A 9/11 sequel: civil cases made more difficult
on Mar 14, 2007 at 5:06 pm
In a case that seems destined to go to the Supreme Court, because both sides have fought so doggedly over it in lower courts, the Fourth Circuit Court ruled on Wednesday that a federal judge in the terrorism trial of Zacarias Moussaoui had no power to order the government to turn over non-public evidence for use in a civil lawsuit filed by victims of the Sept. 11, 2001, terrorist attack on New York City. The evidence includes considerable classified material.
The ruling, however, does not leave the victims’ lawyers without potential access to at least some of the material. All of it is in the government’s possession, and the Fourth Circuit noted that the victims’ lawyers could seek access to it from the presiding judge in three civil lawsuits pending in New York’s Southern District. The government, however, has indicated it will claim various privileges, including national security, in response to demands for the materials in the New York cases.
The lawsuits in New York are against airlines, airports and aviation security services, as well as against alleged terrorist and terrorism sponsors. The Fourth Circuit noted that negotiations over access to evidence in the cases there have been “complicated and contentious.”
The Fourth Circuit’s ruling marks a significant limitation in the law of access for crime victims to obtain information the government has gathered in a federal criminal case, for use in a civil lawsuit related to the crime. The Circuit Court included in its opinion a mini-lecture on the problem of opening that opportunity for crime victims. Moreover, it said, it had not been offered any “limiting principle” that would keep such access within reasonable bounds.
U.S. District Judge Leonie M. Brinkema, who presided in the criminal conspiracy case of U.S. v. Moussaoui, had granted a request by lawyers for the victims to get complete access to every non-public document that the government had shared with Moussaoui’s defense lawyers, in addition to everything that was put into the public record of that case. The victims’ lawyers argued that Mousaoui’s lawyers “should not be given a greater level of access to documentary evidence relating to those attacks than the attorneys representing victims, and family members of victims, who were brutally murdered on that day.”
Judge Brinkema, however, went too far, the Circuit Court ruled. “There was no authority, inherent or otherwise, for the district court’s orders in this instance,” the Court ruled in a decision written by Circuit Judge Karen J. Williams. The three-judge panel was unanimous in case 06-4611. (Thanks to Howard Bashman of How Appealing blog for the alert; Howard’s blog has a direct link to the 26-page decision. The ruling also can be found on the Circuit Court’s website, by clicking on the Opinions link and entering the docket number 06-4611) The ruling had nothing to do with Moussaoui’s own appeal, still pending in the Fourth Circuit (docket 06-4494). He pleaded guilty, but avoided the death sentence. His appeal is challenging various trial procedures, including denial of access to terrorist leaders, detained by the U.S. government overseas, as potential defense witnesses about his claim of a lack of a role in the 9/11 attacks.
Much of the opinion Wednesday was devoted to the issue of whether the government had a right to appeal Brinkema’s documentary release orders. The Court noted the general rule against allowing the government to appeal in criminal cases, except in very rare circumstances. But it found an exception, particularly since the documentary evidence dispute was entirely separate from the underlying criminal case. “This case represents one of those rare instances” where the government could appeal, the Court said.
In overturning the trial judge, the Circuit Court ruled that two federal laws upon which she had partly relied in granting access — laws protecting crime victims’ rights and giving 9/11 victims a right to sue in New York federal court — did not provide any authority for her action. It noted that the victims’ lawyers were no longer relying on either of those laws. Instead, they argued that Brinkema had “inherent authority” as a trial judge to grant access. The Circuit Court rejected that argument, too.
The fight over the victims’ plea for access to all of the government’s evidence in the criminal case was a significant sideline proceeding as the criminal trial neared its close. The government did not appeal until after the criminal trial was over.
