The Tarek Mehanna Terrorism trial is compelling drama, revealing about our homeland security efforts, and instructive about America's uneasy relationship with Islam. It is also a case that implicates some of the more fascinating and troubling aspects of the American Jury System.
In our USC Interdisciplinary Law Review article, "And So Say Some of Us...: What to do When Jurors Disagree," we begin with the premise that, in a large number of criminal cases that actually go to trial, material questions are put to jurors about which reasonable people could disagree. That is, the failure to reach unanimous consensus does not represent a failure of comprehension or duty on the part of jurors, but rather follows naturally from the fact that jurors are often asked to resolve difficult interpretive questions, to which there are no right answers.
The most obvious and ubiquitous of these questions is whether the state has proved its case beyond a reasonable doubt. Because there exists no objective definition of reasonable doubt, and the courts have steadfastly refused to provide one, each juror is free to decide for herself how much doubt is reasonable. In addition, even for those jurors who share interpretations of this standard, their natural inclinations to weigh evidence differently, and view witnesses as more or less credible, can result in differing conclusions about whether the state's burden of proof has been met.
This is, however, only one example of the kind of interpretive question jurors are asked to resolve as part of "finding the facts." Mens Rea requirements provide another obvious example, as jurors are asked to decide, as ostensibly a factual matter, whether the defendant possessed a certain state of mind at the time of the commission of an unlawful act. Was there "malice aforethought"? Was the assailant "reasonably" afraid for his own life? Was he "under the substantial influence or control" of another person? Were the consequences of his actions "reasonably foreseeable" by the defendant? These are all interpretive questions. Any two people who hear testimony in the same case could reasonably disagree about the "right" answers to such questions.
When is Free Speech Too Costly?
There are two major interpretive questions facing jurors in the Tarek Mehanna trial. The first one is whether the kind of material being posted on Mehanna's website, and being espoused by the defendant in direct conversations with others, is protected by the First Amendment's free speech provision. On the one hand, it is clearly political speech, which entitles it to heightened consideration for protection. On the other hand, we all have heard that the First Amendment does not provide the right to cry "Fire!" in a crowded movie house. That is, one is not Constitutionally permitted to use speech to endanger the public safety. The question in this case might be summed up succinctly by asking whether it is Constitutionally permissible to cry "Jihad" in a crowded mosque.
The defense team in the Mehanna case has requested that the jury be instructed about First Amendment free speech rights in advance of trial testimony. Their proposed instruction includes language about this fine line between political dissent and a call to arms:
"[T]he right to free speech includes the right to advocate force or violence, unless the speech is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action."
To the extent that the jury is willing to see this case as a referendum on free speech (Let's not forget that Mehanna is also accused of plotting a terrorist attack on a U.S. shopping mall and seeking jihadist training in Yemen), the jurors will have to wrestle with several concepts without obvious objective meanings. What does it mean to "direct" someone to violence? Does it have to be targeted at a specific person or group of persons? Does the "director" have to advocate a particular form of violence, or is general approbation of violence sufficient? What constitutes "imminent" lawless action? Within a week? A month? A year? Does it matter if the perpetrator knows whether his words will actually convince anyone to do anything?
Finally, there is the very open-ended question of how "likely" his words are to incite actual action. Each juror would seem free to decide for herself how effective Mehanna's words would have to have been in order to nullify his First Amendment protection. If there were a 5% chance that someone would engage in criminal behavior as a result of Mehanna's exhorting, has he crossed the line? A 1% chance? A 25% chance? How likely is "likely"? Is it a sliding scale, depending on how devastating we fear the "incited action" might be?
Is there such a thing as Immaterial Support?
The second major interpretive question facing the jury in the Tarek Mehanna trial is whether speech can constitute "material support"? Everyone agrees that arming a terrorist organization, providing manpower for its efforts, or giving it money all count as providing that organization with material support.
