No one knows exactly what has happened during the Denny deliberations. At the weekend, jurors announced they had reached verdicts on some counts, but remained undecided on some of the most serious charges. The whirligig of juror challenges, dismissals and replacements has turned an attempted-murder trial into a test of the jury system itself. judge John Ouderkirk–a no-nonsense, conservative former prosecutor who rarely is overturned on appeal–had hoped to avoid precisely this scenario. The jury is racially diverse. Unlike the mostly white jury in the first King trial, this panel consists of blacks, Hispanics and Asian-Americans in addition to whites. Yet black leaders like Leo Terrell, a lawyer for the NAACP, are crying foul again. The system didn’t do right by Rodney King, they say, and now it’s being unfair to two more black men because of the revolving door of jurors. Despite Ouderkirk’s record, legal experts predict that guilty verdicts might not withstand appeal because it looks as though he is stacking the jury. His dismissal of juror 373 for the vaguely stated reason of “failing to deliberate” is unheard of. juror 373’s “behavior must have been extreme for him to take that extreme a step,” says a former L.A. prosecutor and veteran of 100 jury trials.
In all, five jurors have now been removed in the two-month trial of Damian Williams, 20, and Henry Watson, 29. Before deliberations began, two jurors were dismissed for health reasons and one because he allegedly discussed the case with neighbors, telling them he would vote to convict the defendants even before he heard all the evidence. Another left for personal reasons. But the pivotal dismissal was of juror 373, a black woman in her 50s. To land on the jury, she had been selected from a pool of 128. She had answered a 43-page survey and had been subject to questioning by the prosecution and defense. She had even participated in two partial verdicts reached by the jury, which the judge also tossed out.
Still, her 11 colleagues last week sent a note to the judge asking that she be removed. “This has nothing to do with her views on the issue or her personality,” they wrote. “She doesn’t use common sense.” After meeting with 373, four other jurors and lawyers from both sides, Ouderkirk dismissed her for “not deliberating in any true sense of the word”; earlier, he had even speculated she could be suffering from Alzheimer’s or lying, In a subsequent letter to the judge, the juror suggested the case might have been better decided by him. She also accused some jurors of having prejudged the case. Ouderkirk denied a defense motion for a mistrial. Yet he failed to explain convincingly how juror 373’s difficult behavior constituted grounds for dismissing her.
Should Williams and Watson be convicted, an appeals court is far more likely to reverse Ouderkirk’s ruling to dismiss juror 373 than his decision to keep 104. Traditionally, courts give extraordinary deference to jurors. The assumption isn’t so much that all jurors are Einsteins, but that judges can’t be in the business of seeming to favor one verdict over another. Maybe juror 373 was in the twilight zone, as one juror suggested. Or maybe her allegedly distracted and forgetful behavior was little more than disagreeability. “You don’t want one to be removed because he or she is a sole holdout,” says Prof Erwin Chemerinsky of the University of Southern California law school.
The public-relations damage from the jury wrangling may already have been done. It would be ironic if this jury’s verdict were publicly decried, given the court’s pains to appear fair to a city still recovering from the riots that followed the disputed King verdict. Even after all the changes, the Denny jury is still racially diverse.
In the end, that may be the problem. When the Denny beating happened, different people in the city saw very different things. So, too, may have 12 jurors. And that could be inevitable in a case this volatile. In a criminal-justice system that prides itself on the mechanical application of rules, jurors are the human dimension. And their struggles may offer a lesson as powerful as any final verdict.
title: “Disorder In The Court” ShowToc: true date: “2022-12-21” author: “Elaine Rothe”
Long after NEWSWEEK runs its last O.J. cover story and “Nightline” sets its sights on Colin Powell’s running mates, criminal justice will have to deal with the cleanup of the Simpson case. The chore won’t be pretty. Some proposed changes amount to tinkering. Some, like fixing the LAPD, continue efforts begun long before O.J. took a Bronco ride. Other reforms, involving the Constitution itself, would require fundamental restructuring of the way courts do business. For prosecutors in particular, many changes will have to be subtle. Prosecutors will have to rethink how they present DNA evidence (and what to do if they don’t have any); what to do with state witnesses who have shown any racial animus and how to deal with defense lawyers eschewing plea bargains and emboldened by the belief that urban juries will be out to “send a message.” As the O.J. debate changes venue, here’s a look at the possible future of American law:
Ordinary citizens have been the heart of Anglo-American criminal justice for centuries. Ideally, 12 jurors re-fleet the common sense of a community. The Simpson jury shows the system at rock bottom. Nobody applauds the swiftness of its verdict or the internal rancor over the past year. But more significant, the case may illustrate that our entire premise of juries is flawed. Either possible verdict was going to be illegitimate to a major segment of society; that’s no way to promote confidence in criminal justice.
