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A presumption of jury prejudice

By Greg Barns - posted Tuesday, 17 November 2009

No issue symbolised the moral bankruptcy of the Bush Administration’s post 9-11 offensive more graphically than Guantanamo Bay. And when Barack Obama promised last year to repair the damage done to American prestige because of the Bush Administration’s mistreatment of the detainees at Gitmo, his lofty rhetoric fell on fertile ground. But last Friday’s package of announcements about a legal fate of a handful of high profile detainees by President Obama’s Attorney-General Eric Holder leaves the distinct impression that the reality has not yet met that elegant rhetoric.

The announcement by Mr Holder that has gained the most media attention is the decision to pursue a prosecution in the civil courts against five detainees who are currently charged with conspiring to commit the 9-11 terror attacks. The detainees are Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi. This case is to be heard in the Southern District of New York, which means in the same locale as where the attacks took place.

Holder says that the men will get a fair trial. But will they? Will it be possible to find enough individuals who live in that part of the New York, or on the island of Manhattan generally for that matter, who do not have strong and intractable views about who caused 9-11, or who knows someone directly affected by the events of that day? Mr Holder’s decision to try these men “a few hundred yards” from the former World Trade Center seems to be more about politics and maximising the chances of successful prosecutions than it does about a fair trial


In fact, the whole issue of whether or not high profile defendants charged in relation to high profile tragedies should be tried in places where the events took place is currently being examined by the US Supreme Court in the context of the decision by a trial judge to allow trial of former Enron executives Jeff Skilling and the late Ken Lay in the city that was synonymous with the company’s name - Houston.

Skilling’s lawyers have asked the US Supreme Court to consider whether in cases when “a presumption of jury prejudice arises because of the widespread community impact of the defendant’s alleged conduct and massive, inflammatory pretrial publicity, the government may rebut the presumption of prejudice, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.”

If the Supreme Court rules in Mr Skilling’s favour, then the Obama Administration may find themselves embarrassed into having to move this 9-11 trial to somewhere more neutral given that it would be highly unlikely that it could rebut a presumption of jury prejudice in Manhattan and be able to prove beyond reasonable doubt, that not juror on the case was actually prejudiced.

But while the upcoming 9-11 trial hit the headlines, one other aspect of Mr Holder’s Friday announcement has, relatively speaking, slipped under the radar. It is the decision of the US to continue to refuse to release or repatriate to Canada, Canadian citizen Omar Khadr, who was arrested in 2002 in Afghanistan at the age of 15 and who has been detained in Guantanamo Bay ever since. Khadr, born in 1986, was kept locked away for five years before being charged with murder and other terrorism related charges. He was tortured by US military personnel in the form of sleep deprivation and he was interviewed by both Canadian and US officials without having access to legal representation or having a guardian or his parents present. Two Canadian courts have ordered that country’s government to repatriate Mr Khadr on the grounds that his rights to be treated fairly have been abused.

What makes the case of Omar Khadr so morally repugnant is that he was tortured and mistreated by authorities in 2003 and 2004 - when he was still a minor. That itself, should be enough for the Obama Administration to release him back into the community. He was simply a child soldier, caught on the battlefield.

The Obama Administration has found itself compromised and flat footed when it comes to what to do with Guantanamo Bay and its detainees. And Friday’s announcements, problematic and unfair as they are, showed that this is one area where this liberal Administration is afraid to lead.

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About the Author

Greg Barns is National President of the Australian Lawyers Alliance.

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