Or the O.J. Simpson jury? Or any of the other capricious juries from high-profile trials with talented legal teams?
For civilian trials, which result from real police work in peaceful America, the jury system is the best system we’ve got, regardless of individual (though notorious) anomalies. But given the choice between civilian juries and military commissions for captured terrorists, why choose the civilian jury?
The Obama administration has elected to try a Somali terror suspect in civilian court. The suspect, captured by American forces overseas, was interrogated for two months onboard a Navy ship, without Miranda warnings. This, of course, was the right thing to do. The last thing you want is to tell a suspected terrorist captured in his area of operations that he has right to remain silent.
But how will a jury react to this prolonged interrogation? What will they think of the nicely cleaned-up young man sitting in front of them as high-powered defense lawyers rail against the conditions of his confinement? What will they make of the evidence produced, not by a police investigation, but by military intelligence-gathering?
Troops in the field do not “work crime scenes”; they battle insurgents. Interrogators aren’t “building cases”; they’re seeking actionable intelligence. Rarely can investigators revisit the scene of the crime and interview witnesses. A war zone is a terrible place for conventional police work. Will civilian jurors, who may not even understand the contemporary military experience, be able to grasp these distinctions? Perhaps. Perhaps not.
The service members who sit on military commissions understand the challenge of wartime evidence-gathering, and the purposes and goals of the interrogation process. They have training in the laws of armed conflict and the kind of background knowledge it would take civilians years to accumulate. Yet we’re depriving these commissions of jurisdiction. To what end? Who are we impressing? Certainly not the terrorists. The Harvard faculty lounge and Davos will give the obligatory golf clap, then go right back to waging lawfare and demanding our total, abject withdrawal from Iraq and Afghanistan. The Obama administration is risking much for little gain.
Mr. French,
The strongest argument in favor of military commissions is that the accused has no constitutional rights to expect from us, so to expand them for that person's protection is not only unwarranted but perverts the system.
The site of the person's capture -- a battlefield -- commands the forum of the prosecution.
You, however, just postulated that we don't want civil juries for terror suspects because we don't like the judgments that civil juries render.
So, you've just signaled, and tacitly suggested, that we should use military commissions so that we can rig the outcome with a joystick, like the drone attacks.
Of course, if the prosecution in a military commission has no direct evidence linking the accused to the physical evidence of the crime, you may find yourself with an unchanged predicament:
Lack of evidence.
Circumstantial murder prosecutions are always tough, especially "mom killed daughter". That's no justification at all for military commissions for ANYONE.
Again, terrorist suspects get military commissions because our military captured them during war, your disrespect for the judgment of your peers notwithstanding.
Reply to this commentLinkReport AbuseWhile it's true that military commissions are appropriate because of the circumstances of the combatants capture (to say nothing of the activities they were engaged in), I don't think it's inappropriate at all to point out some of the other benefits of a military commission versus a civilian trial.
Beyond the reasons that Mr. French articulates, I would add another: Intelligence. Because the jury panels used in a military commission are comprised exclusively of military officers, they are inherently more intelligent than a random jury selected from an at-large population of civilian voters (in most jurisdictions). At a minimum, officers in the US are required to posses a 4-year college degree, with many field-grade officers and above possessing advanced college degrees. They can quite easily listen to and process complicated prosecution theories. Compare the collective educational and professional experience of the typical military jury panel to the jury empaneled for the Anthony trial, where two of the jurors didn't even make it past the 11th grade, and the difference become stark.
I am afraid that as the Casey Anthony verdict demonstrates, complicated prosecution arguments frequently do nothing more than complicate the case for the juries. And, far too often, complication equates to reasonable double.
Also, keep in mind that "hung" juries are almost unheard of in the military system because they only require 2/3rd to convict, rather than a unanimous decision.
Reply to this commentLinkReport AbuseLike I said in my post (See above) I don't know enough about the evidence in the Anthony case to have a strong opinion either way, and likely Mr. French doesn't either. I agree with you though, posts like this will only embolden critics of military commissions to claim their advocates just want to rig outcomes.
Reply to this commentLinkReport AbuseYou may have to accept a verdict, but I'll not be forced to "respect" a verdict. Juries, like all people, are not infallible. i do respect the "idea" of a fair and impartial jury doing it's due diligence and civic duty. In practice, it leaves a lot to be desired.
