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Hearsay Allowed in Conspiracy Cases

October 13, 2002

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PORTLAND, Ore. (AP) _ Two key exceptions to general criminal law may allow prosecutors to use even weak evidence to build a case against a dozen suspected terrorists charged in Oregon and New York, legal scholars say.

Unlike most crimes, proof of conspiracy does not require an actual crime and hearsay is allowed.

``In the legal world, conspiracy is called the ‘darling’ of prosecutors,″ said Robert Precht, a University of Michigan law professor and a defense attorney in the 1993 World Trade Center bombing.

``It’s the closest American law comes to a ‘thought crime’ because the paradox of conspiracy law is there need not be any crime at all,″ he said.

Instead, all that is needed is evidence that two or more people agreed to commit a crime and took at least one step called an ``overt act″ _ however trivial and even perfectly legal _ toward planning that crime or carrying it out.

``There have to be overt acts in pursuance of the conspiracy but those overt acts can be perfectly innocuous things, like getting on a plane at JFK, so you don’t need a lot,″ said Abraham Sofaer, a Stanford law professor, senior fellow at the Hoover Institution and former legal adviser to the U.S. State Department.

Also, the nearly ironclad legal principle that bars hearsay _ testimony by one person who was merely told what another person said _ does not apply to coconspirators, said Phil Heymann, a Harvard law professor.

``Any statement by any conspirator is treated as a statement by all of them and is an exception to hearsay,″ said Heymann, a former deputy U.S. attorney general.

The six people indicted earlier this month in a terrorism investigation in Oregon faces charges of conspiracy to levy war against the United States, conspiracy to provide support to al-Qaida, and conspiracy to contribute services to al-Qaida and the Taliban.

In New York, the five suspects arrested last month in the steel town of Lackawanna and a sixth arrested in Bahrain _ all U.S. citizens of Yemeni descent _ are awaiting indictment under the same conspiracy law, according to the FBI.

Attorney General John Ashcroft called the Oregon arrests ``a defining day in America’s war against terrorism,″ claiming the government has ``neutralized a suspected terrorist cell within our borders.″

But Heymann argued that facts disclosed so far show a group of disenfranchised young people, mostly black Americans who have converted to Islam. Some in the group went target shooting at a gravel pit in Washington state, then tried to go to Afghanistan but failed to get into the country, and exchanged some e-mail about their travels and some cash.

``They look like very small potatoes, like full-time losers,″ Heymann said. ``That doesn’t mean that losers can’t do damage, but to claim this is a defining moment?″

An attorney for one of the Oregon suspects says the government has no case. Defense lawyers say the men arrested in New York days after the Sept. 11 anniversary are victims of misinformation who pose no danger.

The New York case may have more serious implications because all six are accused of training at a terrorist camp in Afghanistan, said Todd Gaziano, director of the Heritage Foundation center for legal and judicial studies in Washington.

Even though all the suspects may have traveled legally and committed no actual crimes or violence along the way, the group mentality is considered the greatest threat under conspiracy law, Gaziano said.

``The reason the criminal law makes an exception for conspiracy is that once the conspiracy is formed, the participants aren’t free to back out,″ Gaziano said. ``Normally, you’re not guilty of a crime until you attempt it, but in a conspiracy, once you’ve formed the agreement, you’ve taken that step.″

Gaziano said prosecutors may be withholding much stronger evidence in the Oregon case at this point for fear of harming other anti-terrorism efforts.

``It’s a special dilemma that prosecutors face in conspiracy cases with intelligence sources,″ he said.

If convicted, all 12 in Oregon and New York could feel the full weight of federal criminal sentencing guidelines even though no actual violence may have been committed, said Frank Zimring, a University of California at Berkeley law professor.

``It’s not a question of whether we’re going to lock them up,″ he said. ``The question is, are we going to lock them up and toss away the key,″

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