I think there is a significant chance of an LWOP sentence.) Aside from questions about the limits of retribution or the qualities of mercy, there could be a substantial argument made that, as a political and practical matter, the jury simply should not give the man what he wants and martyr him---instead let him rot in an obscure cell while the world forgets about him.

(Of course, if a death sentence really *is* what he wants, I guess he can just tell his attorneys not to make that argument and/or to present no case at all during the penalty phase.)

Posted by: Observer | Nov 20, 2009 3:08:44 PM

Ohio PD --

"It would be absolutely ridiculous for Holder to decide, at this late date, to try KSM in a US Court if there wasn't more than enough untainted evidence to convict. It is in the Obama administration's interest to convict him! Why would they try him if they couldn't do it?"

Lawyers, including DOJ lawyers, all the time make mistakes about how strong their case is. This is especially true when, as in this instance, you don't know who the trial judge will be. In addition, this case may well produce several, or many, issues without precedent. Hard to be sure of the outcome when you're in uncharted waters on so many fronts.

Prosecutors, like other human beings, can be prone to look at things through rose colored glasses and get rude surprises down the road.

How can you be so sure that won't happen here?

"The vast majority of the US public was perfectly content to let [KSM] rot without a trial."

And will you be content to let him rot WITH a trial? The prison he'll be going to (if that's what happens) will be some supermax less accommodating than Gitmo. Will you be content with that? If so, what's with the pejorative, "rot"? If not, what disposition for KSM would you prefer? Home confinement?

"Most jurors think that the accused must have done something or else (s)he wouldn't have been arrested in the first place."

Why shouldn't they think it? It's true, as you full well know, being a PD. When's the last time you represented someone who actually DIDN'T HAVE A THING TO DO with what he was charged with?

"And let me assure you that reversal on appeal is a tiny exception to the affirmance rule--check the original Slate article for more on that."

I don't have to check the Slate article to know that you are correct about this. Your implication however -- that convictions are affirmed simply out of pro-prosecution bias -- is nonsense. The huge majority of convictions are affirmed because the rules were followed and the defendant was proved to factually guilty.

"For these reasons, and a dozen others, it is nothing but fearmongering to suggest that KSM won't be convicted and sentenced to death."

It is nothing but speculation, with a dash of arrogance, to suggest that you know in advance the outcome of what is sure to be an unprecedented trial (if there is a trial, instead of of an "I'm a martyr for Allah" guilty plea, which is what there was at Gitmo).

As for the supposed "certainty" of the death penalty: Recall that Zacarias Moussaoui, the "twentieth hijacker," did NOT receive the DP in US District Court for the Eastern District of Virginia on account of a single holdout juror. If you can get a holdout like that in Virginia, you can sure as hell get one in NYC. To pretend otherwise is ridiculous.


Posted by: Bill Otis | Nov 20, 2009 3:40:39 PM

So I guess prosecutors really do subscribe to "the ends justify the means?" At least from reading Bill's post one apparently does. Why am I not surprised?

Posted by: Mark # 1 | Nov 20, 2009 5:08:25 PM

Mark # 1 --

Your three sentence response to my post neither (1) sets forth a substantive argument, (2) disputes (much less rebuts) any argument I made, or (3) answers any of the half dozen questions I posed.

Instead, it ascribes to me a position I did not take, conspicuously omitting to quote a single phrase of mine that might be taken as supporting your interpretation.

Why am I not surprised?

P.S. I am not a prosecutor, as you would know if you were paying attention instead of huffing and puffing.

P.P.S. On the very off chance you might care to give a substantive answer to at least one question, how do you know, or how does Ohio PD or anyone know, that KSM is going to be convicted and sentenced to death?

Posted by: Bill Otis | Nov 20, 2009 5:30:07 PM

In not knowing to which federal judge this will be assigned, Holder is taking a huge risk. Only a few jurists have the competence to handle the circus atmosphere that will accompany the "trial of the century." Although I don't think the president judge will assign this to the next judge whose number is up--I don't see many in the bench raising their hand to undertake this debacle. And no--I don't think Holder has given much thought to any of these practical considerations as this was--at its core--a political decision.

