Umar Farouk Abdulmutallab: Flurry of Motions, Trial to Begin in October

The trial of accused "underwear bomber" Umar Farouk Abdulmutallab will begin in October. Next week, potential jurors will begin filling out questionnaires. Abdulmutallab is representing himself, with the assistance of standby counsel Anthony Chambers.

Here's what's happened in the case recently: Abdulmutallab filed motions to suppress his statements made during interrogations at the University of Michigan Hospital and Milan Correctional Center. The Government responded it won't seek to introduce his statements made while detained at Milan. As to the hospital statements, Abdulmutallab argues the statements were not voluntary because he had been administered Fetanyl for pain and that the public safety exception did not apply because the agents asked so many questions that had nothing to do with any emergency: [More...]

From his Response to Government's Opposition to Motion to Suppress: He argues that despite the fact that "hospital staff clearly told them he could not be interviewed for another four to six hours because his will was overborne by the pain medication":

When the interview was conducted, Defendant ABDULMUTALLAB was a fearful young man who was unfamiliar with the laws of the United States, and who was isolated from family, friends, and legal counsel. He was laying in an hospital bed with third-degree burns to his body, sedated, semiconscious and surrounded by an unknown number so federal agents, including U.S Customs and Border Protection Officers and Immigration and Customs Enforcement Agents. Regardless of the number of degrees Defendant ABDULMUTALLAB has received, his education could not help him at that point in time. In addition, Defendant ABDULMUTALLAB did not receive his Miranda rights. He was interviewed for approximately 50 minutes, and he was interviewed immediately after being given medication by hospital staff that literally rendered him incapable of voluntarily submitting a statement.

The questions outside the public safety exception:

The agents asked Defendant ABDULMUTALLAB: (1) wherei he lived before traveling to Yemen; (2) what inspired him to commit jihad against the United States; (3) why he decided to join the jihad against the United States; (4) when he traveled to Yemen to pursue Al Qaida; (5) who encouraged or assisted him in locating members of AI Qaida;' (f») how long he was enrolled as a student at the Sanaa Institute of Arabic Studies; (7) what he did as a student at the Sanaa Institute of Arabic Studies; (8) why he chose a particular mosque to attend; (9) what he did at that mosque; (10) who he associated with at the mosque; (11) who he lived with in Yemen; (12) where the house was located in Yemen; (13) what the individual he lived with did for a living; (14) who instructed with him in Yemen; (15) what him and his associates discussed while in Yemen; (16) about other potential plans to commit jihad, which were not executed;( 17) who suggested he detonate an explosive device on a plane; (18) when the plan to detonate an explosive device was suggested; (19) how the explosive device operated; (20) who trained him on how to operate the device; (21) where the device was manufactured; (22) when he actually received the device; (23) when the device was supposed to be deployed; (24) why he picked December 25,2009; (25) where he traveled with the device; (26) whether he was directed to sit in a particular location of the plane; (27) what happened when he attempted;to activate the device; and (28) whether he had been to the United States previously.

These questions were not focused on additional threats to the United! States, as the government claims. If the agents were truly concerned about securing the safety of the public, the only questions they needed to ask were whether he was acting alone, and whether additional attacks were planned on the United States. Instead, the agents conducted a full-blown interview of Defendant ABDULMUTALLAB without the constitutional protections of Miranda.

The judge's order defining the role of standby counsel at trial is here. It's very interesting and informative as to how the process works with a pro se defendant. For example, the Government sought to prevent "hybrid representation", even requesting that Abdulmutallab's standby counsel, Anthony Chambers, not be allowed to sit with him at counsel table. The Court denied the request. Thus, both Abdulmutallab and Anthony Chambers can participate at trial, so long as Abdulmutallab doesn't object. Abdulmutallab has to tell the court 24 hours before a particular witness testifies who will be cross-examining the witness and give the Court advance notice as to who will be doing voir dire, opening, closing, etc. So far, Abdulmutallab has said he's satisfied with Chambers' help.

