NEW YORK — 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 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 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 U.S. 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 Lind, said he was convinced that his client could not get a fair trial in Manhattan so soon after 9/11.
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, Lind wrote.
But the judge, Deborah Batts, rejected the request, citing other survey evidence showing that levels of bias were not much different elsewhere.
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.
Much is unknown about the forthcoming cases against Mohammed and four others. No public indictment has been released; no judge has been picked. It is not clear that 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 University 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.”
Front Section, Pages 6 on 12/27/2009