Today, Judge George O'Toole holds a hearing to determine the appropriate sentence for Tarek Mehanna, the Sudbury man convicted in January of providing material support to Al Qaeda and seeking terrorist training in Yemen.
Read the Boston Globe story about the sentencing hearing here.
This case is fascinating on many levels and I have written multiple blog entries about it over the past two years. (Find Jury Box Blog posts on the case here). The jury determined that posting pro-Al Qaeda material online could constitute "material support" and that the dangers associated therewith overrode any Free Speech protections. It is important to remember, however, that Mr. Mehanna never raised a finger in violence against anyone. He gave no money to our enemies and his support for jihadist violence was equivocal, at best. So, what kind of punishment is appropriate for his crimes?
The defense is asking for a lenient sentence of fewer than 7 years in prison. The prosecution, however, is seeking a sentence of 25 years. Since federal sentencing guidelines are no longer binding, the judge will have a great deal of discretion over Mr. Mehanna's fate. But should he?
One of the fundamental rationales for using citizen juries in our criminal justice system is to allow them to serve as the "conscience of the community." Unlike the judge, who is embedded in the governmental structure for life tenure and who can be removed from "the word on the street," jurors are living in the community, with experiences that better reflect shared values about public safety, culpability and morality. Nowhere is this more strongly reflected than in the absolute right of the jury to nullify in the rare instance where justice and the law do not correspond.
It is odd, then, that our system has evolved so that jurors are asked to determine guilt or innocence and judges are asked to determine sentence. (Capital punishment offers the best known exception to this allocation of responsibilities.) This arrangement really handcuffs the ability of jurors to exercise their duty as the conscience of the community. We provide them with the most blunt instrument available, a simple "yes or no" vote on the defendant's guilt. Where there are multiple charges or lesser included offenses, jurors are afforded slightly more flexibility to craft a verdict that reflects their evaluations of the defendant's culpability.
The real discretion sits with the person who decide's the defendant's sentence. Ultimately, the sentence is the person't fate. The jury's verdict on guilt only hands off this decision to the judge.
I can think of no case that better illustrates the wisdom of allowing jurors to decide sentencing than that of Tarek Mehanna. There is a wide range of available alternatives. Reasonable people will certainly disagree about which sentence would be best, as well as what opportunities Mr. Mehanna should be afforded to reduce his sentence through good behavior or restitution. One's judgment regarding what punishment would be most appropriate in this case comes down to an evaluation of the defendant's culpability and how much danger his actions created. Given the uniqueness of this case, the multiple issues that need to be considered and the diversity of opinion in society on these issues, the final disposition of this case could certainly benefit from a lively and representative deliberation.
The rest of the world will view Mr. Mehanna's sentence as a reflection of our society's values and priorities. Maybe we should structure our system so this would actually be true.
Recent Jury Box Blog Entries
Showing posts with label Boston. Show all posts
Showing posts with label Boston. Show all posts
Thursday, April 12, 2012
Thursday, January 05, 2012
The Weaponization of Belief: Tarek Mehanna Guilty on 7 Terrorism Charges
Guilty on All Counts
Late last month, a federal jury in Boston, after only 10 hours of deliberations, found Tarek Mehanna guilty on all seven counts for which he had been charged. They included conspiracy to kill Americans abroad, lying to federal investigators and, most controversially, providing material support to a terrorist organization (Al Qaeda).
Two sets of acts proved central to the case against Mehanna. The first was a trip he took with another man to Yemen in 2004, allegedly to seek training at a terrorist camp. His companion continued on to Iraq and remains at large. The second was a series of documents and videos Mehanna translated from Arabic into English and posted to the internet. As most of these files were seen as serving propaganda purposes for Al Qaeda, they formed the basis for the "material support" charge.
