December 26, 2009
Deciding Terror Trial’s Venue Is a Complex Case
By BENJAMIN WEISER

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.

Federal juries in Manhattan, for instance, have not imposed the death penalty against any of the six defendants who could have received it since the federal death penalty was reinstated some two decades ago. Lawyers for Mr. Mohammed could well calculate that their greatest legal obligation is not to win acquittal but to save his life, and that there is no better place to try to do that than in a Manhattan federal courtroom.

As well, judges have been reluctant to order cases moved, ruling that careful pretrial questioning can weed out jurors who are not impartial.

In a case in 2002, a lawyer in Federal District Court in Manhattan sought a change of venue for a suspected aide to Osama bin Laden who had been charged with stabbing a jail guard. The lawyer, Richard B. Lind, said he was convinced that his client could not get a fair trial in Manhattan so soon after 9/11.

Mr. Lind had surveys conducted in New York and five other jurisdictions in January 2002. The results showed that 58 percent of New Yorkers had been “personally affected” by the attacks — from losing family members or friends to having their work disrupted — more than double the average of those in the other areas. “There is a tidal wave of public passion” in New York, Mr. Lind wrote.

But the judge, Deborah A. Batts, rejected the request, citing other survey evidence showing that levels of bias were not much different elsewhere.

“While New York residents are particularly hard hit because of the destruction of the World Trade Center and considerable loss of loved ones,” the judge wrote, “the tidal wave is of national, not just local, proportions.”

Defense lawyers in a prominent terror trial in Manhattan nearly 15 years ago reached a similar conclusion when they ordered research on whether their clients would fare better in a city other than New York.

Back then, Sheik Omar Abdel Rahman and a group of other men faced a 1995 federal trial on charges of plotting to blow up the United Nations, the George Washington Bridge, the Hudson River tunnels and other landmarks. The lawyers believed that their clients could not get a fair trial in the city they were accused of targeting. But their surveys of potential jurors indicated that New York was not clearly worse than other places for the trial.

“Did we expect that finding? No,” said David L. Lewis, one of the lawyers. “Did we expect the opposite of that? Yes.”

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.

“Given the publicity that has come out about this, all bets are off, I think, in terms of whether you can get a fair jury in Manhattan,” said Neil Vidmar, a Duke law professor who studies pretrial prejudice. “My gut instinct is, it should be moved elsewhere, but I could be wrong. I have been fooled in the past by these things.”

The inability of the government to obtain a federal death sentence in Manhattan does not mean all jurors favored life sentences. 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.”

Transferring major terrorism cases can lead to mixed results. After the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which killed 168 people, including infants and children in a day care center, the trials of Timothy J. McVeigh and Terry L. Nichols were ordered moved to Denver by a judge who found that pretrial publicity had created “so great a prejudice” against the two men in Oklahoma that they could not get fair trials there.

Mr. McVeigh received the death penalty in Denver, while Mr. Nichols was spared execution. Mr. Nichols was later tried again, on state charges, in McAlester, Okla., and again was spared the death penalty.

Michael E. Tigar, a lawyer who represented Mr. Nichols in the federal trial, said it was too early to say whether a change of venue was warranted in the 9/11 case, but added, “I would pause before I would say, ‘Let’s get out of New York.’ ”

In such cases, he said, every lawyer must examine the issue and “make a recommendation to the client based on a great deal more information than I’ve got right now.”

It was that kind of information that lawyers were seeking as they prepared for the trial of Mr. Abdel Rahman and others charged with conspiring to blow up city landmarks. The men were indicted in August 1993, six months after the first attack on the World Trade Center, which killed six people.

The lawyers believed jurors would be affected by that bombing and traumatized by the court’s proximity to 26 Federal Plaza, a government building that prosecutors said was also a target of the plot.

Two lawyers recalled that they had commissioned a survey of potential jurors in Manhattan and at least two other districts, Connecticut among them, to examine whether jurors who were “further from the alleged target sites would be less fearful and therefore less pre-judgmental of the defendants in this matter,” the lawyers wrote to the judge in May 1994.

Mr. Lewis, one of the lawyers, said he had expected the study to support “a very powerful” venue motion. But the results showed instead that “the overall level of prejudice against these defendants is essentially equal” in all of the places surveyed, the lawyers wrote to the judge.

“In short, it appears that it will be equally difficult to assemble a fair and impartial jury in any district,” the lawyers wrote. The case remained in New York, where the defendants were convicted.

In the 2002 case of the suspected bin Laden aide facing trial in the stabbing of a jail guard, a survey of six jurisdictions conducted four months after 9/11 found that while overall prejudice was greater in Manhattan, the difference was less than expected.

Edward J. Bronson, a professor emeritus of political science at California State University at Chico who oversaw the study, wrote in a report that the data did not ultimately provide “the sort of clear and convincing empirical evidence that would mandate a change of venue.”

As for a 9/11 case, he said by phone, “there’s no question that there’ll be high levels of prejudice in New York. The question will be, compared to what?”