TRIALS BY FIRE - Belfer Center for Science and International Affairs

live.belfercenter.org

TRIALS BY FIRE - Belfer Center for Science and International Affairs

Prudential Searches: Under the seminal cases Brady v. Maryland 347 and Gigliov. United States, 348 prosecutors have a “prudential search” duty to disclose exculpatoryinformation. In terrorism cases, this means that information in thefiles of law enforcement and intelligence agencies that relate to the trial mustsometimes be turned over to the defense. This duty can be difficult to fulfilleven in ordinary trials, as it is ambiguous how far the prosecutor’s obligationextends.In terrorism cases, prosecutors may have particular difficulty fulfilling Bradyand Giglio obligations since agencies frequently hesitate to turn over sensitiveinformation, given that justifiable concerns remain about protecting ‘sourcesand methods.’ Failing to disclose Brady and Giglio information may lead toreversals or other serious problems for prosecutors.SentencingCivilian judges generally hand down stiff sentences in terrorism cases. Accordingto the New York University School of Law’s Terrorist Trial ReportCard, 349 between 2001 and 2009, prosecutors indicted defendants on terrorismcharges or related national security violations in 828 trials. Of these trials, 88.8percent resulted in convictions for some crime, and 78 percent resulted inconvictions for terrorism or national security violations. The average sentencein these cases was 5.6 years, and the average sentence for persons convicted ofterrorism was 16 years.Thus, in large part due to post-9/11 reforms, prosecutors have a number oftools available to them when trying suspected terrorists. Moreover, judges atthe sentencing stage appear willing to incarcerate terrorists for substantial periodsof time.Notwithstanding, significant obstacles to successful prosecution remain. PresidentObama’s decision to try several Guantanamo detainees in federal courthas illustrated the complexity of these issues. It has also raised new evidentiaryquestions about trying terrorists subjected to harsh interrogation methods.124 Trials by Fire: Counterterrorism and the Law

More magazines by this user
Similar magazines