Many Western democracies don’t have juries, including Italy, France, Germany, Japan, Israel and the Scandinavian countries. But don’t expect an end to juries here. That would require outright repeal of the Sixth Amendment–not likely even in the arch conservative era symbolized by Justice Clarence Thomas. Is the American jury an anachronism, an institution that no longer works in the day of jury consultants, complex scientific testimony and racial polarization among diverse juries? Most lawyers, judges and lay folk still say it’s better than the alternatives. More plausible changes to the jury system include: seating the first 12 people called, unless someone is connected to the parties or the alleged crime; letting the judge alone interview prospective jurors, rather than letting the lawyers window-shop; eliminating all peremptory challenges. Los Angeles D.A. Gil Garcetti told NEWSWEEK he wants “mandatory jury service” – no excuses allowed. At the other end of the reform spectrum are those who say it’s unfair to stop lawyers from striking jurors based on race and gender. The Simpson case, they say, proves that mandating blindness is naive.
Many critics say it’s time to change constitutional dos and don’ts that favor defendants. The Fifth Amendment allows an accused criminal not to take the stand. Fair enough, says Harold Rothwax, a respected criminal-trial judge in Manhattan. But why shouldn’t the jury be allowed to factor that into its verdict? For now, because the U.S. Supreme Court says so. “Common sense screams that you draw an adverse inference from that,” he says. In many countries of Western Europe, defendants don’t even have the right to refuse to testify. Nonunanimous verdicts–10 to 2 or 11 to 1–are also likely to become more common, though that is more a result of the Menendez hung juries last year than the Simpson trial.
If you’re going to have juries, be nice to them. “Sequestration should almost never be done, especially in a long trial,” says Chief Judge Jon Newman of the 2d U.S. Circuit Court of Appeals. In the Simpson case, it was worse for jurors because they were led to believe they’d get out sooner. No wonder they deliberated so quickly. How to keep jurors from hearing inflammatory material like the Fuhrman tapes? Repeated warnings from the judge and then take your chances, Newman says. In the Oklahoma City bombing case, lawyers for both sides have asked the judge not to lock up the jury.
Another suggestion: let jurors participate more in the trial. Arizona will soon allow jurors to ask witnesses questions–funneled through the judge. They’ll also be able to consult with each other during civil trials. Putting time limits on cases, reducing the number of sidebar conferences and limiting the number of counsel are other ways to civilize jury service. Like it or not, say prosecutors and defense lawyers, jurors will be citing the experience they saw on TV and expect better. Some proposals aren’t so kind. One state senator in California wants to figure out a way to require jurors to deliberate for a certain period.
Even members of the Simpson defense agreed last week they yabbered too much outside the courtroom. It will be harder for that to happen again in California. Last week an ethics rule went into effect limiting what lawyers can tell the media. Those kinds of limited “gag orders” are likely to be more commonplace after the Simpson trial.
Don’t expect Lance Ito to be on anyone’s short-list for the Supreme Court next year, unless Larry King is elected president. Legal experts give Ro good marks for his specific evidentiary rulings-like keeping out most of the Fuhrman tapes –but skewer him for losing control of the lawyers and his courtroom. He was “too courteous,” says Harland Braun, an L.A. defense lawyer. Judge Rothwax cites the time Ito scolded defense lawyer Peter Neu-feld, “That’s the 13th time I’ve asked you not to ask that question.” Several weeks later Neufeld appeared in Rothwax’s courtroom and was told by the judge, “Peter, you’re not even going to go past the first time.” Neufeld’s response: “Don’t blame me. Judge Ito let me do it.” Rothwax claims the Simpson trial would have taken three or four months under him. “Ito delighted in the trial and enjoyed it for as long as he could,” Rothwax says.
