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An Assessment of Defense and Prosecutorial Strategies in Terrorism Trials: Implications for State and Federal Prosecutors

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An Assessment of Defense and Prosecutorial Strategies in Terrorism Trials: Implications for State and Federal Prosecutors The author(s) shown below used Federal funds provided by the U.S. Department of Justice and prepared the following final report: Document Title: An Assessment of Defense and Prosecutorial Strategies in Terrorism Trials: Implications for State and Federal Prosecutors Author(s): Chris Shields, Kelly R. Damphousse, Brent L. Smith Document No.: 228276 Date Received: September 2009 Award Number: 2006-IJ-CX-0026 This report has not been published by the U.S. Department of Justice. To provide better customer service, NCJRS has made this Federally- funded grant final report available electronically in addition to traditional paper copies. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. NIJ Grant 2006-IJ-CX-0026 FINAL REPORT An Assessment of Defense and Prosecutorial Strategies in Terrorism Trials: Implications for State and Federal Prosecutors Chris Shields Terrorism Research Center in Fulbright College University of Arkansas Kelly R. Damphousse University of Oklahoma Brent L. Smith Terrorism Research Center in Fulbright College University of Arkansas December 2008 Terrorism Research Center in Fulbright College This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. EXECUTIVE SUMMARY An Assessment of Defense and Prosecutorial Strategies in Terrorism Trials: Implications for State and Federal Prosecutors After the attacks of September 11, 2001, the Department of Justice published several reports claiming success in prosecuting terrorists (e.g., DOJ, 2006). Some academics, politicians, and government officials challenged those claims.1 During this time, there was a dramatic increase in public interest in the outcome of federal terrorism cases, and an increase in the level of attention paid to how the government handles cases.2 Determining whether government has been successful in the war on terrorism is difficult because defendants accused of “terrorism-related” offenses are tried in numerous federal district courts and state courts each year. Few prosecutors have ever faced a politically motivated offender at trial. Those who have, found themselves responding to persons and issues that were very different from those faced in traditional trials. Other than findings from the American Terrorism Study (Smith and Damphousse 1996; 1998; 2003; Smith et al., 2002), little empirical information has been available to provide guidance relative to the prosecution of these offenders. Existing research, which primarily consisted of terrorism cases filed before 9/11, indicated that federal criminal cases involving terrorism defendants differ from other criminal cases in significant ways.3 For example, defendants who were labeled terrorist were more likely to go to trial than non-terrorists, and terrorist defendants were sentenced to significantly longer 1 See, for example, GAO, 2003; and Eggen and Tate, 2005. 2 Different media outlets have levied charges alleging prosecutorial misconduct (Detroit Free Press, 2006) and witness coaching (NPR, 2006). 3 See, for example, Smith and Orvis 1993; Smith 1994; Smith and Damphousse 1996; 1998; Smith et al., 2002. ii Terrorism Research Center in Fulbright College This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. prison sentences than similarly situated non-terrorist defendants.4 Those studies also suggested that there may be important differences between terrorists and non-terrorists with regard to characteristics and processing – that is, prosecuting attorneys and defense attorneys have developed legal strategies unique to federal terrorism cases. This research project involved an examination of federal criminal court cases (1980 - 2004) that were filed after defendants were referred to U.S. Attorneys by the Federal Bureau of Investigation following an official terrorism investigation.5 The study focused on the court room processes and legal strategies that were used by federal prosecutors and criminal defense attorneys from the moment of indictment until the case reached final disposition. Analyses of these events provide state and federal prosecutors with information to assist them in the efficient prosecution of terrorism cases. This research included an examination of the relationships between prosecutorial and defense strategies for the purpose of determining their relationship to case outcomes in terrorism trials. This study also included an analysis of pre- and post-9/11 federal terrorism cases to determine whether terrorism prosecutions have been more or less successful in the post-9/11 era. METHOD To accomplish these goals, data for this project were extracted from several sources: (1) the “American Terrorism Study” (ATS), which includes a statistical database of federal 4 Smith and Damphousse, 1996; 1998; Damphousse and Shields, 2007; Bradley, Damphousse and Smith, 2008 5 Lists of terrorist defendants were compiled by the FBI upon request of either the House Judiciary Subcommittee on Crime or the Senate Judiciary Committee and forwarded to ATS project personnel for further data collection on each case. The lists include only those federal indictments resulting from investigation by the FBI for terrorism-related activities under the “terrorism enterprise” section of the Attorney General Guidelines on General Crimes, Racketeering Enterprises, and Domestic Security/Terrorism Investigations and subsequent editions (1983, 1989, 2002) or in the case of international terrorists, those persons indicted in federal courts as a result of investigation under the Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counter intelligence Investigations. iii Terrorism Research Center in Fulbright College This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. indictments resulting from official FBI terrorism investigations for the period 1980-2004; (2) federal court case records (indictments, dockets, etc.); and (3) information from other open sources, such as newspaper accounts of the trials. The ATS database contains information on over 700 terrorists indicted for 9,633 violations of federal criminal law from 1980-2004. In addition, a former Assistant U.S. Attorney served as a subject matter expert6 to identify important pleadings, motions, and other key events that occur in federal terrorism trials. One hundred-forty new variables were created to measure those factors. Among the new variables are measures that track information about the type of defense attorney used. The database includes variables that measure whether the defendant received bail, and if not, the reason bail was denied. One set of variables track whether a superseding indictment was filed in each case, and another set of variables track the number of counts added or dropped from the original indictment. Counts were coded by statute number and by United States Code Chapter. These data also track defense motions and their outcomes, for example: defense challenges to FISA; motions to suppress physical evidence; motions to suppress electronic surveillance; motions to sever counts; motions to suppress statements, and; an entire range of pro se motions. Similarly, these new data track prosecution motions and outcomes (e.g. whether CIPA protection was sought, motions to exclude defense evidence, challenges to defense strategies, etc.). Data were collected from each case in the ATS database by examining the court case records. The new variables were then coded and entered into a flat-file database. Analysis focused on the following two research questions: 1. Is there a relationship between prosecutorial and defense strategies, and if so, what impact does it have on case outcomes? 2. How did 9/11 impact the way the federal government responds to terrorism? 6 Joe McLean, Former Assistant U.S. Attorney and Head of the Criminal Division (retired 10/04) for the Northern District of Alabama. iv Terrorism Research Center in Fulbright College This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. 1. PROSECUTION AND DEFENSE STRATEGIES Prosecutors sometimes politicize terrorism cases by drawing attention to terrorist defendants’ ideological beliefs or terrorist group membership. In the most politicized cases, prosecutors pursue indictments that tie the defendants’ ideological
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