Thursday, February 26, 2009

Plea Likely from Iraq Terror Suspect

The Washington Post reports that a Dutch national accused of planting roadside bombs in Iraq is expected to plead guilty today. The case represents the first prosecution of an alleged Iraqi insurgent in a U.S. Courtroom.

Wesam al-Delaema, 36, was indicted by a federal grand jury in Washington on charges that include conspiring to murder U.S. citizens and possessing a destructive device during a crime of violence. . . .

[Delaema] was arrested by Dutch authorities in May 2005 and extradited to the United States in early 2007.

Authorities have alleged that Delaema traveled to Iraq in 2003 and was a member of the group Mujaheddin From Fallujah, which deployed roadside bombs.

On a videotape seized from his Dutch home, Delaema and other alleged insurgents were shown making, planting and discussing explosives intended to harm U.S. troops operating near Fallujah, authorities have said. On the video, Delaema said in Arabic that "we have executed several operations, and most of them were successful."

Dutch authorities began to investigate Delaema because they thought he may have participated in the 2004 killing of Nicholas Berg, a 26-year-old American businessman, prosecutors have written in court documents. . . .

After a lengthy wiretap investigation of Delaema that turned up discussions of insurgent attacks in Iraq and local crimes, Dutch authorities arrested him, prosecutors have said.

More recently, Delaema was charged with assaulting a corrections officer at the D.C. jail.

Any sentence imposed would be served in the Netherlands. As part of the extradition deal, U.S. authorities agreed not to send Delaema to the U.S. military prison in Guantanamo Bay, Cuba, and agreed that he would serve his prison time in his home country.

Interestingly, Dutch officials may amend any sentence imposed in the case.

Tuesday, February 3, 2009

Should Plea Bargains Be Available On-Line?

Doug Berman over at the Sentencing Law and Policy blog has an interesting post regarding a National Law Journal article about a federal judge who has defied the DOJ's wishes and ordered all plea agreements to be posted online. Here is a portion of the National Law Journal article.

Chief Judge Federico Moreno of the Southern District of Florida, bucking the wishes of the U.S. Department of Justice, has ordered all plea agreements to be posted online.

In an order issued on Jan. 22, Moreno stated that as of Feb. 20, all plea agreements "will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an order in advance directing the sealing or otherwise restricting a plea agreement." Moreno's order rescinds a previous order of April 2007 taking all plea agreements offline and making them accessible for physical viewing only at the courthouse.

The issue of whetherplea agreements should be publicly available, able to be viewed electronically through the PACER system, is a controversial one, pitting prosecutors against defense lawyers and First Amendment advocates. In 2007, the Justice Department asked the Judicial Conference to restrict electronic access to plea and cooperation agreements in order to keep information about cooperating witnesses secret.

The Justice Department was concerned about a new Web site,, which was posting information about all cooperators in federal cases. "We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as for the clear purpose of witness intimidation, retaliation and harassment," stated the Justice Department's memo to the courts. The Southern District of Florida, like most other courts around the nation, complied, taking pleas off PACER.

But defense attorneys, First Amendment advocates and the federal public defender's office protested, arguing that the public's right to know about the court system was being impaired.

In 2007, the National Association of Criminal Defense Lawyers passed a resolution opposing the exclusion of plea agreements from PACER.

Moreno ordered a study of the situation and held an en banc hearing, with representatives from both the's office and defense bar. After the hearing, most of the district judges agreed to rescind the previous order and make plea agreements public again, stated the order.

"The sense of the Court is that the public's interest in access must prevail in this instance and that restricting access to all plea agreements is overly broad," states Moreno's order. "Other means are available to the prosecution and defense to insure that the public record does not contain information about cooperation agreements in those instance where the interests of safety or other considerations require different treatment." Judges can still seal plea agreements in individual cases, he noted.

Monday, February 2, 2009

South Dakota Post-Conviction DNA Testing - But What About Plea Bargains?

According to the Argus Leader, South Dakota may soon get post-conviction DNA testing.

Some inmates in the state prison system could have DNA evidence tested to determine whether they were wrongly convicted if a bill in the Legislature becomes law. House Bill 1166, introduced Wednesday, has four Republican sponsors in the House and two Republicans and one Democrat in the Senate. The bill would let felony convicts petition for DNA testing if the evidence exists and if there were questions about identity in their prosecutions.

The bill has the backing of the local chapter of the Innocence Project, a national group that has pushed to expand post-conviction DNA testing at the state and federal level. Evidence lockers across the nation contain evidence of rapes and murders that were committed before science enabled investigators to use DNA to identify perpetrators.

DNA testing has enabled law enforcement agencies across the nation to solve old cases. But the tests also have helped those who were wrongly convicted. More than 230 people nationwide have been exonerated because of post-conviction DNA testing, according to the Innocence Project.

Forty-four states already have similar legislation, according to University of South Dakota law professor Chris Hutton. Hutton is the faculty adviser for the local chapter of the Innocence Project, which includes law students and volunteer lawyers.

An interesting post by the Innocence Project of Florida notes, however, that the South Dakota bill excludes DNA testing for individuals who plead guilty to a crime. This type of exclusion from post-conviction DNA testing statutes has been fairly common in recent years.

The only worry in South Dakota appears to be that convicts who pled to their crimes will be denied access to testing. This is troubling because, as we know, people often plead guilty to crimes they did not commit. The only criterion for access to post-conviction DNA testing should be an inmate's ability to inject a reasonable doubt into their prior conviction.

Chris Hutton, the faculty advisor for the South Dakota chapter of the Innocence Project commented, "Everybody from the attorney general on down realizes mistakes can be made."