Judges Repair the Mistakes of Juries

Twice have juries unaccountably acquitted Islamist terrorists, and twice judges have fixed the errors.

• El Sayyid A. Nosair. The Egyptian immigrant had killed Meir Kahane in November 1990 in plain sight of a room full of people, fled, and shot two people, but a jury found him not guilty. State Supreme Court Justice Alvin Schlesinger repudiated its verdict as "devoid of common sense and logic" and "against the overwhelming weight of the evidence," then threw the book at Nosair, sentencing him to up to 22 years on charges of gun possession, assault, and commandeering a taxi at gunpoint. At the blind sheikh sentencing in 1996, Judge Michael B. Mukasey imposed a life sentence on Nosair.
• Sami Al-Arian: The Palestinian immigrant was proven through voluminous intercepts to be a leader in the Palestinian Islamic Jihad terrorist organization but the jury did not find him guilty on a single count. The judge today incarcerated Al-Arian for the maximum 57 months and then ordered him deported, adding that Al-Arian was "a master manipulator" and "a leader of the Palestinian Islamic Jihad" who "laughed when you heard of the [PIJ suicide] bombings."

Comment: Neither of these cases was satisfactorily resolved, suggesting that the standard application of criminal law does not suffice for judging terrorists. Perhaps, when terrorism is the charge, as in anti-trust law or as in the French courts, judges should make decisions; this was also, it bears noting, the way the Lockerbie case was handled.

Judges, of course, make errors no less than do ordinary citizens – note the April 2002 decision by Shira Sheindlin to throw out the perjury indictment of Osama Awadallah – but panels of judges in the aggregate are more likely to display common sense. (An appeals court reinstated the charges against Awadallah.) (May 1, 2006)

May 8, 2006 update: Or, perhaps, in Canada. "Ottawa considering special terror trials" reads a Globe and Mail story today. Mr. Justice John Major, the judge heading the inquiry into the 1985 bombing of an Air-India flight that originated in Vancouver and killed 329 persons but ended with only a single conviction, and that due to a plea bargain, has been asked

by the Stephen Harper government to consider new ways to try terrorism suspects—including a parallel system where cases would be weighed by three-judge panels instead of the standard judge or jury. … He is to perform nothing less than a full review of the Canadian criminal justice system as it applies to terrorism prosecutions. That means, according to the commission's terms of reference, pondering fundamental changes.

Specifically, the government has ordered Major to examine "whether the unique challenges presented by the prosecution of terrorism cases . . . are adequately addressed by existing practices or legislation, and, if not, the changes in practice or legislation that are required to address these challenges, including whether there is merit in having terrorism cases heard by a panel of three judges."

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