WASHINGTON — It’s not going to happen. The American judicial system is not going to allow Khalid Sheikh Mohammad and his four co-defendants in the Guantanamo terrorist trials to become martyrs by sabotaging their defense cases and being sentenced to death.

At the arraignment yesterday of the five accused of involvement in the 9/11 terrorist attacks, Mohammad took the lead in rejecting the lawyers who had been assigned to defend him. The other four did the same. They said they would defend themselves, relying upon Muslim law and ignoring the defenses available to them under the American legal system. If the result is that they are convicted and sentenced to death, then they said they would be satisfied to go to their deaths as martyrs in the struggle between Islam and the West.

Their problem is that they are being tried in the first case brought before a Military Commission created by Congress to deal with alleged terrorists. There are serious questions about the fairness of these Commissions. There is no way the system will permit these defendants to be put to death without raising some of these questions: Was some of the evidence against them obtained through torture? Was hearsay evidence used against the defendants? Was some of the testimony delivered in secret?

These and other issues will be examined in this historic first Guantanamo trial, whether the defendants like it or not. As for giving the accused terrorists the satisfaction of scuttling their own defenses and becoming martyrs by means of lethal injections, it’s not going to happen.

– Fred Graham, In Session senior editor

WASHINGTON — Police in Tarpon Springs, Florida are reporting what may be a tragedy—and a cause for soul-searching in the Justice Department. The police say that Deborah Jeane Palfrey, nicknamed the “D.C. Madam” after she was prosecuted in Washington for running an escort service, has apparently committed suicide. They said her body, and suicide notes, were found in a shed near a mobile home in Tarpon Springs. Read more

Ms. Palfrey was convicted last month in D.C. of racketeering and money laundering in a trial that produced squalid testimony by a string of former “escorts” who said they did, indeed, peddle sex when they worked for Ms. Palfrey.

Under the sentencing guidelines she stood to get a prison sentence of from four to six years at a sentencing hearing later this month. Early in the case Ms. Palfrey projected an almost casual, this-can’t-be-happening-to-me attitude, but she seemed stunned by her conviction. Justice Department prosecutions of escort services are rare, and it was obvious that she had never thought it would come to this.

There is much yet to be learned about this sad affair. But I raised a question in this space on the first day of the trial, and it bears repeating in light of what has happened:

“The most perplexing question is why the prosecutors are pursuing this case. They have given no indication that the “D.C. Madam” case is part of a broader campaign against prostitution by the thriving escort business. No similar cases have been brought. Palfrey’s attorneys claim they are punishing her for giving them a hard time n an unrelated case. The government should not prosecute a citizen for such a reason, and if the prosecutors have a proper reason, they should declare what it is.”

– Fred Graham, In Session senior editor

WASHINGTON — Is this trip necessary?

By that I mean the sad, sordid procession of former call girls and humiliated “Johns” that constitute the ongoing prostitution trial in the District of Columbia known as the “D.C. Madam” case.

In this first week of the prosecution’s case against Deborah Jeane Palfrey, the dominant question is not whether prosecutors are proving that Palfrey operated an escort service that was a front for prostitution, but why they have pursued this expensive case against her when scores of “full service” escort services continue to operate full blast in the nation’s capital.

So far, the testimony has been titillating and embarrassing, but has not produced the political big names that some had hoped. Former “escorts” (who had been granted immunity and forced to testify) gave sheepish accounts of performing various sex acts for pay. Two local attorneys told of paying Palfrey’s employees for sex (one lawyer was a repeat customer when he was a student at Yale law school), then the two men pulled their coats over their heads to disguise their humiliation as they departed the court house.

The prosecutors have produced considerable evidence that some of Palfrey’s escorts engaged in sex for money, despite a clause in their contracts with her that said if they committed any illegal acts, they would be fired. The key issue will be whether prosecutors can prove beyond a reasonable doubt that Palfrey knew some of her girls were selling sex.

But the most perplexing question is why the prosecutors are pursuing this case. They have given no indication that the “DC Madam” case is part of a broader campaign against prostitution by the thriving escort business. No similar cases have been brought. Palfrey’s attorneys claim they are punishing her for giving them a hard time in an unrelated case. The government should not prosecute a citizen for such a reason, and if the prosecutors have a proper reason, they should declare what it is.

– Fred Graham, In Session senior editor

WASHINGTON — When the U.S. Senate cleared President Bill Clinton of impeachment charges, even though he had lied under oath about his relationship with Monica Lewinsky, many of his supporters passed it off on the grounds that “everybody lies about sex.” Some critics of the outcome worried that an unhealthy precedent had been set—a sort of “sneaking around” exception to the perjury laws.