Between Mark Fuhrman in Los Angeles and other scandals in cities like Philadelphia, police have their work cut out. While Attorney General Janet Reno announced last week that the Justice Department would investigate the LAPD, reform will have to begin at the recruiting level. But even with more minority hiring and sensitivity training, can any forensics specialist or crime-scene analyst withstand a Barry Scheck cross-examination? “If only an ideal investigation will meet jurors’ expectations,” says Northwestern law professor Ronald Allen, “there will be no convictions. There’ll be anarchy.”
In the last decade, the trend has been to let TV cameras into trials. It’s what has given Steven Brill at Court TV new reason to live–and his cable channel in fact did an admirable job of covering O.J. soberly. Still, Ito’s bad courtroom example and the Ringling Bros. atmosphere have reversed the trend. The judge in the Menendez double-murder retrial beginning this week has barred cameras. So, too, the judges in the Selena and Polly Klaas murder trials. Mississippi has gotten rid of them altogether, except in the rarest case; California Gov. Pete Wilson wants to do the same thing. It’s easy to understand those sentiments. For all the chatter about educational value, most TV coverage of O.J. was packaged as entertainment–a slower, poorly acted version of “Murder One.” Thank goodness we still have Hollywood.
title: “Disorder In The Court” ShowToc: true date: “2023-01-10” author: “Mary Robinson”
And just hours after being discharged, Harris did what virtually every other person involved in the Simpson case likes to do: she spoke to the media. What she described was a house of chaos. She told a Los Angeles TV station that jurors were discussing the case among themselves in violation of Ito’s orders, that they were breaking into racially divided factions of guilt and innocence, and that jurors’ phone calls to the outside world went unmonitored. One white juror even kicked two black jurors, she said. Jurors were fed up. And confirming what the courtroom cognoscenti suspected, she made it clear she had fallen hard for the smooth spell of Simpson and lead defense lawyer Johnnie Cochran. Her prediction: “To be honest with you, I think it will be a hung jury.”
For a trial that already resembled a demolition derby, Harris’s bombshell revelations threatened to end it all and send CNN back to covering the White House-and Simpson back to Airport movies. Her reports of possible juror misconduct raised the mindboggling specter of a mistrial. Cochran. never one to miss an opening, added to the disorder, complaining of “Big Brother” prosecutors conspiring to purge hostile jurors and to spy on defense witnesses. Judge Ito ordered an investigation of Harris’s charges, and this week is expected to question the jurors.
On Friday, Harris backed off a few of her crucial jury-misconduct remarks-then added some new ones. Whether she was a flake or an avenging angel, her words only added fuel to the notion that Ito was presiding-shakily over the trial. Even without the sideshow, the case was lurching so disjointedly and languidly that the prospect of a verdict any verdict-seemed remote. “Ito has let the process run amok,” said Ronald Allen, a Northwestern University law professor. “He is just not controlling this the way he should.”
It also didn’t help the image of the criminal-justice system that outside the courtroom the trial of the century was turning into the trial of the surreal. Last week Alfonse D’Amato, the junior senator from New York, crudely mocked the Japanese-American Ito on a radio show; a cross-dresser was ejected from the courtroom, and hordes of media people chased down a woman who wasn’t Harris (and insisted that she show an ID to prove it). Meanwhile, Marcia Clark’s estranged husband, Gordon, entered the fray, telling NEWSWEEK why he wanted custody of their children (page 35).
The public didn’t seem to mind -in fact, it was devouring every morsel the media could serve up. A Times Mirror poll out last week found that 52 percent of those surveyed have watched some or almost all of the trial. As Robert Weisberg, a Stanford University law professor, put it: “The trial has become a bizarre spectacle. The criminal-justice system has been overtaken by the psychopathology of pop culture.”
Not the entire criminal-justice system. The Simpson trial is hardly typical of what goes on in courtrooms daily across America. But however unwittingly, Harris’s interviews opened an important window on issues that have reverberated since the murders of Nicole Brown Simpson and Ronald Goldman last June. She showed again-how blacks and whites view the judicial system in profoundly different ways (box). She raised questions about the cherished system of trial by jury, and the role that money plays for criminal defendants (page 32). She illustrated how the intense pressure of the news media can transform the judicial process.