Defense attorneys for Mehanna had requested that Judge O'Toole give the jury a special verdict form, so that the jurors would have to specify whether the elements for any charge were satisfied by the Yemen trip, the web postings, or both. The rationale for such a request was a recognition that no U.S. appellate court had yet ruled on the Constitutional question of whether speech alone could qualify as material support, as defined by the antiterrorism statute. Only by learning whether any particular conviction rested on the internet postings could the defense preserve this question for appeal. Judge O'Toole, however, failed to see the need for the special verdict form and allowed the jury to return a general verdict on all counts.
Retaliatory Prosecution?
Tarek Mehanna's brother, Tamir, was interviewed on WBUR (Boston's NPR affiliate) on the day following the verdict. In that interview, he paints a picture of his brother's development as an American and a Muslim quite at odds with what prosecutors told the jury. He remains convinced that the government only prosecuted his brother so aggressively because Tarek refused to become an informant for the justice department in 2004.
Many legal scholars have now weighed in on the First Amendment implications of Mehanna's conviction, suggesting that it has struck a devastating blow against free political speech in America. The verdict sends a message to those who would criticize our government that their words can, in fact, be used against them in a court of law.
I wonder, however, if the verdict has not sent an even more potent message regarding the 4th, 5th and 6th Amendments. When it comes to issues of national security, if you assert your rights not to cooperate with an ongoing investigation, the consequences will be dire. Suspects have long been pressured into cooperating with the government in order to avoid particularly harsh treatment. Investigators and prosecutors regularly depend on informants and coconspirators to make their cases. This case, however, feels a bit different. The government really piled on here... and they won. I am not sure that federal authorities thought that Mehanna himself was particularly dangerous. They might have thought that a culture where dissidents feel free to blow off the Feds would be particularly dangerous.
Credibility can be Key
In many of my prior posts about this case, I identified major challenges facing the defense, including poor timing, archaic jury selection procedures, adverse evidentiary rulings and the emotional climate created by any reference to terrorism.
Against all of this, I was very impressed with the defense mounted by Mehanna's team. In particular, I thought they did an excellent job of reminding the jury at every turn that almost everything cited as evidence by the prosecution turned out to be spoken or written words. The First Amendment defense, which seemed rather far-fetched as the trial opened, gained traction as the case went along.
There proved to be one major problem. Mehanna's trip to Yemen, at a time when no sane person would go there other than to be in the middle of a war, was clearly not mere talk. It was a very concrete act of someone who was clearly trying to accomplish something more than he could at home. The defense explanation was that he was seeking further Islamic education. There was scant evidence to support this contention and it frankly didn't pass the sniff test (even if it were true).
The perceived need to shoehorn this event into the free-speech-based defense strategy probably did not serve Mehanna well. I have not heard or read interviews with any of the jurors yet, but I wonder if the implausibility of this particular defense hurt the defense team's credibility with respect to the rest of the charges. If jurors thought the defense was trying to snow them about the trip to Yemen, they likely became suspicious of the rest of the defense story.
Hindsight is 20-20 (or at least usually less myopic than the present), so it is easy to speculate about "what ifs". I am sure that Mr. Carney and his team did what they thought would be most effective for their client at the time, and I do not mean to suggest that I somehow know better. The post-game analysis, however, tends to speculate about how things might have gone differently. In that spirit, I do wonder what might have happened, had Mr. Mehanna essentially fallen on his sword with respect to the ill-fated trip to Yemen.
Rather than defending the trip as an educational venture, the defense might have admitted that the trip was a stupid idea of an immature and angry young man. They might have been able to spin the story, to suggest that finding himself in the Middle East opened Mehanna's eyes to the very real conflict in the region. He came home because he realized that violence in the name of God is wrong. This story does seem to dovetail a bit better with Mehanna's subsequent decision to take his fight to the web, rather than the battlefield.
It's always the cover-up
Americans are, as a rule, very forgiving people. I am often amazed at the transgressions we are willing to overlook. The one thing that we seem to have virtually no tolerance for, however, is anyone thinking they are bigger than the system, above the law, or not subject to the same rules as the rest of us.
Juries punish arrogance. Just ask Martha Stewart. Just ask Conrad Murray. Just ask Rod Blagojevich. Just ask Raj Rajarratman.When you get caught, throw yourself on the mercy of the court and jurors will treat you fairly. Act like you are smarter or tougher or better than everyone else and they will punish you.
