Yesterday, US District Judge King denied the Mohamed Mohamud defense team's motion to order government witnesses not to talk to one another about what they heard or remembered about the first meeting between the defendant and the undercover operatives. (Source: Oregonian)
Oregon Public Broadcasting ran a short item on this story as well, for which I was interviewed about what the defense was concerned about:
Lewis and Clark law professor Tung Yin has been following the case. He says defense attorneys might be concerned about how such conversations might affect testimony if the case went to trial.
Tung Yin: "Whether this is nefarious or simply innocuous, they happen to start talking about the case, they might end up confirming their testimony. You end up with two or three people telling the same story that sounds much more persuasive than if they have inconsistencies and the like."
I'm not surprised that the judge denied the motion. The government lawyers already said that they have told the witnesses not to discuss the case, and it would be difficult for the court to detect and enforce an actual order beyond that.
Neither news story talks about another part of the judge's order pertaining to the preservation of agent notes. The judge's order references a defense allegation that one agent already destroyed his contemporaneous notes, which the defense argues is a violation of the Jencks Act. (The Jencks Act requires federal prosecutors to turn over all statements by government witnesses after they have testified, in order to be available for cross-examination.) The court stated that since no one has testified yet, there has not been a Jencks Act violation.
In addition, this is something that would be fertile ground for cross-examination, since the defense could bring out the fact that the agent apparently had contemporaneous notes, and now those notes are unavailable. Suspicious jurors could wonder about that fact.