In the confines of his jail cell, Simpson could leisurely contemplate these issues. But his team had a week that most murder defendants could only dream about. Barry Scheck, one of two defense lawyers in charge of blood evidence. skewered criminalist Dennis Fung in a devastating cross-examination, Fung conceded a variety of potentially highly damaging points. Among them: that a blanket taken from Nicole’s condo to cover her body could have contained O.J.’s hair and clothes fibers and that could explain how they ended up at the crime scene outside 875 South Bundy. Having failed a fortnight ago to shake the testimony of Mark Fuhrman, the detective Abo found the bloody glove, the defense now found itself with a corps of Keystone criminalists and coroners to torment. The impact was not lost on former L.A. district attorney Ira Reiner. “The defense is going to take that blanket and make it large enough to cover everything from Bundy to Rockingham before they’re through with it,” he said. Now he thinks his old office is resigned to a hung jury.
If that wasn’t enough to buoy O.J.’s spirits, Harris seemed to confirm that two entirely different sets of eyes were viewing the trial. Harris said she thought the prosecution was “just spinning its wheels” and that “they’re saying a whole lot of nothing.” Marcia Clark, she believed, was doing “the best job that she possibly cart’ but Harris was “confused” by associate Christopher Darden. Harris also trashed key prosecution witnesses, like Detective Fuhrman (“cocky”).
Harris lavished praise on Cochran, E Lee Bailey and Robert Shapiro. Of Cochran she said: “He fascinates me, he really does,he had a certain eloquence about him.” In an interview with NEWSWEEK’S Vern Smith, she said: “There’s a difference between F Lee Bailey and a deputy district attorney. I’m sorry.” Much of her passion for the defense seemed to flow out of her fawning admiration for Simpson. “I watched him for several months in a courtroom and I have to say he is quite impressive,” she said. “He is going through a lot. Whether he did it or not, he presents this picture of a person handling a great deal.”
Nonwhites watching the trial seem to agree with Harris. The NEWSWEEK Poll showed that 47 percent thought the state was doing a poor job presenting its case, compared with only 26 percent for whites.
To whites who had predicted that the predominantly black jury would never convict Simpson, Harris’s remarks were proof enough of bias. Polls have consistently shown the divide between whites and blacks over the trial, and the NEWSWEEK Poll last week continued the trend: 49 percent of whites said Simpson is guilty; 56 percent of nonwhites said he is innocent. In her interviews, Harris suggested that the jury would indeed break down along racial lines because of community pressure. She said a white might say, “‘I can’t vote him not guilty, because when 1 walk out of here, I want to walk back into a life.‘Or an African-American might say, ‘I can’t say he’s guilty because I want to walk out of here.’ Those things cross your mind.” But later Harris told NEWSWEEK that blacks and whites would not necessarily vote in blocs. “Color doesn’t have anything to do with it,” she insisted.
As Harris told it, the racial divisions also extended beyond viewing the evidence. Harris said she encountered apparent racism among a juror and sheriff’s deputies. She told NEWSWEEK that the kicking incident happened when a white female juror walked by her and an African-American male while they were sitting in the jury box. She said that they wrote a note complaining to Ito but never got a response.
NEWSWEEK learned that the juror in question is No. 353, a 38-year-old phone-company employee, and that she will be investigated in the incident. The defense may push to have her removed. Sources say the juror, one of three white females still on the panel, was also involved in the dismissal of two other previously excused jurors; the reasons aren’t publicly known. Harris also contended that sheriff’s deputies treated blacks differently, allowing, for instance, white jurors more shopping time than blacks. She told NEWSWEEK a black deputy even argued with white deputies that the shorter shopping time wasn’t fair.”
if that wasn’t unnerving enough, Harris was the immediate focus of defense complaints that some “strange unusual source”-read: prosecutors-was trying to dump pro-defense jurors. “It’s more than coincidence,” insisted Cochran, without offering proof. In an interview with NEWSWEEK, he contended the investigation into Harris began in a “bizarre” manner: an unidentified person told an LAPD officer stationed in front of the courthouse that Harris had been a victim of spousal abuse. Two weeks ago Harris said she was summoned to Ito’s chambers and asked about the domestic-violence incident. She denied it, but on Wednesday Ito confronted her with a 1988 court document in which she claimed that her husband had forced her to engage in sex and that she was afraid of being beaten. She later said she had forgotten about the incident.
