Terrorism and trial by jury: the vices and virtues of British and American criminal law.

• Author: Donohue, Laura K.

INTRODUCTION I. RISKS OF JURY TRIAL A. Juror Intimidation and the Politicization of the Jury 1. Britain considered 2. America under scrutiny B. Public Dissemination of Classified Material II. JURY SUSPENSION A. The Case of Northern Ireland B. The United States III. POTENTIAL WAYS TO ADDRESS THE CONCERNS RAISED BY TERRORISM A. Juror Selection 1. Collection of information on jurors a. British vs. American cultures of juror selection b. Considerations for terrorist trials 2. Juror qualifications 3. Geographic draw and change of venue 4. Alternate jurors B. Juror Constraints 1. Jury discharge and directed verdicts 2. Clearances and classified documents C. Trial Procedure 1. Heightened security and juror anonymity 2. Increase penalties associated with juror intimidation 3. Automatic appeal on fact or law CONCLUSION INTRODUCTION

British tradition and the American Constitution guarantee trial by jury for serious crime. (1) But terrorism is not ordinary crime, and the presence of jurors may skew the manner in which terrorist trials unfold in at least three significant ways.

First, organized terrorist groups may deliberately threaten jury members so the accused escapes penalty. The more ingrained the terrorist organization in the fabric of society, the greater the degree of social control exerted under the ongoing threat of violence.

Second, terrorism, at heart a political challenge, may itself politicize a jury. Where nationalist conflict rages, as it does in Northern Ireland, juries may be sympathetic to those engaged in violence and may acquit the guilty. Alternatively, following a terrorist attack, juries may be biased. They may identify with the victims, or they may, consciously or unconsciously, seek to return a verdict that conforms to community sentiment. Jurors also may worry about becoming victims of future attacks.

Third, the presence of jurors may limit the type of information provided by the state. Where national security matters are involved, the government may not want to give ordinary citizens insight into the world of intelligence. Where deeply divisive political violence has been an issue for decades, the state may be concerned about the potential of jurors providing information to terrorist organizations.

These risks are not limited to the terrorist realm. Criminal syndicates, for instance, may try to intimidate juries into returning a verdict of not guilty, and public outrage often accompanies particularly heinous crimes. But the very reason why these other contexts give rise to a similar phenomenon is because terrorist crimes have certain characteristics--characteristics that may be reflected in other forms of crime, but which are, in many ways, at the heart of what it means for an act to be terrorist in nature: terrorist organizations are created precisely to coerce a population, or specific individuals, to accede to the group's demands. The challenge is political in nature, and the method of attack is chosen for maximum publicity. Terrorist organizations, moreover, can and often do use information about the state to guide their operations. It is in part because of these risks that the United Kingdom and United States have changed the rules governing terrorist trials--at times eliminating juries altogether.

This Article reflects on the relationship between terrorism and jury trial and explores the extent to which the three dangers identified can be mitigated within the criminal-trial framework. (2) It does not provide a comprehensive analysis of the rich case law and literature that address jury trial--one of the most studied legal institutions on both sides of the Atlantic. Instead, its aim is more modest: The text weighs the advantages and disadvantages of suspending juries specifically for terrorism. Here, the United Kingdom's experiences prove illustrative. The Article considers the extent to which similar concerns bear on the U.S. domestic realm, and the decision to try Guantanamo Bay detainees by military tribunal. It suggests that the arguments for suspending juries in Northern Ireland are more persuasive than for taking similar steps in Great Britain or the United States.

This Article then considers ways to address concerns raised by terrorism that stop short of suspending juries. Juror selection, constraints placed on jurors, and the conduct of the trial itself provide the focus. Of these, emphasis on juror selection, although not unproblematic, proves most promising. Again, distinctions need to be drawn between the United Kingdom and the United States. In the former, for instance, occupational bars to jury service could be lowered, while in the latter, increased emphasis on change in venue may prove particularly effective. Changes in the second category, constraints on jurors, may be the most damaging to the states' counterterrorist programs. Finally, while changes in the trial process may help to address risks, they also may prove contentious and be prone to seeping into the criminal realm. The Article concludes by questioning whether and to what extent such alterations could be insulated from the prosecution of non-terrorist criminal offenses.