Last week, the chief prosecutor in Detroit launched a perjury investigation of the city’s mayor which could indicate whether American law is developing a tolerance of lying under oath, so long as the lies are about sex. The investigation is focused on Mayor Kwame Kilpatrick and his longtime aide, Christine Beatty, who swore under oath in a civil case against the city that they had never had an extramarital affair. Last month the Detroit Free Press published transcripts of text messages between the mayor and his aide indicating that their relationship had, indeed, been quite intimate.

Ms. Beatty quickly resigned as the mayor’s chief of staff, and last Wednesday he delivered an emotional television address from a church with his wife and three young sons at his side. The mayor offered an abject apology to his constituents, but insisted that he will not resign. He did not discuss specifics of the false testimony issue.

The chief prosecutor in the case, Kym Worthy, will be familiar to those who watched trials on Court TV in its early years. She was seen on camera trying cases as a young prosecutor and later as a trial judge, and always came across as a competent, no-nonsense professional.

Mayor Kilpatrick is part of an influential political family in Detroit (his mother is a member of Congress in Washington), but he has been involved in of a series of controversial episodes. Time magazine once called him one of the three worst big-city mayors in the United States.

If there is an indictment and jury trial, the case could be pivotal in determining if perjury is to be condoned, so long as the lies were about sex.

– Fred Graham, In Session Senior Editor

WASHINGTON – Say it isn’t so, Rambo!

Sylvester Stallone says he used HGH to bulk up for his latest Rambo movie.

But alas, it is. Just as Congressional investigators on Capitol Hill are cranking up preparations for a hearing to dramatize the evils of steroid use by Major League baseball stars, Sylvester Stallone says he used another performance enhancer, human growth hormone (HGH), to get in muscle-rippling shape for his latest “Rambo” movie.

What’s more, the 61-year-old actor is an unapologetic advocate of chemistry as a comfort to the aging male. Read all about it

“Testosterone to me is so important for a sense of well-being when you get older,” Stallone tells Time magazine in its February 4 issue. “Everyone over 40 years old would be wise to investigate it because it increases the quality of your life. Mark my words. In 10 years it will be over the counter.”

Stallone says he gained 41 pounds to play the famously-muscled Rambo by using prescription testosterone.

This revelation comes as Congressional aides are preparing for a high-profile face-off, under oath, between pitching ace Roger Clemens, who says he has never used steroids, and his former trainer, who claims he injected The Rocket with performance-enhancing substances. The hearing is currently set for February 13.

While admitting the steroid matter is not a crucial legislative issue, Congressional spokesmen have defended the investigation as a way to discourage young people from taking up steroid use.

Now comes Stallone, upstaging the upcoming hearing by disclosing that Rambo developed those muscles through chemistry. Which could, despite the Congressional hearings, persuade many young athletes to get buff through HGH—and might also touch off a new wave of substance abuse among the Viagra generation.

– Fred Graham, In Session Senior Editor

WASHINGTON – Lawyers call them “swearing contests.” Opposing witnesses take the oath–and tell absolutely contradictory stories.

It happens all the time (been in divorce court lately?),  and nobody suggests either witness should face perjury charges.

So the public should take with a grain of salt the claim that New York Yankee pitcher Roger Clemens will precipitate a “possible perjury showdown” (the New York Times’ words, not mine) when he comes to Capitol Hill on Saturday to be questioned by Congressional staff lawyers about allegations by a former trainer that he injected The Rocket with performance-enhancing drugs.

Clemens and the trainer, Brian McNamee, have been issuing contradictory statements for weeks—Clemens saying the injections contained legal substances, McNamee insisting they were illegal steroids and human growth hormones. Now both men have said they will repeat their conflicting stories under oath to Congressional investigators.

On the face of it, this would make a perjury prosecution inevitable—one of them is lying, and should be prosecuted for perjury. Not so (remember all those divorce cases?).

Perjury cases are historically difficult for prosecutors to prove, and here, there seems to be little evidence other than the two men’ claims. Clemens can swear he thought the injections were benign. McNamee can point out that he has no motive to falsely accuse the formidable Clemens, and indeed, under a plea bargain he could go to prison if he is not telling the truth.

So the much-anticipated face-off between the two men under oath on Capitol Hill (currently set for Feb. 13) is not likely to produce a “perjury showdown.” The two men will repeat their now-familiar stories in a “swearing contest” under oath. Then, if reason prevails, the matter will end at that.

– Fred Graham, In Session Senior Editor

WASHINGTON– Film actor Wesley Snipes and presidential candidate Mike Huckabee have one thing in common. They both believe that the federal income tax laws have become so incomprehensible that the frustrated public may be ready to do something drastic about it.

