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Guiding Bryant, Moussaoui Cases

Attorney Andrew Cohen analyzes legal issues for and CBS News.

Eagle County Court Judge Frederick Gannett and U.S. District Judge Leonie M. Brinkema are about as far apart in the judicial pecking order as basketball superstar Kobe Bryant and terror suspect Zacarias Moussaoui are on the social register. But last week, in the span of about an hour, Judges Gannett and Brinkema both offered interesting lessons in trial management, lessons that demonstrate how earnest judges can properly shape the course of a case.

In Alexandria, Va., Thursday, Judge Brinkema ruled that federal prosecutors may no longer attempt to seek the death penalty against Moussaoui in their terror conspiracy case against him. Two thousand miles away, in the heart of Colorado's Rocky Mountains, Judge Gannett ruled that Bryant's defense attorneys could neither call his accuser to the stand during next week's preliminary hearing nor have access to her medical records. Judge Brinkema's ruling has the Justice Department reeling; Judge Gannett's order has Team Kobe wondering whether it is even worth having the probable cause hearing after all. Both rulings were well-founded in law and fact. Both will significantly affect what happens next in their respective cases. Neither ruling ought to be reversed on appeal.

Judge Brinkema's ruling is far more courageous but no less supportable than Judge' Gannett's decision. In her 15-page order, Brinkema told the feds that they may not pursue a capital case against Moussaoui unless they are prepared to give him access to Al Qaeda leaders whom, she believes, would help the defense prove that Moussaoui was not a part of the specific conspiracy to crash airliners into the World Trade Center and Pentagon on September 11, 2001. Nor was she willing to comply with the government's request to dismiss the case outright pending appeal. Moussaoui's been in jail since August 2001, she told prosecutors, and he's been under indictment for nearly two years; fish or cut bait.

Pointing to the "government's concessions regarding the nature and scope of the charged conspiracies and the marginal relevance of the allegations concerning the September 11 attacks to the charges against Moussaoui," Judge Brinkema also precluded prosecutors from turning a Moussaoui trial into an emotional paean to September 11, 2001. So if Moussaoui gets to trial, the feds won't be able to use against him "any cockpit voice recordings, video footage of the collapse of the World Trade Center towers and photographs of the victims of the September 11 attacks." Based upon the judge's ruling, it is now formally safe to say that Moussaoui's designation as the "alleged 20th hijacker" no longer can be sustained. He's just a regular Al Qaeda operative and, judging from his early arrest, not a particularly adept one at that.

Judge Brinkema thus crafted a creative solution to the problems posed by the intersection between the Constitution and the war on terror. She sanctioned the Justice Department for failing to abide by her orders but left federal prosecutors with plenty of options to choose from as the case moves forward. The feds can appeal her order to try to get everything they want; they can drop the death penalty against Moussaoui, in which case the defendant almost certainly will complete the guilty plea he started to enter last summer; or they can transfer him to a military tribunal. At the same time, however, Judge Brinkema also protected Moussaoui's rights without giving him a free pass on the conspiracy charges against him. Good judges often steer cases toward where they ought to end up; the Moussaoui case now, finally, has a roadmap to where it ought to be.

Kobe Bryant's rape case now also has a roadmap of sorts, at least as far as next week's preliminary hearing goes. In his 15-page ruling, which generated a landslide of television coverage, Judge Gannett pared the hearing down to what it ought to be: a simple, gateway process that separates out truly weak felony cases from the strong or just mediocre ones. First, concluding that the alleged victim's medical records would be irrelevant to determining whether probable cause exists, he refused to give the defense access to them before the hearing. But he rightly left open the possibility that the records might become relevant and admissible and discoverable at a later date. So he deferred a final resolution of the issue until the case gets to the district court judge, who will preside over Bryant's trial, assuming there is one.

Judge Gannett also refused to force Bryant's accuser to the stand for the hearing. In doing so, he all but predicted the outcome of next week's hearing when he grudgingly declared that Eagle County's offer of proof would satisfy the probable cause standard even though it contained only "minimally sufficient nonhearsay evidence on the elements of sexual assault." What the judge meant by this is that nothing Bryant's alleged victim would or could say on the witness stand at the hearing would or could vitiate the probable cause prosecutors already would have shown. If the Bryant case goes to trial, there will be a showdown in court between accused and accuser. Until then, the two won't meet again.

The Colorado judge also likely shaped the course of the case when he refused, at least for now, to close the preliminary hearing to the public and the media. Naturally, Bryant's attorneys had sought the closure because they don't want prejudicial information about their client disclosed to potential jurors without having a meaningful chance to rebut that information. That's why Team Kobe is likely in the next few days to simply waive the hearing altogether, plead not guilty in district court, and then prepare for trial. For the defense, better to wait until both stories can be told at trial than to let the prosecution's story linger unchallenged for months.

In the scope of things, Judge Brinkema's ruling in the Moussaoui case is an order of magnitude more important than Judge Gannett's ruling in the Bryant case. The Brinkema ruling raises profound constitutional issues that go to the core of the relationship between the prosecutor and the accused and between the judicial and executive branches of government. Judge Gannett's ruling, meanwhile, is mostly ministerial and certainly not likely to be cited in the next editions of any law books. But the rulings in both cases broke important logjams that were precluding the cases from moving forward. That's why judges get the big bucks.

By Andrew Cohen

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