Bringing Khalid Sheikh Mohammed to trial in the Southern District of New York is the direct result of a recalibration of America's moral compass. Let "the word go forth from this time and place," that the days of rendition, torture and moral indecency are over. Trial in the "Mother Court" of the U.S. federal judicial system (created 1789) has high prosecutorial value. There will be no shortcuts: all the process that's due will be afforded -- rules of evidence will apply with full force, inadmissible hearsay will be barred. Every constitutional rule and precedent that interprets it, will be applied. The right to cross-examine the witnesses against Mohammed will attach; the right to take the witness stand on his own behalf or to remain silent is a cherished choice that will be made without government interference or pressure. And, yes, even Khalid Sheikh Mohammed, a self-described "jackal," will be presumed innocent.
But there is still a nagging question that survives. With all the constitutional embroidery, will Mohammed receive a fair trial in Manhattan? Will it be any more fair than, say, a military trial in Guantanamo? From my perspective I am prepared to say that the trial will be fair within the meaning of the Sixth Amendment. What follows are the reasons why:
The participants can be expected to be well intentioned. The United States civil judicial system has matured since the 1951 trial of Julius and Ethel Rosenberg. Influenced by a Communist scare that appeared to threaten the very fabric of American life, the trial judge and the prosecutors in the Rosenberg case engaged in illegal communications, virtually plotting conviction and the eventual imposition of the death penalty. Uninspired lawyers, according to several accounts, were less than zealous in their defense of these Communist spies. In a 2010 trial of Mohammed, I believe that the trial judge selected will play by the rules and afford a fair trial. I believe that in this showcase trial, with literally the whole world watching, the federal prosecutors will strike hard but fair in order to achieve justice. I am confident also that the court will assign highly skilled and wonderfully competent defense lawyers whose "heart will be in it."
And, what about the jury? After all, can a fair jury be found? After 40 years of picking juries, my answer is yes. It may take a long time. It may require that hundreds of prospective jurors be carefully interviewed. But out of the masses, I expect the parties to find 12 honest men and woman who will hold the government to its proof and who will not convict unless and until the evidence has taken them beyond any reasonable doubt. It may not be a sympathetic jury. But it will be a fair jury.
Over the past several days, there has been a lot of speculation about whether defense lawyers will ask for a change of venue -- move the trial further away from the World Trade Center site. I am reminded of the mob defendant in a high profile prosecution back in the 1970s who moved for a change of venue and was surprised to learn that his motion was granted and that the judge had moved the trial to federal court in Albany. After conviction, the defendant was heard to say that he would have had a better chance if he stayed in Brooklyn and was tried by 12 New York City cops. Unless the trial judge agrees, I add in jest, to change the venue to Cambridge, Massachusetts or Berkeley, California, I would stay in the Southern District of New York where juries have been highly reluctant to impose the death penalty.
And one thing more. Experience teaches that the Mohammed case will, in all probability, not be tried until late 2010. At present, federal law prohibits televising or broadcasting a federal criminal trial (the rule varies in state courts). That rule, I argue, must be repealed and repealed in time for this trial. The Bill of Rights guarantees an open and public trial. When the right to a public trial was first established, the "public" attending trials was generally sparse. While "the trial" of this still young century will receive wide attention from the media, there is no substitute for the"people" to actually watch the trial in order to reach their own conclusions. In this 21st Century, "public trial" must be interpreted to mean that it is "open" to everyone through television and the internet. Khalid Sheikh Mohammed is being tried in a civil courtroom in Manhattan precisely so that the world can see. The world need not and should not be required to look through the gauze of someone else's interpretation.