Should USS Cole Jury Be Sequestered on Guantanamo Bay?

Sequestering the Jury on Guantanamo Bay?
The USS Cole trial, which is tentatively scheduled to begin in a military courtroom at Guantanamo Bay in October 2014, could last for 9 to 12 months. The military commission that will try the case will have a pool of 37 “members” (jurors) to choose from who will act like jurors in a typical criminal case.

A judge may sequester a jury for multiple reasons, with one reason being to try to avoid “jury contamination”, including jurors being exposed to information about the case that is not officially entered into evidence in the case. Contamination might occur in many different ways, including from watching television or reading newspaper reports, or from overhearing conversations of people involved with the case.

In yesterday’s hearing, the defense made the point that in a normal trial the jurors would spread out to their individual offices and homes over many square miles, and would have very little chance of accidental contact. But in this case, once the 37 possible members (jurors) arrive at Guantanamo, serious questions of jury contamination could occur.

Unique Nature of Guantanamo
Mr. Rick Kammen, who is a lawyer for one of the USS Cole defendants (al Nashiri) spoke at our MCOP Pre-Departure Briefing. He noted that due to the unique nature of Guantanamo, air transport to Cuba is limited. Any plane that carries people to Guantanamo for the hearings and trial might contain a mix of trial participants (meaning a mix on the same flight), including, for example, trial counsel (prosecution), defense counsel, witnesses, victims’ family members, legal experts, government personnel, NGO Observers, and others involved with the military commissions.

Once at Guantanamo, the small spaces and facilities create a parallel danger of possible contamination.

This raises interesting issues of accidental or purposeful cross-talk or other improper influence.

Defense Requests
The defense asked the judge to prohibit jurors / member from access to certain items, such as newspapers and other periodicals, and that members sequestration be considered.

This is a daunting request for many reasons, including that it is said that the trial may last 9-12 months.

There would certainly be accidental contact, according to defense, and the extraordinary conditions call for extraordinary measures. The government chose this forum. The 37 potential members were selected by the commission and are service members, so one can assume the Commission took into account where this proceeding will take place and these are not civilians; they are military men and women who are accustomed to being away from friends and family for extended periods.

Counter arguments include that the members will all be military officers, and they will be able to follow all instructions of the judge, including instructions to avoid media reports about the case, outside conversation about the case, or other possible taints. This is so even if members are permitted to return to their duty stations in the U.S. or elsewhere during any breaks in the trial.

Judge’s Resolution
To resolve this issue for the day, the judge determined that by one month prior to completion of the member / jury voir dire (the pre-trial process involving the selection of the portion of the 37 person panel that will hear the case), a housing plan for the members / jurors will be determined.

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