Posted on 12/13/2001 6:35:32 PM PST by Jean S
WASHINGTON (AP) - The sight and sound of Osama bin Laden gloating over the deaths of Americans could be devastating evidence in any trial arising from the Sept. 11 attacks - if prosecutors managed to get the videotape admitted into court.
"It is the most powerful kind of evidence. It is a virtual confession," said Donald B. Ayer, former deputy attorney general and a former federal prosecutor.
Lawyers said the tape, if irrefutably authentic, is the proof to support many of the charges the United States has made against bin Laden and his al-Qaida terror network.
"There's probably nothing more convincing than (hearing) a defendant, from his own mouth and in a situation where he can speak without reservation, condemn himself," said Michael Rosemond, president of the Criminal Justice Legal Foundation.
The homemade tape released Thursday by the Bush administration apparently shows the accused terrorist recounting how the assault on the World Trade Center succeeded beyond even his expectations.
Bin Laden sketches a tantalizing view of the planning behind the airline crashes, and how he knew details secret even from most of the men who hijacked the planes.
"I'd certainly try to get it in front of the jury," said Andrew McBride, a former senior Justice Department lawyer and federal prosecutor in death penalty cases.
It would be easier to use the tape against bin Laden himself, should he be captured and tried in a U.S. court, than against alleged conspirators, lawyers said.
"He clearly indicates a familiarity with the act, foreknowledge of it in detail ... how many people were expected to be killed," former Attorney General Richard Thornburgh said.
It is less clear how many others had similar knowledge, although bin Laden does use the pronoun "we."
To use the tape against someone charged as a bin Laden conspirator, such as a French national indicted this week in Virginia, prosecutors would need to show an ongoing connection between bin Laden and the second person. The government probably also would have to show that the accused conspirator was an al-Qaida member.
The government alleges such a link in the case of Zacarias Moussaoui, the man charged this week, but would have to back it up in pretrial negotiations.
"It could be used in a conspiracy trial for a member of al-Qaida because it shows al-Qaida's involvement in the attacks," said lawyer Thomas Goldstein, who has taught the rules of evidence at American University's law school.
"If they charge anyone as part of a broader conspiracy, then the actions of all the conspirators are relevant."
Bin Laden or other conspirators may also be tried before military tribunals where rules of evidence probably would be looser, lawyers said. The Pentagon is now deciding how such tribunals would work.
Defense lawyers would regard the tape as perhaps the most visceral evidence against either bin Laden or another accused terrorist, no matter how persuasive the government's paper trail or other evidence, lawyers said.
To keep a jury from seeing the tape in court, a defense lawyer would try to convince a judge that the government had failed to prove the tape is for real - that the speaker really is bin Laden, that the tape was not doctored, that the translation is accurate.
"It would most likely come down to a question of authentication," said Suzanne Spaulding, chairman of the American Bar Association's law and national security committee.
The defense would demand an independent forensic review of the tape, in part to see if there are gaps or other suspicious alterations, said John Henry Hingson III, a past president of the National Association of Criminal Defense Lawyers.
"In this day and age of digital wizardry, many things can be done to a tape to alter its verity," Hingson said.
The defense would presumably challenge the government account of how it got hold of the tape from an abandoned house in Afghanistan.
"You'd try to show the tape was planted somehow," said Jay Feinman, a professor at Rutgers University law school.
If the judge were not swayed, the next step would be to try to raise doubts about the tape in the minds of jurors.
The tape would be familiar to nearly every juror, just as the videotaped police beating of Rodney King was familiar to jurors in that case, lawyers said.
Jurors would be chilled and revolted, no matter how many times they had seen the images, said Thornburgh.
"I don't think jurors would be deadened to it. It's ghastly."
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EDITOR'S NOTE - Anne Gearan, a former White House reporter, covers the Supreme Court for The Associated Press
AP-ES-12-13-01 2210EST
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