4/23 Motion Hearings #4: Still More Discovery & Jury Sequester

The court begins the afternoon session with quick consideration of one more defense discovery motion, AE226, seeking exculpatory information from a case in the Southern District of New York pertaining to additional people that were allegedly involved with the bombing of U.S.S. Cole. Learned Counsel Kammen explains that this particular motion pertains to information about Sayf al-Adel---one of those charged in the Southern District---but there will be additional discovery motions for two other defendants. The defense is filing "these specific requests because . . . if you don't make the request specific enough, then of course the government's response is, well, you didn't ask for the right stuff." Apparently, the original request for these documents turned up just six pages. As with the previous motion, the defense requests a specific order that the government provide the requested information. CDR Lockhart begins by contesting the defense's characterization of the information it received. Sure it may have received "six additional pages" (emphasis added) after its request, but it had already received hundreds of thousands of pages of discoverable information, which contained many of the documents that would have been provided on this request had it stood alone. On Learned Counsel Kammen's rebuttal, Judge Pohl presses again on why exactly the defense requires an order if current law requires the government to affirmatively provide exculpatory information to the defense. He explains that an order from a judge may more effectively spur government agencies to diligently search their records for discoverable information than did a request from the prosecutor. After a brief rebuttal from the prosecution reiterating that an order is not necessary in this case, the court turns to consideration of AE227, a defense motion requesting that the court sequester jurors from their selection until the final verdict. What would this sequestration look like? As Learned Counsel Kammen describes it, jurors would remain at Guantanamo Bay from selection through the duration of the trial with limited access to the facilities, supervised contact with family members and others, and restricted access to the Internet. These measures may be extraordinary, especially if the case lasts for nine or ten months, but this case is highly unusual due to the lag between jury selection and the beginning of trial. The defense also believes that, due to the greater-than-normal physical distance between the court and the jurors, "their sense of obligation to this court will dissipate with distance." Judge Pohl seems unconvinced that the jury should be subjected to such restrictive requirements because some people---what he calls the "lowest common denominator"---may not follow the court's directions. Learned Counsel Kammen explains that due to the high profile of the case, the "publicity and the pressures are of sufficient magnitude" that it is not worth taking the risk. It is also the case that the jury will be made up of military personnel to whom such conditions are not "that far out of their comfort zone." Lt. Bryan Davis makes his first appearance of the day for the government and starts off by describing the defense's proposed sequester conditions as "prison-like." Certainly such conditions are not warranted merely because the defense believes there will be a media circus; after all, thus far the media has been fairly quiet on this case ("Excepting a couple of journalists and some dedicated bloggers," notes Lt. Davis). Judge Pohl presses him on this point, pointing out that public interest in high-profile cases often wanes during pre-trial hearings, but waxes as the trial gets underway. Acknowledging the potential for greater media interest down the road, Lt. Davis says "it's impossible to predict exactly what that media attention will be" this many months away from trial. Concluding his remarks, he notes that no sequestration measures were used for many of the terrorism prosecutions in New York---the 1993 World Trade Center bombing case, the embassy bombing case, the recent Ghailani case---and more restrictive sequestration measures may serve to prejudice the jurors against the accused. In his rebuttal, Learned Counsel Kammen points out that the prosecutor's precedents for terrorism trials without sequestration either were not death penalty cases or took place before 9/11 in "a much, much different atmosphere." After a few more words, the court moves on to the next motion.