The charge was providing material support for terrorism, which means two things: first, that the defendant is subject to presumptive detention. Second, it’s terrorism, which changes everything. As everyone knows, inter arma enim silent legēs, and there’s a war on terror. All the newspapers say so.
A federal judge in Denver on Friday ordered the release of an Uzbekistan terror suspect held for 5½ years without trial on charges he provided material support to the Islamic Jihad Union.
Charges are still pending against Jamshid Muhtorov, and he will remain at the GEO Aurora Detention Center, 3130 N. Oakland St. in Aurora, until a release hearing Monday in which Senior U.S. District Judge John Kane will determine conditions of his release.
There will be a hearing, and conditions for release will be set by Judge Kane. What they will be, and whether they’re doable*, presents an interesting question. What if the government seeks a condition that’s too onerous or impossible to achieve? Does Muhtorov then stay in jail? But that’s getting ahead of the case. The question remains how it’s possible that more than five years after arrest, a presumptively innocent person remains in jail at all.
Mr. Muhtorov’s situation is unprecedented in my experience, and has weighed heavily.
There is a presumption of flight risk and dangerousness that attaches to Mr. Muhtorov because he is charged with conspiracy and attempt to provide material support to terrorism. See 18 U.S.C. §3142(e)(2). Given that no death or injury is alleged to have resulted from his efforts or actions, the maximum sentence he faces on the indicted charges is 15 years.1 Six years of detention awaiting trial on these charges approaches the range of sentences imposed in other cases.
The mere passage of time is not, in itself, “new information” upon which detention can be revisited. And each adjournment may well make total sense in a vacuum, such that it provides a satisfactory exception “in the interest of justice” from the Speedy Trial Act. And yet, here he is, more than five years later, still sitting in a cell awaiting trial?
While declining to hold that this lengthy pre-trial detention had reached the point of implicating the defendant’s substantive due process rights by being punitive, Judge Kane found that enough was enough:
Mr. Muhtorov’s trial date is set for July 31, 2017, and both parties affirm that the trial can commence on that date. Mr. Muhtorov’s pending motion comes almost two years after his last and addresses the consequences for him of the events of March 13 and the fact that an exercise of his Bruton right, which I have endorsed, means he is facing almost another year in pretrial detention before his trial is complete. I have advised Mr. Muhtorov’s counsel that I would permit a continuance so that the Mr. Jumaev can be called as a witness on his behalf, but they assure me that Mr. Muhtorov cannot tolerate a further continuance unless his motion for pretrial release is granted.
But then, does an adjournment to accommodate the defendant’s desire to call his co-defendant as a witness change the fact that of “Bay’ah (oath of allegiance) Mr. Muhtorov allegedly made to the IJU and to ‘jihad’ generally, and the fact Mr. Muhtorov was arrested on his way to Turkey where “Turkish authorities [had] seized weapons and detained extremists associated with the IJU”?
An additional change, and one with significant impact on the detention question before me under §3142(f)(2), is the actual factual basis we now have both for the nature of the crimes with which Mr. Muhtorov is charged and the flight and danger risks he poses. In 2015, as in 2012, there was little evidentiary basis for the findings I was required to make regarding the dangers Mr. Muhtorov poses or his flight risk.
In fact, those findings were premised almost exclusively on Agent Hale’s Affidavit attached to the original Information in January 2012 and his testimony before Magistrate Judge Hegarty. Since my August 2015 Order denying pretrial release, we have had several lengthy evidentiary hearings that have marshalled many of the facts on which the government will rely to establish Mr. Muhtorov’s guilt.
The January 2017 suppression hearing demonstrated some of the weakness in the government’s translations and its linguists, and the February James hearing gave a thorough overview of the evidence the government has to support its conspiracy claims against both defendants. Dr. Steinberg’s March 2017 Daubert hearing testimony gave rise to additional inferences that may be favorable to Mr. Muhtorov, including the fact that he was not taken particularly seriously by the IJU sodliqar “Administrator” and that he left for Turkey without ever hatching any plan with anyone from the IJU.
There is reason to believe, after previewing the government’s evidence and the strength of his defenses, that Mr. Muhtorov has been invested with a sense of direction and a reason to stay and see the trial of his case through.
In other words, more than five years after the defendant was arrested and detained, after hearings which showed that the allegations of flight and dangerousness, not to mention the strength of the case against him, were nowhere near as damning as they seemed when it was just an AUSA’s argument at a detention hearing, it turns out not to be nearly as threatening as it first appeared.
Yet, today will be a hearing, after more than five years of detention, to establish the conditions of release. It’s not that there is no case, or that the defendant poses neither a risk of flight nor potential danger, but that it was overstated at the start and, more than five years later, he’s still sitting in a cell unconvicted.
Mr. Muhtorov, however, has already spent more than five years in detention before even being found guilty of acting, in any way, on his alleged terrorist beliefs.
Judge Kane is going to cut an accused terrorist loose today. Better late than never.
Update: And the government appeals.
The U.S. Attorney’s Office in Denver filed an emergency motion with the federal 10th Circuit Court of Appeals to halt the release of Jamshid Muhtorov.
The motion came four days after U.S. District Judge John Kane granted a motion by Muhtorov for his release pending his trial, which is set for early next year.
Not surprising that they would appeal, but how do they explain why, five and half years later, he should continue to be detained?
In their appeal, prosecutors said Muhtorov was “plainly a threat to the public and others,” and also posed a flight risk.
Plainly a threat. Well, there ya go. It can’t be more plain than “plainly.”
*What if, for example, the modest conditions of home detention and a GPS ankle bracelet, with defendant to pay the associated costs, are imposed, except the defendant has no home and no money with which to pay?