DU attorneys & other knowledgeable people:

[Raspberry]

Is it true that KSM (& the others) would be entitled to have sensititve intelligence info available to them & their defense attorneys through the discovery process? If so, would such info be used openly in their trials? That's one of the criticisms I've been hearing.

[no_hypocrisy]

1. They may. There will be lots of motions and appeals flying back and forth

before ANY of that stuff makes it into the record.

[Raspberry]

8. I imagine

that this whole process will take so long that there is a good chance KSM will die of old age before he ever gets to trial! So much for a "speedy trial!"

[Hepburn]

2. If any evidence fell under, for example, Brady...

...the defense would absolutely be entitled to the same.

[Raspberry]

4. Can you elaborate?

What is Brady? And would it be likely to apply in this case?

[Hepburn]

10. It "could" apply to any criminal case.

The prosecution is MANDATED to turn over to the defense any exculpatory evidence/materials.

This rule came from Brady v. Maryland. Here is a wiki link to a reasonable discussion of the case. I usually do not link to wiki, but unless you have a legal background, just reading the case most likely would not make a ton of sense and this is a fairly decent explanation:

http://en.wikipedia.org/wiki/Brady_v._Maryland

So in the instant case ~~ if the US was in possession of ANY materials which would lead to any reasonable inference that the defendants were innocent, they must turn it over. If later discovered that the materials were in the possession of the prosecution, usually a dead bang winner on overturning a conviction, or in the case of Brady, the sentencing portion of the process.

Thus, for example, if there was any link with US government officials, etc., these "could" be Brady material.

[H2O Man]

15. Right.

Brady is one of the single most important cases, in determining what defense attorneys are entitled to. But, in the case in question, no federal court is going to allow defense attorneys to introduce evidence that is not related to the defendant's specific role. What is probably far more important will be what, if any, evidence that the defense attorneys are able to keep from being introduced by the prosecutors. Our criminal justice syatem tends to have a higher standard for introducing evidence than does a military court.

[Raspberry]

18. Who gets to decide if the evidence is exculpatory?

Does the prosecution say, "Nah, nothing interesting in there at all. You don't really need it." Or does the defense get to decide? And if it isn't exculpatory, well, the cat has been let out of the bag, so to speak.

[Hepburn]

21. It usually goes this way:

The DA makes the call, then the materials are not turned over to the defense, it comes out later (some times), and a mx is made by the defense and the judge makes the decision whether the withheld materials are exculpatory under Brady.

[HamdenRice]

24. The judge

There are two distinct evidence phases -- discover and trial. Either party may be asked to turn over all kinds of evidence during discovery, and at that point only the lawyers and judge sees it.

The judge then rules on whether it will be admissible at trial, which comes much later.

Trials are nothing like what you see on tv, with surprise evidence. Everything has been determined long in advance.

[SoCalDem]

3. He may just plead guilty.. He did admit to doing it,,and to killing Danny Pearl

Perhaps he wants martyrdom, and just wants the drama over.. If he pleads guilty, the only trial will be about sentencing

[Raspberry]

6. I guess I don't see what he would have to gain

by pleading guilty. If he goes to trial, he will have the opportunity to speak his views in open court. Can you imagine someone who believes in a "cause" passing up a chance like that?

[SoCalDem]

12. If there is a press blackout,perhaps. The secrecy stuff could lead

a judge to hold a lot of the testimony in closed chambers..and often the defendant does not even testify

[Solly Mack]

5. Holder said government had "ample legal authority to keep classified information secret"

[Raspberry]

7. But if the defense requests it,

is there a legal avenue for denying the request?

[Solly Mack]

9. The gov. will just say it is classified & bad for national security. Same thing

the government has been doing all along.

The defense will ask for the information, the government will claim to release it is harmful to national security.

The judge may allow limited access provided the defense signs a paper agreeing to no public disclosure...but then the trials can't be open to the public and the shroud of secrecy won't help the legitimacy factor, which is already shaky, any...

This has played out time and time again with the people the US has tortured.

[Hepburn]

11. If Brady material...

...there are ways to take care of this. Documents can be redacted. Facts stipulated to in chambers. Just depends on the specificities of the matter.

My late law partner was a feddie prosecutor before he got on the right side of the law ~~ the defense. So my office did a hell of a lot of criminal defense and some of it being feddie cases. The evidence "technically" cannot be withheld from a criminal defendant if it is exculpatory. See above what I said about Brady.

The govt, IMO, is in a tight place here re: Brady material, assuming there is some: If they give it over, the deft could walk. If they don't give it over and it is later found out, the deft could walk.

[Solly Mack]

13. They will probably redact documents ( to the point they are useless)

I feel certain that the defense lawyers will use every avenue available to them to gain access to any and all evidence/information they can.

I'm sure facts will be stipulated to in chamber.

I understand they aren't allowed to withhold evidence....but well...you know.

I fully support America's war crimes being exposed in any trial for any of the detainees. If that makes it hard for government, oh fucking well. Perhaps my government should have thought about that before the war crimes were committed. I'm not OK with withholding any evidence of torture committed by anyone from any government agency/entity.

[Hepburn]

16. I agree....

...the problem IMO the prosecution is gonna have is who was tortured, how, what "confessions" were had, what "evidence" was given against others.

The whole fucking mess is tainted beyond hell and back.

[Solly Mack]

19. Yes. I agree. :(

Still, I have no doubts at all that they will be convicted and put to death.

[Hepburn]

20. So true, Solly, so true. n/t

[ipaint]

25. I agree.

"But the more consequential impact of Obama's decision is likely to be overlooked: we're now formally creating a multi-tiered justice system for accused Muslim terrorists where they only get the level of due process consistent with the State's certainty that it will win. Mohammed gets a real trial because he confessed and we're thus certain we can win in court; since we're less certain about al-Nashiri, he'll be denied a trial and will only get a military commission; others will be denied any process entirely and imprisoned indefinitely. The outcome is pre-determined and the process then shaped to assure it ahead of time,...


Vividly illustrating the perverse mentality behind all of this, here's a question asked today of President Obama by AP's Jennifer Loven:

"President Obama, how can you assure the American people that a trial of Khalid Sheikh Mohammed, now that your administration has now decided will take place in a civilian court in New York, will be safe and secure, but also not result in an innocent verdict for him?"

Apparently, we're only supposed to give trials to people if we can assure in advance that it won't "result in an innocent verdict." Jennifer Loven -- and many of her media colleagues -- seems to yearn for the U.S. to be a lot more like North Korea."

http://www.salon.com/news/opinion/glenn_greenwald/


We'll get show trials.

[annabanana]

14. From what I've read, KSM is so totally unhinged as the result of

his mulitple waterboardings that he may not be allowed to "tesitfy in his own behalf".

[Raspberry]

17. Who could make that determination?

If he insisted, what would happen?

[Hepburn]

22. My best guess...

...a shrink for the defense.

Or in this case, the govt might be joining in.

[HamdenRice]

23. They probably can get lots of highly sensitive info for defense, but it wouldn't be public

In other words, the trial could be held in such a way that sensitive information would only be made available to the lawyers and judge -- and if there is a jury and the evidence is eventually determined to be relevant, to the jury.