Saturday, November 14, 2009

9-11 Trial in New York: How Do You Pick a Jury?

Attorney General Eric Holder announced yesterday that five people involved in the 9-11 terrorist attacks, including the mastermind, will be tried in civilian court in downtown Manhattan.  I am not going to weigh in on the politics of this decision, nor on any security concerns or interrogation techniques.  What I am going to weigh in on is the chances for these people to get a fair trial by an impartial jury in New York City.

Picking a fair jury is always somewhat tricky.  Anyone can have a bias and not tell, or have a bias that they themselves don't know about.  Figuring out who will truly be fair is an art, not a science.  Still, we have some basic and uncontroversial understandings of which people should definitely not serve on a jury. 
The lawyers get a certain number of so-called "peremptory" challenges -- that is, a certain number of times they can say they don't want someone on the jury and not give a reason.  They also get an infinite number of challenges "for cause" -- meaning that the juror is obviously biased or unsuitable in some way, and the lawyers have to say why. Among the people typically excused for cause are the victims of the crime, their family and friends, and anyone else directly impacted by it.

By way of example, let's imagine we were picking a jury for a typical murder case in which someone was shot in the parking lot of a convenience store.  In the jury pool that day, we happen to have the victim's mother, fiance and best friend, as well as two people who work in the convenience store, one who lived across the street and had to stay in her house "locked down" while police sought the shooter, and someone who was in the parking lot.  Aside from wondering how we got such a biased group of folks all on one day, the lawyers would challenge all of these people for cause, and almost certainly all of them would be excused.

Now, let's see how that affects the jury in a 9-11 trial in New York.  This means we have to find 12 citizens of Manhattan, over 18, who were not in the twin towers, did not have a family member or friend killed, and were not nearby to see what was happening first hand.  This would be hard, but not impossible.

But wait, we also need to exclude anyone who was endangered by the attacks, and anyone who had good reason to think they were endangered, as well as anyone who suffered traumatic stress related to the attacks.  All of these people are like the neighbor across the street from the convenience store.  They didn't see it, they weren't directly "in it," but they were deeply affected by it.

Just where exactly does the US government think it will find 12 acceptable people?  It seems to me that the jury will have to be made up entirely by people who did not live in Manhattan in 2001.  The secondary trauma from that attack affected the whole city.  Everyone saw the smoke and breathed the air.  Everyone was scared.  The entire lower portion of Manhattan had to evacuate on foot.  The local firehouses in all of the neighborhoods suffered catastrophic losses.  Everyone had nightmares.  There is no way that anyone who was in Manhattan on 9-11 can serve on this jury.  In fact, there's a very large percentage of the US population who can't because so many of us suffered secondary trauma.

I'm sure the Justice Department has reasons, maybe even good ones, for trying this case in Manhattan.  If I were a defense attorney, however, the first thing I'd do is ask for a change of venue.


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Naomi Zikmund-Fisher
is a clinical social worker, former school Principal and a Crisis Consultant for schools and community organizations. You can learn more about her at
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