Last week United States Attorney General Eric Holder announced his decision to prosecute five men accused as co-conspirators in the Sept. 11 attacks in federal court in Manhattan, rather than in a military tribunal. At the time, I disagreed with this decision, but I understood his reasons for making this bold decision, or thought I did. I believed the trial would, as Senator Russ Feingold said, “show the world that this country stands firmly behind its legal system and the Constitution.” As a criminal defense attorney, I was impressed.
Since the decision was announced, it has become apparent that, whatever the reasons for the decision, it certainly had nothing to do with standing behind our legal system and the Constitution. Comments made by Holder and President Obama in the last few days belie that rationale. If anything, our Constitution has been and will continue to be dragged through the mud. When he was elected, I really believed President Obama would bring change. I for one had enough of Bush. If he keeps this up, I might start wishing for the good old days.
President Obama was a Constitutional Law Professor at the University of Chicago. That’s what makes it so difficult to understand his comments on Wednesday. Our Constitution contains cherished legal rights including the presumption of innocence, due process, and rights to a fair trial. That’s what makes it hard to understand comments like this, as reported in an AP article : “Obama… said those offended by the legal rights accorded Mohammed by virtue of his facing a civilian trial rather than a military tribunal won’t find it ‘offensive at all when he’s convicted and when the death penalty is applied to him’.” Sounds to me like President Obama has declared Mohammed guilty as charged, notwithstanding that messy little presumption of innocence thing. He has also determined his sentence. Last time I checked, both of those duties lie with the jury, at least in our criminal justice system that he is so eager to showcase to the world. Is this what we want to show the world? That our Supreme Leader is the judge, jury, and executioner? Of course Obama tried to backtrack, but, using an old legal expression, “you can’t un-ring the bell.”
Eric Holder’s comments are even more serious, since he is the prosecutor. The American Bar Association Model Rules Of Professional Conduct state that a prosecutor is prohibited from making “extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding.” In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused.” (ABA Model Rules, Special Responsibilities of a Prosecutor Comments) Just in the last 48 hours our Attorney General has publicly declared Mohammed a “coward”, “a murderer”, and a “terrorist.” He also has stated repeatedly his belief that Mohammed is guilty. His own Department of Justice has guidelines for the behavior of prosecutors, contained in the U.S. Attorney’s Manual. Section 1.750 guards against the influence of prejudice. This section bars any prosecutor from making observations about a defendant’s character, statements or admissions of guilt, statements concerning evidence, and, most significantly here, any opinion as to the defendant’s guilt. Holder has violated each and every one of these rules promulgated by his own Justice Department. You can bet his words will be quoted in defense motions, and maybe even in grievance proceedings against him.
The most disturbing aspect of this case is that it apparently will accomplish nothing. Holder stated for the record that “It’s hard for me to imagine a set of circumstances under which, if he were acquitted, he would be released into the United States. … There are other things that we have the capacity to do.” He didn’t elaborate, but others in his office did, according to The New York Times: “Other Justice Department officials have said that even if Mr. Mohammed is acquitted, the Obama administration will keep him locked up forever as a “combatant” under the laws of war.”
I had to read that twice over my morning coffee. We are conducting a show trial right here in the United States of America. Our Constitution is make believe in this case. If the jury renders a verdict of not guilty, these defendants aren’t going anywhere. They will just be classified as enemy combatants once again, like they were when George W. Bush was in charge. What is the point? This trial is a circus. A meaningless spectacle. One big, dangerous, expensive joke. But I’m not laughing.