1. RISKS OF JURY TRIAL

   Jurors' presence at terrorist trials risks juror intimidation, politicization of the jury, and the erection of obstacles to the state's use of classified evidence. This Part briefly discusses these issues and shows how they have arisen in the British and American contexts.

   1. Juror Intimidation and the Politicization of the Jury

      Terrorism is, by nature, a threat. The presence of terrorist organizations in society creates a risk that jurors will be coerced into finding defendants not guilty, despite substantial evidence to the contrary. Beyond this, terrorism tends to polarize communities. Individuals sharing the aim of those engaged in the struggle may be more willing to acquit an individual accused of subverting the state. Conversely, those appalled at the latest acts of violence may be looking to find someone--anyone--responsible. Jurors may be biased against defendants sharing an ethnic or religious background of those engaged in violence. This could influence their ability to evaluate evidence, the way in which juror deliberations unfold, and the verdict. (3) Even unconsciously, jurors may want to return a decision consistent with community sentiment--a community potentially angry and scared and mourning the loss of their own. In addition, jurors may be afraid of being the future target of attack, making them less likely to entertain doubt as to the guilt of the accused.

      These concerns run through the historical experiences of both the United Kingdom and the United States in their efforts to address terrorism. For the former, Ireland, and later Northern Ireland, proved particularly troubling.

      1. Britain considered

         In nineteenth century Ireland, juror intimidation was practiced with remarkable openness. The Irish World newspaper wrote, "'I dare them to convict,' says the writer, 'I say "dare" advisedly. Let my words go forth. Accursed be the juryman who will dare to find these men (the traversers) guilty of any crime against the people of Ireland.'" (4) In the south of Ireland, crowds lined the streets as the accused were led to trial, shouting out "Down with Cork jurors," "Down with British law." (5) Patrick O'Brien, who went on to become a Member of Parliament, obtained a list of members of the jury who were to sit on the Phoenix Park murders. He distributed 10,000 copies with the warning: "Woe to you if you have any of the goods of these jurors in your house, for then you, as well as they, will have the blood and sufferings of innocent people upon your head." (6)

         Government inquiries focused on what to do about juror intimidation and the politicization of jurors. (7) The documents examined ways to secure public confidence in the legal system. One report noted that in general juries have performed their duties well but "in other parts of the country, notably in those where agrarian agitation is most prevalent, there is much cause for complaint." (8) The report found that jury misconduct "comes within [three] well-defined categories[:] 1. Crimes arising out of disputes as to the occupation of land. 2. Crimes arising out of political or religious antagonism. 3. Aggravated assaults." (9) This misconduct, the report continued, "has been attributed by different witnesses to (1) want of intelligence, (2) intimidation and fear, (3) sympathy with the accused person, or (4) a general disinclination to support the law." (10) Reform of the system became a constant refrain in Parliamentary debate. (11)

         Solutions to these problems ranged from suspending jury trial to requiring jurors to be landed. (12) (The assumption was that the wealthy could not be bought or brought under undue influence of the defendant. (13)) The state actively sought individuals with a strong character, chosen by a disinterested party; and it empanelled individuals whose reputations would be on the line. (14) The government further tried to counter the risks by imposing penalties for perverse verdicts. (15)

         As political violence continued, the beginning of the twentieth century witnessed the partition of the island. (16) For the next fifty years unionists controlled Northern Ireland. The Irish Republican Army (IRA) launched four campaigns to eliminate the border. In each of these the unionist government used extra-judicial measures, such as executive detention and restriction orders, to address terrorism--reducing concerns about juries by narrowing the role of the judiciary. (17)

         In the late 1960s, violence again erupted. Alarmed at the growing number of shootings, incendiary devices, and bombings, Westminster assumed direct control of Northern Ireland in 1972. The government immediately instituted a review to examine what steps could be taken to reduce violence.

         Lord Diplock, who chaired the inquiry, paid particular attention to the state's...