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Government prosecutors have asked a federal appeals court to remove Southern District of New York Judge Shira Scheindlin from the perjury case of a San Diego college student who allegedly lied about knowing one of the Sept. 11, 2001, hijackers. Saying the judge has made statements that could be viewed as advocating for defendant Osama Awadallah or “indicating that she has predetermined the most significant issues in the case” in Awadallah’s favor, the government asked the 2nd U.S. Circuit Court of Appeals to reassign the case to another judge on remand. The allegations, part of a 125-page brief filed Tuesday with the circuit, were part of a challenge to the latest ruling by Scheindlin in a contentious case that began with Awadallah’s arrest as a material witness less than two weeks after the terror attacks and followed by his indictment by a grand jury probing the hijackings. In 2001, Scheindlin issued an opinion in which she ruled that the material witness statute, which allows for the detention of individuals who are at risk of flight and therefore unavailable to deliver testimony that is critical to a case, does not apply to grand jury proceedings. That ruling, which came amid pointed criticism of the federal agents who arrested and questioned Awadallah, was reversed by the 2nd Circuit. Despite added criticism of the government for bringing Awadallah before the grand jury in handcuffs, Scheindlin about one month ago refused to dismiss the two counts of perjury against him. But the judge upset the government by sharply restricting the questions that could be asked of grand jurors who are central witnesses to the perjury case. That second ruling prompted the government to turn to the 2nd Circuit. In her brief Tuesday, Assistant U.S. Attorney Robin Baker cited Scheindlin’s Jan. 31, 2002, opinion as one example of the judge apparently favoring the defense. While Scheindlin then refused to dismiss the indictment against Awadallah, Baker said the judge “sua sponte raised two other possible bases for dismissal of the indictment” — that Awadallah was the victim of a “perjury trap” and that the judge might exercise her “supervisory power” over the grand jury to dismiss the charges given the alleged illegal search and seizure of Awadallah’s premises by the FBI, his alleged mistreatment by the officers, the duration of his detention and the circumstances of his appearance before the grand jury. On April 30, 2002, Scheindlin suppressed Awadallah’s statements to the grand jury as the “fruit of the poisonous tree” — his illegal arrest. She also found that the material witness statute does not apply to grand juries because a grand jury is not, in the words of the statute, “a criminal proceeding.” The 2nd Circuit reversed on both counts and reinstated the indictment. The court found that the warrant supporting Awadallah’s arrest did not contain misrepresentations and the exclusionary rule did not require the suppression of statements and evidence seized from Awadallah on Sept. 20 and 21, 2001. GRAND JURY REVIEW Awadallah’s petition for a writ of certiorari was refused by the U.S. Supreme Court and trial in the case was set for May 31, 2005. But Scheindlin issued a ruling limiting the questions grand jurors could be asked at trial, preventing prosecutors from asking the grand jurors about their impressions of Awadallah’s demeanor and appearance. Prosecutors could, however, ask the grand jurors about “objective physical conditions and events in the grand jury room” as long as they did not testify “as to the subjective impressions and mental processes that led to their indictment.” The judge said that would violate rule 606(b) of the Federal Rules of Evidence, which prohibits accepting into evidence juror testimony about the content of their deliberations. A jury had been selected, but the government appeal, and the decision of the 2nd Circuit to take the case, forced Scheindlin to send the jurors home indefinitely. Baker wrote in her brief that Scheindlin erred in precluding the testimony sought by the government under �606(b), which Baker said “on its face” applies only to “‘an inquiry into the validity of a verdict or indictment.”‘ “The trial in this case has nothing whatsoever to do with the validity of the Indictment, and no testimony relating to the grand jury’s deliberations or voting on the Indictment will be solicited,” Baker wrote. “Rather, the grand jurors will testify as eyewitnesses to the crime of Awadallah’s perjury, and will report their observations of his appearance so that those observations may be considered by the trier of fact, the trial jury.” After arguing that the probative value of the grand juror testimony was high, and the chance of Awadallah being prejudiced almost non-existent, Baker turned to the “extraordinary” remedy of remand to a different judge, one “which the government seeks exceedingly rarely and only with great reluctance.” The request she insisted, was sought to “preserve the appearance of justice, even if this Court has no doubt that the current judge is in fact impartial.” But the prosecutor went on to charge, among other things, that Scheindlin “dismissed the case without hearing from the government on the dispositive issue” and “unfairly criticized the Government even while ruling in its favor.” Even the judge’s description of Awadallah’s testimony, Baker said, was “quite skewed in his favor.” Awadallah’s claims that he did not know one of the hijackers, and that some writing in a college exam booklet (in which he refers to that hijacker by name) was not his own, are the basis for the charges of making false statements. His defense, in part, is that he was confused by the questioning and had no reason to lie because he did, in fact, acknowledge knowing a second hijacker. But in her brief, Baker contends that the judge “sua sponte” refused to allow the grand jurors to testify that Awadallah did not seem confused when giving the testimony. Awadallah’s attorney, Jesse Berman, could not be reached for comment.

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