Author: mattkubacki

9/11 Hearing Monday 11 August 2014 – Fort Meade (Matt Kubacki)

Be glad this is on a typed blog, no way anyone could read the notes I took from the hearing.

Be glad this is on a typed blog, no way anyone could read the notes I took from the hearing.

At Ft. Meade for a 9-11 case hearing

Yesterday I was able to visit Fort Meade and observe the 9/11 hearings taking place in Guantanamo Bay.  The Judge, Army Colonel James L. Pohl, had decided that the only matter to be heard was an “emergency” motion by the Government on the severance of Ramzi bin al Shibh (“bin al Shibh”) from the other four defendants (including Khalid Shaik Mohammed).  bin al Shibh was the only defendant in the room that morning and the camera only had a quick shot of him at the very beginning of the hearing.  It was interesting to see him sitting there having what looked like a very casual conversation with someone, knowing in my mind that he is facing capital charges.

The hearing opens

The hearing started with Judge Pohl giving a brief synopsis on bin al Shibh and his case, concluding that the court, sua sponte, decided to sever bin al Shibh from the rest without any argument from the Government or Defense (what I took to be a somewhat rare move).  Judge Pohl ended his opening by stating that the hearing would ONLY focus on the severance matters, but that any conversation regarding bin al Shibh’s mental competency should be on procedural matters NOT substantive (reiterating this multiple times).  Judge Pohl then opened the floor to the Government in what was much like an appellate oral argument (due to the fact that both sides did not have an opportunity to brief arguments on the matter).

The government argues

The Government argued that the issue of severance in this setting should be analogized with the Federal Rules which would allow severance if the defendant raises and claims that he is facing unrelated charges from his co-defendants, .  The Government took the time to stress that this is NOT the case with bin al Shibh; He did NOT raise a motion to sever and Government took great measures to NOT bring certain charges in order to maintain a joint trial of all the defendants.

The Government next addressed any concerns of delay if Judge Pohl were to not sever bin al Shibh, specifically any speedy trial concerns, noting that reasonableness is the key factor (as it is with EVERYTHING in criminal law).  The Government started the speedy trial discussion noting that bin al Shibh has not raised any speedy trial concerns, rather it was a separate defendant, and that when we are discussing joint defendant’s the speedy trial clock is “unitary” between them (ie it must be reasonable among all of them).  Simple prejudice, the Government noted, is the last resort for a court to grant severance, due to a preference for joint trials.  The Government argued (per U.S. vs. Vasquez) that the standard and burden for prejudice is very high, requiring compelling prejudice, which places this matter in a unique situation as bin al Shibh has NOT raised any speedy trial concerns (begging the question how he could meet his burden?).  The Government  concluded this discussion that the court should ONLY look at the delays attributed to them and consider whether they are “reasonable” in 1. Length and 2. Reason, and whether 3. The Defendant has asserted this right, and, finally, 4. Whether there is any prejudice to the Defendant’s speedy trial right (compelling prejudice).

Judge Pohl interrupted to make clear that the Government’s position is (which the Government agreed that it was) “We can move along with a joint trial by addressing bin al Shibh’s unique issues first and then move along with the trial.”  The Government noted that supporting Federal case law, though not directly controlling in the Military context, would support this position that the ten-month delay in deciding bin al Shibh’s unique issues is not unreasonable or prejudicial (with caselaw holding that delays of much longer (2 years) are “reasonable” within the speedy trial context), that there is still much discovery to be done, and that not trial date or deadlines for motions have been set.  Because of this, the Government finished, there is not prejudice to bin al Shibh or the defense team, and their actions of not raising these concerns are much more indicative that no prejudice exists.

