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COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. RISKS OF JURY TRIAL A. Juror Intimidation and the Politicization of the Jury 1. Britain considered 2. America under scrutiny B. Public Dissemination of Classified Material II. JURY SUSPENSION A. The Case of Northern Ireland B. The United States III. POTENTIAL WAYS TO ADDRESS THE CONCERNS RAISED BY TERRORISM A. Juror Selection 1. Collection of information on jurors a. British vs. American cultures of juror selection b. Considerations for terrorist trials 2. Juror qualifications 3. Geographic draw and change of venue 4. Alternate jurors B. Juror Constraints 1. Jury discharge and directed verdicts 2. Clearances and classified documents C. Trial Procedure 1. Heightened security and juror anonymity 2. Increase penalties associated with juror intimidation 3. Automatic appeal on fact or law CONCLUSION
INTRODUCTION
British tradition and the American Constitution guarantee trial by jury for serious crime. (1) But terrorism is not ordinary crime, and the presence of jurors may skew the manner in which terrorist trials unfold in at least three significant ways.
First, organized terrorist groups may deliberately threaten jury members so the accused escapes penalty. The more ingrained the terrorist organization in the fabric of society, the greater the degree of social control exerted under the ongoing threat of violence.
Second, terrorism, at heart a political challenge, may itself politicize a jury. Where nationalist conflict rages, as it does in Northern Ireland, juries may be sympathetic to those engaged in violence and may acquit the guilty. Alternatively, following a terrorist attack, juries may be biased. They may identify with the victims, or they may, consciously or unconsciously, seek to return a verdict that conforms to community sentiment. Jurors also may worry about becoming victims of future attacks.
Third, the presence of jurors may limit the type of information provided by the state. Where national security matters are involved, the government may not want to give ordinary citizens insight into the world of intelligence. Where deeply divisive political violence has been an issue for decades, the state may be concerned about the potential of jurors providing information to terrorist organizations.
These risks are not limited to the terrorist realm. Criminal syndicates, for instance, may try to intimidate juries into returning a verdict of not guilty, and public outrage often accompanies particularly heinous crimes. But the very reason why these other contexts give rise to a similar phenomenon is because terrorist crimes have certain characteristics--characteristics that may be reflected in other forms of crime, but which are, in many ways, at the heart of what it means for an act to be terrorist in nature: terrorist organizations are created precisely to coerce a population, or specific individuals, to accede to the group's demands. The challenge is political in nature, and the method of attack is chosen for maximum publicity. Terrorist organizations, moreover, can and often do use information about the state to guide their operations. It is in part because of these risks that the United Kingdom and United States have changed the rules governing terrorist trials--at times eliminating juries altogether.
This Article reflects on the relationship between terrorism and jury trial and explores the extent to which the three dangers identified can be mitigated within the criminal-trial framework. (2) It does not provide a comprehensive analysis of the rich case law and literature that address jury trial--one of the most studied legal institutions on both sides of the Atlantic. Instead, its aim is more modest: The text weighs the advantages and disadvantages of suspending juries specifically for terrorism. Here, the United Kingdom's experiences prove illustrative. The Article considers the extent to which similar concerns bear on the U.S. domestic realm, and the decision to try Guantanamo Bay detainees by military tribunal. It suggests that the arguments for suspending juries in Northern Ireland are more persuasive than for taking similar steps in Great Britain or the United States.
This Article then considers ways to address concerns raised by terrorism that stop short of suspending juries. Juror selection, constraints placed on jurors, and the conduct of the trial itself provide the focus. Of these, emphasis on juror selection, although not unproblematic, proves most promising. Again, distinctions need to be drawn between the United Kingdom and the United States. In the former, for instance, occupational bars to jury service could be lowered, while in the latter, increased emphasis on change in venue may prove particularly effective. Changes in the second category, constraints on jurors, may be the most damaging to the states' counterterrorist programs. Finally, while changes in the trial process may help to address risks, they also may prove contentious and be prone to seeping into the criminal realm. The Article concludes by questioning whether and to what extent such alterations could be insulated from the prosecution of non-terrorist criminal offenses.
