Justice Delayed, Not Denied

Habib Zacarias Moussaoui, gavel, judicial system, american flag, generic CBS/AP

Attorney Andrew Cohen analyzes legal stories and issues for CBSNews.com and CBS News.



The nice thing about the "rocket docket" -- the quick-to-trial scheduling system employed by federal judges in Alexandria, Virginia -- is that a trial can be delayed once or even twice in that austere courthouse and probably still be completed more swiftly than a similar trial in another jurisdiction still plodding along with older, slower scheduling rules. For judges, the "rocket docket" really means never having to say you are sorry. Either justice is really swift -- three months from indictment to trial -- or it is slightly less swift. It's rarely unreasonably delayed or denied.

So while some people no doubt will criticize U.S. District Judge Leonie M. Brinkema for delaying for a few months the terror conspiracy trial of Zacarias Moussaoui, it's worth noting that the high-stakes trial -- delayed as it is -- still will take place less than one year after the so-called "20th hijacker" was first indicted. That's about half as long as it took the federal courts to try Timothy McVeigh, the Oklahoma City bomber, who was indicted in 1995 and didn't stand trial until the spring of 1997. Terry Nichols, meanwhile, McVeigh's terror conspirator, wasn't tried until fully two years after he was indicted.

And just because justice now will be delayed a bit, it most certainly won't be denied -- for either side. The extra two months give to Moussaoui and the "stand-by" attorneys a reasonable opportunity to evaluate a mountain of information the government has turned over in the past few months. It gives them a fighting chance but it shouldn't shift the balance of power in favor of Moussaoui once the trial finally begins. Indeed, given his off-and-on confessions last month, it's hard to conceive of any scenario that would give the defendant an advantage at trial-or any advantage it would not have had had the trial started as scheduled.

The extra two months also protects prosecutors from a reversal on appeal should they get the conviction they are after. Now that Moussaoui has won a round, he and his attorneys won't be able to make the argument that the "rocket docket" unfairly prejudiced them. It's not an argument the defense likely would have won anyway since Moussaoui essentially waived his right to complain about a quick trial when he took over the case from his attorneys. Still, the delay makes it much easier for the government to argue, on appeal, that Moussaoui got a fair deal and wasn't unduly pushed into his capital trial.

Even apart from comparisons with other terrorism cases, and even if you forget all about the "rocket docket" and its foils, one year just isn't that long to bring a capital case from indictment to trial. It's especially reasonable in a case as complex and far-reaching as the one federal prosecutors intend to bring against Moussaoui. Conspiracy cases in general usually take a long time to prosecute and government attorneys already have announced that their case will last weeks and weeks as they try to link Moussaoui to the actual Sept. 11 hijackers and then the hijackers to the actual crime.

Just a cursory glance at the latest indictment against Moussaoui reveals that there are a lot of moving parts to the case. And these moving parts apparently generated additional discovery obligations on the part of the government, prompting prosecutors to hand over to the defense Thursday a significant amount of discovery information. Maybe this latest hand-off convinced Judge Brinkema that pushing ahead with the trial six weeks from now would simply be unfair. Or maybe she was leaning in that direction anyway and the government simply had a bad sense of timing (turning over so much information while the defense had pending a motion arguing that there was too much information to start the trial in September).

Whatever the case, it's Dec. 9 for jury selection and Jan. 6, at least for now, for opening statements. The gap between these two dates suggests that Judge Brinkema figures it will take several weeks to complete jury selection, a length she had not before anticipated. She's figuring, I bet, that Moussaoui's antics this summer will make it much harder for her and the lawyers in the case to get 12 unbiased and objective jurors to evaluate Moussaoui's guilt or innocence. She figures right.

  • David Hancock

    David Hancock is a home page editor for CBSNews.com.

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