The defense argues

The Defense took the podium next to address the matters, though much shorter than the Government.  Defense counsel started with his concern that he was not given 14-days to response to the “emergency” motion filed by the Government (noting that Judge Pohl had specifically stated that there would be no “emergency” motions without such response).  Judge Pohl stated that he would allow him the full 14-days to respond, but wanted to know whether he had any position on the matter presently.  The Defense stated that it was difficult for them to have a position, so Judge Pohl posited whether if he were to vacate the severance order today, allow bin al Shibh the full 14-days to fully brief the issue, move on to other matters and then return to the severance issue later would be prejudicial.  The Defense stated that it would be very prejudicial due to the fact that the Judge issued a severance order and then, in a quasi-appeal, decides that it was pseudo-clear error to have done so.

The Defense finished with what I believed to be the reason Judge Pohl decided to NOT have any hearings today (Tuesday August 12): bin al Shibh is in a unique position as it relates to the other defendants with his 292, 909 (mental competency) and 152 (living conditions issue) matters pending.  Specifically, if no severance or should the court wish to wait deciding the matter, these matters need to be cleared up before the court can even consider anything else as bin al Shibh MUST be present at these matters to voice an argument.  It is these upcoming and pending issues that the court MUST consider in deciding whether to grant or deny a severance (arguing that in this context the “severance” matter is much broader than in a Court of Appeals).

Recess

After a brief delay in denying the Government from responding with separate counsel (Gen. Martins attempted to speak), the Judge Pohl concluded that he would not hear matters on Tuesday.

My experience

The entire experience was fantastic, although it was a shame that today’s hearings were cancelled as this was to be my last day.  The proceedings did seem to be “fair” from a purely objective standpoint, granted my view was ONLY on the bin al Shibh severance matters (thus I could see how a trial or other matters might not seem as fair as they should be).  It will be interesting to see how Judge Pohl decides the severance and how the remaining matters with bin al Shibh are address (ie expeditiously or over time).  I hope to be able to go back to Fort Meade or Guantanamo soon to watch move and recommend to anyone interested that they take the time to do so as well.

This will be right after you turn onto Llewellyn Ave.

This will be right after you turn onto Llewellyn Ave.

Ft. Meade logistics

 

To those going to Fort Meade in the future, I recommend finding a hotel near the base and to leave early to get to the base.  The hotel I stayed at was 3 miles awa

ut I was only able to get in through the entrance on Annapolis Rd (175) and Clark Rd.  You will go through a quick ID and vehicle check, then stay on Clark until it T’s into Cooper Rd, Turn left on Cooper until it T’s into Llewellyn Ave., Turn left and the Post Theater will be on your right.

 

Pre-Hearing Thoughts Fort Meade 9/11 Case – Matt Kubacki

I write this after a few days of recovery from the July 2014 Bar Exam, so not only is there excitement to attend the hearings, but also much relief to have finished the Bar.  That being said, please excuse any errors, my brain still has not recovered (those who have taken the Bar will know, those who will can consider this something to look forward to).  The timing is perfect as it comes after a week of post-bar recovery and a few days before I return to the Marion County Prosecutors Office.

My thoughts leading up are to do as much background research on Khalid Sheikh Mohammed as possible, reviewing prior posts here, and making sure to thoroughly review all the documents provided to us.  After telling family and friends of this opportunity, I realize more just how unique this opportunity is. The ability to watch, hear and report on these proceedings will truly be once in a lifetime.

I will be driving from Indiana to Fort Meade Sunday 8/10 and returning Tuesday 8/12, so my time will be short, but as detailed as possible.  We have been provided with a checklist of sorts that we are to be referring to during the hearings, so I will be basing most of my general descriptions from that.  From a personal standpoint, I will be interested to see how the hearings proceed and whether they incorporate the “fairness” aspect of the Judicial system that we are taught in law school.  I know many in the press and public are skeptical, but I’ll refrain from voicing my opinion until I am able to witness the proceedings.  My thoughts/observations will also draw from my experience with the Prosecutors Office, but fear not, I am not one to think everyone is guilty by their appearance in the courtroom.

I see that comments are available here, so if any interested readers are curious or would like something answered, please do not hesitate to post.  Until the next post!

 

-Matt Kubacki, 2014 IU McKinney Law Graduate-