Shock and Awe in the Moussaoui Case


Judge Leonie Brinkema dropped a bomb on Thursday. In a shock that reverberated around the beltway, where I live and work, lawyers were buzzing about the news. Showing independence from the government and the defense, Brinkema announced the penalty for prosecutors’ refusal to produce three witnesses for Zacarias Moussaoui and his attorneys to question. She did exactly what this writer had hoped she would do. She did not dismiss the case, but took the death penalty off the table.

In a 15-page thoughtful, and well-cited and documented decision, Judge Brinkema noted that the law gives her much latitude in meting out sanctions when a party does not comply with discovery orders. The most draconian is dismissal of the case. But that never happens in real life_at least I have never know of it in my 24 years of practice and 24 years of reading cases. Typically, the judge will do something commensurate with the content or context of the noncompliance. For instance, a defendant who refuses to answer a question about whether or not he committed adultery may be barred from questioning witnesses his wife would put on the stand to prove the husband’s adultery.

Judge Brinkema laid out generally what it had been suggested the government’s hidden witnesses would say in Moussaoui’s defense. She reasoned that some of the testimony could indicate that he was not involved directly with the September 11 hijackings and that he had not engaged in any direct acts of terrorism. Further, what she had seen of the government’s evidence so far suggested that Moussaoui had done, at worst, little more than plan to do something bad. Perhaps he was involved in some scheming, but that alone would not warrant a death penalty.

The appropriate sanction, she said, and one supported by the evidence as she has seen it unfolding, is that the government should not be able to put into evidence any suggestion that Moussaoui was involved in planning the September 11 attacks. And because the lack of direct involvement obviates the death penalty, then the government could not ask for execution.

In taking this independent approach, Brinkema has thrown the government, the defense, and the 4th Circuit Court of Appeals a curve. The defense attorneys are left somewhat chagrined, I would think, for they joined in the government’s request for dismissal, a move this defense attorney thought a bit odd. Surely, we know for a fact that the government will declare

Moussaoui an enemy combatant and move him to Guantanamo or a navy prison if the case is dismissed (they may still do it, for the government makes up its enemy combatant rules as it goes along). They would no longer have a client if he disappeared from federal court. His only chance of getting a fair trial is in federal court. And what better judge could he ever have than Judge Brinkema? If Judge Brinkema had dismissed the case, the 4th Circuit might have found that the witnesses should not be made available but that the case had to go forward, violating Moussaoui’s 6th amendment right to confront witnesses. Then their client would be left without exculpatory witnesses and facing death. Had I been Moussaoui’s attorneys, I would have asked for what Brinkema did_it would (and did) jam the government where it hurts_the penalty phase.

In keeping the case and taking the needle out of the hands of the prosecutors, Brinkema has put them in a bind. The only thing they have to scream about now is that they can’t kill the defendant. The case can go forward.

Indeed, Brinkema said, it must go forward. She noted that all along the government has insisted that “terrorists” can be tried in federal court. They can, she said, but they will get the rights any federal court defendant gets. Further, she said, she and everyone else had spent way too much time, money, and energy on this case to walk away from it.

The 4th Circuit will have a hard time overturning Judge Brinkema’s ruling. Trial judges have wide latitude in dealing with discovery sanctions and with making evidentiary decisions. Of course, the 4th Circuit has been known to reach before_they did it recently in the Hamdi case, in saying that no court can question a person’s enemy combatant status. But if they reverse her ruling that Moussaoui cannot face execution, the court, Ashcroft, and the prosecutors will look the bloodthirsty henchmen that they are.

They wanted to gloss over the trail part, and march straight to the execution chamber. Now, they will have to endure a trial and be content with less than death. Unless, of course, a military helicopter swoops down in Alexandria and hauls Moussaoui away in the dead of night. I wouldn’t put that past the prosecutors, but such a move would be so obviously done to avoid the rule of law, that few but the most stalwart of Ashcroft supporters would defend such an action.

I heard Judge Brinkema give a brief talk at a recent attorney gathering. She talked about how times had changed since she first came to federal court in Alexandria 20 or so years ago, then as a prosecutor. She urged attendees to go to the National Archives and stand in awe of the new exhibit_the Declaration of Independence, the Constitution, and the Bill of Rights displayed all in one room, with the entire documents visible for viewing. We are nothing as a nation, she said, without the rule of law. She called on prosecutors to try cases within the law and for defense attorneys to hold the prosecutors to the law. She said nothing of her role. But we saw it yesterday.

She judges according to the law. Ironic, though, that her applying the rule of law to a Muslim “terrorist” is a shock to what we have grown to expect in trials post-September 11. And thus, all the more awe-inspiring.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: