If there was ever a more irresponsible decision by a U.S. attorney general than Eric Holder’s decision to try the mastermind of the 9/11 terrorist attack and four others as common criminals in a civilian court in New York City, I can’t recall it. He is gambling with the nation’s security and providing a platform that will give aid and comfort to the enemy at a time of war. And he is doing so with no discernible benefit, least of all to showcase the strength of our judicial system.
Does Eric Holder remember the most infamous criminal trial of the 20th century, the 1995 trial of O.J. Simpson for the murder of his estranged wife, Nicole, and Ronald Goldman? There are obvious differences between a criminal murder trial in a state court and one tried in federal district court — and, the O.J. trial featured incompetent prosecutors who tried their case before an inept judge — but there are also problems inherent in the system that may not be avoided. No matter what Holder says about failure to convict not being an option, our entire legal system is based on the presumption of innocence of the accused and there are simply no guarantees.
A look back at what went wrong in the O.J. trial is chilling. The die was cast in favor of acquittal the moment the jurors were seated. They were not a cross-section of Los Angeles, where the trial was held: There were 10 women, two men; nine blacks, two whites, and one Hispanic. Their education was below average — nine had only a high school education and 1 lacked even that. According to the questionnaires they filled out before they were selected, none regularly read a newspaper, but eight regularly watched tabloid TV; five thought it was sometimes permissible to use physical force against a family member; and four reported they or a family member had had a negative experience with police. All were registered Democrats.
The first thing that defense attorneys will do when Khalid Sheikh Mohammed comes to trial is attempt to get a jury that looks very much like O.J.’s. Urban juries — especially those comprised disproportionately of African-Americans — are far more likely than suburban or rural juries to acquit criminal defendants. In one recent study of Baltimore city conviction rates, compared to those in the surrounding county, city jurors were over 30 times more likely to acquit for the most serious charges in criminal trials than their suburban counterparts.
And those who are most likely to be screened out during the process known as voir dire are educated jurors who are well informed about current events. The defense will also object to any prospective juror who followed the events of 9/11 carefully; anyone who has family members who have ever worked in law enforcement, for the fire department, or in emergency medical services; and anyone with a high regard or trust in government or law enforcement. And that’s just the beginning.
Once the trial starts, the defense will use a tactic that served O.J.’s "dream team" well: conspiracy theories meant to distract jurors from the actual evidence introduced. In O.J.’s case, Johnnie Cochran and company suggested none too subtly that racist police planted evidence. When KSM comes to trial, expect to hear defense witnesses and attorneys suggest that the U.S. knew in advance of the attacks and planted explosives in the World Trade Center that helped bring down the building. They may also revive the despicable canard that Israel was really responsible for the attack and that it warned Jews who worked at the WTC to stay home on Sept. 11. These conspiracy theories have fueled best-selling books in Europe, are widely accepted in the Arab world, and were even endorsed by presidential aide Van Jones (who resigned once his association with the so-called 9/11 truthers was exposed).
Are such theories too wild to be believed by any New Yorkers, especially those most likely to end up on a KSM jury? Don’t bet on it. Several polls taken over the last 20 years show that between a quarter and a third of black Americans believe that AIDS was concocted in a laboratory by the U.S. government with the express purpose of committing genocide against blacks. And you can bet that KSM’s defense attorneys will be looking for jurors every bit as paranoid and gullible. And remember, they need only one such juror to force a hung jury or even acquittal. Our attorney general is gambling with the nation’s security, and the odds aren’t reassuring.