United States v. Ghailani (S.D.N.Y. Aug. 17, 2010)

* United States v. Ghailani (S.D.N.Y. Aug. 17, 2010)

In a 36-page, partially-redacted opinion that recently became available to the public, Judge Kaplan addressed a motion by Ahmed Ghailani (charged with involvement in the 1998 East African embassy bombings) to suppress testimony from a government witness. In brief, Ghailani argues that this person’s testimony would be fruit of the poisonous tree, apparently on the theory that the government only learned of this person by interrogating Ghailani in a coercive manner and without counsel.

The government responded first that it would inevitably have discovered this individual in any event. Judge Kaplan concluded that the government did not make the case that it would have. (p.22)

The government responded next that the exclusionary rule ought not to be applied in this setting (interrogation for purposes of obtaining national security-related intelligence), as this is beyond the “core application” of the exclusionary rule. Judge Kaplan concluded, however, that the “rationale of the core application doctrine does not apply to this motion as it does in search and seizure cases.” (p.26)

Finally, the government responded that in any event that the relationship between the interrogation of Ghailani and the proposed witness testimony in question is too attenuated to warrant exclusion on taint grounds. Judge Kaplan agreed that attenuation analysis can be applied in this setting, and reviewed the various factors pertinent to that analysis:

Willingness of the witness to testify voluntarily: Judge Kaplan describes the evidence on this point as mixed

Extent to which witness cooperation was induced by use of illegally-obtained evidence: mostly redacted

Proximity of the coercion, the witness’s decision to cooperate, and trial: again, mostly redacted

Government motivation for interrogation: partially redacted, but it is clear that the court found this factor to favor the government.

The opinion concludes by calling for an evidentiary hearing to resolve the uncertainty regarding factors 1-3, and scheduling that hearing for 9/14/10.

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