Endangering Jurors in a Terror Trial: Ronald Rotunda
http://online.wsj.com/news/articles/SB10001424052702304393704579532002444026842?mg=reno64-wsj
Mr. Rotunda is professor of jurisprudence at Chapman University in Orange, Calif.
The federal judge denied anonymity for those deciding the fate of accused al Qaeda ally Mustafa Kamel Mustafa.
Statues of Lady Justice adorning courthouses often show her holding scales and wearing a blindfold, meant to show that she dispenses justice objectively, without regard to the identity of the parties. However, something else is going on in the New York trial of Mustafa Kamel Mustafa (also known as Abu Hamza al-Masri ). It appears that the presiding federal judge, Katherine B. Forrest, is lifting off the blindfold and putting her thumb on the scales to favor the defendant.
Mustafa is an Egyptian-born imam who preached Islamic fundamentalism and support for Osama bin Laden at the Finsbury FIF.LN 0.00% Park Mosque in London beginning in the 1990s. A British court convicted him in 2006 for encouraging his followers to murder non-Muslims.
After Mustafa served his sentence in Britain, he was extradited in 2012 to the U.S. Since April, he has been on trial in New York on charges of conspiring to aid al Qaeda, by assisting in the taking of 16 hostages in Yemen in 1998 (four of whom were killed), advocating violent jihad in Afghanistan in 2001 and helping others attend an al Qaeda training camp there; and attempting to establish a terrorist training camp in late 1999 and early 2000 near Bly, Ore.
During opening arguments last month, the prosecutor told the jury that they would hear a recording of an interview in which Mustafa admitted that he gave a satellite phone to the kidnappers and said the kidnapping “was justified.” Mustafa’s defense lawyer said that his client “needed to be outrageous” in his speeches so he could “reach the entire spectrum of his community.”
Judge Forrest denied the prosecution’s application to keep jurors’ names secret for their protection. That causes a real problem for jurors. Who will want to be a named, easily identified juror in a case like this one, when he worries that other fundamentalists will wreak revenge on those who convict? The jurors may recall that various translators of Salmon Rushdie’s “Satanic Verses” were murdered over the years, apparently because they translated a book insulting to Islam. The best way for the jurors to protect themselves from revenge seekers is to vote not guilty.
While the prosecution’s motion to protect the jurors was not a surprise, the judge’s denial was. In 1995, Judge (and, later attorney general) Michael Mukasey granted the prosecution’s similar motion when he presided over the 1995 conspiracy trial of 10 al Qaeda terrorists, including the “blind sheik,” Omar Abdel Rahman. He kept the identity of the members of the jury anonymous to protect their safety. Despite all the precautions, two jurors found reporters sitting on their doorsteps the day of the verdict. “They were terrified,” Judge Mukasey told the Journal’s James Taranto in September 2011.
Judge Kevin Duffy presided over the federal trial of the four principal perpetrators of the 1993 World Trade Center bombing. He also provided anonymity to the jurors to protect them. Judge Lewis Kaplan, a federal judge for over 20 years, granted the government’s motion to protect the identity of the jury that in March convicted Osama bin Laden’s son-in-law, Abu Ghaith, of conspiring to kill Americans. Judges may also use anonymous jurors in significant organized-crime prosecutions.
Nevertheless, Judge Forrest rejected the prosecution’s request for an anonymous jury at the trial of Mustafa Kamel Mustafa. President Obama appointed her to the District Court bench in 2011. What does she know that more experienced federal judges do not know?
When a judge provides for an anonymous jury, the lawyers still question the jurors to uncover any possible biases. Lawyers are told everything they might need to know about the jurors, whom they call by number, not name. Judge Forrest argued that an anonymous jury would “run counter to the cloak of innocence that surrounds any defendant on trial in this country.”
Yet all defendants are presumed innocent, while judges still provide anonymous juries. Mustafa’s lawyers argued that an anonymous jury “would poison the atmosphere.” But anonymous juries do not automatically lead to a guilty verdict: George Zimmerman, for instance, was tried before an anonymous jury and acquitted in the Trayvon Martin killing.
In her opinion denying the government’s motion for an anonymous jury for the Mustafa trial, Judge Forrest, relied on United States v. Vario, a 1981 decision from the Second Circuit Court, the appellate court governing her court. Judge Forrest said, “The Second Circuit has found that a district court erred in empaneling an anonymous jury based on the fact that the case involved assertions that defendants were members of the Mafia rather than based on ‘the question of juror fears or safety in the trial at hand, beyond the innuendo that this connection conjures up.’ ” What Judge Forrest left out is the part where the court also said, “[W]e find that the district court did not err in deciding that the circumstances of this case warranted an anonymous jury.” Vario, by the way, upheld the conviction and the anonymous jury.
Judges should not put their thumb on the scales. As Chief Justice John Roberts has said, “Judges are like umpires. Umpires don’t make the rules; they apply them.”
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