I. RISKS OF JURY TRIAL
Jurors' presence at terrorist trials risks juror intimidation, politicization of the jury, and the erection of obstacles to the state's use of classified evidence. This Part briefly discusses these issues and shows how they have arisen in the British and American contexts.
A. Juror Intimidation and the Politicization of the Jury
Terrorism is, by nature, a threat. The presence of terrorist organizations in society creates a risk that jurors will be coerced into finding defendants not guilty, despite substantial evidence to the contrary. Beyond this, terrorism tends to polarize communities. Individuals sharing the aim of those engaged in the struggle may be more willing to acquit an individual accused of subverting the state. Conversely, those appalled at the latest acts of violence may be looking to find someone--anyone--responsible. Jurors may be biased against defendants sharing an ethnic or religious background of those engaged in violence. This could influence their ability to evaluate evidence, the way in which juror deliberations unfold, and the verdict. (3) Even unconsciously, jurors may want to return a decision consistent with community sentiment--a community potentially angry and scared and mourning the loss of their own. In addition, jurors may be afraid of being the future target of attack, making them less likely to entertain doubt as to the guilt of the accused.
These concerns run through the historical experiences of both the United Kingdom and the United States in their efforts to address terrorism. For the former, Ireland, and later Northern Ireland, proved particularly troubling.
1. Britain considered
In nineteenth century Ireland, juror intimidation was practiced with remarkable openness. The Irish World newspaper wrote, "'I dare them to convict,' says the writer, 'I say "dare" advisedly. Let my words go forth. Accursed be the juryman who will dare to find these men (the traversers) guilty of any crime against the people of Ireland.'" (4) In the south of Ireland, crowds lined the streets as the accused were led to trial, shouting out "Down with Cork jurors," "Down with British law." (5) Patrick O'Brien, who went on to become a Member of Parliament, obtained a list of members of the jury who were to sit on the Phoenix Park murders. He distributed 10,000 copies with the warning: "Woe to you if you have any of the goods of these jurors in your house, for then you, as well as they, will have the blood and sufferings of innocent people upon your head." (6)
Government inquiries focused on what to do about juror intimidation and the politicization of jurors. (7) The documents examined ways to secure public confidence in the legal system. One report noted that in general juries have performed their duties well but "in other parts of the country, notably in those where agrarian agitation is most prevalent, there is much cause for complaint." (8) The report found that jury misconduct "comes within [three] well-defined categories[:] 1. Crimes arising out of disputes as to the occupation of land. 2. Crimes arising out of political or religious antagonism. 3. Aggravated assaults." (9) This misconduct, the report continued, "has been attributed by different witnesses to (1) want of intelligence, (2) intimidation and fear, (3) sympathy with the accused person, or (4) a general disinclination to support the law." (10) Reform of the system became a constant refrain in Parliamentary debate. (11)
Solutions to these problems ranged from suspending jury trial to requiring jurors to be landed. (12) (The assumption was that the wealthy could not be bought or brought under undue influence of the defendant. (13)) The state actively sought individuals with a strong character, chosen by a disinterested party; and it empanelled individuals whose reputations would be on the line. (14) The government further tried to counter the risks by imposing penalties for perverse verdicts. (15)
As political violence continued, the beginning of the twentieth century witnessed the partition of the island. (16) For the next fifty years unionists controlled Northern Ireland. The Irish Republican Army (IRA) launched four campaigns to eliminate the border. In each of these the unionist government used extra-judicial measures, such as executive detention and restriction orders, to address terrorism--reducing concerns about juries by narrowing the role of the judiciary. (17)
In the late 1960s, violence again erupted. Alarmed at the growing number of shootings, incendiary devices, and bombings, Westminster assumed direct control of Northern Ireland in 1972. The government immediately instituted a review to examine what steps could be taken to reduce violence.