The prosecution in this case contends, however, that Mehanna provided material support to the recruiting and propaganda efforts of Al Qaeda, simply by translating documents into English and posting them on his website.
In the jury instruction on material support, requested by the defense, material support can be in the form of "... service, including ... expert advice or assistance..." According to the requested instruction,
"To constitute a crime, the material support must be provided at the direction of the terrorist group, or in coordination with the terrorist group, or as a service provided directly to the terrorist group at its request."
I would imagine that the prosecution would vigorously dispute this interpretation of the statute. I do not know how Judge O'Toole has ruled on this question.
Even should this wording be used, there remains an open question of whether Mehanna's efforts were pursued "in coordination with" Al Qaeda. While it is not clear that Mehanna had direct contact with Al Qaeda members, he does seem to have had a great deal of contact with people who were themselves connected to Al Qaeda. So, how orchestrated must Mehanna's efforts have been to be considered "in coordination with" Al Qaeda?
Consider the question of approval. Suppose the prosecution could show that approval for Mehanna's efforts were posted on official Al Qaeda websites. Once Mehanna knows that Al Qaeda is aware of his actions, does he consider them coordinated?
The Law/Fact Distinction: A Convenient Legal Fiction
I have identified above two clearly interpretive questions that the jury in the Mehanna case must address as it considers its verdicts. While the questions in this case are particularly "juicy", such interpretive issues permeate all the jurors do. While it is convenient to characterize the jury as the "arbiters of the facts" and the judge as the "arbiter of the law," the distinction really does not exist. Judges make factual determinations as "rulings of law" all the time. Similarly, jurors are constantly asked to give meaning to legal terms that are ambiguous, at best.
This is not a bad thing. It provided the avenue through which a jury can act as the "conscience of the community." The jurors interpret the legal language through the lenses of the times and circumstances in which they are living.
Such a realistic understanding of what jurors do should also inform our appreciation for what jury consultants do. Some would argue (never anyone who has worked with one of us, of course) that we try to "twist the minds" of jurors. We "pervert the facts" and "manipulate the process." This is utter nonsense.
We are not lawyers. As such, we need not give even lip service to the artificial law/fact distinction. As students of human behavior, we have always understood that jurors are engaged in a difficult, sometimes subtle, and poorly guided interpretive process. With a wide spectrum of legitimate interpretations from which to choose, a juror is constantly looking for clues, for guidance, for help in understanding how to best do her job. Sometimes, her first question is simply, "How do I begin?"
We trial consultants work for clients. We try to help our clients win their cases. So, none of us would argue that we don't have an interest in the outcome of a case. I can't speak for other members of the profession, but, I can confidently say that I have never worked on a case where I thought my client shouldn't win. This is because every case is a close call. Every case relies on jurors' interpretation of testimony and evidence and the meaning of the laws they are asked to apply. In every single case I have worked on, there was a very plausible interpretation of these factors that favored my client. And, of course, in very many of them, there was a plausible set of interpretations that favored the other side.
That is why we were in court, in the first place.
What will the Mehanna jurors do?
I know how I would probably resolve the interpretive issues in the Mehanna case, although I allow for the possibility that I might feel differently were I on the jury, seeing only what the jury sees. For reasons I have enumerated before, many having to do with Terror Management Theory, I also have expectations about what the final verdict will be in this case. That said, I don't know with any certainty how the individual jurors will handle the specific interpretive questions I identify here. There are no right answers, only opinions. And juror opinions never cease to surprise me.
It is very unfortunate that parties are not permitted to interview jurors in Massachusetts after they have rendered verdicts. I think it would be fascinating to learn how these jurors tackle their interpretive dilemmas. Which words will they key in on? Which definitions will prove compelling? Will they reach the same verdict for different reasons? Will the task simply prove too big for some of them?
I only hope that Judge O'Toole will treat their task with great respect. I hope that when they seek guidance, he does not simply resort to rereading the jury instructions to them. I hope that, maybe just for once, the law/fact distinction can be set aside in the interest of justice.