[Guest post by DRJ]
In support of the Obama Administration’s decision to try some Guantanamo detainees in New York City, Attorney General Eric Holder said the decision to pick New York City’s civilian courts instead of military courts was based “strictly on which venues he thought would bring the strongest prosecution.”
Mayor Bloomberg agreed, saying it is “fitting” that the terrorists who planned 9/11 would face justice in a Manhattan courtroom, just blocks from the site of the Twin Towers. Objections by Republicans were treated as no more than partisan rhetoric.
Now reality sets in at the New York Times:
“Since the government’s announcement that Khalid Shaikh Mohammed would be tried with others in Manhattan in connection with the 9/11 attacks, some lawyers and others have expressed skepticism that such a trial will ever be held in the city.
They are confident that defense lawyers will ask that the trial be moved, and believe that a judge might even consent.
But a review of previous terrorism trials and interviews with lawyers involved in those cases and other legal experts show that such an outcome is hardly guaranteed.”
The article notes it will be difficult to find any American venue where potential jurors won’t be affected by 9/11. In addition, some defendants may not want a change of venue, preferring to take advantage of the New York City soapbox:
“Much is unknown about the forthcoming cases against Mr. Mohammed and four others. No public indictment has been released; no judge has been picked. It is not clear that Mr. Mohammed will even mount a defense. And he may want his trial to be a soapbox of sorts, blocks from where the World Trade Center once stood.
If he does seek to defend himself, some lawyers say a motion for change of venue would almost be mandatory because of 9/11’s impact on the city.”
Further, New York City jurors can be unpredictable and they may not go along with the Obama Administration’s promise to convict the detainees or sentence them to the death penalty:
“To block the death penalty, the defense needs only a single holdout, the kind of free-thinking juror who might conclude, for example, that a lifetime in solitary confinement would be greater punishment for a terrorist seeking martyrdom.
“Not all American jury pools have the diversity and open-mindedness that New Yorkers are famous for,” said Daniel C. Richman, a Columbia law professor and former federal prosecutor in Manhattan. “I suspect people elsewhere would probably be a whole lot quicker to close their ears to anything the defendants had to say.”
My gut says the people most likely to be picked as terror trial jurors will be the “diverse, open-minded” ones.