9/11 trial a death penalty test for NYC juriesProfessor James Cohen in The Associated Press, November 19, 2009
NEW YORK — New York juries are often loath to impose the death penalty, even for terrorists.
In fact, a jury spared the lives of two Osama bin Laden followers a month after Sept. 11, while the World Trade Center's ruins were still smoldering.
Now comes a case unlike any other: the trial of professed 9/11 mastermind Khalid Sheikh Mohammed, accused of murdering nearly 3,000 people in the nation's deadliest terrorist attack.
"If there was any case where a New York jury would impose the death penalty, this is it," said James Cohen, a law professor at Fordham University.
Nevertheless, a jury might steer clear of the death penalty — not out of any opposition to capital punishment, but out of fear of making a martyr out of Mohammed.
"We don't care about capital punishment," he said earlier this year at a Guantanamo Bay military hearing. "We are doing jihad for the cause of God."
Ephraim Savitt, a veteran New York lawyer who works on death penalty cases, said that if he were Mohammed's attorney, he would try to save the man's life by telling the jury, "You'll make a shahid out of him. Don't allow him to get what he wants." Shahid means martyr.
The Justice Department announced last week that Mohammed and four other alleged terrorists would be brought from Guantanamo Bay, Cuba, to New York to face a civilian federal trial in a courthouse blocks from the trade center site.
Despite the city's reputation for liberal juries, death sentences here aren't unprecedented: In 2007, a federal jury in Brooklyn sentenced a man to death for killing two undercover detectives.
But the Brooklyn sentence was the first in New York since cases from the 1950s — including that of Julius and Ethel Rosenberg — when death was automatically imposed upon conviction. There have been no death sentences here since the 2007 case, not even in prosecutions involving ruthless drug kingpins and gruesome killings.
Since the federal death penalty was re-established in 1988, juries nationwide have imposed the ultimate penalty 68 times, compared with 132 life sentences, according to the Capital Defense Network, which supports defense lawyers in such cases.
If a jury convicts Mohammed and the others, it will be asked to decide their punishment in a separate proceeding. If they plead guilty, a jury will be picked just to decide on the penalty.
Experts say Mohammed's eagerness to take blame for the Sept. 11 attacks probably makes a conviction certain in the so-called guilt phase of the trial.
But his apparent determination to be a martyr could factor into a decision to spare him execution by lethal injection — a lesson from the embassy bombings case.
In the penalty phase of that trial, prosecutors used testimony of grief-stricken victims' relatives and survivors of the 1998 bombings of the U.S. embassies in Kenya and Tanzania that killed 224 people, including 12 Americans.
Jurors also saw gruesome scenes of a charred body lying outside a bombed-out embassy entrance and of corpses lining the floor of a morgue — all over the objections of the defense, which called the scenes irrelevant and prejudicial.
The defense argued that prosecutors cut deals with high-ranking terrorists and spared them harsh sentences even though they had greater roles in the plot. Attorneys also called the mother of one of the convicted bombers as a witness to beg for mercy.
"It will hurt," she said as he wept at the defense table. "He's my son."
In the end, it wasn't sympathy that saved him.
Instead, the jury deadlocked after 10 members concluded that executing him could make him a martyr for the terrorist cause. Nine said it would not relieve the victims' pain; four said lethal injection is humane and the victim would not suffer; five believed life in prison would be a greater punishment; and four noted that he was raised in a different culture.
Experts agree that selecting a jury in the Mohammed case will be a long and arduous task. Los Angeles-based jury consultant Philip Anthony said only people who can convince a judge they can set aside their emotions and opinions about Sept. 11 will qualify — not a typical sampling of New Yorkers.
"You're going to have an unusual group of jurors who may not be willing to impose the death penalty," Anthony said.