Asserting the Sixth Amendment guarantees "a fair trial, not a perfect trial," a federal judge yesterday said he wants to hear from an expert defense witness before deciding whether to postpone the Fort Dix terrorist trial. Judge Robert Kugler told defense attorneys during a hearing in U.S. District Court in Camden that he needs more information to determine the importance of the testimony of Gregory Lee. "I am not convinced that he is all that essential," Kugler said of the former Drug Enforcement Administration agent, who is being deployed to Iraq shortly. Kugler has ordered a hearing next week, possibly on Tuesday, to try to determine what Lee will say and how it will impact the defense in the controversial case. Lee will be questioned and cross-examined during a courtroom deposition that will be videotaped for possible use at the trial, which is set to begin with jury selection on Sept. 29. If Kugler accepts the defense argument that Lee's unavailability would unduly prejudice the five defendants awaiting trial, then he would likely grant the defense motion seeking a trial delay until January. Lee, who has an extensive background in terrorism investigations, is an Army Reservist in the Criminal Investigation Command and has been called up for a special assignment in Iraq beginning on Sept. 14. He is expected to return on Jan. 5.
Kugler, who has granted two other postponements, said that unless he is convinced that Lee's testimony and presence as a consultant are essential, he would prefer to maintain the current schedule. Among other things, the judge said there has been extensive logistical work on security geared toward a September start date. He also said a panel of 1,500 potential jurors has been told the trial would extend through the fall. A change in date would require a new panel, Kugler said, rejecting a prosecution suggestion that the jury be picked this month and told to return in January if the postpone were granted.
In seeking the delay, defense attorneys have argued they were unable to find another witness with the expertise of Lee, who, they said, has already spent about 140 hours analyzing the case and reviewing evidence. They are expected to use Lee to challenge both the credibility of government informants and the techniques by which those informants were recruited and deployed. Kugler said he needs to know what Lee intends to say "so that I can measure the prejudice to the defense" if he is not available. The judge said the information provided to him to date has been general rather than specific. Kugler said another roadblock is a potential Army regulation prohibiting military personnel from testifying against the interests of the government.
The defendants, Mohamad Shnewer, Serdar Tatar and brothers Shain, Eljvir and Dristan Duka, face life in prison if convicted of plotting to kill military personnel. They have been held without bail since their arrests in May 2007.