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When All of Us Are Victims: Juror Prejudice and "Terrorist" Trials

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When All of Us Are Victims: Juror Prejudice and Chicago-Kent Law Review Volume 78 Issue 3 Symposium: The Jury at a Crossroad: Article 10 The American Experience October 2003 When All of Us Are Victims: Juror Prejudice and "Terrorist" Trials Neil Vidmar Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Neil Vidmar, When All of Us Are Victims: Juror Prejudice and "Terrorist" Trials, 78 Chi.-Kent L. Rev. 1143 (2003). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol78/iss3/10 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. WHEN ALL OF US ARE VICTIMS: JUROR PREJUDICE AND "TERRORIST" TRIALS NEIL VIDMAR* INTRODUCTION September 11, 2001 marked the beginning of an era in which Americans became acutely aware that organized groups of persons not only oppose United States hegemony in political, military, and cultural spheres, but are prepared to engage in acts of terrorism on our home soil as well as places overseas. Some of these terrorists are likely to be American citizens, legal residents, or visitors living within the United States. The acts of terrorism are related to religion. Perpetrators are members of the Muslim faith or linked in some way to that faith. Many are of Middle Eastern ethnic descent. The President, the U.S. Attorney General, and many other public leaders have emphasized the threat of terrorism at home and abroad, now and for the indefinite future.' Congress passed the USA Patriot Act that allows a broad range of infringements on civil liberties' and, in actual implementation, the identification and special treatment of males from Middle Eastern countries.3 Moreover, public leaders have informed us that the terrorists are not just those associated with al- Qaeda, the organization responsible for the tragedies of September 11, but rather include members of other organizations that, although * Russell M. Robinson II Professor of Law, Duke Law School. The author is indebted to Professors Valerie Hans and Mary Rose for comments on an earlier draft of this Article. I am also indebted to Professor Edward Bronson whose comments and advice have shaped a number of ideas in this Article. The data were gathered when the present author served as an independ- ent consultant to the legal team defending John Walker Lindh and not in his capacity as a Duke University employee. Writing of the Article was supported, in part, by Duke Law School, but the opinions offered in the Article do not necessarily reflect the opinions of that institution. 1. A bibliography bearing on the threats and warnings is available at http://odl.state.ok.us/usinfo/terrorism/91 .htm. 2. H.R. Res. 3162, 107th Cong., 147 CONG. REC. H7159 (daily ed. Oct. 24, 2001) (enacted). For the language of the bill, see 146 CONG. REC. H7159 (daily ed. Oct. 23, 2001). 3. See generally Phillip O'Connor, Monday Was INS Registration Deadline; Visitors from 5 Muslim Nations Had to Report; About 140 Men in Area Are Affected, ST. Louis POST DISPATCH, Dec. 17, 2002, at Cl. CHICAGO-KENT LAW REVIEW [Vol178:1143 possibly independent of al-Qaeda, have common goals and loose links with that organization.4 Subsequent to September 11, the list of alleged terrorists or per- sons alleged to have assisted terrorists includes, but is not limited to, John Walker Lindh, the so-called "American Taliban," and Zacarias Moussaoui, who is facing trial on charges of conspiring to aid the September 11 hijackers. 6 Enaam Arnaout, the head of a Muslim charity, was accused of funneling money to al-Qaeda.7 Mousa Mar- zook, his wife, and five of his brothers were indicted on charges of laundering money and sending computers to Libya and Syria.8 The "Lackawana Six" were indicted on charges of supporting a foreign terrorist organization outside of Buffalo, New York. 9 Two brothers of Lebanese descent were charged with aiding Hezbollah, although neither was charged with participating in any terrorist attack or having any connection to the September 11 attacks.10 Four Detroit men of Arab descent were indicted on charges of providing material support or resources to terrorists and conspiracy to engage in fraud." Sami Al-Arian, a professor at Florida International University, has been indicted in Florida on charges of being the U.S. leader of the Palestinian Islamic Jihad. 