Court refuses to hear Moussaoui, recess appointments cases
on Mar 21, 2005 at 10:03 am
The Supreme Court on Monday refused to hear an appeal by Zacarias Moussaoui, the only person charged with a crime in the U.S. for a role in the September 11, 2001, terrorist attacks. As usual, the Court gave no reason for denying review — an action that sets the stage for a trial in federal court in Alexandria, Va., perhaps later this year.
The Court granted review of no new cases Monday.
In other orders, the Court finally acted on three cases testing the constitutionality of the president’s temporary appointment of federal judges during brief recesses of the Senate. The Court denied review of all three. In one, Justice John Paul Stevens said there were “significant constitutional questions” at stake, but noted that “there are valid prudential reasons supporting the decision to deny certiorari.” That case was Evans v. Stephens (04-828). The others were Miller v. U.S. (04-38) and Franklin v. U.S (04-5858).
In the Evans case, Stevens said in a separate opinion: “It would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession ‘recesses.’â€
Although the other members of the Court made no comment, it may be that they are awaiting a case in which there is a final order by an Eleventh Circuit panel one of whose members was the recess appointee involved in the controversy – Circuit Judge William H. Pryor, Jr.
The denial of review in the case of Moussaoui v. U.S. (04-8385) means that the French citizen of Moroccan descent must face trial – and a potential death penalty if convicted – on four counts of conspiracy to carry out terrorist attacks. The government will be free to offer emotionally charged evidence about the 2001 terrorist attacks as part of its case attempting to show that Moussaoui shared the blame for the 3,000 deaths that occurred in the assaults on the World Trade Center, the Pentagon, and on an aircraft that crashed in Pennsylvania that day.
The Justices’ refusal to hear Moussaoui’s appeal clears the way for the use of an unprecedented procedure at the trial on the use of testimony that could be favorable to the defense. Moussaoui contends that three Al Qaeda operatives, now being held captive overseas by U.S. authorities, could give testimony that would help him show that he was not a part of the 2001 attacks. But, under the Fourth Circuit ruling in his case, Moussaoui has no access to those three, directly or indirectly – except through an uncertain attempt to pose written questions. Instead of actual testimony of those three, the defense will be able to offer summaries of statements they reportedly made to U.S. interrogators. Those summaries are to be compiled from intelligence reports, through an interactive process involving the lawyers for both sides and the trial judge, U.S. District Judge Leonie M. Brinkema in Alexandria, Va.
That process may take weeks, and perhaps months, indicating that Moussaoui is not likely to go on trial until at least next Fall.
Besides denying review of his appeal and the challenges to Judge Pryor’s recess appointment, the Court also refused to hear a significant case on the authority of states to favor one of their own in-state business over another – in this case, an Oklahoma law that gives funeral directors a monopoly in the sale of caskets (Powers v. Harris, 04-716). And it declined review of an appeal by Philip Morris USA, seeking to overturn a California jury verdict of $1.5 million in compensatory damages and $9 million in punitive damages for a California woman smoker who claims she was addicted to cigarettes as a teenager, because of youth-targeted advertising (Philip Morris v. Henley, 04-816).
