Army Col. James Pohl starts Wednesday's brief session begins with a summary of where things stand in the case of United States v. Binalshibh: On Monday, the prosecution presented argument on its motion for reconsideration of the court-ordered severance of Binalshibh from the other four accused in the 9/11 case, with an oral response from the defense before filing its opposition. Today, the defense team has submitted its pleadings and is prepared to present additional oral argument.
Learned Counsel Harrington rises for the defense and begins by answering Judge Pohl's question from the last session: Binalshibh and the defense team support the severance. Harrington then reiterates his arguments from Monday: The matter of conflicted counsel must be resolved before this case can proceed and the prosecution does not meet the threshold for seeking reconsideration of the court's order.
Prosecutor Clayton Trivett notes that the government has waived its right to file a reply brief to the defense's opposition in the hopes of resolving this issue quickly. So why does the government oppose Judge Pohl's severance order? For one thing, only the prosecution has the power to determine what is in the best interests of the victims in this case—not the court and certainly not the accused—because ultimately it is the prosecution that must present a case that will carry its burden of proof. Trivett calls the notion that "Binalshibh's views somehow matter" on this issue "the most offensive thing to date that's come from" defense counsel. There is no justification for a severance until one of the accused is prejudiced by the joint trial or will cause unreasonable delay in the trial. But should the court look at unreasonable delay retrospectively or prospectively? After all, the issues in the Binalshibh case have already delayed the 9/11 case for ten months and it's unclear how much longer it will take to resolve conflict questions. Trivett says that all some of the other accused have raised conflict issues now, so the case is not stalled due to Binalshibh alone, and it is not clear that any of the issues left to be resolved in this case will take a substantial amount of time. Further, the defense, which usually holds the burden for demonstrating prejudice due to a joint trial, has not presented any evidence that the joint trial will prejudice Binalshibh.
Harrington returns to the procedural issues on rebuttal: The prosecution has not shown that the court's order works a "manifest injustice" and so reconsideration is inappropriate. He also points out that the defense does not have a burden to demonstrate prejudice where the severance was on the court's initiative and not prompted by a defense motion. Nor should the prosecutor take umbrage with the defense for pointing out the effect of delay on the victims' families; after all, it is the government that keeps raising that issue. And what of the delays due to some of the other accused? Is the defense saying there should be five separate trials? The conflict issues in Binalshibh's case are particularly complex, says Harrington, and will likely delay the trial far longer than the issues raised by other accused.
At the conclusion of oral argument, Judge Pohl grants the prosecution's requests that the court reconsider the severance order and hold the order in abeyance. A written order is forthcoming. The court will next meet with all five of the accused present.