Law Chat
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Attorney Jonathan Nelson On Pre-Trial Discovery And Jury Selection In The Embassy Bombings Trial

January 3, 2000

Trial attorney Jonathan Nelson, an adjunct professor at Brooklyn Law School, joined Law Chat on Wednesday, January 3, to discuss jury selection and the start of the trial of four men accused in the deadly bombings of U.S. embassies in Africa in 1998. Law Chat is produced with FindLaw. provided a typist for Nelson. The following is an edited transcript of the chat.

CNN Host: Thank you for joining us today, Jonathan Nelson, and welcome.

Jonathan Nelson: Thank you for joining us and I welcome your questions. Let's start talking about jury selection in the embassy bombing trial.

CNN Host: Why has it taken two years to bring this case to trial?

Jonathan Nelson: The reason it's taken so long has little or nothing to do with jury selection. It has to do with the unique situation surrounding this trial. More specifically the crimes were all allegedly committed outside the United States and this means hundreds of investigators were forced to conduct their investigations in the Middle East, Africa and Afghanistan. And because of the number and magnitude of these investigations, the pretrial discovery in this case was staggering.

Question from CharliGirl: Where is the trial being held and how do they determine such a thing?

Jonathan Nelson: The trial is being held in New York City inside the federal court. More specifically the U.S. court for the southern district of New York. The judge presiding over this trial is Judge Leonard Sand. In answer to second part of your question, the method of determining the place where the trial will be conducted is prescribed by statute. However, because the crimes allegedly committed in this case took place outside the United States, there arose a multitude of issues surrounding the place of trial. Judge Sand has already determined in prior decisions that this court has jurisdiction to hear the crimes and that venue, or the place of trial, is proper.

CNN Host: U.S. District Judge Leonard B. Sand has closed jury selection to the press and the public because of the private nature of the questions that will be asked of the potential jurors. What type of questions is he referring to? Is this an unusual step?

Jonathan Nelson: First of all, it's not unusual at all. In most every trial during jury selection, a prospective juror is afforded the opportunity to speak privately to the judge and the attorneys for several reasons. Most important perhaps is to allow the prospective juror to feel comfortable enough to reveal things about him or herself that he or she might not feel comfortable to reveal otherwise. What these things might be are personal to the individual but may deeply affect his or her qualifications as a juror. Second, allowing a prospective juror to speak privately in this manner means that these views he or she may be expressing won't have the opportunity to taint the rest of the panel. And that juror can be spoken to without him or her conveying views that may be damaging to one party or the other to the rest of the prospective jurors. Now, Judge Sand previously ruled that the public and news media cannot attend jury selection. I suspect that this is not only to afford the prospective jurors the privacy that I've spoken about, but also to expedite the process given the number of prospective jurors in this case.

CNN Host: Why would two of the defendants face the death penalty while the other two only life in prison?

Jonathan Nelson: I can tell you that certain crimes have the possibility of carrying the penalty of death, while others do not. And the prosecution often has the choice of seeking the death penalty in those situations. Judge Sand has addressed the potential problems of trying four defendants, two who face the death penalty, and two who do not, before a single jury. Judge Sand has determined that no undue prejudice will result from this single trial.

CNN Host: One of the defendants has accused the FBI of threatening him with violence during his interrogation after the bombings. How will this accusation play out in the trial?

Jonathan Nelson: The way that this might play out, depending upon how the defense attorney utilizes this information and the way the judge might allow this information to come before the jury, is that the defense attorney could argue that any resulting statements or answers to questions that that particular defendant gave are so unreliable -- because they were the result of coercion and threats of violence-- that the jury should simply disregard those statements and not afford them any weight in the prosecution's case.

CNN Host: Ali Mohamed, a U.S. citizen, has pleaded guilty to conspiracy charges and is testifying for the government. What kind of plea bargain or sentence will he receive for this cooperation?

Jonathan Nelson: I don't know what plea bargain or sentence he will receive; however, the fact that he is cooperating with the government and may receive a more beneficial sentence due to that cooperation, is certainly fodder for the defense attorneys on cross examination. They can therefore argue that his testimony should not be believed and is simply an effort on his part to get off with a lighter sentence. I would imagine that the specific details of his sentence might not have been discussed yet, precisely for this reason.

CNN Host: What impact, if any, would this trial have on the 13 suspects still at large, including the alleged mastermind, Osama bin Laden?

Jonathan Nelson: That's an interesting question because it could have a variety of effects, especially if one of the defendants exercises his right to testify. If a defendant testifies at this trial, there is a chance that the defense might be able to shift the blame away from him and onto others. If this is the case, the others could easily be one of the three other defendants on trial or the other defendants awaiting trial. This testimony would be considered fair game to the prosecution and, if beneficial, could be utilized in subsequent proceedings.

Question from CharliGirl: How long do they expect this trial to last given the evidence that they have?

Jonathan Nelson: I can tell you the prosecution estimates jury selection alone could last three to six weeks. When you take that estimate, together with the prosecution's plan to call approximately 100 witnesses from six countries and use confessions and circumstantial evidence including telephone and computer records, we might be talking about this trial for many months to come.

CNN Host: Do you have any final thoughts to share with us?

Jonathan Nelson: Sure. In terms of selecting the jury, the defense counsels and their clients have a difficult task ahead of them. I think perhaps the most important issue facing Mohamed Sadeek Odeh and Wadih el-Hage is they face life imprisonment while the other two face the possibility of death. Now, jury selection in capital cases differs in several ways from the procedure that's used in non-capital cases. For Odeh and el-Hage, even though their individual cases are non-capital, they will be subject to the jury selection process used in capital cases. The most important difference between the two processes is that the government is permitted to strike for cause any potential juror whose views about the death penalty would prevent or substantially impair the performance of his duties as a juror. Many feel that this "death qualified" jury is more conviction-prone than other juries. Although Judge Sand has dismissed this contention, no doubt Odeh and el-Hage will be very wary of the capital jury selection process.