MISJUDGMENT IN MANHATTAN

U.S. District Judge Victor Marrero is obviously a highly respected jurist. He graduated Yale Law five years ahead of President Clinton, served in governmental positions under four mayors in New York City, was recommended for the Manhattan judgeship by New York Sen. Charles E. Schumer in 1998 and was nominated by Clinton.

Marrero is particularly noted for ruling portions of the Patriot Act as unconstitutional, but he discarded constitutional principles when he conditionally granted the Palestinian Authority a new trial after another judge ordered the authority to pay relatives of terrorist victims nearly $174 million. Judge Marrero:

- Injected public policy to influence his decision;

- Performed the defense’s work for them;

- Allowed the authority an unjustified second chance to defend itself;

- And after all that, played games with the verdict that it might allow him to have things both ways.

The Palestinian Authority sought Marrero’s decision to waive the $174 million ruling for fear that such lawsuits could bankrupt the Palestinian government. Leslye Knox of Georgia, whose husband Aharon Ellis was among six people massacred by a Palestinian terrorist at a social event in 2002 in Hadera, Israel, sued under a law approved by Congress in 1992 after terrorists murdered Leon Klinghoffer on the Achille Lauro cruise ship.

The authority refused to defend itself, so a federal judge in 2006 ordered the authority and the Palestine Liberation Organization to pay Knox and other relatives of Ellis nearly $174 million, The Washington Post reported. The authority hired new lawyers and asked Marrero to quash the Knox ruling since the authority could now provide a strong defense. The plaintiffs contended that Israeli court testimony linked the late Yasser Arafat and other senior Palestinian leaders to specific terrorist attacks involved in the litigation.

The Post account stated that after reviewing the evidence Marrero ruled on March 27 that the defendants “have sufficiently demonstrated evidence of facts that, if proven at a trial, would constitute a complete defense to plaintiffs’ aiding and abetting” the attack. Marrero added that a new trial was warranted by the amount of the judgment. He also ordered the authority to post a $192.7 million bond to ensure that it does not default again if it loses in court and directed the Palestinians to reimburse the plaintiffs for previous legal expenses.

It is nothing new for judges to allow political expediency to influence their decisions, but it cannot be justified even by historic precedent.

Palestinian Authority President Mahmoud Abbas and other Arab officials maneuvered outside the courtroom by urging Secretary of State Condoleezza Rice to intervene in the case and Marrero sought the Bush administration’s opinion. The White House told the court that it was concerned that lawsuits by victims of terrorism could damage the “financial and political viability” of the authority, the Post reported. Marrero noted this statement in issuing his opinion.

And so Marrero himself injected political expediency into the mess. Maybe he was nervous in presiding over a case that had international incident written all over it, and he might have sought advice from his peers before seeking the White House‘s input. However, a judge is supposed to be a neutral party and yet Marrero can be rightfully accused of taking sides by seeking an opinion from a party that is not even part of the lawsuit. Counting the administration’s viewpoint would have been appropriate had the Palestinians provided it as part of its defense.

Nothing can justify interference with the sanctity of the legal process. The legal system was established so that the ordinary person could fight for their rights on a level playing field. The courts are supposed to operate independently of government. The reality of this case is that both a judge and the Executive Branch are ganging up on Leslye Knox, her six children and the memory of her husband, Aharon Ellis.

Besides, why couldn’t Marrero leave it to the defense to subpoena the White House for its opinion? Marrero is doing the authority’s work for them.

Worse, Marrero’s rationale allowing a new trial on grounds that the authority could mount “a complete defense” is disingenuous. The Arabs had their chance to defend themselves the first time. The idea of a trial is to afford the defendant a chance to defend themselves…not a chance when they feel like it. Whose fault is it if they refuse to defend themselves at the appropriate opportunity?

The Arabs have all kinds of resources they could have availed themselves of to defend themselves in the first place. Their only excuse was probably Arafat’s obstinacy. As stewards of Israel’s territories, the authority must take responsibility for the blunders of Abbas’s predecessor. Why should American taxpayers spend money on a second trial?

For all his leaning toward the Palestinian Authority, the judge required them to post a $192.7 million bond to guarantee that it does not default again should it lose in court. He also told the authority to reimburse the plaintiffs for previous legal expenses.

The financial angle is taking some odd twists and turns. If the authority cannot afford to pay the judgment, how will they find the money to post the bond? Then again, how can they afford hiring lawyers, who would charge a six-figure fee if they are indeed charging the full amount?

What all this amounts to is that while we try to move backward societies to behave like us, we move backwards.