Posted by: mjs | Nov 20, 2009 7:29:40 PM

This case will generate $100 million in lawyer costs. He may be condemned to death, but will never be executed. The venue is a little biased, even I think so. Why not hold the trial at the house of one of the victims' family, and pick jurors from relatives?

In any case, here is the biggest cost, not mentioned by the appalling, self-serving lawyers here.

The trial will mislead the enemy. Obama has to be swept away and replaced by a patriot. The trial will fool the enemy into thinking we view this as a criminal matter. The Republican patriot President in office by the end of the trial will go back to the doctrine. Attack us, lose a country, which is working.

[Alternative: There is a deal between Bush and bin Laden. You do not attack US soil, we do not send a Predator to your house, where we know your location every second of every day. That secret contract is unlikely to be unsealed with the lifetime of anyone here.]

Posted by: Supremacy Claus | Nov 20, 2009 8:08:37 PM

Watch this land in the lap of Weinstein.

Posted by: Soronel Haetir | Nov 20, 2009 8:53:22 PM

Soronel --

"Watch this land in the lap of Weinstein."

Yikes. The Stephen Reinhardt of the district courts. Never met a criminal he couldn't make an excuse for.

Posted by: Bill Otis | Nov 20, 2009 11:06:37 PM

I don't know which trial judge will get the case, but I do know it won't be Judge Weinstein-- he's in the EDNY, not the SDNY.

Posted by: anon | Nov 21, 2009 12:42:12 PM

I agree with Bill Otis and others to the extent that one can never predict the outcome of a trial even when the evidence appears absolutely overwhelming. Have we forgotten O.J. so quickly? I've had cases where I was shocked at a verdict (both ways) or at a hung jury.

Posted by: Michael R. Levine | Nov 21, 2009 1:11:34 PM

Michael R. Levine __

"I've had cases where I was shocked at a verdict..."

Haven't we all.

Posted by: Bill Otis | Nov 21, 2009 4:32:22 PM

Bill, I'm not going to try and persuade you. If you really think that there's a realistic chance that KSM will be acquitted, then I think you're beyond convincing. But think about this: every single one of your objections pretends that KSM is equivalent to a garden-variety criminal defendant. Self-evidently, he is not. Even assuming that the AG has made a mistake in indicting him, for whatever reason, KSM is the ultimate "bad facts make bad law" case.

If you think that judges and prosecutors aren't going to twist the law into a pretzel to ensure he is convicted and sentenced to death, then you're simply naive. If you're just arguing for the sake of argument, you're fearmongering. Either way, you're wrong.

Posted by: Ohio PD | Nov 22, 2009 9:35:13 AM

Ohio PD

"Bill, I'm not going to try and persuade you."

Translation: "Since I have no answer, I won't attempt any."

"If you really think that there's a realistic chance that KSM will be acquitted, then I think you're beyond convincing."

OJ Simpson, call your office.

"But think about this: every single one of your objections pretends that KSM is equivalent to a garden-variety criminal defendant."

Wrongo. That is Mr. Holder's pretense, not mine.

"Self-evidently, he is not."

On that we agree. It is one of the reasons, although hardly the only one, that KSM should not get garden-variety treatment and should instead have been put before a military commission, he being an unlawful combatant.

"Even assuming that the AG has made a mistake in indicting him, for whatever reason, KSM is the ultimate 'bad facts make bad law' case."

Kinda depends on what "law" emerges from the case, which you don't know, even though you make as if you have a crystal ball.

"If you think that judges and prosecutors aren't going to twist the law into a pretzel to ensure he is convicted and sentenced to death, then you're simply naive."

Of course, on your view of the world, judges and prosecutors ROUTINELY "twist" the law to ensure convictions. Isn't that about the size of it? Always better to be able to blame your losing record on your conniving opponents and those ever-so-corrupt, pretzel-twisting judges!

