Posted on 07/12/2002 11:38:38 PM PDT by JohnHuang2
LEXANDRIA, Va., July 12 — With critical legal arguments beginning next week in the government's case against John Walker Lindh, the judge ruled today that his lawyers should be able to question in court a reporter who interviewed Mr. Lindh shortly after his capture in Afghanistan.
Judge T. S. Ellis III, who is presiding over Mr. Lindh's trial in Federal District Court here, ruled that the defense may call as a witness Robert Young Pelton, a writer who was working as a CNN correspondent when United States forces realized that one of their Taliban captives, Mr. Lindh, was an American.
Mr. Pelton interviewed Mr. Lindh on Dec. 1, 2001, and the defense wants the judge to exclude from the trial the videotape, in which Mr. Lindh is heard to describe his movements in the weeks before his capture and to say that he wanted to get involved in a jihad, or holy war.
The CNN interview is one of several Mr. Lindh gave in the days after his capture, but all the others were with American military officials. In seeking to have all those statements excluded, the defense asserts that he was never told by officials of his right to remain silent and that he was so physically debilitated by a bullet wound and by being held in a basement prison he could not properly consent to the questioning.
Prosecutors have argued that he was not entitled to the rights guaranteed to civilians because he was captured abroad in a theater of war.
Essentially, the 10-count case against Mr. Lindh is knit together almost entirely from his own candid accounts of involvement with Al Qaeda and the Taliban. A hearing scheduled to begin on Monday on the defense's motions to suppress all of his remarks to various questioners is viewed by both sides as critical to the government's case.
The hearing today was over the narrower issue of whether the defense may call Mr. Pelton for testimony about Mr. Lindh's physical condition. The defense lawyers have also said they want to show that Mr. Pelton acted as an agent of the government in the interview because friends in the Green Beret units helped him gain access to Mr. Lindh.
If Mr. Pelton were simply a journalist there would be no issue of whether Mr. Lindh needed to have been read his rights for that interview. But if Mr. Pelton was acting as an agent of the government, the lawyers have argued, Mr. Lindh should have been read his rights before that interview as well.
Judge Ellis dismissed arguments by Mr. Pelton's lawyers and those of several news organizations, including The New York Times, that the subpoena to him from the defense team should be quashed. James C. Roberts, a Richmond lawyer who represented Mr. Pelton, argued that forcing him to testify would put him in immense danger if he returned to the region.
"It would be like putting a target on his back," Mr. Roberts said today, citing the case of Daniel Pearl, the reporter for The Wall Street Journal who was killed in Pakistan.
Judge Ellis said Mr. Lindh's right to a fair trial was more important than Mr. Pelton's wish to remain out of court. Moreover, citing a 1972 Supreme Court ruling, he said there was no reporters' privilege in federal law to avoid testifying.
"I don't think the danger to foreign correspondents throws out the obligation to come and testify and give relevant information," the judge said.
Judge Ellis added that he might reconsider the need to call Mr. Pelton during the week after other witnesses testified.
The ruling may have been a victory for Mr. Lindh, who is accused of conspiracy to murder Americans and other charges, but the judge also demonstrated an inclination to be critical of the defense.
At one point, he had some unusually loud exchanges with Mr. Lindh's chief lawyer, James Brosnahan. Judge Ellis said that he did not want to spend too long next week looking at video evidence and that Mr. Brosnahan should submit still photos instead.
"Your Honor has just limited our ability to present our case," Mr. Brosnahan said.
"We're not going to proceed as if this was some sort of show business here," Judge Ellis angrily replied.
Mr. Brosnahan said that in 43 years of practicing law he had never heard of a judge issuing such restrictions on presentation of evidence and establishing a record for an appeal. Both men raised their voices and spoke over each other and Judge Ellis eventually ordered Mr. Brosnahan to sit down.
Mr. Lindh, wearing a green prison jumpsuit and looking pallid and thin, sat alongside Mr. Brosnahan during the hearing.
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