Jurors as useful idiots

Joel Mowbray:

Given that hard evidence is often scarce in trials of unsuccessful terrorists, prosecutors in Miami no doubt felt fortunate to be trying defendants who participated in a ceremony pledging allegiance to al Qaeda — and it was captured on video.

Add to that ironclad proof that the leader of the cell requested — from a man he believed to be a terrorist financier — boots, uniforms, vehicles, machine guns and $50,000. Several of the defendants took surveillance photos of government buildings. Just in case the reason for the request was unclear, Narseal Batiste stated — on tape — that it was for creating an "Islamic army" to wage a "full ground war" and commit an attack that would be "as good or greater than 9/11," such as blowing up the Sears Tower.

It wasn't enough. He wasn't convicted.

In a stunning defeat for common sense, a Miami jury couldn't convict seven defendants on a single of the 28 total charges. One of the seven, who had moved to Atlanta months before the arrests and had severed ties with the group, was acquitted entirely. The jury deadlocked on all charges brought against the other members of the "Liberty City Seven."

Though prosecutors are retrying the remaining defendants next month, odds of success the second time around are just as dicey. Put simply, it appears that several jurors didn't want to convict, in spite of the evidence.

Consider that Mr. Batiste's explanation should have prompted laughter, not doubts about his guilt: He claimed he did it for the children. Taking the stand, the group's leader testified that he was actually trying to con the undercover informant to get money to build a community center.

Even though the defense provided no independent, corroborating evidence, the handful of jurors determined to acquit believed the "theory of it all being a scam," said jury foreman Jeffrey Agron. He offered that the defense indeed had a certain appeal — but nothing to back it up. Mr. Agron explained, "I kept saying, 'It's a great story. It makes sense. Now where's the evidence?' "

One media-touted theory is that the defendants inspired sympathy as hapless wannabes. A dismissed juror — who was shown the door for reading a police pamphlet outside the courthouse on terrorism during the trial — explained that, in fact, he was favoring acquittal for that very reason. "They were playing ninja," said Eldon Brown. "These guys were living in the movies. They were completely out of touch with reality."

Then there's the inherent problem of prosecuting unsuccessful terrorists: By definition, they never actually succeeded.

Juror Michael Silva clearly didn't feel threatened by the defendants, explaining after the trial, "It was not like [prosecutors] had evidence of somebody planting explosives." Mr. Silva was not one of the ones pushing for a universal acquittal, but Mr. Agron said that one juror kept insisting during deliberations that there needed to be proof of explosives being placed or at least placed.

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The problem is that most terrorist plots look improbably when they have been thwarted. I think the same problem would have been presented if we had connected the dots and stopped the 9-11 terrorist. How many would believe that they would actually fly the planes into buildings? It is one of the problems with fighting the war with the lawfare model and preemption as a strategy.