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Questionable justice during 'terror sting' trial

JOAN FUCILLO / Times Union | October 16 2006

In his instructions prior to closing arguments in the Albany "terror sting" case (pizza shop owner allegedly agrees to launder money for missile sale to terrorists; such "contract" allegedly witnessed by local imam), U.S. District Judge Thomas McAvoy told the jurors that the FBI's "certain valid suspicions" about the defendants had prompted the federal sting.

However, under the current regulations, jurors could neither hear nor consider the evidence that prompted the sting operation in the first place; the validity of the FBI's "suspicions" must be taken on faith.

This kind of "wink-and-nod" support for one side or another in a criminal case can result in even the most compelling case being reversed on appeal. But "terror" prosecutions are not normal prosecutions, and evidence against defendants can be withheld. This departure from our established justice system puts judges in an awkward position.

In "terror" trials the reasons for collecting, and the conclusions derived from, uncorroborated "secret" government evidence are often framed as the unvarnished truth. When judges allow this to occur, and do not insert the essential caveat (the FBI believes it had certain valid reasons), they lose sight of their commission to ensure a fair trial and to rule on the law. When they directly participate in such framing, they cross the line from judge to advocate.

In instructing the jurors to take on faith one side's position over another's, Judge McAvoy, whether intentionally or not, used his office to urge a particular result in a trial over which he presided. Even now, this is not what it means to be a "judge."

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