Moussaoui

There’s been a lot of press about the Moussaoui trial  – specifically the witness coaching by Transportation Security Agency Senior Attorney Carla J. Martin.  (The TSA is under the Dept. of Homeland Security Agency, by the way.) 

If you’d like to work for the TSA, I’m sure there will soon be a position that’s available.   Does anyone out there have a picture of Martin?  I’d like to see what she looks like.

Clearly this is a deep embarrassment for the government.  Moussaoui is probably not in his right mind to begin with, and now the flimsy trial is tainted and looks that much less impressive (not that this is anything new). 

You wonder what the Bush Administration would have to do to have a judge take the death penalty option off the table or declare a mistrial.  I mean, really, what would they have to do? 

In a related question - given that the Bush Administration is so very hot to detain people who have alleged terrorist ties, why do they want to execute Moussaoui.  Wouldn't the nations interests be better served by keeping an Al-Qaeda operative alive and questioning him?  Who knows what useful things that Moussaoui might say?  As, opposed to, say, the hundreds of people detained at Guantanamo Bay who were determined to have done nothing wrong and to have no ties to Al-Qaeda? (These people were turned in by local bounty hunters seeking reward money.)

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I'm putting the following up in this post instead of commenting below (as I really should have kept on writing the initial post and don't want to bury this in the comments box.)

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Nice find on the photo, Lo!  I looked yesterday and couldn't find anything.

As to what I think about it - well, with the usual caveats that I'm not a lawyer, I think it's outrageous.  "The Rule on Witnesses" isn't an obscure part of evidentiary rules, and it is certainly not a "technicality" as some bloggers have suggested; it's an important rule that we see in play every day, in almost every courtroom. If you've ever been to a trial, you notice the witnesses are often called from outside the courtroom and then they often leave the courtroom once they've testified. That's "the rule on witnesses" in action.

From the Federal Rules of Evidence (emphasis mine):

Rule 615. Exclusion of Witnesses

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

The basic theoretical underpinnings of "the rule on witnesses" is pretty easy to understand if you think about trial dynamics:
1 It prevents witnesses from altering their testimony (even minutely) to align with previously introduced evidence, and
2 It thus helps to reveal any possible inconsistencies in testimony.

It's important to note that these don't necessarily involve someone consciously lying on the stand, but rather "coloring" their testimony or not fully thinking it through.

For example, let's say you're pretty sure you saw the defendant (D) do something, like walk out of a house carrying a television.  But it was a bit dark and you're not 100% sure it was on Tuesday or Wednesday.  If you're sitting in the courtroom and hear 3 other people tell a story about *this* guy stealing a TV on Tuesday, you might become that much more sure you really did see *him* on *Tuesday*. 

But suppose Witness 2 wasn’t entirely sure it was *this* guy, but was sure he saw someone with at TV?  And suppose Witness 3 was completely sure it was the guy, but thought it could have been a cardboard box?  You put them all in a room, and all it takes for a much more damning story is for just one of those uncertainties to drop out; which might take place on an unconscious level. 

Some might scoff and say that memory is pretty reliable, even though we know that it's not from our own experience and from modern science. Further, there are a number of disturbing cases where people have been convicted and sentenced for awful crimes largely on the basis of eyewitness testimony; these people were later exonerated when DNA evidence conclusively proved they could not have committed the crime (usually rape) that they were charged with.  (You have to wonder how many other wrongful convictions there are out there that don't have a prayer of being overturned on the basis of DNA evidence - simply because there's no DNA evidence in that case.)

Think about that for a moment - you'd expect that if someone was sexually assaulted, they'd have no trouble identifying their attacker (if the attacker wasn't wearing a mask, as many of the above weren't). What about the much *lower* standard of just observing someone doing something?  Imagine the last 20 retail transactions you've had - can you visualize all those persons in enough detail to describe them to a sketch artist?  Can you even remember what they were?

Granted, the witness testimony here isn't about identification, but the same principle applies.  You don't want witnesses "leaning" on each others testimony in any way. You don't want to derail justice by accidentally creating a false story where all the 5-10% doubts people have get erased because other people are telling a similar story, shading their facts with conclusions.