Huckabee is hoping the voters will favor his radical proposal to abolish the income tax and the IRS in favor of a simple federal sales tax.

Snipes, who went on trial this week in Florida on charges of income tax fraud and conspiracy, hopes the jury will accept his story that the tax laws were so bewildering to him that he didn’t understand he was obligated to pay taxes. It’s a stretch, because Snipes was smart enough to earn $38 million dollars, yet his defense is that he couldn’t get himself together to file tax returns or pay any taxes.

At the time, Snipes was a member of a tax protest group that maintained that Americans are not legally obligated to pay income taxes. Generally, ignorance of the law is no defense, but the Supreme Court has ruled that in situations such as this, the defendant can argue to the jury that he sincerely believed he did not have to pay taxes.

Defendants have usually found this argument a tough sell. Jurors tend to believe everybody knows they have to pay taxes. Snipes has an additional problem because he gave the IRS three bad checks to cover $14 million in taxes—suggesting he realized he was required to pay.

On the face of it, Snipes’ defense (and, perhaps, Huckabee’s problematic sales tax scheme) face uphill going based on cold logic. But there’s always the chance that the public’s distaste for the convoluted tax system could strike a chord of sympathy in the jury (it only takes one to hang a jury) for Snipes’ claim that it was all more than he could understand.

The outcome would be a devastating blow to the tax system–and food for thought about the need to simplify the tax code.

– Fred Graham, In Session Senior Editor

NEW YORK – Today The New York Times is calling for cameras in the Supreme Court. And they’re right: The highest court in the land, more than any other, should “allow coverage of oral arguments similar to C-Span’s valuable coverage of the house and senate.”

But The Times is late to the game. For years Court TV argued for cameras in all federal courts, including the Supreme Court. Now, as In Session, we will continue that fight.

Our Senior Editor, Fred Graham, who for many years covered the Supreme Court, has traveled the country arguing for increased access in state courts. As he points out, no trial in the U.S. has been overturned in more than 40 years because a TV camera was present. The fight to open the federal courts is even more daunting.

Across the board, the federal courts simply do not allow cameras. Period. William Rehnquist, who in is capacity as Chief Justice also headed up the federal courts, was notoriously opposed to cameras.

One can only hope that a new generation of justices will come to understand that the right to a “public” trial includes the right to have that trial televised.

– Jami Floyd, In Session anchor

WASHINGTON — After spending the morning in the House hearing into steroid use in Major League baseball, I have a modest suggestion.

Call it the “Mister Universe” test. If an athlete who used to have a normal body develops a physique reminiscent of Arnold Schwarzenegger in his prime, that should be enough to justify an investigation—or at least a pop urine test—of that player.

When Barry Bonds and Mark McGuire grew from normal proportions into Superman look-alikes, most observers concluded they were cheating in some fashion. Yet that apparently was not enough to trigger an investigation.

Just this week, the baseball league created a new investigations unit staffed by veteran law enforcement officials and authorized to check out all allegations of drug use (including anonymous tips to a new hot line). The investigators should also be authorized to look into evidence in plain sight—such as an athlete who somehow develops into an Adonis, and seems headed for the Hall of Fame.

– Fred Graham, In Session Senior Editor

WASHINGTON — “Solutions cause problems,” Eric Sevareid used to say, and the Supreme Court was confronted with the truth of that today when it heard arguments on the constitutionality of a law designed to deal with the problem of voter fraud.

At issue was an Indiana law which requires voters to present at the polls a government-issued photo ID card. Lawyers for would-be voters who were turned away told the Justices the law was unnecessary, and that it placed an unconstitutional burden on the right to vote.

This was one of the laws passed in the national uproar over the chaotic Florida election of the year 2000. Previously, voters in most states were allowed to vote based on minimal identification, or just by giving a signature that matched the one in the registration book. But in the wake of the “hanging chad” hysteria, the Indiana legislature (and several other states) laid on new requirements to certify that imposters were not attempting to vote.

It was illogical, because ID fraud was not an issue in the Florida fiasco — vote-counting was. In the Supreme Court, Indiana’s lawyers were unable to show a single proven instance in the state of “voter impersonation.” Nevertheless, Republican legislators in Indiana (and elsewhere) used the public concern over the Florida situation to add new restrictions or voting.

It is ironic, because the legislatures should be making it easier to vote, not harder. They should be adopting voting by mail and the Internet, weekend voting, and other techniques for making voting easier.

We’ll have to wait and see if the Supreme Court will strike down the Indiana law. The Court is expected to rule before June, in time for the election in November. In the meantime, the county’s legislators would do well to follow the creed of the nations’ doctors, who take an oath to “Do no harm.”

– Fred Graham, In Session Senior Editor