Friday, March 17, 2006

Prosecutorial SNAFUs, 9/11 terrorists and rough injustice

By Mark Dorroh

Those of us who think governmental semi-competence is endemic to our neighborhood should take a look at the sentencing phase of the trial of al-Qaida conspirator Zacarias Moussaoui, "The 20th Hijacker" of September 11, 2001 terrorist attack notoriety.

This week, U.S. District Judge Leonie Brinkema, during pre-sentence hearings, was presented with evidence of a nasty taint upon the testimony of prosecution witnesses.

It turns out some witnesses were allowed to converse among one another - and two FAA officials admitted they'd followed media accounts of the trial - while they were still giving testimony.

There's a darn good reason judges tell witnesses not to discuss the case amongst themselves until after adjudication in a given trial: Witness memories are supposed to be their own, not the products of committee discussions. Witnesses are not supposed to read or listen to news stories in order to keep to keep them free from the influence of speculation, supposition and/or plain lurid fantasy.

Besides all that, the object of a fair trial is neither to convict nor exonerate a given suspect. It is to get to the truth, no matter how ugly or inconvenient the truth might be.

So Brinkema threw out the tainted testimony, and as of Thursday morning, things had deteriorated to the point that, according to AP, that the only hope prosecutors have of getting the death penalty will be to somehow "persuade ... Brinkema she punished the government too harshly for tampering with trial witnesses and lying to defense attorneys."

Can you say "SNAFU?"

What has this to do with us? Plenty. Remember last December when robbery and homicide charges in the killing of James Sanders were dismissed ? The court had no choice, as it became known that the case against James Earl Pettaway was tainted with a star witness whose testimony appeared less than totally motivated by a desire to serve justice.

Specifically, the evening after the second day of the trial, co-prosecutor Sheryl Wilson was informed, via a phone call from a conscientious cop, that the witness, a jailhouse snitch who had briefly shared a cell with defendant James Earl Pettaway, was having money funneled into his canteen account at Riverside Regional by a person or persons involved with the state's side of the case.

When Wilson shared that information with the Hon. Judge Allan Sharrett on day three of the trial, defense counsel moved for and got a dismissal.

Word on the street is, His Honor was not amused. The main reason the canteen supplement was grounds for an automatic dismissal is, it was not disclosed during pretrial discovery. That's the process during which the two sides are supposed to share all pertinent information with one another. The idea is, the open process facilitates fact-finding for the sake of blind justice.

So, is our county commonwealth's attorney a villain? Did he deliberately hide the canteen fund deal? Not bloody likely, since he is neither a bad person nor a fool ... and he would have had to be both to condone such deranged mishandling of an important witness.

How about the cops? Did detectives overplay their hand in pursuit of a guy they didn't like anyway in an attempt to nail him for other crimes against humanity, crimes unrelated to the Sanders homicide trial?

It's possible. Many officers I've known over the years admit, off the record, that such rough injustice will occasionally be administered by otherwise straight-arrow guys in an effort to get known troublemakers off the streets.

But having worked with the county police department as many years as I have, I find it hard to believe those sorts of monkeyshines would be practiced by Prince George Police. If they were, I do know for an actual fact that Chief Edward Frankenstein would heave the practitioner out on his rump approximately 2.6 seconds after the facts became known to him.

Chances are good this mess was simply a case of one hand not knowing what the other was about. It happens in law enforcement, it happens in journalism, agribusiness, manufacturing and medicine. It is the way of a world in which nobody's perfect, and while it's a shame, it is not evidence of either incompetence or bad intent.

We do know the officer who called up Ms. Wilson did an extreme favor to the cause of justice. Convicting the wrong man on testimony of questionable worth would have been an injustice not only to him but to the community as well, since the real killer or killers would still be out there, perhaps planning a new atrocity. With charges against Pettaway off the table, investigators have good reason to check out alternative theories of culpability.

Are they? We won't know until they have enough evidence in their possession to seek an indictment. That may not happen for months or even years.

But there's no statute of limitations on murder, so the killer or killers will, henceforth, never know a single day of peace. That may be all the justice the late Mr. Sanders and his family ever get.

And while that's far from enough, it is still better than punishing the wrong man.

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