The Volokh Conspiracy
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Federal Court Decides on How Lockerbie Crash Victims' Relatives Can View Accused Terrorist's Criminal Trial Remotely
The court "grant[s] victims access to non-evidentiary pretrial proceedings from their homes and offices by Zoom and telephone, as well as access to livestreamed video and audio feeds of evidentiary and trial proceedings in courthouses across the United States and other secure, monitored locations around the world."
From U.S. v. Al-Marimi, decided last Monday by Judge Dabney Friedrich (D.D.C.):
On December 21, 1988, Pan Am Flight 103 exploded 30,000 feet over the small town of Lockerbie, Scotland. The indictment alleges that all 259 people aboard died—including citizens of the United States, the United Kingdom, Switzerland, France, Canada, Israel, Argentina, Sweden, Ireland, Italy, Hungary, South Africa, Germany, Spain, Jamaica, Philippines, India, Belgium, Trinidad and Tobago, Japan, and Bolivia. It further alleges that debris from the explosion killed eleven townspeople instantly.
On November 29, 2022, the defendant Abu Agila Mohammad Mas'ud Kheir Al-Marimi, was … charged with two counts of destruction of an aircraft resulting in death … and one count of destruction of a vehicle used in foreign commerce by means of an explosive, resulting in death ….
On February 9, 2023, the government filed an unopposed motion for alternative procedures under the Crime Victims' Rights Act, requesting, among other things, that the Court establish a call-in telephone line so that victims could listen to the proceedings in real time. The Court denied the government's motion in relevant part, explaining that Rule 53 of the Federal Rules of Criminal Procedure prohibits the broadcasting of criminal court proceedings and that no statutory provision granted the Court authority to provide real-time telephonic access.
Thereafter, on January 26, 2024, Congress passed … [the] Lockerbie Victims Access Act …, which directs the Court to order that reasonable efforts be made to provide victims of the Pan Am Flight 103 bombing with remote video and telephonic access to the proceedings in this case….
The court discusses all this in some detail (the opinion is over 8000 words long) and concludes:
Today's decision interprets the plain language of the Lockerbie Victims Access Act in a manner that effectuates Congress's directive to provide victims of the Lockerbie bombing with remote access to pretrial and trial proceedings, while safeguarding the integrity of those proceedings and the defendant's constitutional right to a fair trial. As a result, victims will have unprecedented access to pretrial and trial proceedings in the criminal case against Abu Agila Mohammad Mas'ud Kheir Al-Marimi.
The Court recognizes that it would be more convenient and less expensive for the Lockerbie bombing victims to access evidentiary and trial proceedings from their homes and offices. But livestreaming such proceedings to individuals' personal devices is fraught with risks of a constitutional dimension. It is impossible to anticipate the numerous ways in which an inadvertent or intentional unauthorized accessing or rebroadcasting of evidentiary or trial proceedings could prejudice the defendant's due process rights. Because witness testimony and other evidence is admitted in real time in the courtroom, even a single breach of procedure could be incurable. In today's Internet age, a rebroadcasted court proceeding could travel around the world and remain electronically preserved forever. Not only would such a breach jeopardize the defendant's right to a fair trial, it could also taint any future retrial.
The Court also appreciates that facilitating remote viewing locations will be more costly and administratively burdensome to the government than allowing U.S. and foreign victims to access evidentiary and trial proceedings from their personal devices. But this is the unfortunate consequence of a crime of this nature being committed overseas. In our legal system, regardless of the scope, date, or circumstances of a crime, the role of the Court is to ensure that the parties, particularly the charged defendant, receive a fair trial. While establishing secure remote viewing locations will be onerous, a mistrial of a months-long trial would be potentially irremediable and far more expensive to the parties and to the Court.
To fulfill its constitutional duty to ensure that the defendant receives a fair trial, the Court must mandate effective safeguards to protect the integrity of the proceedings, even if such safeguards come at some cost to the victims of the Pan Am Flight 103 bombing and the government. Consistent with the Act, the Court exercises its statutory authority to grant victims access to non-evidentiary pretrial proceedings from their homes and offices by Zoom and telephone, as well as access to livestreamed video and audio feeds of evidentiary and trial proceedings in courthouses across the United States and other secure, monitored locations around the world. Such access most reasonably furthers the victims' substantial interests in having remote access to pretrial and trial proceedings without undermining the integrity of those proceedings or the defendant's constitutional right to a fair trial.
