Scheduling conflicts and legal issues might be reasons to split up the military trial of the five Guantánamo men accused of plotting the Sept. 11 attacks, the Army colonel presiding at the case wrote in a court order made public Monday.
Judge James L. Pohl instructed the 9/11 prosecutors to answer him by Thursday on whether separate military juries should hear the death penalty terror trials of alleged mastermind Khalid Sheik Mohammed and four accused co-conspirators.
Military and Justice Department prosecutors have been preparing a joint prosecution for years. During the Bush administration, the Pentagon built a special courthouse at Guantánamo capable of trying up to six defendants before a single jury.
Now the judge has asked the prosecutors whether they want to stick with that plan. In his order, written last week but held under seal until Monday, the judge wrote that he envisioned potential conflicts at the death penalty phase of the trial, if the men are convicted.
As of Monday afternoon, the prosecutors were preparing their response, said Army Lt. Col. Todd Breasseale, a Pentagon spokesman.
But, “joint trials of alleged co-conspirators are often the best way to ensure a network’s entire conduct is properly and fully considered,” Breasseale said.
The judge’s two-page order made no mention of the chaotic arraignment of the men May 5, a Saturday hearing that stretched across 13 hours in part because the five men staged choreographed protests in the court. Each man refused to answer the judge’s questions and accepted each offer of three prayer breaks in the daylong hearing.
Rather, the issue is coming to a head now because the judge had set June 12-15 for the next hearings in the case.
Defense lawyers for some of the men have sought delays, citing conflicts. Notably, Mohammed’s lawyer, David Nevin, has to be in Boise, Idaho, at that time — if not seeking clemency from the governor then attending the execution of another client. He’s Richard A. Leavitt, convicted of the July 1984 murder and sexual mutilation of a Blackfoot, Idaho, woman, and scheduled to die by lethal injection June 12.
Had all five of the accused agreed to a delay, the issue might have been averted at this early stage of the case, at least a year before the actual trial.
But Navy Cmdr. Walter Ruiz, defending Saudi Mustafa Hawsawi, said his client wanted the hearing June 12 and did not waive a so-called speedy trial clock requirement in the case.
At the May 5 arraignment, Ruiz had pressed the judge to tackle several fundamental pre-trial motions, notably early challenges to the legitimacy of the case itself as well as a long-festering issue on the prison camp’s reviewing mail between the attorneys and their clients. Pohl said those motions would be taken up June 15.
In his order to the prosecutors, the judge did not instruct them on whether they should consider five separate trials for the men or smaller joint prosecutions. He gave the defense lawyers a May 31 deadline to weigh in on whether they want separate trials.
The timeline casts doubt on whether he would still seek to hold a joint hearing the week of June 12.
Defense attorneys for one of the accused, Ammar al Baluchi, had earlier argued unsuccessfully to a Pentagon official to have that case split off on grounds the allegations against Baluchi, Mohammed’s nephew, implicated him largely in money transfers not other aspects of the conspiracy.
Baluchi’s lawyer, James Connell III, described the order itself as “unusual because the military commission itself raised the issue of severance.”
Under the military commission formula for a death penalty trial, a panel of 12 or more U.S. military officers hears the case, renders a verdict and, in the event of a conviction, then decides punishment. Before they deliberate whether to impose the death penalty, lawyers for the men can bring in evidence on why they shouldn’t order an execution.
The judge wrote in his instruction to the prosecution to consider splitting up the trial that he “is concerned with the capital sentencing phase, if any, in this case. It is conceivable that the mitigation evidence for one accused could possibly be considered aggravation evidence for another.”
But Cheryl Bormann, defending an alleged trainer of the 9/11 hijackers, Walid bin Attash, said Monday she had not received sufficient court resources to know whether splitting the trial was in her client’s best interest.
Prosecutors had yet to turn over the evidence against her client, called discovery, she said. Plus, she said, seven months had passed and the Pentagon still had not yet granted a security clearance for her mitigation expert to meet with Bin Attash. He’s Tim Semmerling, who is similarly serving as a mitigation expert in the case of Army Maj. Nidal Hasan, accused of killing 13 people in a Nov. 5, 2009 shooting spree at Fort Hood, Texas.
The judge, said Bormann, is “asking us for input before we have the tools for which we could actually analyze the situation and make a determination.”