In this case, when you have an attorney (perhaps former attorney) sending witnesses written testimony that they can study and advising witnesses in a Death Penalty Sentencing how to emphasize points of their testimony (that they wouldn't otherwise emphasize) to make the government's case more coherent and stronger, then I think there's a very very very thin line between that and just fabricating evidence; it depends on how significantly you're changing the import of testimony by emphasizing and de-emphasizing elements of that story. 

So: What does it say about someone who takes that kind of action?  What does it say about "an officer of the court" who does?

Moussaoui is, as I noted, probably not quite right upstairs.  He may want to die, become  a martyr.  He may really have wanted to kill Americans.  Who knows?  To me the really disturbing thing about this is that when these things happen the government seems to be sending a message that all they want is some kind of PR trial where just about anyone will do, as long as they’re sufficiently demonic looking (in a press sense). 

Now, I’d like to make clear that I don’t personally *like* Moussaoui and that I don’t endorse a lot of the things he’s said (especially the things he wishes he’d done.)  But then again I don’t like a lot of other people, and I don’t want to see them dragged off to an execution by the state, especially when, as I pointed out, they’re such a good source of information. 

(It seems to me that in this sense the “war on terror” is inconsistent.  Either you’re for existing principles, in which case there shouldn’t be an Abu Ghraib or Gitmo, and then you execute people who have been fairly tried for the crimes they’ve been convicted of (i.e., no breaking the rules to get what you want) OR you’re for utility, in which case you might want to torture people to get useful information, but you certainly wouldn’t try to kill (execute) someone so intimately connected to the most devastating terrorist attack on our soil.  Instead we mostly detain and torture ordinary citizens and seek the death penalty for people who might actually tell us something.  You'll note this assumes that Moussaoui actually knows anything of value (which he would if he’s guilty as charged) and isn’t just a sacrificial lamb to the PR gods.) 

 

Comments

[Lo]

Direct to picture:

http://media3.washingtonpost.com/wp-dyn/content/photo/2006/03/15/PH2006031500177.jpg

to article containing picture (if that one doesn't work)

http://www.washingtonpost.com/wp-dyn/content/article/2006/03/14/AR2006031400132.html

She's fairly attractive, yanno, although she raises the phrase "ditzy blonde" to a new level. Unless she isn't ditzy at all....and I'm not sure which possibility is more frightening to think about. It'd be good to hear your "take" on it.

Lo

[Lo]

Ahhhh, thank you. I kind of thought there was a fairly standard "rule on witnesses" but I wasn't positive. In the course of 12 year career as a medic on a busy fire department, I've been called to court as a witness in several incidents. Fortunately I was never part of the lawsuit, but I'd get subpoenaed by either the defense or the prosecution and off I'd go. As a rule, I'd meet with whatever side called me, give a statement, sign the statement, and wait (sometimes for years) for the case to reach trial. If it did, indeed, reach an actual trial and not have been settled out of court, I'd get another brief run-through (for which I was eternally grateful...it's not always easy to remember one specific accident when you've cleaned up 400 other similar accidents in the intervening years) by "my" side and off we'd go again. I've been wracking my brain, but I honestly cannot recall ever being present in the courtroom until my testimony was called on. If memory serves me correctly, I was allowed to remain in the courtroom following my testimony, but never was I allowed to listen to anything which was said before that. Memory is a shaky thing...especially years later. I may have written in my report that it was "dusk" and therefore I will be more than willing to say, under oath, that it was "dusk" when the incident occurred. However, if I had to listen to 5 people in front of me testify that it was "dark", I'd definitely begin to doubt my own recollections. Fortunately, because we write immediate reports following every call, I have always had notes to rely on. Memory - duh. It's not always so good after several months have passed, much less several years.
For what it's worth, I never had a lawyer, on either side, ever try to tell me what to say or to coach me in how to say it. If what I had to say, or how I was determined to say it, was going to end up detrimental to their case, they would simply not use me as a witness and probably spend a few minutes hoping that the other side didn't either.