NEW YORK — Prosecutors want to keep testimony from three key witnesses — an undercover police officer and two informants — out of public view at the trial of a man charged with plotting terror attacks with homemade bombs, a case in which police tactics are likely to become a central issue.
The Manhattan district attorney’s office wants the three to testify anonymously and in a closed courtroom at Jose Pimentel’s trial, set to start next month. A judge didn’t immediately rule on the issue at a hearing Wednesday, but he noted that there’s a high legal bar for closing courtrooms.
Prosecutors say the undercover officer and informants could be imperiled if their identities became public. But Pimentel’s lawyers say the court should stay open so the public gets a full picture of how police dealt with him during a two-year investigation.
Pimentel, a Dominican-born al-Qaida sympathizer also known as Muhammad Yusuf, maintained a website advocating jihad, or holy war, against the United States, police and prosecutors said. He talked with one of the informants about killing soldiers, assassinating a judge or bombing police stations or the George Washington Bridge, prosecutors said. He was arrested while making a pipe bomb in the informant’s apartment in November 2011, authorities said.
Assistant District Attorneys Eli Cherkasky and Deborah Hickey argue in a court papers that the three witnesses could be at risk if the public knew their names or even saw their faces.
“The defendant is an extremely violent and dangerous individual,” and some of his thousands of online friends and followers might exact revenge on his behalf, they wrote.
But defense lawyers say Pimentel was broke, lonely and prone to provocative but constitutionally protected talk until police covertly tried to nudge him into crime.
The first informant he met and the undercover officer got nowhere, they said. Only after police sent a second informant — a fellow Hispanic Muslim convert who regularly smoked marijuana with Pimentel — did the probe snowball into an arrest, defense lawyers Lori Cohen and Susan Walsh say.
“If you work on someone with professional witnesses, if you acquiesce to marijuana use, you wear people down,” Walsh said outside court Wednesday. “The tactics that were used … the public has a right to know about.”
Manhattan state Supreme Court Justice Thomas Farber said he would decide closer to the trial about closing the courtroom, but he noted that prosecutors would need a strong argument to persuade him to do so.
“We don’t do it because a defendant has 1,000 followers on Facebook,” he said, adding that anonymous testimony might be easier to justify.
American law strongly favors public trials, but courts have been closed to protect witnesses’ safety, shield classified government information, avoid traumatizing child witnesses or keep an undercover agent’s identity under wraps so he or she can continue covert work.
“Courts have to be very careful when they do this,” Pace Law School professor Bennett L. Gershman said, because appellate judges have sometimes reversed convictions when they found courtrooms were wrongly closed. In general, a judge has to establish that there’s a compelling reason to keep the public out and consider whether less restrictive alternatives would work.
Most terrorism cases are federal, but Pimentel was charged under a rarely used state terrorism law passed shortly after the Sept. 11 attacks. The 29-year-old could face up to life in prison if convicted.