4/15 Motions Session #3: What Sorts of Evidence, Part Two (And a Recess)

Break being over, Cheryl Bormann picks up her thread: the conflict between absurdly strict secrecy controls and her own obligations to her client. Bin Attash is angry these days, she says, because he must (among other things) needlessly wait for counsel to return pieces that Bin Attash himself has written to him, pending security scrubs.  She asks Judge Pohl to get to the bottom of this.

Harrington emphasizes his outrage.  This isn’t hypothetical for him; and there is a conflict in play, no matter what Ryan might say. A visit by the FBI to the DSO is functionally equivalent of a visit by the FBI to defense counsel---and that’s serious, and poses a real conflict, one extremely difficult to discuss with the defense’s already quite suspicious clients.  Given all of that, Harrington is surprised that the prosecution isn’t outraged, too, under the circumstances.  When asked, Harrington agrees to identify his DSO by name, for purposes of an order compelling testimony.

Judge Pohl asks one last thing, of prosecutor Edward Ryan: if the court orders the FBI agent who questioned Harrington's DSO to be produced, does Ryan think the FBI will resist?  Ryan alludes to government privileges, internal procedures, and so on---but in any case, he says can’t really speculate about processes from which he’s naturally excluded.  Nevertheless, he editorializes that it would be a mistake for the court to inquire into an ongoing FBI matter.

The windup, now the pitch: Judge Pohl will this afternoon order *any* member of the defense team who has been contacted by the FBI to disclosed the fact of that contact to defense counsel.  If there’s an issue that requires commission attention thereafter, defense counsel can seek relief as needed. Judge Pohl adds that he wants the defense to submit, by 1700 tomorrow, any proposed orders for production regarding witnesses. Such proposals will be copied to the government, unless there’s a compelling reason to submit them ex parte.  (The court adds that there probably won’t be any such reason, given the likely submission to third party witnesses.)