Attorney Chambers did file one motion without Abdulmutallab's consent -- a motion for a competency determination. Abdulmutallab told the Court he understood why Chambers filed the motion. The motion was denied.

Here is the Superseding Indictment with the charges. They include one count of Conspiracy to commit an act of terrorism transcending national boundaries, in violation of 18 U.S.C. § 2332b(a)(1) and (2), one count of attempted murder, in violation of 18 U.S.C. § 1113, one count of willfully placing a destructive device in proximity to a civil aircraft, in violation of 18 U.S.C. § 32(a)(2), one count of attempted use of a weapon of mass destruction, in violation of 18 U.S.C. § 2332a(a)(2), one count of willfully attempting to destroy and wreck a civil aircraft, in violation of 18 U.S.C. § 32(a)(1) and (8), and three counts of possessing or using a destructive device in furtherance of or during a crime of violence, in violation of 18 U.S.C. § 924©.

The Government writes in a recent motion:

The superseding indictment alleges that the defendant traveled to Yemen in August, 2009 for the purpose of becoming involved in violent “jihad” on behalf of Al Qaeda. While in Yemen, the defendant received the explosive device he detonated on Flight 253. After he received the explosive device, the defendant left Yemen on December 7, 2009.

The defendant maintained possession of the explosive device as he traveled from Yemen to Ethiopia, Ethiopia to Ghana, Ghana to Nigeria, Nigeria to the Netherlands, and finally from the Netherlands to the United States.

The Government yesterday filed a motion seeking to preclude the defense from introducing expert testimony on the defendant’s mental condition and evidence or argument regarding a defense of duress.

Also yesterday, the Government filed a motion to admit expert testimony and a video regarding al-Qaida:

The government hereby moves to admit as evidence at trial expert testimony of an Al Qaeda expert witness, pursuant to Fed. R. Evid. 702; expert testimony of another witness, regarding the meaning of the term “martyrdom,” pursuant to Fed. R. Evid. 702; a segment of an Al Qaeda produced video, America and the Final Trap pursuant to Fed. R. Evid. 801(d)(2)(E); and a portion of one issue of the Al Qaeda in the Arabian Peninsula magazine Inspire.

The Government says:

At trial, the government intends to call an explosives expert who will explain to the jury the components of the defendant’s bomb, why the bomb did not fully function as intended, and how the bomb would have exploded if it had fully functioned properly.

In conjunction with this testimony the government intends to introduce a model of the defendant’s bomb that was constructed by the expert. The model replicates the components of the bomb based on actual components that were recovered by law enforcement officers from the aircraft. The bomb consisted primarily of a syringe assembly (which was used to initiate the detonation of the booster charge), the TATP (which acted as the booster charge to detonate the main charge), and the PETN (which acted as the main charge).

The Government wants to demonstrate the bomb. From its motion, available on PACER:

The government also intends to introduce video recordings of three demonstrations conducted by the expert.2 The first demonstration shows the combination of two chemicals, potassium permanganate (a crystalized oxidizer) and ethylene glycol (a liquid fuel), in a syringe in a laboratory. The video recording of this demonstration is approximately two minutes and 45 seconds in length.

The demonstration shows that combining these two chemicals produces smoke and fire. Chemical analysis of the syringe assembly recovered from Flight 253 revealed the presence of residues of ethylene glycol, as well as solid particles of potassium, manganese and oxygen -- all of which are the elements present in potassium permanganate.

The second and third demonstrations show the detonation of 76 grams and 200 grams of PETN. The video recordings of these demonstrations show the detonations at full speed, 15 percent speed, and slow motion.3 The government intends to use at trial approximately one-and a-half minutes of video recordings for each demonstration. In both demonstrations, the PETN was placed on a sheet of aluminum metal that was sitting on two saw horses. These demonstrations were conducted in a grass field. The two quantities of PETN used in the demonstrations represent the amount of PETN recovered from the aircraft (76 grams) and the amount of PETN that the expert believes was contained in the bomb prior to detonation (200 grams).