Reply to this commentLinkReport AbuseI agree with the second half of your post, more than the first half. My concern with the civilian jury system is not that terrorists would "get off" or be found not guilty. My concern is (as you note) turning our military men into policemen on the battlefield or, more likely, our civilian courts accomodating the exigencies of the battlefield by creating exceptions to hearsay, right to confrontation, and chain of custody. Exceptions that would be quickly exploited in general criminal cases by eager prosecutors and judges. I believe Andy McCarthy has written about this possibility before.
The Holder DOJ in its eagerness to win convictions for terrorists in court would be willing to alter centuries of criminal procedure and weaken the protections Americans have come to expect. Ironically, they would do this to impress the professional civil liberties lobby with no thought as to how it would degrade civil liberties in civilian courts. Military trials are an age-old means of providing due process for enemy combatants which take into consideration the exigencies of the battlefield along with diminished status of rights for the enemy combatant. I don't know enough about Anthony case to say the jury was wrong, and I thank God as an American citizen she had the right to have her case tried before a jury of her peers whatever the outcome.
Reply to this commentLinkReport AbuseAnother way to formulate the civil jury system is to say that, although we may disagree with a verdict, by definition a jury is never wrong.
Reply to this commentLinkReport AbuseI tend to agree with "madisonian."
I do not believe civilian trials are appropriate for terrorists, but for the reason that they are not, and should be, afforded the rights guaranteed by our constitution.
I've been pretty well disgusted by all the TV lawyers and judges who have responded negatively to the Anthony verdict. Not just that they disagree with it, but that they are so incredulous that the jury could have been so duped, or blind, or stupid to have reached the conclusions they did.
The terrorist trial situation is not made for civilian determinations of guilt. We are at war and these prisoners should be treated as such. They are not accused criminals, as contemplated by our civil justice laws.
They are enemy warriors and should be dealt with in the appropriate manner.
Reply to this commentLinkReport AbuseReasonable doubt should not be available to jurors in terrorist trials the way it was available to the Anthony jury. According to the alternate juror in the Anthony case, the prosecution did not prove Caylee Anthony was suffocated despite the duct tape found on her nose and mouth. The jurors rejected the duct tape as proof of suffocation, preferring to speculate that the duct tape was placed over the little girl's nose and mouth by or at the direction of George Anthony, a retired homocide detective, to make it look like she was murdered when, in fact, she died as the result of a tragic accident. There was no evidence offered by defense attorneys to support their claim Caylee drowned in the family swimming pool and George Anthony covered it up.
Apparently, the Anthony jurors didn't question why anyone would lie to law enforcement (a criminal offense) in order to cover-up an accidental death with no criminal liability attached to it. And the idea that Casey Anthony lied to law enforcement about the disappearance of her daughter and exposed herself to the death penalty in order to protect a man who was accused by her lawyers of sexually abusing her all her life - another claim for which no evidence was offered - is quite a leap to make, but the Anthony jurors obviously were willing to make it.
Given the Anthony jury's application of reasonable doubt and the speculation they embraced in order to apply that standard the way they did, if there had been a bullet hole in Caylee's head, the jurors would have claimed there was no proof she was murdered. Instead, they would have speculated that it was an accidental shooting or the cover-up of another type of accidental death. The Anthony jury used reasonable doubt as legal cover to free a very evil person. Hopefully, Casey Anthony won't do anything in the future to make them regret their decision.
Reply to this commentLinkReport AbuseReasonable doubt has no fixed definition, rather it is fixed by the jury based on the evidence, the lack of evidence or any combination thereof. Jurors are instructed on this before they begin their deliberations. The fact that Anthony's defense did not have "any evidence" of drowning is somewhat irrelevant since the defense bears no burden of proof whatsoever. I don't know whether the jury got this case right or not, but I am glad that a jury decided the case.
Reply to this commentLinkReport Abuse>"The fact that Anthony's defense did not have "any evidence" of drowning is somewhat irrelevant"
It's hardly irrelevant considering that she admitted to burying the body and then lying about it, so that by the time it was discovered the cause of death was no longer determinable.
Reply to this commentLinkReport AbuseReasonable doubt means whatever a juror wants it to mean and it only takes one juror to reasonably doubt that a defendant is guilty, which is why that standard should not be available in terrorist trials . Duct tape over Caylee's nose and mouth wasn't proof of murder because the jurors wanted forensic proof she died of suffocation, proof that wasn't available due to the deterioration of the body. The jury cites reasonable doubt because cause of death wasn't absolute and Casey Anthony walks.