The prosecution is deeply relieved that Harris is gone, but the notion of a concerted effort to remove hostile jurors remains unproved. No clear pattern has emerged for the dismissals. Of the six jurors removed so far, three have been considered pro-defence, one pro-prosecution and two had no apparent preference. A spokesperson for the district attorney called the idea of targeting jurors “ridiculous.”
It’s not unusual for jurors to be replaced during trials. That’s why alternates are selected it is remarkable, though, to have six tossed overboard in the first 12 weeks. Almost as remarkable was Clark’s decision not to challenge ex-juror Harris when she had the chance. How did that happen? Sources blame a breakdown in the state’s jury selection process. One source told NEWSWEEK that Marcia Clark insisted during jury selection that black women would relate to spousal abuse and be sympathetic to the prosecution’s case. Preferring to go on gut instinct, she dismissed advice from a jury-consultant firm, Decision Quest, that more research was needed to support that conclusion. Indeed, Harris had personal experience with spousal abuse yet said last week she didn’t buy the state’s theory that Simpsons violence toward his wife escalated to murder. (Six black women still sit on the jury.) “This has just blown up in their faces, and it is no surprise,” said a source close to the consulting firm. A spokesperson said prosecutors selected jurors with exhaustive care.
The wild charges didn’t end with the jurors last week. In one memorable press conference, Cochran also charged that the D.A.’s office was, in effect, spying on the defense lawyers and harassing their witnesses. Said Cochran: “We think that Big Brother is doing more than watching us in this case, and we’re very concerned about this.” District Attorney Gil Garcetti, while not directly denying the charge, insisted that his office is doing everything above- board. The defense hands weren’t entirely clean. NEWSWEEK learned that the defense has used an Oregon private investigator to examine the background of potential prosecution witness Rod Englert, a blood-splatter expert.
The defense team also suggested that the prosecution was guilty of a mortal trial since obtaining secret defense data. In a motion filed last week, defense lawyer Peter Neufeld asked Ito to investigate whether prosecutor Rockne Harmon “made deliberate ate efforts to unearth confidential communications within the defense team.” Neufeld said the defense became suspicious after Harmon made comments in court which indicated he had knowledge of certain private defense information on blood testing. “It would be like bugging the confessional,” said New York University law professor Stephen Gillers, an ethics expert. Ito was expected to hold a hearing on the motion this week. If he finds prosecutorial misconduct, the trial may come to a very abrupt end.
Could Simpson really walk thanks to a mistrial? If the prosecution has invaded its opponents’ offices. Otherwise it’s unlikely under California law. Ito can declare a mistrial without the defence consent only if he finds some gross misconduct, what’s known as a compelling “legal necessity.” The state could then retry him. But Ito wouldn’t be likely to declare a mistrial without defense consent. For one thing, it’s too risky. The defense could appeal his ruling, and if he is overturned the state could not retry Simpson because of double jeopardy. Also, experts say the fact that jurors discussed cussed the case among themselves, while inviting a rebuke from Ito, doesn’t amount to sufficient misconduct to warrant a mistrial. In fact, they say it’s quite ordinary that jurors, particularly in long sequestered cases, will chatter about the case, and not out of any sinister motive.
The defense could request a mistrial, but, if granted by the judge, the state would be allowed to retry Simpson. Cochran, naturally, insisted his team doesn’t want one. If Harris is accurate about her observations on the divided jury, Simpson son would have nothing to gain from a mistrial. “We want to go forward with this jury, Cochran said.
There is another scenario. Given the trial’s slow pace, Ito could run out of jurors. The jury now consists of 12 regular members and six alternates, down from the original 12 and miles and miles of testimony to go, It’s possible Ito will dismiss another juror or two after his investigation. A senior defense source told NEWSWEEK that Simpson would agree to go forward with a jury of fewer than 12 members-but the state has already said it would not. In that case, Ito could declare a mistrial for legal necessity and Simpson could be retried.
