- The Washington Times - Friday, August 9, 2002

Accused terrorists awaiting trial in U.S. courts are having difficulty getting a fair trial, lawyers and judges who have tried the cases said yesterday.

The problem lies largely with television cameras and news reports. Pretrial publicity from grisly scenes of violence naturally prejudice potential jurors against the defendants, said speakers during an American Bar Association seminar at the downtown Renaissance Mayflower Hotel.

"It's one thing to see a plane flying into a building," said New York lawyer Anthony Ricco. "It's a different thing for a defendant to admit he's guilty."

Mr. Ricco was the defense attorney for Mohamed Sadeek Odeh, one of four men accused in the 1998 embassy bombings in Kenya and Tanzania. Odeh was sentenced to life in prison in October.

"I've never been on a case where pretrial publicity has helped a defendant," Mr. Ricco said. "I think it's a very dangerous proposition."

Federal prosecutors against accused September 11 attack conspirator Zacarias Moussaoui provided an example of the courts' dilemma yesterday. They filed a motion to introduce videotape of airliners crashing into the World Trade Center as well as cockpit voice recordings during the hijackings.

Meanwhile, the courts must balance the people's right to know, the civil liberties of the defendants and potential security leaks that could result in the deaths of American citizens.

Similar issues arose in federal court in Alexandria before accused American Taliban fighter John Walker Lindh pleaded guilty last month. His attorneys had said pretrial publicity would make it nearly impossible for him to get a fair trial.

The lawyers wanted to delay the trial as long as possible to let emotions of potential jurors settle after the September 11 attacks. Federal prosecutors argued that emotions never would ease as the war on terrorism continued.

Speakers at the ABA seminar yesterday expressed similar opinions.

"You usually think of a war as having a beginning and an end," said Gary Hengstler, director of the Donald W. Reynolds National Center for Courts and Media. "This one may never end or at least go on for a long time."

The cases against terrorists also are forcing the courts to take on more of a military status.

"Are we going to bring them before a civilian process or a military process?" asked Thomas Johnson, dean of the University of New Haven's School of Public Safety and Professional Studies.

The Bush administration tried to answer the question in November with an emergency order creating military tribunals for al Qaeda fighters. The tribunals would have lawyers, jurors and a judge but no public scrutiny. U.S. citizens would be exempt from the military courts.

Lawyers at the ABA seminar yesterday advised against using closed, military-style court procedures as much as possible.

"I think we want to keep our trials as much the same as we can," said Patrick Fitzgerald, a U.S. attorney for the Northern District of Illinois who has prosecuted organized crime and terrorism cases.

The courts' avoidance of pretrial publicity also puts hardships on journalists, said Kelli Arena, CNN's Justice Department correspondent.

Journalists are sometimes forced to deduce information from "the typical grunt and nod" of intelligence or law enforcement personnel, she said. As a result, some stories about terrorism might explain only a portion of a story rather than give the entire context.

"It's the incremental reporting that is new," she said.

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