It is for this reason that I am so concerned that the defense of Mehanna's trip to Yemen as a pilgrimage of Islamic learning came across as arrogant. It was borderline contemptuous of the jury. I worry that some of the jurors thought, "Just how gullible do you think we are?"
Alas, it will always be relegated to speculation what might have happened had the defense team taken a different tact with respect to this one particular act. Would the jury have been more sympathetic to the free speech defense of Mehanna's other activities? Would they have deliberated longer than 10 hours? We will never know.
Late last month, a federal jury in Boston, after only 10 hours of deliberations, found Tarek Mehanna guilty on all seven counts for which he had been charged. They included conspiracy to kill Americans abroad, lying to federal investigators and, most controversially, providing material support to a terrorist organization (Al Qaeda).
Two sets of acts proved central to the case against Mehanna. The first was a trip he took with another man to Yemen in 2004, allegedly to seek training at a terrorist camp. His companion continued on to Iraq and remains at large. The second was a series of documents and videos Mehanna translated from Arabic into English and posted to the internet. As most of these files were seen as serving propaganda purposes for Al Qaeda, they formed the basis for the "material support" charge.
Defense attorneys for Mehanna had requested that Judge O'Toole give the jury a special verdict form, so that the jurors would have to specify whether the elements for any charge were satisfied by the Yemen trip, the web postings, or both. The rationale for such a request was a recognition that no U.S. appellate court had yet ruled on the Constitutional question of whether speech alone could qualify as material support, as defined by the antiterrorism statute. Only by learning whether any particular conviction rested on the internet postings could the defense preserve this question for appeal. Judge O'Toole, however, failed to see the need for the special verdict form and allowed the jury to return a general verdict on all counts.
Retaliatory Prosecution?
Tarek Mehanna's brother, Tamir, was interviewed on WBUR (Boston's NPR affiliate) on the day following the verdict. In that interview, he paints a picture of his brother's development as an American and a Muslim quite at odds with what prosecutors told the jury. He remains convinced that the government only prosecuted his brother so aggressively because Tarek refused to become an informant for the justice department in 2004.
Many legal scholars have now weighed in on the First Amendment implications of Mehanna's conviction, suggesting that it has struck a devastating blow against free political speech in America. The verdict sends a message to those who would criticize our government that their words can, in fact, be used against them in a court of law.
I wonder, however, if the verdict has not sent an even more potent message regarding the 4th, 5th and 6th Amendments. When it comes to issues of national security, if you assert your rights not to cooperate with an ongoing investigation, the consequences will be dire. Suspects have long been pressured into cooperating with the government in order to avoid particularly harsh treatment. Investigators and prosecutors regularly depend on informants and coconspirators to make their cases. This case, however, feels a bit different. The government really piled on here... and they won. I am not sure that federal authorities thought that Mehanna himself was particularly dangerous. They might have thought that a culture where dissidents feel free to blow off the Feds would be particularly dangerous.
Credibility can be Key
In many of my prior posts about this case, I identified major challenges facing the defense, including poor timing, archaic jury selection procedures, adverse evidentiary rulings and the emotional climate created by any reference to terrorism.
Against all of this, I was very impressed with the defense mounted by Mehanna's team. In particular, I thought they did an excellent job of reminding the jury at every turn that almost everything cited as evidence by the prosecution turned out to be spoken or written words. The First Amendment defense, which seemed rather far-fetched as the trial opened, gained traction as the case went along.
There proved to be one major problem. Mehanna's trip to Yemen, at a time when no sane person would go there other than to be in the middle of a war, was clearly not mere talk. It was a very concrete act of someone who was clearly trying to accomplish something more than he could at home. The defense explanation was that he was seeking further Islamic education. There was scant evidence to support this contention and it frankly didn't pass the sniff test (even if it were true).