The Government says its demonstration of the detonation in slow motion will only take 21 seconds. A hearing on these motions is set for September 14.

The defense has also filed a motion to change venue due to pre-trial publicity. The defense states there have been 14,000 news articles and 6,000 editorials published on the case.

What will be Abdulmutallab's defense? According to the Government:

Detroit lawyer Anthony Chambers, told reporters Tuesday he will argue that the< materials found in Abdulmutallab’s underwear could not have destroyed Northwest Flight 253. ‘It’s a very defensible case,’ Chambers said. ‘To have an explosion, you have to have an explosive.’ He said the device that ignited, burning the alleged terrorist, “could not have done the damage” that prosecutors have alleged.

Abdulmuttalab filed a pro se handwritten motion seeking to prevent officials from using excessive force on him. He says officials were defaming Muhammed and he assaulted them from his cell, and in retaliation, they used excessive force on him. The motion will also be heard on September 14. Check out the motion for an example of how he writes.

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  • Display: Sort:
    Other than the Court's order, what compells (none / 0) (#1)
    by oculus on Sat Sep 10, 2011 at 01:13:12 PM EST
    a pro se criminal defendant in federal district court to disclose whether he or his stand by counsel will conduct any given part of the trial?

    To go "pro se," the defendant (none / 0) (#2)
    by Peter G on Sat Sep 10, 2011 at 01:34:54 PM EST
    must fully waive his Sixth Amendment right to counsel (and the concomitant right to "effective assistance of counsel").  Once the defendant's right to represent himself is approved, therefore, the judge does not have to allow standby counsel to assist at trial in any way, other than to answer questions posed to him/her by the defendant in private about how to go about representing him/herself, and to be prepared and available -- if the right to self-representation is subsequently forfeited, for example, by the defendant's misconduct -- to take over the defense (hence, "standby").  I am speculating (not having read the documents) that the judge's unusual requirements here are conditions attached to the court's allowing standby counsel to play a much more active role in assisting this defendant than a defendant is constitutionally entitled to.

    The order is (none / 0) (#3)
    by Jeralyn on Sat Sep 10, 2011 at 01:38:09 PM EST
    here and fully explains the legal issues.

    Other than "Faretta," the authority (none / 0) (#4)
    by oculus on Sat Sep 10, 2011 at 01:43:15 PM EST
    the Court cites is Court of Appeals.  Very interesting issue.  

    The defense appears (none / 0) (#5)
    by KeysDan on Sat Sep 10, 2011 at 01:52:07 PM EST
    to have the edge on the motion to suppress statements made at the University of Michigan Hospital with the argument that his statements were not voluntary and the public safety exception did not apply.  The administration (parenterally, I assume) of Fetanyl, a synthetic narcotic, more potent than morphine, for pain related to third degree burns would likely put him in a semi-conscious, twilight or euphoric stage.  It is claimed that the defendant was "sedated", although the narcotic would not necessarily be viewed as a sedative.  However, if a tranquilizer was also administered at some point, the additive effect on his "will" would be profound in the face of the short onset of Fetanyl  and the concurrent and extensive questioning.

    On the other hand, the government seems to have a decided edge on the defense claim for the malfunction and impotence of the bomb whereby the underwear bomb could not have destroyed the airliner.   In any event, it good that the case is being tried in our Court system.

    Factual impossibility is the defense? (none / 0) (#6)
    by jpe on Sun Sep 11, 2011 at 07:51:08 AM EST
    It's been a while since 1L crim law, but is this a legit defense as a matter of law? (some quick googling suggests it may not be, but like I said it's been a while and cursory googling can only do so much)

    Federal court. Federal criminal law. (none / 0) (#7)
    by oculus on Sun Sep 11, 2011 at 07:09:23 PM EST
    Yes, I know. (none / 0) (#8)
    by jpe on Mon Sep 12, 2011 at 06:12:00 AM EST
    That's why my google search was aimed at federal criminal law.