The new judge in the USS Cole case declined to step down Monday, saying he can rule in the death-penalty case without bias, but left undecided whether he would let the old judge decide a series of bedrock legal issues after leaving the case.
“It is important to me that the process is actually fair and is perceived as fair,” Air Force Col. Vance Spath told defense attorney Richard Kammen, who challenged his ability to be unbiased.
Abd al Rahim al Nashiri, 49, is accused of orchestrating al-Qaida’s suicide bombing of the warship in October 2000 that killed 17 U.S. sailors. The prosecution seeks his military execution.
One of Nashiri’s defense attorneys, Navy Cmdr. Brian Mizer, is working on the appeal of a death-penalty case Spath prosecuted as a major — the conviction of Senior Airman Andrew P. Witt, sentenced to die for the grisly stabbing slaying of an Air Force couple in Georgia in 2004. Defense lawyers argued the judge, now the chief of the Air Force judiciary, might not treat their side fairly because of Mizer’s bid to overturn Spath’s victory earlier in his career.
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Spath, a two-decade Air Force lawyer, disagreed. “It was a single case, and I haven't paid that much mind to it,” he said at one point, adding that he welcomed Mizer’s work on both cases. “I would have defended Airman Witt as aggressively as I prosecuted him,” he also said.
Spath comes to the case almost three years after Nashiri was formally charged and after nine rounds of pretrial hearings. The chief of the war court judiciary, Army Col. James Pohl, assigned Spath to the case last month, citing potential scheduling conflicts with Guantánamo’s Sept. 11 case, which Pohl has handled since arraignment, too.
But Pohl also said, even after relinquishing the case, that he would rule on a series of outstanding legal issues on which he had already heard arguments and received briefs, something he has yet to do.
By the defense lawyers’ count, that is 59 legal motions. They object, and want Spath to revisit those. Prosecutors defended Pohl’s right to do it but could not cite any example of a judge ruling after reassigning a case.
Spath said he would decide it later, but at one point appeared to float a workaround — Pohl would remove Spath from the case, take it back, rule, and then reassign Spath.
The issue could be pivotal in the timetable toward trial, now scheduled for February.
One legal motion that Pohl has apparently reserved for himself to decide later is so secret it has no name on the war court website and involves secret filings by the prosecution in both the 9/11 and USS Cole cases that defense lawyers cannot see.
The nature of the motion is unknown. But, like Nashiri, the alleged Sept. 11 mastermind Khalid Sheik Mohammed was held for years before Guantánamo in the CIA’s clandestine prison network, where agents waterboarded both men.
Because of the secrecy surrounding the motion, Kammen said after court, it is possible that Pohl already ruled before relinquishing the case but did not share his decision with defense lawyers.
Under questioning by Kammen, the new judge also said in court that he would not share his “personal feelings” about the death penalty, but struggled with the issue.
“I will tell you that I have the concerns that many people have. The cost, if it is administered fairly and racially neutral or not, and of course I am not immune to seeing the DNA testing that . . . the attorney from the O.J. [Simpson] case has been involved in,” he said.
But, regardless, he said, “If our country believes the death penalty is appropriate, and I am a trial judge, that's it.”