4/25 Motion Hearing #2: More Aggravators

Picking up on the end of Thursday's session, the court will consider multiple defense motions seeking to strike the first aggravator---that the life of one or more persons other than the victim was unlawfully and substantially endangered---from various charges against Al-Nashiri. These are AE247, AE248, AE249, and AE250. Learned Counsel Kammen reminds the court that the defense's objections, as with AE246, are two-fold: First, the aggravators are actually elements of the charges and so must be plead in the charges, and second, they are improperly vague. Mr. Sher rises for the prosecution to argue that the government has plead the aggravators as required by the court's rules and the aggravators are not vague because it is clear who was endangered under each charge against Al-Nashiri. Judge Pohl wonders whether the endangerment could be extended beyond simply the people on the M/V Limburg and the U.S.S. Cole, to include boats in the area. Is there any requirement that the prosecution identify the universe of individuals included in the aggravator? Mr. Sher responds that the defense can reasonably infer the individuals alleged to be endangered from the charge sheets and documents provided in discovery, but the prosecution can supplement its notice with the list of individuals if the court so orders. Next the defense raises AE251, a motion to dismiss the fourth aggravator---that the victim was a protected person or the offense endangered a protected person---as duplicitous of the first aggravator discussed above. Learned Counsel Kammen focuses on the stacking argument: These two aggravators count the exact same people and so are double-counting in a way that makes a jury more likely to hand out a death sentence. Maj. Seamone argues for the prosecution that aggravators are only duplicitous when they have identical factors, while endangerment of persons and protected persons are substantially different. Judge Pohl pushes on this, asking whether the second part of the fourth aggravator subsumes the first aggravator. Aggravating factors are meant to provide a perspective to the jury that they wouldn't otherwise have, says Maj. Seamone, so "the more factors you have, the more individualized it is." It is up to the court to provide jury instructions so that the jurors do not double-count. The same arguments apply for AE252 and AE253, so the court moves on to motion AE254, a defense motion to strike the fourth aggravator for failure to allege it in the charge for hazarding a vessel. While the aggravator does not increase the maximum available sentence for this charge, case law requires aggravators be plead as an element of an offense, explains Maj. Danels. The prosecution disagrees and Mr. Sher simply says that the government pleaded the statutory aggravators---that Al-Nashiri is an alien unprivileged enemy combatant, that he killed in violation of the Military Commissions Act, and that killing occurred in the context of hostilities. The same arguments are adopted for AE 255. The parties have a similar discussion for AE 256, 257, 258, and 259, all seeking to strike the fifth aggravator, for intent to intimidate or terrorize the civilian population, from various charges. The court then breaks before the afternoon session.