Tagged: criminal justice

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Stanford Law Review Online: Pulling the Plug on the Virtual Jury

Stanford Law Review

The Stanford Law Review Online has just published a Note by Nicolas L. Martinez entitled Pulling the Plug on the Virtual Jury. Martinez takes issue with Judge William Young’s proposal that Khalid Sheikh Mohammed be tried via videoconference from Guantanamo Bay by a jury sitting in New York:

Most people probably figured that the debate over where to try alleged 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) had ended. Indeed, it has been well over a year since Congress forced Attorney General Eric Holder to reluctantly announce that KSM’s prosecution would be referred to the Department of Defense for trial before a Guantanamo military commission. But a provocative proposal put forth recently by Judge William G. Young of the District of Massachusetts has revitalized one of the most contentious legal debates of the post-9/11 era. In a nutshell, Judge Young proposes that an Article III court try KSM at Guantanamo, but with one major twist: the jury would remain in New York City.

He concludes:

Perhaps unwilling to refight the battles of two years ago, Congress has shown no inclination to retreat from its apparent view that KSM may only be tried by a military commission at Guantanamo. As a result, following through on Judge Young’s plan, which could be viewed as an attempt to circumvent the will of Congress, might lead some legislators to harden their stance on civilian trials for alleged terrorists and propose even more disagreeable legislation to that end. This is not to say that creative solutions aimed at fortifying the rule of law in a post-9/11 world should be held hostage to the proclivities of intransigent voting blocs in Congress. Quite the opposite, in fact. But the likely political ramifications of Judge Young’s proposal cannot be ignored, especially in an election year when few members of Congress may be willing to spend their political capital defending the need to hold KSM’s trial in federal court.

Even though Judge Young’s provocative suggestion should not be adopted in its current form, he has moved the conversation in the right direction. Continuing to think imaginatively about ways to preserve our rule of law tradition from external threats is immensely important, particularly in the context of national security crises. For it is when the rule of law can be so easily discarded that it must be most doggedly defended.

Read the full article, Pulling the Plug on the Virtual Jury at the Stanford Law Review Online.

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Death Penalty Repeal and the Age of Innocence Projects

Yesterday, the State of Connecticut took a critical step toward joining a handful of states whose recent death penalty repeals were motivated by unsettling evidence of innocent people on death row.  The post-midnight Senate vote following animated testimony in favor of a bi-partisan repeal bill was a close 20-16.  Republican Representative Smith stated that one of his main concerns with Connecticut’s death penalty is the record of DNA exonerations.  Not surprisingly, innocence held moral sway.

As counsel on a death penalty appeal early in my legal career, I witnessed the moral impropriety of a death sentence based on rife prosecutorial misconduct and set against a gnawing backdrop of actual innocence.  The defendant, Delma Banks, Jr., fortunately prevailed in having his death sentence commuted in an impassioned opinion delivered for the majority by Justice Ginsburg in Banks v. Dretke.  Despite this rare instance of habeas relief, Mr. Banks still faces the threat of a death sentence in a new trial.  Like many other death row cases, Mr. Banks’s retrial is based on stale evidence and questionable prosecutorial tactics.  Although the pursuit of innocence claims was foreclosed years ago, Mr. Banks’s case now exists in a climate of growing recognition of wrongful convictions.  Indeed, the trailblazing work of the Innocence Project and its many spinoffs has slowly permeated the national consciousness with the haunting whisper that the state sometimes kills innocents on death row. Read More