8/11 Session #1: Severance, Reconsidered

The military judge, Army Col. James Pohl, takes the bench.  Only one accused is present: Ramzi Binalshibh, whose case the court recently separated out from that against the other four accused in the 9/11 case.  His lawyers are there too, including Jim Harrington and LCDR Bogucki. The court opens by summarizing the state of play, including recent concerns raised by the prosecution about Binalshibh’s mental status; and the prospect of a conflict for Binalshibh's lawyers, occasioned by the FBI’s questioning of Binalshibh’s defense team in connection with a security investigation.  Such things underlay the court's recent severance order---which the prosecution has asked Judge Pohl to reconsider.  Only the latter concerns us today, says Judge Pohl. “We are not here to discuss the substance” of, say, Binalshibh’s competence. To no one’s surprise, the government finds severance “drastic.”  Seeking reconsideration, the prosecutor Clayton Trivett insists that going forward on a severed basis will have an extraordinary impact upon the case---victim witnesses, prosecutors, everyone.  Trivett explains that the court’s concerns about Binalshibh--the potential for conflict, and the accused’s mental state--can be addressed without severance.  The joinder of the accused here was proper initially, something important under controlling law.  In this regard, Trivett says the prosecution deliberately opted not to pursue some charges, so as to preserve option the joint trial; he acknowledges that the military typically doesn’t see many joint trials, but that is only because---and unlike this case---long and complex conspiracies don’t usually happen within military jurisdiction. Severance is appropriate, essentially, when a joint trial would compromise a trial right of the accused; or when it would prevent the jury from reaching a reliable verdict.  On the former, Trivett says that the speedy trial rights of the accused are not in play where--as here--the initial joinder was proper.  And a joined trial won’t get in the way of the jury making a reliable judgment about guilt or innocence.  He adds that the mere showing of prejudice to a defendant does not strictly require severance, either: a prejudice finding merely calls for the crafting of a remedy. There must be a showing of compelling prejduce, and severance is a last resort.  (Trivett importantly highlights that, right now, only one accused---Mustafa al-Hawsawi---actually seeks severance.)  At any rate, under federal law, in a joint case, when delays are caused by one defendant but felt by others, the question is whether the delay is reasonable. This informs, in Trivett’s view, the applicable military commission rule, and counsels against severance here. Why?  The delays in question, as forecasted by Trivett---the time required to handle the conflict matter raised by all five accused, and to resolve Binalshibh’s mental state---don’t approach even ones held reasonable in federal cases.  Trivett maintains that keeping Binalshibh in the joint case is not mutually exclusive with moving the joint case forward efficiently.  Judge Pohl seems to doubt this sunny prediction, citing the Binalshibh-specific issues which have plagued, and slowed, the case previously.  “December through April has been all Mr. Binalshibh,” he says, also observing that both issues unique to that accused, both sanity and conflicts, remain pending. Trivett remains confident: both can be resolved speedily, within the two pre-trial hearings set for the remainder of the year so far.  (Trivett observes that, upon signing the case’s Memorandum of Understanding, the defense will be entitled to a boatload of classified discovery--upon receiving this stuff, Trivett guesses, the defense won’t be angling for a faster procedure.)   A few words more, and he concludes, reiterating that conflicts and competency matters can be dealt with quickly, emphasizing that joinder was proper in the first place, and asking that Binalshibh should rejoin the case against the other four. The baton passes to Learned Counsel James Harrington. He opens with process: the defense hasn’t yet had the usual fourteen days to respond to the government’s reconsideration motion---rich stuff, given the prosecution’s complaints about the defense’s constant “emergency” filings.  So does Harrington oppose severance?  He says that’s a matter which counsel has discussed with Binalshibh but one that is difficult for Binalshibh to understand. Counsel hasn’t yet formed a firm view whether severance would best serve his defendant’s interests; thus he seeks more time.  This only prompts a further inquiry: suppose Judge Pohl vacates his severance order, pending response from Harrington?  Would Binalshibh suffer any prejudice from that, today?  In a sense, explains the lawyer; procedurally, there’s nothing under the rules for reconsideration authorizing the court to reconsider such a motion. Harrington adds that he’s concerned about conflicted counsel advancing arguments on Binalshibh’s behalf---that needs to get cleared up before proceeding with anything else.  The attorney adds a few words more about the case law, observing that the military rule is, in fact, broader than the federal one---and thus that federal authorities are only so instructive; and noting that trial court severance orders are almost never appealed, so naturally, few appellate decisions explore the issue. Harrington also notes that the competence issue is genuinely odd.  Neither the defense nor the prosecution has asserted that Binalshibh is not competent to stand trial.  Lastly, Harrington doubts Triviett’s suggestion of a quick timetable, in dealing with conflicts and competency matters.  Conflicts counsel, after all, has to get up to speed before he can meaningfully handle the issue created by the FBI’s visit to Binalshibh’s defense team. He wraps up. The Chief Prosecutor, Brig. Gen. Mark Martins, asks the court’s indulgence for additional argument---the reason being that reconsideration and the propriety of severance more generally are before the court.  Martins is especially interested in the latter--but the court isn’t, or at least doesn’t see why Martins, not Trivett, should reply.  The Chief Prosecutor appeals to the odd procedural posture, which in his view calls for a departure from the usual oral argument structure and allocation of argument time; he adds that a decision on reconsideration might well obviate any subsequent argument on the substance of severance.  The military judge isn’t persuaded, though, and bats down the two-lawyers-in-one-argument motion approach. This returns Trivett to the podium. The latter doubts the “cloud of conflict” suggested by Harrington; consider the battery of motions that Harrington and company have continued to file, he says, notwithstanding the cloud.  The prospect of a conflict can’t be used by the defense opportunistically, in the prosecutor’s view. Trivett then highlights some cited authority, and then sits. The briefest sur-reply follows from Harrington---who pivots, noting that the prosecution, not the defense, is so eagerly seeking an inquiry into Binalshibh’s competency.  This litigation, therefore, is hardly the consequence of defense opportunism. We await an order on reconsideration---which we might see today sometime, apparently.  The commission is quickly recessed, tentatively until a Wednesday session at 1500, with only Binalshibh. The court will reconvene on Thursday on 0900 with the other four defendants (at least), with the understanding that after the judge gets the defense's pleadings, he might well cancel the Binalshibh hearing on Wednesday, too.