|
Los Angeles Times – December 26, 2006
Anonymous testimony pushes limits
Defense lawyers say justice isn't served if they can't
know the identities of the Israeli agents
Greg Krikorian
In three current high-profile criminal cases, federal prosecutors have asked that the identities of Israeli government witnesses be withheld from defendants and their attorneys - a move some legal scholars see as a highly unusual end run around the 6th Amendment.
Defense attorneys in all three cases have argued, with mixed results, that allowing U.S. prosecutors to keep the witnesses' identities secret - as demanded by Israel to protect its agents - violates their clients' constitutional right to confront their accusers.
Though courts have allowed witnesses to testify in secured courtrooms or found other ways to protect their identities when they might be in danger, experts say it is extraordinary to keep the identities secret even from defense attorneys.
"It absolutely gives me pause," said Jeffrey L. Fisher, a Stanford University law professor and 6th Amendment expert. "The essence of cross-examination is often being able to do a background investigation on the witness and use that as a lever for questioning their testimony. And if you take that away from a defendant, he is not left with very much."
Fisher added, "I can safely say the Supreme Court has never had a case about testifying under a pseudonym."
In Chicago, a federal judge recently permitted two Israeli agents to testify anonymously against two men accused of aiding the Palestinian group Hamas, designated by the U.S. as a terrorist organization since 1995. Judge Amy J. St. Eve said that the right to learn a witness' identity was "not absolute" and that the use of pseudonyms for the Israeli agents was justified because of their assignments.
"Given the safety issues inherent in revealing the [Israeli] agents' true identities, the government has met its burden that it need not disclose this identifying information," St. Eve said.
In Miami, however, a federal judge rejected a government request that six Israeli undercover police officers testify in disguises and without revealing their identities against a man awaiting trial on charges of trafficking in the drug Ecstasy.
Now a federal judge in Dallas, hearing the Bush administration's highest-profile prosecution of alleged terrorist financiers, is weighing a request to allow two Israeli security officials to testify anonymously in a courtroom closed to the public.
The Texas case involves seven former officials of the now-defunct Holy Land Foundation for Relief and Development, once the nation's largest Islamic charity, which was founded in Los Angeles and later based in Texas. The defendants, all but one a U.S. citizen, are charged with supporting terrorism by sending money to overseas charities that the U.S. and Israel contend are controlled by Hamas…..
http://www.latimes.com/news/printedition/la-na-witnesses26dec26,1,3694525.story
The 6th Amendment to the Constitution, part of the Bill of Rights, was ratified Dec. 15, 1791. The amendment guarantees the right to a speedy trial and to confront witnesses. This is the wording:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
|
