An Anonymous Jury?

By William Fisher

Department of Justice lawyers yesterday petitioned a Federal court to begin a controversial terror-related trial in New York City with an “anonymous jury” in order to protect the jurors, the audience in the courtroom, the prosecutors and defense counsel, the judge, and the criminal justice process.

The motion asks that the jurors hearing the case of American citizen Syed Fahad Hashmi for conspiracy to provide material support to Al Qaeda should not be required to disclose their names, addresses or places of employment, and that they be kept under the watchful eyes of the U.S. Marshal Service, which will provide extra security services.

Anonymous juries have been used in three terror-related cases in this same court, including the conviction of lawyer Lynn Stewart for passing a message from her terror-suspect client to his colleagues.

If Judge Loretta Preska grants the motion, jury selection would proceed under a process known as voir dire, referring to giving a true verdict.

The voir dire process in the U.S. is controversial. The amount of privacy that the potential jurors are afforded when asked questioned raises the issue of the definition of "impartial jury". Some question whether the intensive questioning of potential jurors looks not just for inherent bias but for a potential to be emotionally swayed. Proponents argue that this method gives both sides more confidence in the verdict.

But one of Hashmi’s most ardent defenders – Dr. Jeanne Theoharis, Hashmi’s teacher at Brooklyn College – terms the government’s action “egregious.”

“There's so many ways this is egregious -- not the least of which is that
it speaks to how the US Attorney's office views Muslims in the
audience and countenances racist speculation,” she says,

Theoharis references the U.S. Attorney, who writes, “It is likely that the jurors will see in the gallery of the courtroom a significant number of the
defendant’s supporters, naturally leading to juror speculation that at
least some of these spectators might share the defendant’s violent
radical Islamic leanings.”

But Theoharis says there are no demonstrations planned for the first day of trial. “The plan is to pack the courtroom with a possible press
conference with human rights groups on the courthouse steps or in the
park across the street for the first day,” she explains, adding:

“This is just about ratcheting up the fear of the jurors. (Hashmi’s lawyers) will obviously contest the government's motion saying that in a democracy people are allowed to come and watch court. But of course the judge is very sympathetic to the government and will likely agree to do so.”

Clearly, she says, “this is proof that our organizing is getting to them--but
also that, in this climate, they will try to use that to increase the fear (and secrecy) of the jury. They are using this activism -- and people exercising
their right to watch the process -- to make the jury scared and gain a
conviction.”

Theoharis is not without allies in her support of Hashmi. In response to the government’s anonymous jury motion, the Center for Constitutional Rights (CCR) said, “The case against Fahad Hashmi in itself raises many red flags related to the violation of his rights, prosecutorial overreach under the material support statute, and the unduly punitive and restrictive special administrative measures under which he has been kept without trial for nearly three years.”

CCR said “The government’s call for the jurors at his trial…to be anonymous and kept under extra security because of the attention and political activism these issues have drawn to the case is a clear attempt to influence the jury by creating a sense of fear for their safety and to paint Mr. Hashmi as already guilty.”

“The government is manipulating the fact that many individuals and human rights organizations are supporting Mr. Hashmi and raising important criticisms of his treatment in detention in order to gain a conviction. This is deplorable,“ the group said.

He has been held in New York since the Memorial Day weekend, 2007.

In the Metropolitan Detention Center in New York, Hashmi, a Muslim, is not allowed to pray with others of his faith. He is on a 23-hour solitary-confinement lockdown and 24-hour surveillance including when he showers and goes to the bathroom. He was not allowed family visits for months. Now, he can see one person for an hour and a half, every other week. Visits are through a thick glass. No touching or hugging is permissible or possible.

Hashmi is permitted to write one letter a week to a single member of his family, but cannot use more than three pieces of paper per letter. Within his own cell, he is restricted in his movements and he is not allowed to talk to guards or other inmates.

Hashmi is forbidden any contact -- directly or through his attorneys -- with the news media. He can read newspapers, but only those portions approved by his jailers -- and not until 30 days after publication. He is forbidden to listen to news radio stations or to watch television news channels.

He is also under 24-hour electronic monitoring inside and outside his cell.
He is allowed one hour of recreation every day -- which is periodically denied. He is not given fresh air but must exercise alone inside a cage.

Prof. Theoharis, who has attended the hearings in his case, told us that Hashmi's "mental health appears to be deteriorating."

His attorneys are concerned that his extreme isolation "will cause lasting psychological, emotional, and physical damage" to their client.

Hashmi's friend Babar has pleaded guilty to five counts of material support of Al Qaeda and has agreed to serve as a government witness in terrorism trials in Britain, Canada, and at Hashmi's trial. The Justice Department says Babar is the "centerpiece" of its case against Hashmi. In return, under a plea bargain, Babar will likely get a reduced sentence.

If Hashmi is convicted, he could be facing up to 70 years behind bars.