A war crimes prosecutor on Tuesday asked the judge to put 2,976 death certificates of the people killed on 9/11 directly into the pretrial record, a request defense lawyers charged triggered a constitutional tripwire.
“We’re offering them to prove that they died on that date as victims of the attacks on Sept. 11,” prosecutor Ed Ryan told the judge, Army Col. James L. Pohl. They were under seal at least until a military jury is empaneled for a trial whose date is still uncertain.
Defense lawyers for the five men accused of orchestrating the Sept. 11, 2001 hijackings said the law required witnesses to be questioned on each document’s contents. Defense attorney Edwin Perry, representing alleged plot deputy Walid bin Attash, accused the prosecution of trying to “cut corners, do an end run around the 6th Amendment and Confrontation Clause” of the U.S. Constitution.
Ryan told the judge to use a different standard and conclude that the death certificates were business records entitled to a hearsay rule exception. He also called them “non-testimonial,” not subject to cross-examination. Pre-admission of this “voluminous evidence” without challenge and before a jury selection would “streamline the presentation of evidence at trial, which will conserve precious judicial and military time and resources,” his court filing said.
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Tuesday offered a rare mention of the the victims of the worst terror attack on U.S. soil across four years of pretrial proceedings. The sides have mostly sparred over resources, the prisoners’ ability to work with their lawyers and allegations of torture and information about the CIA black sites where the accused terrorists were held for three to four years before September 2006.
Court filings show the death certificates were created by seven or more different entities, mostly the New York City Medical Examiner’s Office, which handled the remains of the dead recovered from Ground Zero. But the hijackers also crashed planes at the Pentagon and a field in Pennsylvania so the records included documents from the Commonwealth of Virginia, a Pennsylvania coroner and the Department of the Army, which provided a casualty report. In some instances, Ryan said, state judges declared a person dead where no remains were recovered.
To use them, the defense lawyers argued, prosecutors would have to stream coroners, perhaps circuit court judges and other original witnesses to the documentation through the war court to be questioned about each death certificate’s contents. And it would have to happen at trial, with the jury seated.
One defender, Buffalo attorney Jim Harrington, told the judge that blacking out the circumstances and causes of death could meet the business record standard.
Each side argued that Justice Antonin Scalia’s landmark 2004 opinion in Crawford v. Washington supported their argument on whether defense lawyers could or could not cross-examine the creator of a document.
No date has been set for the war crimes trial. Prosecutors are seeking the death penalty if alleged mastermind Khalid Sheik Mohammed and his four accused accomplices are convicted. When defense lawyers argued in another portion of the hearing for internal Pentagon memos on an unlawful influence motion, case prosecutor Bob Swann replied with, “2,976 men, women and children were summarily executed. Over 3,000 children were left fatherless, motherless or without grandparents.”
See the death certificates court pleadings here.