2 Twelve people associated with a Seattle business were indicted for illegally wiring at least $12 million in money and goods to Iraq. 3 In March 2003, federal agents arrested 4. See, e.g., U.S. DEP'T OF STATE, Arrest of Al Qaeda Leader Seen As Blow to Global Terrorist Network, at http://isinfo.state.gov/topical/pol/terror.03030404.htm; Eric Lichtblau, Critics: '96 Law vs. Terror is Abused, RALEIGH NEWS & OBSERVER, Apr. 6, 2003, at 10A. 5. E.g., Timothy Roche, A Short Course in Miracles, TIME, July 29, 2002, at 32; Timothy Roche et al., The Making of John Walker Lindh: How Did a Quiet, Bright Young Boy from Suburban American End Up Alongside the Taliban in Afghanistan?, TIME, Oct. 7, 2002, at 44. 6. United States v. Moussaoui, (E.D. Va. No. 01-455-A), available at http://notable- cases.vaed.uscourts.gov/1:01-cr-00455/docket Sheet.html. 7. Mike Robinson, Muslim Charity Leader Pleads Guilty, RALEIGH NEWS & OBSERVER, Feb. 11, 2003, at 5A. 8. Angela K. Brown, Suspected Hamas Leader Arrested, RALEIGH NEWS & OBSERVER, Dec. 19, 2002, at 6A. 9. United States v. Goba et al., No. 02-CR-214S (W.D.N.Y. Jan. 2003), available at http://nywd.uscourts.gov. 10. Gary L. Wright, Brothers Found Guilty of Plotting to Aid Terrorists; Prosecutors Accused 2 Lebanese Men of Being Part of Local Support Cell for Hezbollah; Landmark Trial Could Open Door to Battling Financial Networks Through Prosecutions, CHARLOTTE OBSERVER, June 21, 2002, at 1A. 11. Allan Lengel, Skepticism of Detroit Arab Americans Grows; Some Doubt Charges Against 4 Accused of Operating Terror Cell, WASH. POST, Sept. 15, 2002, at A3. 12. Jess Bravin & Glenn R. Simpson, Confronting Iraq and Terror: Florida Professor, 7 Others Are Accused of Terror Funding, WALL ST. J., Feb. 21, 2003, at A8. 13. 12 Charged With Wiring Funds to Iraq, RALEIGH NEWS & OBSERVER, Dec. 20,2002, at 20031 WHEN ALL OF US ARE VICTIMS nine people across the country on charges that they were smuggling money abroad and selling false passports that could aid terrorists.14 A number of the defendants in these cases, including John Walker Lindh, have pleaded guilty to some of the charges laid against them, 15 and others have been found guilty., Still others may have their trials shifted to a military tribunal." After one of the accused, Mr. Arnaout, entered a guilty plea to some of the charges his lawyer commented: "One has to question whether a fair and impartial jury could be found anywhere in Amer- ica today that could sit in judgment of an Arab-American in a case involving allegations of terrorism.' 1 8 That assertion is central to the issues addressed in this Article. Can a person accused of being a terrorist or supporting terrorists receive a fair trial when every potential juror is also a victim? I use the term "victim" broadly, to refer not only to the potential of becoming the physical casualty of a terrorist incident, but also a victim of attacks on the values associated with U.S. nationality, often referred to in the popular press and common parlance as the "American way of life." What roles are adherence to the Muslim religion and being of ethnic-Arab descent likely to play in the prospects of obtaining a fair trial? The Article discusses the issue of fair trial, and it addresses the adequacy of procedural safeguards as remedies for prejudice. Prob- lems associated with procedural remedies are explored in the context of survey research undertaken for a change of venue motion in the trial of John Phillip Walker Lindh, the so-called "American Taliban." 9 14. John Solomon, 9 Accused of Possible Schemes to Finance Terrorists, RALEIGH NEWS & OBSERVER, Mar. 22, 2003, at 7A. 15. See, e.g., Mark Bryant, Man Guilty of Backing bin Laden, RALEIGH NEWS & OBSERVER, Apr. 15, 2003, at A3; Second of 6 Alleged al-Qaeda Trainees Admits Guilt, RALEIGH NEWS & OBSERVER, Mar. 25, 2003, at 6A. 16. Wright, supra note 10. 17. See Jerry Markon, Court Seeks Deal on Terror Witness Access, WASH. POST, Apr. 16, 2003, at A12. 18. Mike Robinson, Muslim Charity Leader Pleads Guilty, RALEIGH NEWS & OBSERVER, Feb. 11, 2003, at 5A. 19. Declaration of Neil Vidmar in Support of Defendant's Motion to Dismiss, or in the Alternative, for Change of Venue, United States v. Lindh, (E.D. Va. No. 02-37-A). CHICAGO-KENT LAW REVIEW [Vol178:1143 I. CASE LAW AND TRIAL PREJUDICE: A SOCIAL PSYCHOLOGICAL PERSPECTIVE A. Case Law Although many research findings yield the conclusion that, on balance, American juries perform their tasks very well,20 the research findings must be viewed from the perspective that the juries' per- formance takes place in the context of judicially created remedies to ward against lay persons who may not be impartial in deciding the dispute before the court. These remedies include change of venue, temporary or permanent continuances of proceedings, voir dire permitting challenges for cause and peremptory challenges, and 21 judicial admonitions to jurors about the need to be impartial.
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