Terrorism Trials & Investigations

1/29 Hearing #9: Maher Yes, Fox No, SCI Guy Maybe Later

By Wells Bennett
Tuesday, January 29, 2013, 5:03 PM

AE50, our day's last, is James Connell III’s request to compel the production of three witnesses.

The first is Robin Maher, an attorney who helped to develop the ABA’s guidelines on capital cases---a legal authority of obvious relevance, but of disputed persuasive value here.  When pressed, Connell says Maher, if produced, won’t simply hold forth about what's good or bad about the guidelines: she can talk instead about facts surrounding their generation.  He adds that Maher has testified in a wide variety of death penalty cases, and can do so in this case by videoconference.  Her input is directly relevant to AE008, a motion to dismiss for defective referral.   One such defect is that, in the case's referral phase, the regulation governing the assignment of Learned Counsel was violated: among other things, the written communications policies then in play precluded defense lawyers from adequately representing their clients, in accordance with the guidelines (and thus, the regulation to boot).   Ms. Maher, says Connell, will supply context for the guidelines' minimum standards for representation.

Witness two is Larry Fox.  He’s a law professor at Yale with a concentration in ethics.  In short, Fox’s report apparently (it's not quite clear) concluded that defense counsel could not ethically represent their clients under these circumstances.   Wait: a written report?  Judge Pohl asks why that can’t be submitted.  Pause.  The light goes on. He’s an expert witness---but Connell had treated him as a fact witness, and crafted his arguments in light of that assumption.  Likewise for Maher, now that it occurs to Connell.  So much for these two---who we’ll treat as expert witnesses going forward.

The final would-be witness---an unnamed one---administers the SCI briefing room.  His testimony bears on the stubborn vestiges of “presumptive classification.” Unfortunately, the case’s SCI agreement still retains some language about detainees’ statements being “presumptively classified.”  This, notwithstanding the entry of a protective order that did away with the derided presumptive classification approach.  The witness's production could be mooted of course, if the government agrees to excise “presumptive classification” language from the SCI agreement.  The court thus punts: Connell can ask for the third witness later, if indeed “presumptive classification” doesn’t go away on its own, through government stipulation. 

The issues here are legal, says prosecutor Jeffrey Groharing, in that the two witnesses now sought by the defense---Maher and Fox---are lawyers.  They can express opinions about legal issues relevant to death cases and ethics.  But we are supposed to be talking about facts, not one's subjective feelings.  Judge Pohl: wouldn’t a law professor’s testimony about ethics be useful to the factfinder on some issues, such as the effect of commission rules on the protection of client confidences?  No, says Groharing.  And the history of the ABA’s capital guidelines is, in fact, appended to the guidelines themselves; that takes care of Ms. Maher.  But what about congressmen, the court asks.  Isn’t a congressman’s view relevant to legislative history, and thus to a statute’s meaning?  Courts give such views weight all the time, they just do so in light of secondary materials like conference reports.  It stands to reason that Ms. Maher’s personal views thus could illuminate the guidelines, too.  The court leans hard on the “useful to the factfinder” standard once more: it doesn't seem too demanding.

Here’s Connell again.  If the witnesses truly are experts, then he’s not sure the government has any say in their production.  De minimis notice is the rule for experts, not “de maximis,” as Connell humorously describes the notice required for fact witnesses.  The lawyer returns to the guidelines, and their persuasive value.  Maher can help the commission assess that issue.  And by the way, when should I tell Maher and Fox to appear, asks Connell. April?  February?  Judge Pohl enjoys this show of confidence from the lawyer, who evidently expects to win his motion across the board.

And lo, Connell almost does.  The court says Fox’s conclusions about detainee access are not relevant; AE50 thus is denied as to him.  But Maher’s testimony might well prove relevant, as regards the ABA guidelines.  She’ll be on hand for our next session in February; motion granted as to her.

Recess.  One important note, announced from the bench: there will be no court proceedings tomorrow, save only an 802 session without the accused.  But we’ll reconvene for the Real Deal at 0900 on Thursday, and take up whatever can be taken up at that time.