Lord Diplock, who chaired the inquiry, paid particular attention to the state's tendency to avoid the judicial system by using executive detention measures. He suggested that where cases did go to trial, perverse verdicts and the potential for juror intimidation undermined the system. Although he offered no evidence in support of this claim, he recommended the suspension of jury trial. (18) The subsequent 1973 Northern Ireland (Emergency Provisions) Act eliminated juries for trials of offenses associated with terrorist crime. (19) Although the Act was intended as a temporary measure, for more than thirty years Britain suspended juries in terrorist trials in Northern Ireland.
Successive reviewers of emergency measures recommended changes to the legislation, (20) but it was not until December 1999, during the Second Reading of the Terrorism Bill, that the Home Secretary announced that a Review Group would consider and report on what changes could be made to facilitate transition back to trial by jury. (21) The Review Group had just six months to consider the matter. The final report suggested that while general consensus existed that Northern Ireland needed to return to jury trial, the time was not yet ripe. (22) Three material factors would have to be taken into account: the risk of juror intimidation, perverse verdicts, and the level of threat. (23)
Mr. Adam Ingram, Minister of State for the Northern Ireland Office, reiterated in Parliament, "While the Government's overall objective remains a return to jury trial for all offenses in Northern Ireland, the Secretary of State agrees with the Review Group's recommendation that the time is not yet right for such a move." (24) Juror intimidation and perverse verdicts, emphasized by Lord Diplock nearly three decades before, continued to be a problem. The Review Group explained the difference between Northern Ireland and the rest of the United Kingdom:
While organised gangs in Great Britain may pose a serious threat, the problem in Northern Ireland is exacerbated by the relatively small community and the control the paramilitaries seek to exert over it through intimidation and so-called punishment beatings and shootings. In a small community people are aware of who is on jury service. Paramilitary groups can still exert great influence over their communities and until that wanes, people in those communities will be potentially open to intimidation. (25)
The inquiry compared the situation to witness intimidation and noted that "[f]or higher levels of intimidation, the protection that may be necessary is so disruptive (i.e. relocation, possible change of identity, long-term protection for entire families) that it would be an unrealistically high price to require of potential jurors." (26) It recognized that such protections may be "extremely resource-intensive." (27) The inquiry cited the importance of building public confidence, for as Lord Diplock had observed, "a frightened juror is a bad juror even though his own safety and that of his family may not actually be at risk." (28) In 2000, the state continued juryless courts in Northern Ireland in a temporary subsection of permanent legislation. (29)
In July 2005, the Provisional Irish Republican Army declared an end to its campaign. (30) Within weeks, the British government responded with a program for security normalization that upped the ante, proposing the end of the Diplock system by July 31, 2007. A year later, the Blair government met further progress in the peace process with a consultation paper that recognized the "residual risk from dissident republican and loyalist paramilitaries who are still engaged in planning acts of terrorism and continue to raise funds for their organisations." (31) It echoed Lord Diplock: "People in Northern Ireland ... live in close-knit communities and in some cases these are dominated by members of paramilitary organisations. This increases the risk of intimidation. It also creates a fear of intimidation that can be just as damaging." (32) Nevertheless, the government proposed that the state shift in July 2007 to the presumption of jury trial for terrorist offenses.
Many unionists decried the proposal as an abdication of responsibility: violence may have been decreasing in the province, but it was still there. As Table 1 shows, since March 2003, there had been 347 shootings, 375 assaults, and 18 murders due to political violence.
