MIAMI — A defense attorney for Jose Padilla asked for a mistrial yesterday, arguing that the jury would be prejudiced by a co-defendant counsel's questioning a government witness on whether killing was justified during jihad, or holy war.
Attorney Anthony Natale — representing the U.S.-born Muslim convert and terror suspect — said the cross-examination of a prosecution terror specialist by Jeanne Baker, who represents Adham Amin Hassoun, was inappropriate.
Mr. Padilla is accused of being a willing recruit of al Qaeda and of training at a camp in Afghanistan run by the terrorist group. Mr. Hassoun and third defendant Kifah Wael Jayyousi are accused of aiding Mr. Padilla and others in their efforts to train at al Qaeda camps and travel to nations where jihad was being waged.
The request for a mistrial was the second by a defendant in three days of testimony. On Thursday, it was Ms. Baker who requested a mistrial after several members of the jury inadvertently saw Mr. Hassoun being led away after court in leg shackles and with a belly chain attached to his wrists.
After interviewing the jurors who saw Mr. Hassoun, Judge Marcia Cooke said a fair trial was not in jeopardy.
But yesterday, Mr. Natale said Ms. Baker was jeopardizing his client's chance at a fair trial by asking an expert witness to comment on "whether something was an unlawful killing or not" in regard to Islamists' waging jihad in places such as Chechnya, Bosnia or Somalia.
The lead counsel representing Mr. Padilla added that Rohan Gunaratna, noted terror scholar and author of "Inside al Qaeda," is not qualified to answer such questions because he did not witness any jihad mentioned in testimony firsthand.
Mr. Hassoun's attorney was apparently attempting to challenge the authority of Mr. Gunaratna, who several times refused to reveal where he conducted some interviews of numerous high-ranking al Qaeda leaders. Mr. Gunaratna, the director of a Singapore-based terror research center, did note that he had been working for governments while questioning some al Qaeda suspects.
Ms. Baker asked the court and Mr. Gunaratna whether they saw "the danger of a researcher working with an intelligence agency."
"In my case, I have always been very independent," Mr. Gunaratna asserted, adding that he "openly criticized the U.S. invasion and occupation of Iraq."
In addition to angering prosecutors and her fellow defense counsel, Ms. Baker's line of questioning of Mr. Gunaratna also evoked the ire of Judge Cooke, who though she denied the request for a mistrial, adjourned yesterday's session early after sustaining dozens of objections from the prosecution about Ms. Baker's questioning of Mr. Gunaratna.
Before the trial started in May, Judge Cooke ruled that defense attorneys could not assert during the trial that jihad killings were justified in their defense of the suspects.
Judge Cooke yesterday sent both the jury and Mr. Gunaratna out of the courtroom and harangued Ms. Baker for continuing her line of questioning of the witness despite numerous sustained objections from prosecutors and previous warnings from the bench.
"Were it not for the presence of the jury, I would have lost my temper and I don't want to do that," said Judge Cooke, adding that Ms. Baker's line of questioning as "continued disrespect" for the prosecution as well as fellow defense attorneys.
"I am not going to allow you to hijack my previous ruling," exclaimed a visibly angry Judge Cooke. "It should have never been put to this witness about unlawful killings. Never."