(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . Loose Cannon at it again [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2023-10-18 Judges, like cannons, have a lot of power, and that power should always remain firmly tethered, whether on the deck of a ship or in the halls of justice. In a recent filing, Judge Cannon declared that all of the classified documents in the MAL documents trial should be made available to Trump’s defense team in Florida: PAPERLESS ORDER: The parties are advised that production of classified discovery to defense counsel is deemed timely upon placement in an accredited facility in the Southern District of Florida, not in another federal district. It is the responsibility of the Office of the Special Counsel to make and carry out arrangements to deposit such discovery to defense counsel in this District, in consultation with the Litigation Security Group for security purposes. The Office of the Special Counsel shall update and/or clarify any prior responses to the Standard Discovery Order in accordance with this Order. Signed by Judge Aileen M. Cannon on 10/17/2023. (AMC) (Entered: 10/17/2023) This would include some super-secret documents that, it seems, might by law be required to remain in Washington. Leaving aside the question whether this reflects an attempt to manipulate the case by Cannon, it is at bottom simply a bad decision in terms of case management. A good, experienced judge (and Cannon is certainly not experienced) works to streamline a case and package it for an efficient, fair trial. That can include a lot of counter-intuitive actions. When a judge is persuaded, she will often shut down the lawyer making the successful argument — there is no need for more argument. So it can be a good sign when the judge shuts you up. On the other hand, when a judge is going to rule against you, she may let you go on and on, not just so you can “make a record”, but just so you can’t argue on appeal that you were silenced. In the documents case (or is it the “boxes” case?) Cannon is failing to exercise the kind of case management that her position demands. Think, by way of comparison, of a drug case. The key question is a simple one: did the defendant have drugs? At trial, the prosecution will typically display a plastic bag with something in it, and have witnesses identify the bag, and trace a chain of possession back to the defendant. Then a prosecution expert will testify as to the kind of drugs in the bag. It is theoretically possible, though seldom the case, that the defense could then have their own witness testify that he tested the contents of the bag, and found they were sugar or something like that. The jury never gets to open the bag or test its contents, though the prosecution might, for dramatic effect, offer to pass the bag around. Really all the jury gets to see is the size of the bag, while hearing testimony as to what is in it. The defense’s right to examine this key piece of evidence is limited to having its expert weigh the contents and test their composition. We can view the documents case in the same light. Trump is accused of having contraband, equivalent to a bag of drugs. The secret documents, at trial, should be an exhibit just like drugs — and just as the jury can look at a sealed package of drugs but can’t open it and test it, Trump’s jury should be able to see some sealed “top secret” folders but not be able to open them and view their contents. Fairness to the defendant means that Trump’s team doesn’t have to take the prosecution’s word for what is in the folders. Someone on the team — whether the lawyers or a specialist — should be able to view the documents and see what they are. But that is all. There is no need to “work” with the documents, to manipulate them, or to view them repeatedly, any more than there is need for a drug defense expert to do more than weigh a drug exhibit and test a small sample. In both cases, by their very nature, the prosecution exhibits — documents and drugs — both need to be kept secure, and there is no need for the defense team to be packing them up and walking around with them. I guess the first question a good judge would ask of the defense team is whether they dispute what the documents are, and what they need to do to verify the documents are what they are alleged to be. Assuming that the folders do contain the “Bruce Parkington plans” or their modern equivalent, as a practical matter how could Trump prove a negative, that is, that they are not classified, in the face of an official declaration that they are? Perhaps a qualified expert, with proper security clearances, could view the documents, and then search public records to find a declassified version of the documents. But to do that, all that would be required would be a single viewing of the documents to find a few keywords that could be used to locate a similar document, but without revealing the actual contents of the document itself. Given the fact that the defense’s interaction with the documents should be relatively brief, it seems a good judge could streamline the whole process. Rather than putting the government to the expense of constructing a purpose-built facility to hold the documents for a brief viewing in Florida, it would be cheaper and more efficient to simply ask the prosecution to pay for a couple of round-trip tickets to Washington so the defense team could verify the documents are, in fact, what they are described as being. That said, I would recommend round-trip bus tickets as more appropriate in this case. [END] --- [1] Url: https://www.dailykos.com/stories/2023/10/18/2200130/-Loose-Cannon-at-it-again?pm_campaign=front_page&pm_source=trending&pm_medium=web Published and (C) by Daily Kos Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/dailykos/