to a Fair Trial for Noriega
By Victoria Toensing
what the law actually says is not nearly as exciting to the media as hearing
William Kunstler say that Gen. Manuel Noriega's trial is "pre-determined"
because the judges are paid by the federal government. But at least four issues'
relating to the trial have been mangled by the press. Let's straighten
Gen. Noriega be made to stand trial if the invasion of Panama does not pass
scrutiny under "international law"?
century-old legal doctrine holds that the courts will not consider the
manner by which a defendant is brought into custody unless his lawyers can
establish "deliberate, unnecessary and unreasonable invasion of the
accused's constitutional rights." And the courts take a narrow view of
agents have a valid arrest warrant for a person, the courts have said,
they can grab him on the streets. throw him to the ground and
handcuff him. They can, it's clear, use ruses to pressure or fool him into
succumbing. Without doubt, therefore, they can arrest someone who
voluntarily walks from his place of hiding and submits to arrest, as Gen.
all the publicity deprive Gen. Noriega of a fair trial?
does not require a jury to be ignorant of the facts about the charges
against Gen. Noriega or his arrest. It only requires that the jury use the
evidence admitted into the trial - and nothing else- to
decide whether the government has proven that the defendant violated the
Noriega's case is not to be confused with that of Oliver North. Mr.
North's jury had to be "ignorant" because Mr. North had been
forced by Congress to testify in a televised hearing. Because the Fifth
Amendment forbids the state to compel anyone to testify against himself,
Congress had to grant Mr. North immunity for any statement made during his
testimony. No one who had watched the hearing or who had read or listened
to press reports was allowed onto his jury.
that's why Gen. Noriega's defense attorneys feel free to hop from one
national television show to another, decrying pre-trial publicity.
the government have to dismiss charges because of all the classified information
government and defendant would proceed to trial In cases involving
classified documents, only to have the Justice Department drop the case
because the national security agencies would not declassify what was needed
for the defendant to present his defense. This was an absurd situation,
and to correct it Congress passed the Classified Information Procedures Act
(CIPA) in 1979.
works basically as follows: The defendant tells the court of specific
information or categories of information he deems essential to his defense.
(An aggressive defense counsel will make the requests as broad and
inclusive as possible.) For example, Gen. Noriega might claim he was an
informant for the CIA and that the agency knew he was meeting with narcotics
traffickers. Therefore he would request any and all files held by the U.S.
government (not just the CIA) containing his name or the name of any member
of a Latin American drug cartel.
then reviews these requests and makes a determination. It could respond
to the above maneuver by ruling that it does not constitute a valid defense
and that the material would therefore be denied. Or it could decide to
declassify only files containing Gen. Noriega's name as well as those of
specific traffickers with whom he was actually dealing. If either side
is unhappy with the final ruling of the trial judge, and the parties cannot
themselves reach agreement, there can be a pre-trial appeal.
Gen. Noriega's case is once again vastly different from Mr. North's. Gen.
Noriega has been indicted for narcotics violations, not on a charge that
goes to the heart of how our government functioned during some very
sensitive covert actions. As well, Mr. North had access to many
government secrets because of his long-time government tenure. Gen.
Noriega presumably was only a paid purveyor of information to the
U.S. government. He might also reveal what our government wanted to know
from him or how much money he was paid. or he could flash his letters of
appreciation from U.S. government officials. But these are not areas
that cause U.S. national security agencies to chew their fingernails to the
Gen. Noriega pleads guilty in return for a specific prison term,
will the U.S. be seen to have caved in?
President Bush said "We don't make deals with terrorists and drug
dealers," he meant we do not let them go free, not that the government
will reject a plea of guilty where the defendant is imprisoned for a
substantial number of years. Gen. Noriega is subject to two indictments,
each of which carries sentences totaling more than a hundred years. What
great victory is there for the government for him to go to trial on all
these counts and be found guilty on each of them when, in fact, his
natural lifetime will not equal the total number of possible sentence years?
is no reason to doubt that Gen. Noriega can receive what is, by all the precedents
of our law, a fair trial. So let the case be brought.