New York Times
December 26, 2001

An Unpredictable Judge Is to Preside in First Case of an Accused Terrorist


WASHINGTON -- In one of the nation's most conservative courthouses, Judge Leonie M. Brinkema has always stood out. Not only as one of the most liberal judges on the federal court in the capital's leafy Virginia suburbs, but also as one of the least predictable in her rulings, which are often reversed on appeal for reasons that go beyond politics.

Now, the courtroom performance of Judge Brinkema, 57, will be on view for the world to see. She has been assigned to preside at the trial of Zacarias Moussaoui, the only person indicted in connection with the Sept. 11 attacks.

Mr. Moussaoui, a French citizen of Moroccan descent, has been accused of conspiring with Osama bin Laden and his Qaeda terror network, and federal law enforcement officials suspect that Mr. Moussaoui would have been the 20th hijacker on Sept. 11 if he had not been arrested on immigration charges in August.

In a first appearance before a federal magistrate in Alexandria, Va., last Wednesday, Mr. Moussaoui heard a prosecutor read the six conspiracy charges against him, four of which can carry the death penalty.

Dressed in khaki pants and a brown T-shirt, Mr. Moussaoui, 33, said nothing and remained seated during the seven-minute hearing. He was ordered held without bail until his formal arraignment on Jan. 2.

Judge Brinkema was appointed to the Moussaoui trial by the chief judge in Alexandria, Claude M. Hilton, who did not explain the reasons for the selection.

Lawyers in Northern Virginia who have appeared before Judge Brinkema speculated that Judge Hilton believed that she would conduct the trial fairly and quickly and that any guilty verdict would be easily sustained by appeals courts, regardless of how she conducted the trial.

In a trial that might otherwise threaten to become a media circus, lawyers and colleagues of Judge Brinkema predict that she will keep a tight rein on the proceedings.

In her polite, no-nonsense style, Judge Brinkema, a former prosecutor, is similar in temperament to most of the other judges on the bench in Alexandria, known as the "rocket docket" because of the speed with which justice is dispensed.

But that is where the similarity ends with most of her colleagues in the district court and certainly with the judges of the United States Court of Appeals for the Fourth Circuit, in Richmond, the fiercely conservative appeals court that oversees Judge Brinkema and that has frequently reversed her rulings.

In legal circles, Judge Brinkema is seen as perhaps the most left-leaning judge in the Alexandria courthouse, which is surrounded by the middle- class, conservative, mostly white suburbs of Northern Virginia. The area is home to many government workers, including many employees of the nearby Pentagon.

In 1998, she outraged conservative groups with two nationally significant decisions involving free speech and the Internet.

In one, she struck down a county ban on the viewing of pornography on Internet sites at public libraries; the decision was not appealed. In the other case, she ruled that the Commonwealth of Virginia could not restrict access to pornography Web sites by state employees on taxpayer-owned computers; that decision was struck down by the circuit court.

In 1999, the conservative Family Research Council awarded her its lifetime Court Jester award for judicial activism, citing the Internet decisions. At the same time, she was roundly praised by free-speech advocates, who said that the Internet rulings were an important early blow against intrusive censorship in cyberspace.

"I was profoundly impressed by those decisions," said Robert M. O'Neil, a law professor at the University of Virginia. "She offered a strong, well-reasoned First Amendment argument."

Appointed by President Bill Clinton in 1993, Judge Brinkema became a Republican target when Mr. Clinton sought re-election in 1996 and his opponent, Senator Bob Dole, singled her out as a member of the "judicial hall of shame."

On the campaign trail, Mr. Dole cited a 1995 murder-for-hire case in which she gave a lighter sentence to the defendant 21 months in prison than the sentence called for by federal guidelines: seven to nine years. She had cited the defendant's diminished mental capacity.

The Fourth Circuit overturned the sentence, saying that much of Judge Brinkema's reasoning was flawed.

After Mr. Dole's attack, many prominent lawyers rushed to defend Judge Brinkema, saying she was being unfairly described as soft on criminals. In fact, many say, she is evenhanded in her treatment of prosecutors and defense lawyers, and that for every lenient sentence she hands out, there is a harsh one.

In a hazardous-driving case in 1996, Judge Brinkema was so horrified by the defendant's fatal, 70-mile- per-hour driving duel on a local highway that she bypassed federal sentencing guidelines and sentenced him to more than 10 years in prison triple the recommended sentence under the guidelines.

The punishment was initially rejected by the circuit court, which said that Judge Brinkema had failed to explain adequately why she had overridden the guidelines, but it was upheld after she imposed the same sentence a second time, this time with a fuller explanation.

The sentencing guidelines are drafted by a federal commission established under the law, but Judge Brinkema has made clear that she feels obliged to reject the guidelines in cases in which she believes the circumstances are extreme.

"It's my job to try to do justice," she said in the hazardous-driving case, according to news reports at the time. "I have a problem with the rigidity of the sentencing guidelines."

Jonathan Shapiro, a Virginia lawyer who has often appeared before Judge Brinkema, said that "she is a no-nonsense judge of all of her qualities, that is the one that stands out."

"She does not play favorites, whether it's the government or the defense," Mr. Shapiro said. "She calls it the way she sees it."

Nina Ginsberg, a lawyer who recently represented an Australian intelligence agent who pleaded guilty before Judge Brinkema to stealing classified American documents, said that her frequent reversals on appeal were a testament to her willingness "to stand by her convictions."

Judge Brinkema, Ms. Ginsberg said, "is not an extreme liberal; I think she's a very fair judge who tries to do the right thing."

Judge Brinkema graduated from Cornell Law School in 1976 after receiving an undergraduate degree in philosophy at Douglass College in New Jersey and a master's degree in library science from Rutgers. She was a prosecutor with the Justice Department from 1976 to 1984, then worked in private practice. From 1985 to 1993, she was a magistrate in the Alexandria courthouse where she is now a district judge.

Copyright 2001, New York Times Company. All rights reserved.

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