Yesterday, in a ruling, Judge Preska granted the government’s eleventh-hour motion for an anonymous jury. The government requested three things with respect to the jury:
1) the potential jurors on the voir dire panel, and the jurors and alternates selected for the petit jury, not reveal their names, addresses, or places of employment;
2) during trial, the jurors be kept together during recesses and taken to or provided lunch as a group each by the United States Marshals Service; and
3) at the beginning and end of each trial day, the jurors be transported together by the United States Marshals Service between the courthouse and an undisclosed central location, at which they can assemble from, or leave for, their respective communities.
The government argued, that “the use of an anonymous jury does not infringe a defendant’s constitutional rights, so long as the court conducts a voir dire designed to uncover any bias as to the issues or the defendants and takes care to give the jurors a plausible and nonprejudicial reason for not disclosing their identities.” (citing United States v Stewart, 590 F. 3d 93, 124 (2d Cir. 2009)). This, however, doesn’t mean that the government can have an anonymous jury any time it asks (though this, too, is the government’s position, give us what we want: “Indeed, since at least 1993, anonymous juries have been used in every terrorism case in this District in which they have been requested.” (Govt’s Brief at p 2).
I am really curious about what plausible and non-prejudicial reasons could be given to the jury to mask the inferences that this secrecy is going to create. The government didn’t really offer any assurances in its brief. And Judge Preska rested her faith in the voir dire process of selecting an unbiased jury: “In my view, anonymity will assist in jurors being more willing to admit to possible biases.” Whether people are more apt to speak more honestly about their fears of Muslim men without their names attached, I would say is speculation and it doesn’t address the primary concern that the defense raised – that the heightened security measures are undoubtedly going to make the jury squirrely.
As the defense attorneys argued in their brief, to warrant an anonymous jury the government must show a “strong reason to believe the jury needs protection.” That’s because the rights at stake are huge. (“Unquestionably, the empanelment of an anonymous jury is a drastic measure, one which should be undertaken only in limited and carefully delineated circumstances. An anonymous jury raises the specter that the defendant is a dangerous person from whom the jurors must be protected, thereby implicating the defendant’s constitutional right to a presumption of innocence,” citing United States v. Ross, 33 F.3d 1507 (11th Cir. 1994)).
The government’s rationale for requesting an anonymous jury is 1) the seriousness of the charges 2) the pre-trial publicity that the case has generated. As to the first reason, it’s amazing how much mileage the government has gotten out of allegations of ponchos and socks and a few cell phone calls (the special administrative measures that have kept Fahad in solitary confinement were imposed on the same basis). In support of its position, the government attorneys cite to a stream of cases, where there have been actual attempts to thwart the judicial process through murder and jury tampering.
As to the second point, the government accuses Fahad’s supporters of resorting to the media: “One need only look at the website dedicated to this case – www.freefahad.com – to conclude that some are seeking as much media attention for this case as possible.” (Govt’s Brief at 9-10). It would appear that the government, in a roundabout way, is asserting the right to a fair trial. I thought the Sixth Amendment applied to protection for citizens from the government. The press around Fahad’s case could hardly be called a media spectacle (Democracy Now? The Huffington Post?). It would seem then that the government is upset that you, readers, are getting to hear about the case it has brought against Fahad.
As the defense points out, the concern about pre-trial publicity is a factor that a court is supposed to consider as far as it relates to the safety of the jury, and keeping the names of the jurors from the media would easily and reasonably solve that problem without prejudicing the jury.
I almost want to dare the government to bring a change of venue motion. But they won’t. They have it so good in the Southern District. Somehow, their motion for an anonymous jury, based on the same stale charges that they used to impose solitary confinement on Fahad was granted. I’m surprised the judge wasn’t pissed off – the government could have brought the motion months ago during one of the pre-trial conferences.
Oh right, there was a new circumstance that stirred the government into frenzied action, which is the growing base of citizens who have started to learn about Fahad’s case, and want to come watch a public trial to understand what is going on (Exhibit A of the government’s motion is a flyer encouraging folks to attend the proceedings). The government claims that “the jurors will see in the gallery of the courtroom a significant number of the defendant’s supporters, naturally leading to juror speculation that at least some of these spectators might share the defendant’s violent radical leanings.” This is shoddy reasoning – wouldn’t this prejudice the jury against Fahad? Is the government once again claiming rights under the Sixth Amendment? And there is still no allegation that Fahad’s supporters actually raise any security concerns, just illogical speculation.
This characterization of Fahad’s supporters is also shamelessly disingenuous as a cursory look on the internet would show that these individuals include teachers, students, academics, actors, artists … etc. It’s beyond upsetting to see the government use our support for Fahad as ammunition against him, the support that we gathered in good faith, as part of our duty to educate our fellow citizens. It is also designed to chill our efforts to engage the only tools at our disposal – our ability to invite a public dialogue about an action that our government has taken.
Make no mistake, the government wants to protect the jury from his supporters all right, that is, from you and me, and all those who are concerned that a young 30-year-old man might die in prison over what just does not add up to a crime.
By Beena Ahmad