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Khalid Shaikh Muhammad and the Fruit of the Poisonous Tree

Posted on February 12 2010 9:35 am
John L. Work is a veteran of twenty years of Colorado law enforcement service and a graduate of Cal State Long Beach, B.A. and M.A. He has been a contributor and featured columnist for NewsRealBlog since January of 2010, and a guest columnist for FrontPageMagazine.
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Gather ’round.  Here’s a little-known tale about “The Fruit Of The Poisonous Tree” – or why 9/11 mastermind Khalid Shaikh Muhammad (KSM) and his Muslim terrorist friends may very well walk away as free men.  No, I’m not a lawyer.  But during twenty years of police work I spent enough time in criminal trials as an advisory witness to be able to tell you this story.

During a criminal trial the Court acts much like the referee does in a football game.  The players are the defense and prosecution teams.  During the trial, or the game if you prefer to think of it like that, the Judge explains the law, sustains or over-rules challenges (objections) from either side, decides what testimony and evidence are admissible, ensures that both teams stay in bounds, and can throw a penalty flag (impose sanctions) if either team violates the rules.  At what can be described as a recent sort of pre-game hype press conference White House Press Secretary Robert Gibbs made some rather startling predictions about KSM’s trial that any lawyer, including President Obama and Attorney General Eric Holder, knows are not very likely to come true.  Don’t worry, we’ll get to that poisoned tree down the page a bit. The Reuters story is here:

By Alan Elsner

WASHINGTON, Jan 31 (Reuters) – Accused Sept. 11 plotter Khalid Sheikh Mohammed will be tried and convicted and is likely to be executed, White House spokesman Robert Gibbs said on Sunday.

Interviewed on CNN’s “State of the Union,” show, Gibbs said: “Khalid Sheikh Mohammed is going to meet justice and he’s going to meet his maker. He will be brought to justice and he’s likely to be executed for the heinous crimes he committed.”…

One penalty that a Judge will certainly impose on the prosecution team is to throw out any confession obtained through coercion or while the defendant is under duress.  It is well-known that Muhammad was water-boarded prior to confessing in writing to the Gitmo Military Tribunal that he masterminded the 9/11 attacks.  He also confessed to beheading Wall Street Journal reporter Daniel Pearl in Karachi, Pakistan.

Eric Holder says he can get Muhammad convicted, but I don’t see how – not in a Civilian Court of Law.  In all the Courtrooms where I testified, coerced confessions are inadmissible.  And here’s the salient point of my story.  Arrests of other defendants, and all evidence gathered thereby for their prosecutions, that result from the original coerced confession are illegal and inadmissible in a civilian Court of Law by the “Fruit of The Poisonous Tree Doctrine”.

Ergo, some of KSM’s terrorist pals may also very well be set free.  This trial is going to end badly for the American People.  Taking Khalid Shaikh Muhammad from a Military Tribunal and handing him over to a Civilian Criminal Court is a terrible mistake.  He should be tried at Gitmo.

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