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Tuesday, November 03, 2009

Boston Terrorism case will prove a test of Terror Management Theory

On October 21, Acting U.S. Attorney for Massachusetts, Michael K. Loucks, announced that Tarek Mehanna, a 27 year old Sudbury man, had been arrested on suspicion of terrorism. Last year, Mehannna had been charged with lying to authorities in conjunction with the investigation of another terrorism suspect, Daniel J. Maldonado.

Mehanna and his coconspirators apparently never got particularly close to actually carrying out any terrorist acts. They are alleged to have travelled to several foreign countries in search of training by extremist Islamist groups, but were never accepted. They are also alleged to have failed in their attempts to secure weapons for an attack on U.S. soil. As such, Mehanna's alleged terrorist activities were largely aspirational. U.S. criminal law is very clear in not punishing people for "thinking bad thoughts," regardless of how reprehensible those thoughts might be. Prosecutors are faced with proving that Mehanna actually took specific steps to operationalize concrete terrorist acts. This scenario is almost certain to result in Mehanna's attorneys refusing to accept a plea, insisting instead to take the case to trial.

What then might we expect from a Mehanna terror trial?

One thing is certain: Terror management theory (TMT) will play a major role in how jurors resolve the case.

What is Terror Management Theory?

Pioneered by Ernest Becker in the 1970s, Terror Management Theory (TMT) concerns how people manage fears of their own mortality. Here is TMT theory in a nutshell: Every person has a particular world view, comprised of their beliefs, values, experiences, and choices. Each individual requires periodic confirmation and support for his world view. Such support allows him to feel good about himself and live comfortably with the choices he has made. When a person is confronted by his own mortality, it emphasizes his fragile and limited existence on earth, creating a great sense of unease. Facing such emotional stress, a normal person will require more reassurance than usual and will typically take refuge in the company of those who share his world view. He will defend that world view more rigorously than usual and will view more negatively attitudes and behaviors that conflict with that world view.

An excellent review of Terror Management Theory, and its application to jury trials, by Joel Lieberman and Jamie Arndt, appeared earlier this year in The Jury Expert, the online publication of the American Society of Trial Consultants. Be sure to check out the two commentaries by trial consultants that follow the article. I highly recommend that any litigator read this article, as the theory is relevant across a wide variety of cases. Given what a good job the authors did in explaining TMT, I won't go into much more detail here.

I would only ask my readers to consider Americans' responses to the events of September 11, 2001. People shouted their patriotism from the rooftops. Men and women joined the military in record numbers. Politicians sported American Flag pins and the President's approval ratings skyrocketed. People were terrified and they took every step possible to shore up the element of their world view that had been most threatened: their Americanism. Congress even went so far as to rename French fries Freedom fries in response to perceived inadequate support from the French government. It was the ultimate case of rallying 'round the flag.

The Jury Expert article includes references to dozens of studies confirming the effects of TMT and does a nice job of reviewing a few examples. It is quite remarkable how much a person's behavior can be affected by simply thinking about something morbid for a few minutes.

Terrorism and TMT

I cannot imagine a crime that calls up concerns for one's own mortality more than terrorism. The more that a juror finds herself obsessing about death, in response to the details of a terrorism trial, the more punitive she will likely be to a defendant whose beliefs and actions directly threaten her own world view.

Typically, a change of venue is only granted when a judge is convinced that pervasive pretrial publicity has made it virtually impossible to impanel an impartial jury. While the Mehanna case has certainly received a great deal of publicity already, it will be an uphill struggle for Mehanna's lawyers to secure a change of venue. The U.S. Attorney's office will argue that the publicity has been national in scope, so that the defendant will face similar exposure in other venues. But Mehanna faces a more subtle challenge associated with being tried close to home. When prospective jurors learn of the charges against Mehanna, they will realize that it was their own lives that were in danger. From what I understand, the defendant is accused of planning to bomb local shopping malls. So, every prospective juror will realize that she might have been one of his victims. This will ramp up obsession with mortality and morbid concerns, thereby ratcheting up juror disapproval of Mehanna's world view. As the jurors dig in, in defense of all they hold dear, Mehanna will be seen as an enormous threat. While a jury in some other part of the country would certainly also view these alleged terrorist plans as reprehensible, such jurors would not necessarily experience a similar sense of mortality and dread.

There is one byproduct of TMT that might work in Mehanna's favor. One item that is seen as emblematic of "American Justice" is a firm commitment to fair procedures. Americans identify strongly with the "beyond a reasonable doubt" standard. They believe that one of the things that makes our country great is that we do everything "by the book" and in a "transparent" way -- not like those "crazies" in the Middle East. As such, jurors in this case are likely to be extremely careful to follow all court rules and judicial instructions. Juries in prior terrorism cases have ruled in favor of defendants when they have perceived that those defendants didn't really get a fair trial or when the evidence has been sketchy.

So, while jurors in this case will feel strong psychological pulls to be punitive towards Mr. Mehanna, they will also feel a strong need to dot all their i's and cross all their t's and generally do everything by the book. Because that is the American Way. The only question is whether these conscious efforts cans overcome natural subconscious tendencies to punish a man who has made jurors feel exposed and vulnerable.

What is a defense attorney to do?

This will obviously be a tough case to defend. That said, there a few things Mr. Mehanna's attorneys can do to mitigate the negative consequences of TMT and use its positive features to their advantage.

1. Make sure to ask prospective jurors about their emotional reactions to hearing about the arrest for the first time. Anyone who replies, "I thought, 'Oh my God! That could have been me in one of those malls!'" is of concern.

2. Spend a lot of time in opening and closing emphasizing the dimensions of procedural fairness built into the American criminal justice system. Burden of proof. Evidentiary rules. Reasonable doubt standard.

3. Remind jurors of their obligations as Americans to follow those rules.

4. Characterize the defendant as an "American who was led astray." It is key to convince jurors that the defendant is not the threat. The threat is those who would seek to use someone like the defendant as a tool in their diabolical plans.

5. During the jury selection process, make good use of some authoritarianism index, in an effort to identify those prospective jurors most likely to give vent to their punitive tendencies.

Moving Forward

Mr. Mehanna's most recent court hearing, on his detention status, was postponed until November 12, so that his attorneys could have more time to prepare. I have a feeling that this case will take a long time to move through the trial process. As it does so, I will be sure to provide updates on this blog, along with commentary on any features of the trial that seem noteworthy.

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