Political correctness can be a killer. Normally, "correct" means "truth." Add in politics and the truth gets twisted. Consider the askew analytical abilities of some political and media leaders when it comes to determining if Major Nidal Hasan's motivation was Jihad. Smart journalists write detailed and "balanced" analyses yet assiduously avoid that Hasan proclaimed "Alahu Akbar" before and during his massacre.
Political correctness can and often does destroy criminal prosecutions. You cannot ever take a criminal conviction for granted. Few cases are so strong that an inept prosecutor cannot lose it. Eric Holder may be a politically correct and inept prosecutor given his decision last week to try five alleged members of al Qaeda hierarchy in a federal court in New York City.
Do you remember when LA DA Gil Garcetti unilaterally moved the OJ trial from Santa Monica to downtown Los Angeles? The elected (political) prosecutor was playing politics. In the words of Dr. Phil, (another PC fella) how did that work out for ya?
I voted for Barack Obama. I did not vote for AG Eric Holder. According to the New York Times' David Brooks, Holder made this fateful decision without input from the President. Are you kidding me? While the AG is supposed to be politically independent, this decision will likely prove terrible for Barack Obama and America.
Don't get me wrong. I love the American court system. It is among the best and fairest on Earth. However, it has flaws which we are willing to endure and embrace in a normal criminal case. We let lots of guilty people go free to avoid convicting an innocent person. Evidence obtained unfairly is tossed out even if it is accurate. The prosecution bears the heavy burden of proof beyond a reasonable doubt. A defendant starts off with a presumption of innocence.
Our court system provides an abundance of due process; all designed to make sure the proceeding is as fair as possible. You can more than double the due process when the death penalty is involved. We appropriately bend over backwards not to execute without fairness. What does fairness have to do with fighting a war? Are we at war or not?
All is fair in love and war. So are we fighting a war here? Maybe not "all" is fair, but we have spent the last eight years figuring out just how much fairness needs to be provided. The United States Supreme Court several times rebuked and refined the procedures undertaken by the Bush/Cheney Justice Department. In the end, Congress came up with the Military Commissions Act (MCA) of 2006 which is an option that is available for the Obama administration (in 2006, then-Senator Obama said he wanted a full military trial for KSM).
These military tribunals have been specifically designed for non-citizen enemy combatants like Khalid Sheikh Mohammed (KSM). KSM stands accused of orchestrating the 9/11 attack which killed approximately 3,000 people in New York, Virginia and Pennsylvania. He did so in furtherance of an al Qaeda plot and conspiracy wherein they long before declared war on the United States of America.
When Eric Holder announced that KSM and other top level al Qaeda 9/11 plotters are going to be tried in New York City and the death penalty sought, he makes clear his opinion that KSM perpetrated these murders -- this act of war. No responsible prosecutors seek the death penalty if they think there is a chance that the defendant is innocent.
So here we have Eric Holder who must fully believe that KSM plotted and perpetrated this atrocity. Holder should also know that the government's easier path toward execution is through an authorized military tribunal, and yet he has chosen the extraordinarily risky, expensive and dangerous path of seeking the death penalty at a jury trial in New York. This is political correctness run amok.
Has Eric Holder ever prosecuted a death penalty case? I have and if you want a case that never dies, do a death penalty case and get a jury verdict in your favor. Every conceivable roadblock will be thrown in your path. There are lots of criminal defense attorneys who despise the death penalty and will oppose it under all circumstances with every fiber of their being.
Do you know how many complicated legal issues are going to arise in these death penalty trials? First, you have the suppression issues and the discussion of waterboarding and whatever the heck else they did to KSM and the others.
The government has already conceded this was torture and by any American jurisprudential standard, the fruits of that poisonous tree are going to have to be thrown out. Anything in KSM's coerced and unconstitutionally obtained statements which might have led to the discovery of other evidence may be considered fruit of the poisonous tree.
Remember when they gave Colonel Ollie North and Admiral John Poindexter immunity to testify in front of Congress? It was said that such immunity would not jeopardize the upcoming felony trials of these Iran-Contra conspirators. After all, the government had a good case without need for hearing more. But then they heard more. Ultimately, the federal appellate court decided, as it so often does, that it is impossible to separate out the tainted evidence from the good evidence and that is why Ollie North and John Poindexter had their felony convictions thrown out on appeal.
Can you imagine the pre-trial publicity issues surrounding this case? Do you not expect a Change of Venue Motion to be vigorously litigated? Do you really think New Yorkers can set aside their opinion about 9/11 and the publicity they have heard about KSM and the others? How many jurors will want to serve on a case like this?
What about the composition of the grand jury and the trial jury? What happens if the arrays for the juries do not include a sufficient number of people of color or Muslims? What happens if the prosecutor seeks to exclude a person of color or Muslim descent from the jury? Lots of cases get overturned on appeal for just such reasons.
Does Eric Holder really even want or support the death penalty? When was the last time anybody got the death penalty in a courtroom in New York City? When was the last time a death penalty was carried out in New York? 1963! And almost the last before that, Ethel and Julius Rosenberg in 1953! Virginians have a recent history of imposing and carrying out death penalties. Why is this case not in Virginia where so many died at the Pentagon on 9/11?
Every move that the government makes in a death penalty trial will be scrutinized and second guessed. Talented and committed defense attorneys will volunteer their services because they like publicity and they hate the death penalty. These attorneys will be making statements themselves, or through surrogates, to the media while the government cannot ethically respond.
What about the feelings of the victims' families and friends? Did anybody talk to Dr. Judea Pearl whose son, Danny Pearl, was allegedly decapitated by KSM? Isn't that a question you wanted to ask the victim's family before you publicly announce you are giving the alleged killer rights you do not have to and seeking a death penalty?
How many victims' family and friends who are just starting to put their lives they back together again will have to put things on hold as they endure the years and years of litigation that will necessarily dominate their attention? Where is the compassion and consideration for the victims? How many of them were consulted before Holder's announcement? Was more weight given to world opinion than victims' rights? And in the end, will world opinion really benefit the United States when all of this is over?
I doubt it. America will be put on trial. Lots of people dislike America and the death penalty. Courtroom battles are like athletic competitions. There is a lot of second guessing. Anything can happen. Fans of one side are always going to find something to criticize in the way the game was played and refereed.
This forum in New York appears to be exactly what KSM wanted. This al Qaeda demon, educated in North Carolina colleges, asked upon his capture to have a lawyer and to be taken to New York. Eric Holder just granted his wish.
Will this be a forum for KSM and the others to make widely disseminated Jihadi statements? As Sarah Palin would say, you betcha. During the trial on the merits, a judge could conceivably stop KSM and the others from rambling on the witness stand, but if and when it ever gets to the sentencing phase, a defendant's right of elocution is absolute. A death penalty defendant has a right to say nearly anything and everything he wants before being sentenced.
How much will this cost? The security, the transportation costs, paying for the defendant's legal teams, and the appeals suggest at least hundreds of millions of taxpayer dollars. Do you know how many billable hours there are going to be if this whole death penalty situation plays out? Do you how many trees are going to be killed for the paperwork alone? You don't want to know.
If these trials go off without a hitch, then America could look good to the rest of the world as we demonstrate our efficient and fair legal process.
But there will be hitches. It is never efficient in modern day America when the death penalty is sought and obtained. Unless the defendant decides he wants to die and convinces his lawyers to back off, a death penalty case will routinely take more than a decade between conviction and execution.
This is a terrible decision by Attorney General Eric Holder. President Barack Obama needs to do something about it.