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Playing DressUp

patriotic-pup.JPGFederal Circuit Court Judge Marcia Cooke has proven beyond a reasonable doubt that regardless of what transpires at the trial of Jose Padilla, nothing will deter her from ensuring that this trial moves forward, ends and a verdict is handed down. Nothing.

The jurors even seem to have a sense of the inevitability in the air, and if so, they took the opportunity to revel in it just prior to the 4th of July, as each of them entered the courtroom wearing red, white and blue. A prank of sorts, though with this being a real criminal trial taking place in a real US court room, with very real life sentences hanging over the heads of Padilla and his two alleged co-conspirators – Adham Hassoun and Kifah Jayyousi – should a guilty verdict be rendered, this type of collusion begs the question of whether three months of evidence concerning “violent jihad” has altered the jury’s perception of what they are there to do.

Unfortunately, this wasn’t the first instance of this jury possibly conspiring or at the very best, failing to weigh evidence independently. A week before the red, white and blue incident, every juror except for one, wore black on a particular day. And while we’re talking about the most serious possible charges short of those warranting the death penalty, this type of thing may go on throughout the rest of the trial. All the while Judge Cooke seems to think nothing of it.

Still, lawyers across the blogworld are all over the map on this. Peter Latham at the Law Blog of the Wall Street Journal asked “What’s going on here?” to which his lawyer readers responded quite confusingly, “I think it’s cool..” “This is great news for the defense, as they can argue for a mistrial if they lose,” “ it’s bad news for the defense because this (especially the 4th of July colors) could signal a loss in the first place. Most defendants prefer acquittals, not ‘guilty verdicts accompanied by strong arguments on appeal’.” This was my favorite:

I think if my life or future was hanging in the balance, I’d find it more than a little troubling that the jury was trying so hard to call attention to itself, rather than paying attention to my case. The trial is not about them — it’s about Padilla and whether or not he committed serious offenses against the United States. One wonders if the jurors share that view or if they believe this is their opportunity to grab at the spotlight.

But hey, I’m not a lawyer. What the hell do I know?

Jeralyn Merritt of TalkLeft is a Denver-based criminal defense attorney well known to Firedoglake readers. She has had experience with terrorism trials and juries when she served as one of Oklahoma City terrorists bomber Timothy McVeigh’s legal counsels. She said it was “outrageous.” It wasn’t the color coordination as much as the patriotic theme. “Too case-related for comfort to me.” Besides, she added “I think U..S. District Judge Richard Matsch would have sent the jury home to change. In my experience, every time a jury is one that yuks it up together, there’s a conviction. Group think.” She also noted in another in Judge Matsch’ courtroom when “he dismissed a juror in the middle who showed up in shorts.

Anne W. Reed, who has the Deliberations blog, is a trial consultant in Milwaukee. After reviewing what she called “a short, incomplete history of dress-alike juries,” she said, there wasn’t much on point but there might be one day soon. Her advise to defense attorneys was to smile, wonder, make a motion for mistrial . Te law is sparse, so go for it. These decisions are often about the Ask [what have you got to lose.] and judges don’t always get it right.”

Finally Scott H. Greenfield never heard of color-coordinated jurors, whose appearance, he said would, “freak me out.”

Greenfield offers this conclusion, which, if not unbiased, at least displays self-knowledge, a quality Judge Cooke seems to find in short supply.

Something would definitely be wrong, especially in New York where no one agrees with anyone else about anything. But I would get over it, because there would be no other choice. But you can bet I would find some argument for mistrial based on juror misconduct. Unless they were all wearing T shirts that read, “Free the Chicago 7.” I could live with that.

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Lewis Z. Koch

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