Who is to blame for the chaos? The medias 24-hour scrutiny is an easy target. The fact that millions of people are watching and scoring the lawyers and judges and witnesses isn’t lost on any of them. It’s made the contentiousness that is inherent more contentious, and the role-playing that is also part of the court process exaggerated, says law teacher Gillers. So when Darden and Cochran snap at each other, or Clark jests about Bailey’s glove size, they are as much playing to the cameras as to the courtroom.
But that’s why there are judges. “The center of this process is the wise, able judge who demands respect from lawyers and demands that they behave like lawyers, not children who are freed from parental discipline,” said law professor Allen Ito seems to suffer from Clintonitis-trying to please both sides-so he has allowed lawyers to ramble on, from the opening statements to the questioning of witnesses. It took a week to question Rosa Lopez on videotape when it could have taken a few hours and the tape may never be shown to the jury. Reiner thinks Ito should keep the word “Proceed” in front of him at all times. “Even if he just used the word randomly from time to time there would be an improvement,” he says.
The public isn’t nearly as critical of Ito as the pundits, as the NEWSWEEK Poll indicates. Two thirds of the sample think he’s doing a good job, further proof that for all the overheated rhetoric, the American people still retain respect for the judicial system. Ito has not been an unmitigated disaster. His highly publicized sanction of the defense early on for failing to disclose all its witnesses may have won him some spinal points. And some of the shots are unfair. Can Ito be blamed for ethnic divisions or if jurors talk to each other about the case.
So the trial will grind on. The defense was promising an even more brutal week for Dennis Fung. “We’ve got some major surprises for him,” Cochran bragged. Trial watchers expect even more trashing of Fung’s rookie assistant, Andrea Mazzola, who failed to change gloves when picking up blood samples. The defense is also eager to face-off with colorful coroner Irwin Golden. Ito ruled last week that Golden could be questioned about past mistakes he’s made. Garcetti gamely insisted the evidence was “coming out almost exactly the way we expected it to come out.” All of this should make for great watching. Would the last juror please turn out the lights. ..MR.-
Is a mistrial likely? No. If the defense says it doesn’t want one. If the prosecutors ask, they won’t be able to retry O.J. Ito could act anyway if he finds gross juror misconduct. He’s more likely to warn them. ..MR0- ..MR.-
Ito is the center of a drama whose players include the lawyers, the accused and last week’s new star, Harris ..MR0- ..MR.-
What if the jurors fall below 12? Under California law the trial can proceed with fewer, if both sides agree. While the defense might want to go on, the prosecution probably would not. ..MR0- ..MR.-
Why have six jurors been removed? One worked for Hertz, another went to O.J.’s doctor. Two have been in allegedly abusive relationships. The fifth may have bet on the verdict and the sixth was keeping notes in his room, possibly for a book. Like so much about the trial, this is very unusual. ..MR0- ..MR.-
Will O.J. get his kids back? If he were acquitted or freed because of double jeopardy, he most probably would. O.J. signed over custody to the family of his ex-wife only temporarily, until he could resume their care. The Browns might contest custody, but they’d be very unlikely to win it. ..MR0- ..MR.-
If there’s a hung jury-or a mistrial-would O.J. get ball? His lawyers would argue for bail, but the court almost certainly wouldn’t grant it for O.J. He would be considered a “flight’ risk; many still believe his famous low-speed Bronco chase was a failed escape attempt. ..MR0-
Newsweek Poll 64% say Judge Ito is doing a good job in controlling lawyers, witnesses and jurors to have a fair and efficient trial 56% say prosecut ion lawyers are doing a good job in presenting evidence in their case so far 66% say O.J.’s lawyers are doing a good job in defending him so far
As of now, if you were on the O.J. jury would you vote guilty or not guilty? White Nonwhite 49% 11% guilty White Nonwhite 2 56% not guilty
For all the courtroom posturing, the real power to decide O.J.’s fate is in the hands of 12 people about whom little Is known and less Is written.
