CAN you promise to give the defendants a fair trial?
This is the question that will dominate jury selection, starting Sept. 14, for the accused bombers of the World Trade Center. The case has received such widespread pretrial publicity that some lawyers now wonder if an impartial jury can be found.
"It is very unlikely to me that they will get a fair trial," says Michael Kennedy, who has defended high-profile clients.
It is an issue that concerns Judge Kevin Duffy, who has been assigned the trial of four of the seven people charged. Anticipating difficulty, the federal judge has had the court send out 5,000 jury-duty summonses to the residents of five New York counties.
It is doubtful whether there will be any potential jurors who do not know about the case, which has received extensive media focus.
Judge Duffy said last week he was considering moving the case to Cincinnati. However, he noted that it was not likely that there is any place in the United States where "you could find a population which has absolutely no knowledge whatsoever of the incident."
Judges are usually reluctant to move trials since it dramatically increases the cost. What would cause a judge to move a trial? "If it was a case that so enraged the average panel member that I became disheartened at the possibility of finding an impartial jury," says federal Judge Kimba Wood.
Despite the difficulties of finding an impartial jury in this case, there are many lawyers who believe the defendants stand the best chance of a fair trial if the case is held in the city. Stacey Moritz, a former US attorney, now in private practice, says she considers herself a sophisticated newspaper reader. "I could not tell you the names of the defendants or what their faces are," she says, adding that it is unlikely potential jurors could either.
And Austin Campriello, one of the defense attorneys, says New York is the proper place for the trial. "I think New Yorkers have seen Arabs and aren't startled to see them as human beings," says Mr. Campriello.
Mr. Kennedy, however, says he believes the media coverage has been anti-Arab. "It makes a fair trial all that more difficult," he says.
Many federal judges do not allow the attorneys to question potential jurors. Judge Duffy has stated that he intends to use a questionnaire to screen potential jurors. The attorneys will get their input through questions submitted for use in the form.
The lawyers will certainly want to know how much a potential juror has read or heard about the case. There have been a lot of leaks to the press. This has frustrated Judge Duffy who tried to impose a sweeping gag order. The Court of Appeals quickly overturned the order.
The leaks have also frustrated Judge Michael Mukasey, who is hearing the case of 11 other defendants accused of a more ambitious multibomb plot.
After William Kunstler, a lawyer for one of the defendants, complained about leaked material, the judge said he might ask law enforcement officials to answer questions under oath about the disclosures.
Defense lawyers complain that pretrial leaks can often poison the jury pool. "The leaks are usually from the government," says Houston attorney Dick DeGuerin, who represented cult leader David Koresh. During the Waco, Texas, standoff, the government held the only organized press conferences, which he complained were critical to shaping public opinion.