The perceived need to shoehorn this event into the free-speech-based defense strategy probably did not serve Mehanna well. I have not heard or read interviews with any of the jurors yet, but I wonder if the implausibility of this particular defense hurt the defense team's credibility with respect to the rest of the charges. If jurors thought the defense was trying to snow them about the trip to Yemen, they likely became suspicious of the rest of the defense story.
Hindsight is 20-20 (or at least usually less myopic than the present), so it is easy to speculate about "what ifs". I am sure that Mr. Carney and his team did what they thought would be most effective for their client at the time, and I do not mean to suggest that I somehow know better. The post-game analysis, however, tends to speculate about how things might have gone differently. In that spirit, I do wonder what might have happened, had Mr. Mehanna essentially fallen on his sword with respect to the ill-fated trip to Yemen.
Rather than defending the trip as an educational venture, the defense might have admitted that the trip was a stupid idea of an immature and angry young man. They might have been able to spin the story, to suggest that finding himself in the Middle East opened Mehanna's eyes to the very real conflict in the region. He came home because he realized that violence in the name of God is wrong. This story does seem to dovetail a bit better with Mehanna's subsequent decision to take his fight to the web, rather than the battlefield.
It's always the cover-up
Americans are, as a rule, very forgiving people. I am often amazed at the transgressions we are willing to overlook. The one thing that we seem to have virtually no tolerance for, however, is anyone thinking they are bigger than the system, above the law, or not subject to the same rules as the rest of us.
Juries punish arrogance. Just ask Martha Stewart. Just ask Conrad Murray. Just ask Rod Blagojevich. Just ask Raj Rajarratman.When you get caught, throw yourself on the mercy of the court and jurors will treat you fairly. Act like you are smarter or tougher or better than everyone else and they will punish you.
It is for this reason that I am so concerned that the defense of Mehanna's trip to Yemen as a pilgrimage of Islamic learning came across as arrogant. It was borderline contemptuous of the jury. I worry that some of the jurors thought, "Just how gullible do you think we are?"
Alas, it will always be relegated to speculation what might have happened had the defense team taken a different tact with respect to this one particular act. Would the jury have been more sympathetic to the free speech defense of Mehanna's other activities? Would they have deliberated longer than 10 hours? We will never know.
Monday, November 08, 2010
Saving Chuck Turner from Himself: The value of witness prep focus groups
Chuck Turner, a longtime Boston City Counsellor, was convicted last week of taking bribes. He was arrested after the FBI conducted a sting operation, employing one of Turner's associates as an informant. Ronald Wilburn was sent into Turner's office to ask for help obtaining a liquor license. While there, Wilburn slipped Turner $1000 in cash during a handshake, all of which was caught on FBI surveillance video.
There are a couple of noteworthy features of the trial. First, the video is very grainy. So, while it is clear that something changed hands, and that it was almost certainly money, there is no way to tell how much. Secondly, Mr. Wilburn was overtly hostile to the FBI during his testimony. While he generally corroborated the FBI's account of what went down, he greatly resented having been forced to participate in the sting operation and did not try to hide his contempt for the Feds in court.
So, after the Prosecution rested, things did not look good for Chuck Turner. There was, however, some hope that some jurors might have been upset with the way in which the FBI agents conducted themselves. While I rather doubt that any of them would have voted to acquit, I could have envisioned them settling on a verdict centered around minor charges.(Obstruction of justice).
Then Chuck Turner opened his mouth. Despite his attorney begging him not to take the stand, and one supporter literally trying to drag him back to his seat by his suit cuff, Turner insisted on testifying in his own defense. Turner took the stand and proceeded to hem and haw and fail to remember things. He denied small things that had been well-documented and claimed amnesia when convenient. In short, he came across as a smug, contemptuous liar, who believed that he could wiggle out of any situation on the strength of his own charm and guile. Needless to say, the jury didn't buy it.
Any experienced litigator has had a client who just didn't know when to keep his mouth shut. Either the person has insisted on testifying when he shouldn't have, or he insisted on giving a long, convoluted answer to a straightforward question. So, what can be done about a client who insists on talking himself into an adverse verdict?
