Jury's Out On Terror Trials

Habib Zacarias Moussaoui, gavel, judicial system, american flag, generic
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

It's hard to know precisely what to make of Benjamin Weiser's wonderful front-page piece in Sunday's New York Times about the jury that deliberated in the African Embassy bombing trial. Weiser chronicled in rare and fascinating detail the inner workings of a diverse body of regular citizens who convicted four terror-conspiracy defendants but who chose life sentences over the death penalty for the only two men in the al Qaeda group charged with capital crimes.

Does Weiser's story support the argument that regular juries are incompatible for use in terror trials? Or does Weiser's account simply confirm that terror-trial jurors are no more or less capable of misbehavior as are jurors in run-of-the-mill criminal cases?

You can make a reasonable case for either position and I suspect various Justice Department officials are doing precisely that in the wake of the publication of the piece. Why? Because there is an internal debate going on right now at the White House and the Departments of Justice and Defense over what to do with Zacarias Moussaoui, the alleged terror conspirator.

As a non-citizen terrorist (he's admitted as much), Moussaoui is a candidate for adjudication before a military tribunal. For now, though, he stands accused of a capital crime in federal court in Virginia. Some officials want to keep him there in order to have a very public trial that will demonstrate to the world that the American justice system can fairly and thoroughly adjudicate a case as far-reaching as the Moussaoui case is. The system is bigger than Moussaoui, these folks contend.

Other officials, however, want to shuttle Moussaoui to the brig and thus preclude the opportunity he'd otherwise have to continue to publicly ridicule his judge, his lawyers, and America itself. No soapbox for Moussaoui, these folks argue.

This debate is destined to grow more intense as the Moussaoui trial, now scheduled to begin this spring, moves closer. And as his beleagured trial judge, U.S. District Judge Leonie M. Brinkema, begins to make substantive rulings about the constitutional rights to which he is entitled.

For example, sooner rather than later, Judge Brinkema will have to decide whether Moussaoui should be allowed access to another suspected terrorist, Ramzi Bin-al-shibh, on the theory that an accused has a right to conduct discovery and/or confront his accusers. Many of the factual nuggets contained in the Weiser article are directly relevant to the arguments posited on both sides of the fight.

Those at the Justice Department who want Moussaoui moved into military custody to stand trial before a tribunal will point to Weiser's work and contend that terror trials place unrealistic burdens on jurors. Most significantly, Weiser reports that at least one juror, a Jewish man, "was afraid throughout the trial of possible retaliation by Islamic terrorists."

The African Embassy trial took place before Sept. 11, 2001, of course, so it's at least arguable that this sort of fear would be even more profound today during a terror trial. Fearful jurors cannot be effective or fair jurors, some federal lawyers are likely saying to their colleagues as they argue that military personnel -- the "judges" in a tribunal proceeding-will be far less susceptible to these sorts of fears.

Weiser also reports that at least two jurors during their deliberations sought "spiritual guidance" about capital punishment. That's an absolute legal no-no and might have been cause for a new trial had the two capital defendants actually been sentenced to death. As it turned out, Weiser reports, the two jurors who consulted their religious advisors voted for death. But the jury never reached a unanimous death verdict. This sort of improper outside conduct also is likely to be used by government officials who want Moussaoui moved to a military base to stand trial beyond public view.

But the Weiser piece also provides support for those officials who want Moussaoui to stand trial right where he is. Mostly, this support comes in the form of proof of a negative -- that the African Embassy bombing jurors acted no differently than jurors in other cases. Weiser reports that one juror went online to research "a difficult legal concept" concerning one of the defendants.

Shocking? Perhaps. Unusual? Hardly. Internet-surfing jurors are becoming more and more common -- and more and more of a problem around the country. The National Law Journal last month chronicled several instances where jurors decided inappropriately to look for information online. The fact that an African Embassy bombing juror did it, too, proves nothing about the ability of such jurors to fairly decide a high-profile terror case.

Another nugget Weiser uncovered is that the Embassy bombing jurors fought amongst themselves over the effect of their "death qualifications." Jurors in capital cases may only serve if they are not unalterably opposed to the death penalty. This usually slants the jury pool in capital cases in favor of prosecutors-by skewing the pool toward people more inclined to vote for death -- but in the bombing case it appears that at least one juror was "categorically" opposed to capital punishment. Does this inappropriate scenario prove that the Embassy bombing jury was imperfect and acted unlawfully? Perhaps. Does it prove that regular citizens are unfit to serve in terror trials? Not really. Supporters of a public Moussaoui trial can point to this example and again argue with a straight-face that jurors will almost always be imperfect and that there imperfections have little to do with the case they judge.

The lessons of the African Embassy bombing trial are still being taught. It will be interesting to see what government officials learn from those lessons and what they do about it in the case of United States v. Moussaoui.

Andrew Cohen