The fact that the defense team had no evidence that Caylee drowned in the pool is relevant if jurors allowed that unproven speculation to explain away evidence that she was murdered, i.e., the duct tape over her nose and mouth. And they had to explain away that proven fact in order to believe her death was accidental rather than intentional because even the defense acknowledged that duct tape placed over a victim's nose and mouth is a method of suffocation.
Scott Peterson was indicted for murdering his wife and unborn son before their bodies were found and proof of a murder existed. He was sentenced to the death penalty for murdering them with no proof of how, when or where they died. Similar crime, similar evidence, different jurors and a very different result.
Reply to this commentLinkReport AbuseAs I wrote the following on the "Injustice" post by Rachel Campos-Duffy:
I would like to ask all of you that believe that Casey Anthony being found not guilty is cool, how did you feel about the O. J. trial? How about Robert Blake? Hey, this is EXACTLY why military tribunals for terrorists in Gitmo is needed. Because all it takes in any given jury is O N E dim bulb.
Case closed!
Reply to this commentLinkReport AbuseThere's a lot of disturbing material in this post and in the comments.
From what I can tell, I *think* that the party girl killed her daughter.
But that doesn't mean the prosecution PROVED it. And I want the prosecution, the STATE, to have to PROVE it beyond a reasonable doubt every single time, no matter what I happen to think about it.
Blaming the outcome on the jury and then demanding trials for terrorists where one can be more assured of an outcome you prefer smacks of a kind of tyranny we in our Anglo-American heritage supposedly dispensed with long ago.
(No, I'm not arguing for civilian trials for terrorists. What I'm saying is that this case has nothing to do with the argument and it's shameful to connect the two. I generally respect Mr. French, but he's entirely off his nut here.)
Reply to this commentLinkReport AbuseI suspect that about half of the people in our jails were not PROVEN guilty in the sense you are demanding.
Reply to this commentLinkReport AbuseI suspect that's a statement with no backup whatsoever.
I further suspect that what you think I'm "demanding" probably isn't what I actually said.
Reply to this commentLinkReport AbuseTranslation: The government is never wrong. Any acquittal is a miscarriage of justice.
If civilian courts try terrorism suspects, there is the possibility they might go free. And we can't have that. Because the government is infallible. If they say somebody is a terrorist, by golly they are a terrorist! No ifs, ands, or buts about it.
Reply to this commentLinkReport AbuseWow.
Yes, there have been governments who always won in court. It is unbelievably frightening that you want emulate them.
Reply to this commentLinkReport AbuseOh come on, quit blaming the jury for a prosecution failure. The jury in the OJ trial CHOSE to ignore the scientific evidence presented but in the Casey Anthony trial the prosecution did not make a strong case for asking a jury to give someone the death penalty. Apples and oranges.
I am not for trying enemy combatants in civilian courts, but I did sit through two Holy Land Foundation trials and heard a lot of criticism and speculation that the jury was too blue collar to keep up with the complicated terrorism funding case.
The 2007 jury probably could have if it hadn't had one ringer with an agenda. The 2008 jury was able to follow the complicated case and hand out convictions all around.
Some terrorist cases - but not most - will have to be tried with civilian juries and the simple American citizen can handle it! But the prosecutors have to DELIVER from the get-go, including who they seat on that jury.
Reply to this commentLinkReport AbuseI think most of the people commenting don't really appreciate what "beyond a reasonable doubt" actually is.
If there's *any* other reasonable possibility that the prosecution didn't foreclose with proof, then they should vote to acquit. It's true an any criminal case, but especially true in a death penalty case. If you vote to send someone to die when you think there's some reasonable possibility it happened another way -- any other way -- then you've got blood on your own hands.
Did the prosecution foreclose on any reasonable possibility that the girl drowned by accident? Not that I saw.
If people really want *assured* convictions, no matter who the defendant is, then that's a problem.
Reply to this commentLinkReport Abuse"American citizen can handle it! "
Donna, I would just point out that in a civilian trial (for terrorists), the most problematic element for the prosecution is not (necessarily) the jury, but the judge.
The government will have a very tough time meeting the evidentiary standards in civilian court, whereas they wouldn't be so encumbered in military court. Also, in a civilian trial, the defense & the defendant gets everything under the principle of discovery. And, the government has to establish a reliable provenance for that evidence - IOW, where did it come from and how did the government get their hands on it.
In a military tribunal, there is still the principle of discovery, but it's not nearly as robust, especially as it relates to classified materials, like sources and methods.
Reply to this commentLinkReport Abuse