In a fresh threat to progress in the Sept. 11 conspiracy trial, an alleged 9/11 plotter announced Wednesday that he was firing his Pentagon-paid death-penalty defender of four years, and wanted a new lawyer.
The 9/11 trial judge, Army Col. James L. Pohl, told the alleged terrorist, Walid bin Attash, that at the war court the judge decides if a captive can get a new lawyer. The judge then met for 25 minutes in a closed session with bin Attash and his troubled legal team, including the lawyer he wants replaced, Chicago criminal attorney Cheryl Bormann, to see if there was “good cause” to fire her.
Case prosecutors opposed Bormann’s dismissal, which experts consulted by the Herald predicted could delay the next hearings in the five-man conspiracy trial by six months to more than a year. Pohl could decide the issue as early as Thursday morning.
Bormann had represented the Yemeni since before the five defendants were formally charged May, 5, 2012, as the alleged architects of the terror attacks that killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon. She always turns up in court in a stern black cloak and head scarf worn by modest Muslim women, she said, as an accommodation to her client’s traditions.
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Bin Attash, in his mid 30s, is the youngest of the five defendants, and is described in the charge sheet as the most militant. He lost a leg in a 1997 battlefield accident in Afghanistan.
There’s been no explanation for what went wrong between them, but the relationship had clearly frayed by last Monday, the start of this two-week hearing. Bormann announced in court that bin Attash wasn’t speaking to her and wanted to know how he could function as his own defense attorney.
Also last week, the Miami Herald has learned, Bormann fired a long-serving mitigation expert on her team who had consulted frequently with the Yemeni captive. The expert was abruptly was flown off the base Friday.
Mitigation experts help capital defense attorneys prepare for the sentencing phase of a death-penalty trial by researching and assembling evidence and an argument for why a convict should not be executed.
Wednesday in court, bin Attash was mostly consulting with a junior defense lawyer on the case, Air Force Maj. Michael Schwartz, about how to explain to Pohl why he wanted a new attorney. At one point, Schwartz said he had a conflict: Bin Attash was his client but Bormann was his boss.
Then it looked like Pohl was going to question bin Attash in open court.
But then Bormann interjected that would risk airing privileged defense strategy to the prosecution.
So, over the objections of prosecutors, the judge had the courtroom cleared to hear from bin Attash, Bormann and Schwartz. The alleged plot architect, Khalid Sheik Mohammed, asked to join the discussion. The judge said no.
Court reporters were creating a transcript of their 25-minute session for Bormann to censor out information about defense strategy that bin Attash would need to keep confidential — whether or not she continues as lawyer.
If Pohl permits bin Attash to fire Bormann, experts say, pretrial hearings would have to stop until the chief defense counsel, Marine Gen. John Baker, hires a seasoned death-penalty defender, a “learned counsel.” In addition, that American lawyer would need to get security clearance, be accepted by bin Attash and catch up on the case.
Veteran death-penalty defender Rick Kammen, hired by the Pentagon as lead lawyer in the now-stayed USS Cole war crimes case, estimated it would take at least a year to replace Bormann and resume proceedings. And he predicted that not many in the learned counsel pool would be eager to sign on to the case because of the time, travel and security restrictions of working at Guantánamo.
“Word is out in the death-penalty community about what this court is like,” he said by telephone from his office in Indianapolis.
Moreover, Kammen said, the loss of the bin Attash team mitigation specialist was also a setback to trial preparation.
Pohl has not set a date for the complex capital murder case, and each session seems to bring a new challenge.
The judge and lawyers spent much of last week crafting a warning-laden script that the judge would read to any Sept. 11 case defendant who decides to fire his lawyer and defend himself. That process brought discovery of a secret Pentagon program at Guantánamo that the judge was not initially allowed to know.
This case in particular hampers self representation because the CIA held the five alleged terrorists incommunicado — no lawyers, no International Red Cross access — for three and four years before their transfer to a secret prison camp at Guantánamo. Aspects of their present prison, Camp 7, and their prior CIA captivity are still classified, and only their American lawyers can see some of the evidence that could be used at trial.