Bench Memos

The Latest Moussaoui Hijinks

The judge in the Moussaoui trial has a perfectly good reason to be angry at the government. When the judge orders the prosecution to do something at a trial, the prosecution’s options are to comply or object (and if it’s important enough, and the legal avenue is available, to appeal if objection fails). Here, Judge Brinkema gave an order that prospective witnesses be precluded from hearing about each other’s testimony at the death-penalty phase of Moussaoui’s trial, and the order was violated–several witnesses have been given transcripts of the proceedings to date, and two of them have apparently read at least parts thereof, according to Fox News.

But all that said, it is a tempest in a teapot that is obviously being blown out of proportion–as frequently happens with people philosophically opposed to the death penalty, who often portray every run-of-the-mill error in death-penalty proceedings as if it were Armageddon. (I do not purport to know whether Judge Brinkema has such attitudes.)

There is no constitutional right not to have witnesses rehearse their testimony or inform themselves about the testimony of other witnesses. Court rules allow judges to order “sequestration”–so that the witnesses are not allowed to be present in the courtroom when other witnesses are testifying (and, logically, the functional equivalent is not to let the witnesses read the testimony of other witnesses before they themselves testify). Other judges have standing orders that, for example, the party who called a witness to testify is not permitted to speak to the witness while he is on cross-examination.

But these are salutary rules, not constitutional ones. Due process does not demand them, and the judge can impose such rules, or not, in her discretion. They are merely methods available, but not mandatory, to promote the truth-seeking process. It does not follow that the truth-seeking process is undermined without them. Indeed, many judges don’t follow them at all.

Why not? Because they trust the jury–as our system implicitly does, since we let juries decide most of life’s important questions. The Sixth Amendment provides for cross-examination at trial. This means witnesses can be subjected to withering questioning about such things as how they know the facts and circumstances about which they have testified.

If a witness’s version of events appears to come from scripting or coaching, the jury is going to discount that witness’s testimony–and perhaps reject all of it. That is true even if the witness happens to be telling the truth–even an honest person runs the risk of looking awful by piecing the story together with other witnesses.

Also, beyond the impact on any single witness, the government’s case looks horrendous if it is made to appear, by effective cross-examination, that (a) the prosecutors are improperly coaching the witnesses (as opposed to properly preparing them), (b) the prosecutors are allowing others to coach the witnesses, or (c) the prosecutors are heedless of court orders (i.e., the jury is given to think that they don’t play fair).

For a defense lawyer, this is like manna from heaven. I would much rather be able to do this kind of cross-examination against the government’s case then have a mistrial which allows the government to fix the problem and look better in front of a new jury.

Finally, it should be noted here that the Justice Department prosecutors do not appear to be at fault. The culprit is apparently some off-the-reservation TSA lawyer, who for some bizarre reason sent transcripts out to prospective witnesses. When the prosecutors found out about it, they reported it to the judge immediately–which is why the judge has the information that has made her so angry. This is to the prosecutors’ credit, but it won’t help them much. “Misconduct” is a corporate affair–and the prosecutors are the government for purposes of a criminal trial, so they are the ones who will take the lumps even if they didn’t do anything wrong. Part of what makes it the world’s greatest job is that it can be a very hard job when it’s being done right.

But the judge shouldn’t come unhinged. Take the prosecutors to the woodshed, allow the defense broad latitude in cross-examining the witnesses so the jury gets an accurate sense of what happened (which looks like it probably wasn’t much). And move on. This is only a big problem if Judge Brinkema, for whatever reason, decides to turn it into one.

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