CURRENT JURORS 1.) Black woman, 50, divorced, vendor, lives in South-Central L.A. 2.) Black women, 25, single, flight attendant, one year of college 3.) White woman, 60, divorced, retired gas company employee. 4.) Hispanic man, 32, married, truck driver, lives in East L.A. 5.) Black woman, 37, married, postal worker, high-school graduate. 6.) Black man, 43, married, marketing representative. 7.) Black woman, 44, single, computer technician. 8.) Black woman, 38, single, environmental-health specialist. 9.) Black woman, 52, divorced, clerk, high school graduate. 10.) Black man, 54, married, postal manager, two years of college. 11.) White woman, 22, single, insurance-claims adjuster. 12.) White woman, 38, mattied , works for telephone company. REMAINING ALTERNATES 1.) Black woman, 71, married, retired office cleaner. 2.) Slakman, 72, married, retired security guard. 3.) Hispanic woman, 28, single, real-estate appraiser. 4.) White woman, 24, married, fire-department receptionist. 5.) Black woman, 28, married, postal worker. 6.) Black woman, 24, single, hospital employee.
title: “Disorder In The Court” ShowToc: true date: “2023-01-19” author: “Helen Mermis”
The spat is the latest sign of disarray in a legal system that critics say is close to dysfunctional. In the six years since the military commissions were established by presidential decree, just one detainee has been convicted (Australian David Hicks, last March) and only after a plea deal that guaranteed his freedom by the end of this year; two other cases have been hung up in procedural wrangling. Davis wanted to try about 80 of the 330 prisoners held at Guantánamo. He told NEWSWEEK at least six new cases would be referred to the commission in the coming weeks, possibly including that of 9/11 mastermind Khalid Sheikh Mohammed. But Mohammed’s trial is sure to produce more legal scuffling—this time regarding the admissibility of evidence obtained through alleged torture. The other cases could go on for years. “This is what happens when you try to start a justice system from scratch,” says Lt. Cmdr. William Kuebler, an OMC defense lawyer.
The commissions were supposed to help the Bush administration win convictions against suspects rounded up after the 9/11 attacks by lowering standards of evidence and allowing such court no-nos as hearsay. Kuebler, who represents Gitmo detainee Omar Khadr, says the administration had another objective: to obscure the CIA’s “special interrogation methods.” Khadr was arrested at 15 for allegedly killing a U.S. soldier in an Afghanistan battle. A Canadian citizen, Khadr told Amnesty International through his lawyers that he was subjected to torture during interrogations in Afghanistan and later at Guantánamo, including beatings and painful shackling. (A CIA spokesman said in response: “The United States does not conduct or condone torture.”) Under existing law, any information gleaned through the use of torture is inadmissible in all courts, including the military commissions. But the commissions are allowed to consider evidence obtained through the use of coercion—although the distinction between coercion and torture is still a matter of debate. “You have a procedure that essentially launders the interrogation system,” says Kuebler.
Davis said the existing courts would not have worked for Guantánamo detainees, whose captures did not include the trappings of traditional arrests: the advisement of rights, the tagging of evidence and a paper trail showing custody transfers. He said Gitmo prisoners are accorded more legal privileges than the United States offered Nazis at the Nuremberg trials, including the right to appeal. He also said the cases he was preparing against Mohammed and 14 other “high-value detainees” transferred to Guantánamo from secret CIA detention facilities earlier this year will not rely solely on confessions. To avoid an argument over admissibility, Davis had tried to build some cases without using the interrogation log at all. “There are some instances where we can prove the charges beyond a reasonable doubt without using anything that the individual ever said or anything derived from what he said.”
But that approach further slowed the process. To ensure the trials could be open to the press, Davis had set about declassifying a trove of documents, sometimes requiring approval from multiple intelligence agencies. The sluggish pace appears to have irked Davis’s superior officer, Brig. Gen. Thomas Hartmann, the legal adviser to the administrator overseeing the trials. Davis said Hartmann pushed for quicker indictments and might have been negotiating more plea bargains behind his back—possibly with Osama bin Laden’s driver, Salim Ahmed Hamdan, whose Supreme Court appeal last year roiled the military commissions process. In a formal complaint to the Pentagon inspector general, Davis charged Hartmann with interfering directly in cases. (A Pentagon spokesman denied NEWSWEEK’s request to interview Hartmann but said an internal investigation had ruled in the general’s favor.) Now that Davis is out, a successor might be hard to find. Already, two chief prosecutors have come and gone since 2004. As job listings go, this one will have AVOID stamped all over it.