But I'll say this: I don't blame your losing record on you. The reason your clients get convicted is that they broke the law and got caught. That's the baseline. Anything you or the prosecutor does after that is at the margin. Evidence is stubborn, your suppression motions notwithstanding.

As for my supposed naivite', I was a AUSA for 18 years. You can check that out since, unlike you, I use my real name here. And your experience, hotshot, is...................what?

"If you're just arguing for the sake of argument, you're fearmongering."

That's it, Mr. Public Defender, we have nothing to fear from either KSM or his trial. As a matter of fact, 9-11 never happened at all -- it was, like the moon landing, staged by right-wingers at a TV studio in Burbank. And even if it did happen, any talk about what we should do about it, or about this trial, is "fearmongering."

I love it. "Fearmongering" is the word you and other self-congratulating liberals employ to attempt to de-legitimize, and thus muzzle, any discussion about the continuing dangers this country faces. For people with a memory better than yours, we've seen this sort of muzzling before. It was invented, in the modern era, by Joe McCarthy, but has now been appropriated by the Left.

Well congratulations!!!

BTW, do your clients engender fearmongering, or just fear? And when you tell us about all the ominous, anti-civil libertarian law that is going to come out of this trial, are you fearmongering?

Posted by: Bill Otis | Nov 22, 2009 12:52:46 PM

Apparently you know a lot about me, Bill. I guess I'm a pretty horrible human being, who does nothing but enable other human beings to be horrible for a living, and probably pretty badly at that. And I see that you and all of your federalist society compatriots are shining stars of ethics, fairness, and justice.

I'll not bother you with the obvious any more, since you and I clearly live in different worlds. I prefer the real one, but I hope yours treats you well.

Posted by: Ohio PD | Nov 22, 2009 4:04:12 PM

Actually, I take that back--I can't let your last post stand unanswered, because I don't want you to mislead some third-party about what I'm saying or what I believe. I don't think that police, prosecutors or judges routinely twist the law, because they don't have to. But I do think that in this case, where we are dealing with someone who will already go down as one of the greatest criminals of the century, that an acquittal is unthinkable, and that police, prosecutors, the trial judge, and all reviewing courts will do everything in their powers, including twisting the law, to prevent any result but the obvious one. And guess what, Bill? I don't even really condemn them for it! It's inevitable, and probably should have happened eight years ago but for the fear engendered by people like you.

So there. I'll leave you alone, declare victory if you want.

Posted by: Ohio PD | Nov 22, 2009 4:36:17 PM

Ohio PD --

"Apparently you know a lot about me, Bill."

I know some things because you make them obvious, sure. One thing I don't know is who you are, since you continue to perfer anonymity rather than put your name behind what you say. Now why would that be?

"I guess I'm a pretty horrible human being, who does nothing but enable other human beings to be horrible for a living, and probably pretty badly at that."

I have no idea what kind of human being you are. And, the implication of your post to the contrary, you have no idea of what kind of human being I am. This didn't stop you from saying that I was naive, notwithstanding that I have 18 years' experience in federal court. Notably, you STILL refuse to say what your experince is. So what is it? More than 18 years? Less? What?

"And I see that you and all of your federalist society compatriots are shining stars of ethics, fairness, and justice."

If you have any evidence of wrongdoing by the Federalist Society, let's see it.

Somehow I don't think I'm going to. That's because your Federalist Society crack is just a smear job. I would say it's a McCarthyite guilt-by-association tactic, but that's unnecessary since your McCarthyite tendencies have already been established by your attempting to shout down ("fearmongering"!!!) opinions with which you disagree.

Of course I asked you about that earlier. Your response: Zero.

"I'll not bother you with the obvious any more, since you and I clearly live in different worlds. I prefer the real one, but I hope yours treats you well."

When challenged, you have yet to say much that is correct, let alone obvious. And if you prefer the real world, you're welcome to join it any time -- at least any time before your Good Citizen clients steal it.

Posted by: Bill Otis | Nov 22, 2009 5:13:40 PM

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