Typically, such a client has a poor sense about how his testimony will be perceived. Either he simply does not appreciate how he comes across in public, or he fails to anticipate how poorly his style will translate into a courtroom setting. Since many such people are in positions of authority, they are not used to taking directions about message from others. So, how do you convince someone like this to do what's in his own best interest?
This is where videotaped witness preparation can really save the day. Rather than having a hypothetical discussion with your client about what to do on the stand, it is critical to submit the client to a realistic direct and cross examination. Make sure that the attorney you have recruited to act as opposing counsel is very well-versed in your case and really goes after your client. Exploit his weaknesses, trap him in contradictions and let him hang himself.
Once the session is over, review the videotape with your client. In most cases, the witness will quickly come to appreciate his deficiencies on the stand. Where the person continues to be obtuse (or insists he can fix things with a snap of his fingers), the next step is to assemble a small focus group of jury eligible people from the relevant jurisdiction. Show the practice testimony to these subjects and have a moderator lead a discussion about their reactions.
If Chuck Turner's defense team had conducted this simple exercise, I am pretty confident that his lawyers would have been able to convince him not to take the stand at his trial. While he might have still been convicted of some crime, he would not have created a permanent record of himself lying under oath in a court of law.
The lesson: Sometimes it is not enough to tell your client what to expect at trial -- You have to show him.
There are a couple of noteworthy features of the trial. First, the video is very grainy. So, while it is clear that something changed hands, and that it was almost certainly money, there is no way to tell how much. Secondly, Mr. Wilburn was overtly hostile to the FBI during his testimony. While he generally corroborated the FBI's account of what went down, he greatly resented having been forced to participate in the sting operation and did not try to hide his contempt for the Feds in court.
So, after the Prosecution rested, things did not look good for Chuck Turner. There was, however, some hope that some jurors might have been upset with the way in which the FBI agents conducted themselves. While I rather doubt that any of them would have voted to acquit, I could have envisioned them settling on a verdict centered around minor charges.(Obstruction of justice).
Then Chuck Turner opened his mouth. Despite his attorney begging him not to take the stand, and one supporter literally trying to drag him back to his seat by his suit cuff, Turner insisted on testifying in his own defense. Turner took the stand and proceeded to hem and haw and fail to remember things. He denied small things that had been well-documented and claimed amnesia when convenient. In short, he came across as a smug, contemptuous liar, who believed that he could wiggle out of any situation on the strength of his own charm and guile. Needless to say, the jury didn't buy it.
Any experienced litigator has had a client who just didn't know when to keep his mouth shut. Either the person has insisted on testifying when he shouldn't have, or he insisted on giving a long, convoluted answer to a straightforward question. So, what can be done about a client who insists on talking himself into an adverse verdict?
Typically, such a client has a poor sense about how his testimony will be perceived. Either he simply does not appreciate how he comes across in public, or he fails to anticipate how poorly his style will translate into a courtroom setting. Since many such people are in positions of authority, they are not used to taking directions about message from others. So, how do you convince someone like this to do what's in his own best interest?
This is where videotaped witness preparation can really save the day. Rather than having a hypothetical discussion with your client about what to do on the stand, it is critical to submit the client to a realistic direct and cross examination. Make sure that the attorney you have recruited to act as opposing counsel is very well-versed in your case and really goes after your client. Exploit his weaknesses, trap him in contradictions and let him hang himself.
Once the session is over, review the videotape with your client. In most cases, the witness will quickly come to appreciate his deficiencies on the stand. Where the person continues to be obtuse (or insists he can fix things with a snap of his fingers), the next step is to assemble a small focus group of jury eligible people from the relevant jurisdiction. Show the practice testimony to these subjects and have a moderator lead a discussion about their reactions.
If Chuck Turner's defense team had conducted this simple exercise, I am pretty confident that his lawyers would have been able to convince him not to take the stand at his trial. While he might have still been convicted of some crime, he would not have created a permanent record of himself lying under oath in a court of law.
The lesson: Sometimes it is not enough to tell your client what to expect at trial -- You have to show him.
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