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Perjury charges against a San Diego college student who allegedly lied to a grand jury about knowing one of the Sept. 11 hijackers will not be dismissed based on his appearance before the grand jury in handcuffs. Southern District of New York Judge Shira A. Scheindlin said Tuesday she would not dismiss charges against Osama Awadallah nor would she suppress the testimony he gave in October 2001 to a grand jury probing the terror attacks. Lawyers for Awadallah claimed his appearance in handcuffs violated the rule announced last week in Deck v. Missouri, where the U.S. Supreme Court dismissed a death sentence for convicted murderer Carmen Deck because he was shackled in leg irons and handcuffed during the penalty phase of his trial. Despite Scheindlin’s ruling for the government Tuesday, Awadallah’s trial will be delayed, as prosecutors Robin Baker and Karl Metzner have appealed Scheindlin’s ruling restricting the questions prosecutors may ask of Awadallah grand jurors at trial. The 2nd U.S. Circuit Court of Appeals has yet to set a briefing schedule on the issue, so Judge Scheindlin was forced to send her jury home with only an outside chance the same panel will return to decide Awadallah’s fate. Awadallah was arrested as a material witness in the Sept. 11 investigation but was charged with lying after he denied knowing one of the hijackers of American Airlines Flight 77, which crashed into the Pentagon. Because Awadallah admitted knowing one of the hijackers, but not the other, and later tried to correct the mistake, his attorneys have tried to portray his testimony before the grand jury as based on “memory lapse, misunderstanding, exhaustion, confusion and intimidation.” At Tuesday’s hearing, attorneys Elizabeth Fink and Jesse Berman tried unsuccessfully to persuade Judge Scheindlin to suppress the testimony or dismiss the case based on the Supreme Court’s Deck decision. They had some reason for optimism going in, as Scheindlin has already once dismissed the charges against Awadallah — only to be reversed by the 2nd Circuit — and has repeatedly criticized the actions of the government in the case. Scheindlin had ruled that the material witness statute could not be used to detain persons to secure their appearance before a grand jury. The government appealed that ruling and, last year, the circuit sent the case back to Scheindlin for trial. Fink again told the judge how Awadallah had been beaten and “tortured” by federal agents following his arrest in California and his transport to New York, where he was brought before the grand jury in a prison jumpsuit and handcuffed to a chair. Metzner objected to several of Fink’s characterizations when it was his turn to state why the indictment should stand. Metzner argued that Awadallah did not have the right to counsel during his appearance before the grand jury because he had not been charged with a crime. His arrest as a material witness in the terror investigation, Metzner said, was followed by a presentment before a judge, not at an arraignment in which a plea of guilty or not guilty would be entered. THREE PRINCIPLES The distinction was important to Judge Scheindlin as she analyzed Awadallah’s case in light of Deck. There were three principles cited by the Supreme Court in that case, she said: First, that the appearance of the defendant in handcuffs undermines the presumption of innocence and the integrity of the fact-finding process; second, it diminishes the right to counsel; and third, it undermines the formal dignity of the proceedings. The second and third considerations, Scheindlin said, do not apply with “equal force” to grand jury proceedings when compared with the penalty phase of a capital case like Deck, she said. And assuming that the right to counsel was implicated, that would not help Awadallah, she said, because the circuit has made it clear that a perjury count can survive proceedings that suffer from other infirmities. The concern for accuracy in fact-finding, she said, has some relevance. But while Awadallah may have been prejudiced, she said, the “grand jury was only required to find probable cause” rather than deciding guilt or innocence. The standards are simply different for a grand jury, Scheindlin said, noting that it is settled law that indictments may not be challenged on the grounds that inadequate or inaccurate evidence was presented. Scheindlin said that “there seems to have been little need for the shackling” but “poor judgment cannot support dismissal of the indictment.” That said, Judge Scheindlin added, the defense is free to argue that the handcuffing played a role in Awadallah’s confusion or intimidation before the grand jury — and the grand jurors can be cross-examined about the handcuffing when they testify.

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