Taking "Deliberate" Out Of Deliberations

(CBS)
Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.
What jurors did in the just-completed terror conspiracy and support trial of Jose Padilla and two other defendants is a travesty upon justice and an unconscionable affront to the judge, the witnesses, the lawyers and especially the defendants themselves, who, whatever we think of them, surely deserved a more reasoned approached to deliberations than what they received.

After a complex trial that lasted three full months, after scores of witnesses took the stand and reams of documents were introduced as evidence, the seven men and five women of the jury, sitting in judgment of men who face life sentences, took approximately 11 hours to unanimously conclude that all three defendants were guilty beyond a reasonable doubt of three charges each. This means that jurors spent less than one hour of deliberations for each week of trial testimony. (The rule of thumb, any trial attorney will tell you, is that one week of trial testimony usually tracks one day of deliberations.) Veteran reporters who had covered the trial from the start were shocked by the speed of the verdict. I was shocked. Prosecutors were shocked. Defense attorneys were shocked.

This HOV-lane justice might have been understandable (if not excusable) in a murder case involving a confession, or a simple larceny case, or even a civil trial brought by a sympathetic plaintiff against a big, evil corporation. But the Padilla trial was none of these things. It was a bitterly fought federal trial that offered jurors two very distinct theories of the case. And it was one of the most important terrorism trials since 9/11, involving one defendant who briefly was labeled the "face of terror."

The trial required jurors to contemplate the timing of the charges -- 2004 -- based upon conduct that had occurred a decade earlier. It required them to analyze the meaning of intercepted telephone calls in English and Arabic. It required them to consider the validity of questionable and complicated fingerprint evidence. There was expert testimony. There was testimony about relief efforts in Bosnia and Chechnya. And the jurors were back in about 11 hours (maybe less if they took unaccounted for breaks).

Jurors refused to speak publicly immediately following the verdicts. But on Friday the New York Times reported that at least one juror had "all but made up her mind" about the defendants' guilt before deliberations began. She said: "We had to be sure. We wanted to make sure we went through all the evidence. But the evidence was strong, and we all agreed on that." And the Miami Herald quoted a juror saying that "we didn't have anything decided" when the jury recessed for the night on Wednesday. But by Thursday morning, the pieces of the case "fell in place.''

I hope U.S. District Judge Marcia Cooke will read these comments and ask the juror(s) for further explanation. You can be sure that defense lawyers for the men will raise the issue on appeal and that appellate judges will take such information quite seriously. In fact, I wouldn't be surprised if all jurors ultimately are called to answer questions under oath about these deliberations.

Let me be clear: I am not blasting these jurors because I don't like the result of their work. I do not necessarily disagree with any of the verdicts although this clearly wasn't a slam-dunk case for the government. I think a reasonable person could have evaluated the evidence and determined that Padilla and Co. were up to no good, had criminal intent, and thus were guilty under our federal conspiracy and terror support statutes.

My problem is not with the substance of what happened at the gloomy federal courthouse in Miami this past week it's with the process. Yes, I know that jurors are uniquely free in our justice system to reach whatever conclusions they are willing and able to reach -- or to reach no conclusions at all. That's what we mean when we talk about the sanctity of the jury process. However, that sanctity, that zone of respect and reverence, surely does not extend to hasty decisions that smack of prejudgment or simply no judgment at all.

The men and women of the Padilla jury had an opportunity to send a message to the world: Under the U.S. system of justice, even passionate cases can generate dispassionate deliberations. Even frenzied political and ideological trials are worthy of calm, thorough and dogged discussion when men's liberties, if not their lives, are on the line. Alas, there is simply no way this heartening signal was sent in this case. It is logistically and logically impossible. The defendants lost the case—deservedly or not. But the jury did, too. And for that the twelve "deciders" deserve more scorn and scrutiny than our respect and gratitude.

  • Andrew Cohen

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