Convicted al Qaeda soldiers ask for jury probe
Attorneys in U.S. embassy bombings trial allege possible misbehavior
From Phil Hirschkorn
NEW YORK (CNN) -- Attorneys representing four al Qaeda operatives convicted 19 months ago in connection with the 1998 terrorist bombings of two U.S embassies in East Africa are seeking a court hearing to explore whether juror misbehavior tainted the trial verdicts.
In a motion filed in U.S. District Court, the attorneys cite several problems -- that jurors became aware that the defendants were shackled during proceedings, that two jurors consulted with clergy during death penalty deliberations, and that one juror looked up a legal term on the Internet.
The motion draws on a January 5 article in the New York Times that was based on interviews with nine of the 12 anonymous jurors, whose names were kept secret throughout the seven-month trial.
In May 2001, the seven-woman, five-man panel found the four defendants guilty of all charges against them, including the murders of 224 people killed when twin truck bombs exploded at the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, on August 7, 1998.
The jury voted 9-3 to execute embassy bombers Mohamed al-'Owhali and Khalfan Khamis Mohamed, short of the required unanimous vote and triggering automatic life sentences for them. Judge Leonard Sand sentenced the other two defendants, Mohamed Sadeek Odeh and Wadih el Hage, to life in prison, as well.
Sand never sequestered the jury, not even during deliberations, which took 12 working days in the guilt phase. He repeatedly warned them against discussing any aspect of the case and to avoid news accounts of the trial.
During court proceedings, the defendants were seated before the jury entered the courtroom. The defense tables were draped to conceal the leg shackles, and numerous federal marshals sat in the courtroom in plain clothes to avoid prejudicial impact.
The Times reported that "a number of jurors" nonetheless became aware of the shackles.
The newspaper also reported that five jurors initially voted to acquit el Hage, the one defendant not accused of having a direct role in the bombings.
"For a guy that had five votes for acquittal in the first round, we don't know how prejudicial the shackles were," said Josh Dratel, one of el Hage's attorneys.
The disclosure of uncertainty behind the el Hage conviction could help deflect a government argument against an appeal.
"It belies the notion that it was an open-and-shut case," said Dratel, who wrote the defense motion, joined by attorneys for Odeh, al-'Owhali, and Mohamed.
One attorney wasn't surprised by the disclosure that two jurors sought spiritual advice, without revealing the case, during the death penalty deliberations for al-'Owhali and Mohamed.
"You would find the same kind of thing on any jury," said David Stern, who represented Mohamed. "It's a slice of unreality when we say to jurors, don't talk to anybody," he said.
Dratel said there are ample precedents for recalling jurors to be questioned about outside influences during a trial.
One juror admitted to the Times using the Internet to look up "aiding and abetting," which applied to charges against Odeh.
Based on other issues, the defense attorneys previously filed notice of intent to appeal the verdicts with the 2nd U.S. Circuit Court of Appeals, but they have yet to file briefs.
U.S. Attorney James Comey has yet to reply to the pending appeal, and his office would not comment on the latest motion.
The case is now before Judge Kevin Duffy, who presided over the trial stemming from the 1993 bombing of the World Trade Center.
The four convicted terrorists are serving life sentences, without the possibility of parole, under strict conditions at the super-maximum security prison in Florence, Colorado.
They are prohibited from conversing with other inmates, seeing a Muslim imam, receiving newspapers and magazines, watching TV, listening to the radio, or, until recently, reading anything besides legal books in the prison library. They are isolated in their cells 23 hours a day.
"To me it would be worse than death," one juror told CNN after sentencing. "I'd rather be dead than spend the rest of my life thinking about something." The juror said she voted for the death penalty for al-'Owhali and Mohamed.
The 52-year-old Catholic nurse told the Times she had spoken to her pastor before she decided to support the death penalty.
"I am comfortable with the decisions that I made," she told CNN. "We did our job."
El Hage and al-'Owhali went on hunger strikes to protest their prison treatment, according to the motion. El Hage lost 20 percent of his body weight but has resumed eating. Al-'Owhali is being force-fed.
Al-'Owhali also is suing Attorney General John Ashcroft in federal court over the post-September 11 regulation that allows the government to eavesdrop on certain attorney-client conversations in prison.
The Justice Department is seeking dismissal of the suit, the first challenge the post-September 11 eavesdropping authority in the Patriot Act passed by Congress and signed by President Bush.