Related news coverage of this case: >http://www.nynewsday.com/news/local/crime/nyc-nylynn063527720nov06,0,5501696.story?coll=nyc-manheadlines-crime >A federal judge refused to toss out the remaining conspiracy charge >against civil rights lawyer Lynne Stewart yesterday, saying that the U.S. >attorney's office in Manhattan had made no agreement to avoid prosecuting her. >Stewart, who represented Sheik Omar Abdel Rahman, who was convicted of >plotting to bomb New York City landmarks in 1995, was indicted last year >on charges she and two others had served as the secret conduit between the >cleric and his followers in the terrorist organization known as the >Islamic Group. [...] --- UNITED STATES OF AMERICA - against - AHMED ABDEL SATTAR, a/k/a "Abu Omar," a/k/a "Dr. Ahmed," YASSIR AL-SIRRI, a/k/a "Abu Ammar," LYNNE STEWART, and MOHAMMED YOUSRY, Defendants. 02 Cr. 395 (JGK) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK November 3, 2003, Decided November 5, 2003, Filed --- Defendant Stewart has moved for an evidentiary hearing on both "government noncompliance with discovery obligations, principally concerning electronic surveillance evidence," and the "admissibility of electronic surveillance evidence." (Notice of Mot. dated July 25, 2003, at 1.) Stewart contends that the motion is warranted because the Government has acknowledged that it is unable to retrieve roughly two percent of the unminimized voice calls recorded pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA") pertinent to this case, and because the FBI's procedures for handling electronic evidence allegedly raise doubts about the admissibility of the electronic surveillance evidence. For the reasons that follow, the motion is denied. ... Stewart's motion is without any merit because she can show neither materiality nor bad faith. Stewart provides no support for her conclusory allegations that the irretrievable evidence is exculpatory. She insists that the tapes would be exculpatory because the "electronic surveillance files, taken as a whole, would exculpate Lynne Stewart because they show a conscientious, ethical lawyer doing her job," and because they show "that most of the conversations are in a language she does not speak or understand." (Reply Declaration of Michael E. Tigar dated Sept. 29, 2003, at P 3.) These statements do not even attempt to analyze the tech cuts for the 114 audio files to show why those audio files would be relevant to Stewart or the proffered generalizations. Nor is there any effort to place the specific audio files in context to lend any credence to any allegation that those conversations would be relevant, much less exculpatory for Stewart. Similarly, having had access for many months to the thousands of audio files, including those that the FBI did not think pertinent enough even to summarize at the time, there is no showing from the context of those audio files that the unretrieved and [*9] unsummarized conversations are exculpatory in any way for Stewart. Finally, there is no showing why the unretrieved conversations are significant in showing that most of the conversations are in a language Stewart does not understand. The language on the tapes can be deduced from the overwhelming number of conversations that have been produced, and there is no showing that Stewart was even a participant in any of the unretrieved conversations. Stewart's motion to sanction the Government for failure to preserve all of the audio files also fails for the independent reason that she has not shown any bad faith on the part of the Government. Stewart contends that the Government's bad faith is evident in the FBI's alleged track record for sloppiness in storing and retrieving electronic evidence, an allegation she supports by referring to various public records, articles, and websites that have been critical of the FBI in this regard. ... Stewart contends that the deletion or non-disclosure of the underlying electronic file formats amounts to destruction of the original evidence for purposes of the best evidence rule, as well as destruction of potentially exculpatory evidence. However, it is plain under the legal standard discussed above that no sanctions are warranted against the Government because Stewart has made no showing that the underlying electronic files contain exculpatory evidence or that the Government deleted the files in bad faith. Indeed, the Government proffers that the materials disclosed to the defendants exactly replicate the fax and internet images that were recorded pursuant to FISA and that were accessed by the FBI in the course of the intelligence investigation. ... _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
This archive was generated by hypermail 2b30 : Fri Nov 07 2003 - 08:08:29 PST