Although violence was on the decline, dissident paramilitary organizations appeared to be increasing their criminal activities. Reporting in autumn 2006, for instance, the Independent Monitoring Commission (IMC) noted that the Continuity IRA was recruiting and training members in engineering and firearms. (33) Oglaigh na hEireann, a small dissident group, was gaining ground. (34) The Loyalist Volunteer Force (LVF) had become "primarily a criminal concern." (35) While it lacked "any coherent political purpose," the LVF had moved into drug dealing and criminal activity. (36) Similarly, the Real IRA (RIRA) continued "to recruit members ... monitor police officers and stations; and [identify] loyalist paramilitaries as potential targets for attack." (37) The IMC described the Ulster Defence Association as "an active threat to the rule of law", and the Ulster Volunteer Force, in a similar manner. (38)
Not only did paramilitary violence continue, but the judicial system was under strain. Police intelligence identified eleven cases of jury tampering in non-Diplock courts 1999-2006, seven of which involved individuals with paramilitary connections. (39) Witness intimidation regularly occurred. (In 20042005, for instance, the Police Service of Northern Ireland recorded seventy-four instances of witness intimidation. (40) It is estimated that only half of all cases of intimidation are reported to the police. (41)) While not peculiar to Northern Ireland, the situation was considerably worse in the province than in the rest of the United Kingdom. (42) Lord Carlile, the government's annual reviewer of counterterrorist law, reported:
I am aware of concern in the courts about intimidatory tactics used in the presence of juries by the connections of defendants, and of the not uncommon failure of prosecution witnesses to turn up at court to give evidence. Intimidation can be subtle but disturbing, for example the repeated presence in the public gallery of persons looking closely at the faces of jurors. (43)
The issues that plagued the judiciary in nineteenth century Ireland continued to challenge efforts by the British state in the early twenty-first century to establish jury trial for terrorist charges.
2. America under scrutiny
The concerns highlighted above extend beyond British or Irish borders. Where suspected terrorists have stood trial, the United States also has witnessed intimidation and politics enter the courtroom through the jury. The infamous trial of Bartolomeo Vanzetti and Nicola Sacco, (44) two Italian anarchists, proves illustrative. Believing jurors and the trial to be a potential target, Massachusetts responded by taking a series of public security measures: the police guarded the courthouse, and every stranger who entered the courtroom was searched for weapons. The judge also went to some lengths to ensure that the weapons on exhibit were not loaded. (45) Even this did not prevent one of the jurors from having a bomb thrown at his house. (46) Simultaneously, Fred Moore, the California attorney who first defended the two men, turned the trial into a political tour de force: he organized public meetings, distributed tens of thousands of pamphlets, and drew on international organizations and foreign governments to reshape the question of guilt as a political matter--and thus influence the jurors' decisions. (47)
Juror bias also proved potentially problematic in United States v. Salameh, which dealt with the 1993 World Trade Center bombing. (48) One defendant claimed that his right to fair trial was abridged because the court "failed to ask sufficiently probing questions regarding the jury panel's bias against Muslims, Arabs and Islamic Fundamentalism." (49) The trial judge went through considerable steps to ensure juror impartiality. (50)
Similar concern about scapegoating affected the trial of Omar Mohammed Ali Rezaq, who was accused of killing Americans during the hijacking of Air Egypt Flight 648. (51) On July 17, 1996, the night after the government's closing argument, TWA Flight 800 crashed off the coast of New York. Extensive media coverage followed. One survey found that it was the most heavily covered case in all of 1996. (52) The accident was widely believed at the time to be the work of terrorists. An article in the Washington Post noted that Athens, Flight 800 aircraft's original departure point, was "known as a base for terrorists." (53) This was the same city where Rezaq had boarded Air Egypt Flight 648. The judge neither sequestered the jury nor instructed them to avoid the news. Two days later, the jury issued a verdict of guilty. (54)
These cases all took place prior to 9/11. Just over two months after the attacks, the Bush Administration announced that juryless military tribunals would try noncitizens suspected of complicity in international terrorist attacks against the United States. (55) Nevertheless, terrorist cases involving citizens and noncitizens continued to arise in the domestic criminal court system. And like their predecessors, many gave rise to concerns about the role of the jury.
In 2003, the "Lackwana Six," for example, were indicted on charges of material support to a foreign terrorist organization. (56) The magistrate openly noted the difficulty of obtaining an impartial trial: "Understandably, the infamous, dastardly and tragic deeds and events of September 11, 2001 have caused a maelstrom of human emotions to be not only released but to also create a human reservoir of strong emotional feelings such as fear, anxiety and hatred as well as a feeling...
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