11.16.09

Can KSM Get a Fair Trial?

Job One for accused 9/11 mastermind Khalid Sheikh Mohammed’s lawyers: getting the case out of New York. Andrew Cohen on what the Tim McVeigh trial teaches about bringing mass murder to court.

A GOP lawmaker took to the House floor to say Bloomberg risks the safety of his daughter by trying Khalid Sheikh Mohammed in NYC. Andrew Cohen on what the Timothy McVeigh trial teaches about bringing mass murder to court.

Echoing back from the government’s announcement last Friday that Khalid Sheikh Mohammed would be coming to New York City for a civilian trial was the sound of fierce public debate over whether the biggest murder case in American history would be held in Manhattan after all. Constitutionally speaking, how in the world can the most important terrorist America has captured since September 11, 2001, get an “impartial” trial blocks from where the Twin Towers fell?

Article III of the Constitution and the Sixth Amendment both tell us that federal criminal trials like Mohammed’s are to be held in the state and district “wherein the crime shall have been committed.” So New York (the location of the World Trade Center); Pennsylvania (where Flight 93 met its end), and; Virginia (where Flight 77 flew into the Pentagon) were the three options available to federal authorities. That they chose the Southern District of New York is no great surprise.

By the time the indictment comes out, no one in history will have ever faced as many murder counts relating to the most televised mass death in the history of the world.

It would be great if that ended the discussion. But the law is rarely that simple. The Supreme Court has long held that the due process clause of the Fifth Amendment, which guarantees fundamental fairness at trial, can trump the trial locations provided for by the Sixth Amendment and Article III. And the justice system has created “change of venue” motions for cases, like this one, where the conflict between the government’s interest in seeing trials where crimes occur and a defendant’s interest in not getting railroaded by a community.

Unless Mohammed represents himself—he tried to during his tribunal case down at Guantanamo Bay, Cuba—we almost certainly will see a “change of venue” request by the attorneys selected to represent the man the New York tabloids had long labeled the Face of Evil. These lawyers will be able to point to millions of pieces of evidence suggesting that pre-trial prejudice, bias, and prejudgment against Mohammed is persistent, profound, and almost primal in its nature. It’s been a long time since a country went to war over a crime but America launched two wars in the wake of Mohammed’s alleged crime.

Prosecutors won’t be able to deny this argument. But they will be able to argue that Mohammed’s attorneys are proving too much when they talk about the pervasive publicity surrounding the 9/11 attacks and their aftermath. The feds will say that potential jurors in Washington or Pennsylvania or anywhere else the Mohammed trial would end up—like Albany, New York, or Scranton, Pennsylvania—would have virtually the same prejudices against the confessed 9/11 planner as do their New York City counterparts. It’s a national crime, the feds will say, with massive national interest. And, they’ll argue, he’s got to be tried in some court somewhere.

Because the terror attacks were an unprecedented crime, the United States v. Mohammed will be an unprecedented case. No one in American legal history has ever been held as an enemy combatant, tortured, made incriminating statements before a military tribunal, and then been transferred stateside for civilian trial. By the time the indictment comes out, no one in history will have ever faced as many murder counts relating to the most televised mass death in the history of the world. Judging venue will thus be only one of the first challenges the federal courts must meet in ensuring an orderly, fair trial.

There isn’t a whole lot of precedent, because federal judges almost always deny change of venue motions. Even in the only 9/11 trial to date—the Zacarias Moussaoui conspiracy sentencing trial—a federal judge in Virginia refused to change location from Alexandria, Virginia. The only federal trial that would even remotely compare with the Mohammed trial was the 1997 trial of bomber Timothy McVeigh, the man who killed 168 people on April 19, 1995, when he blew up the Alfred P. Murrah Federal Building in downtown Oklahoma City. Until 9/11, that trial was the biggest mass-murder trial in American history. Mohammed, meanwhile, may be on the hook for a capital trial linked to 10 times as many victims.

In the McVeigh case, even as early as his arraignment, defense attorneys sought a change of venue. First, they argued that the case be moved to another federal district within Oklahoma. Next, they argued that the case be moved out of Oklahoma City altogether. Jury-selection experts were consulted. Media experts were polled. And in the end, U.S. District Court Judge Richard Matsch moved the Oklahoma City bombing trial out of the state and to neighboring Denver. About 15 months later, McVeigh was convicted and sentenced to death by a federal jury in Denver.

Matsch’s venue order, the first of many steps he took to gain and maintain control over the chaos and the emotion of those days, seems familiar, almost quaint, now that we’ve seen other buildings in other cities blown up. The soon-to-be-famous trial judge who gets the bench assignment in Mohammed’s case—and the appellate judges of the 2nd U.S. Circuit Court of Appeals and perhaps even the justices of the United States Supreme Court—would be well advised to read it carefully now.

Andrew Cohen is CBS News' chief legal analyst and legal editor. His CourtWatch columns and blog for CBS News can be found here. He also can be found on Twitter @ cbsandrewcohen