Wednesday, August 11, 2010 – Globe and Mail
ANNA MEHLER PAPERNY
GUANTANAMO BAY, CUBA — A fighter pilot from the first Gulf War; a former military policewoman; a battalion commander who lost troops to an improvised explosive device in Baghdad.
Omar Khadr got his first glimpse of the people who will decide his fate in a Guantanamo Bay courtroom Tuesday. Lawyers for the prosecution and defence spent hours quizzing 15 panel members on everything from their views on al-Qaeda and prosecuting juveniles, to the ages of their children and their military experience.
The session offered a look at the individuals – all members of the U.S. armed forces – who will decide not only the verdict in the 23-year-old Canadian’s case, but also his sentence in the event of a conviction.
Of the 11 men and four women, only two said they’d heard about Mr. Khadr’s case previously.
All but three said they watch the television series CSI. But asked whether they were “knowledgeable” or “somewhat knowledgeable about Islam,” all responded in the negative. Thirteen of the 15 said they know “a little bit” about Mr. Khadr’s religion.
The hours of questioning also offered a peek into each side’s trial strategy. Prosecution lawyer Jeff Groharing focused on establishing that a conviction could be made without forensic evidence or absolute certainty, and that a juvenile could be tried as an adult.
“Does anyone think it’s unfair to use the accused’s statements against him?” he asked pointedly. The response was unanimous and negative.
The defence, on the other hand, went on a charm offensive. Lieutenant-Colonel Jon Jackson, the military lawyer representing Mr. Khadr, made his questioning as conversational as possible. He invited jurors to voice their personal experiences with the justice system, and presented them with hypothetical scenarios intended to drive home his predicament.
Attempting to indicate how important context would be in interpreting the apparently damning video and photographic evidence the prosecution plans to bring forward, Col. Jackson asked how jurors would interpret a scene if they saw a fellow defence counsel punch him in the face.
“But what if we rewind the scene and you see me, a few minutes earlier, kneeing him in the groin? … What if, right afterwards, I stumble back and then someone yells, ‘Okay, guys. Great work. That’s a wrap?’ ”
Mr. Khadr entered the courtroom decked out in a grey suit jacket, black pants, dress shoes and a salmon-coloured tie.
The clothes didn’t quite fit – the pants rode up above black-socked ankles when Mr. Khadr sat down. But Mr. Khadr grinned, looking abashed but pleased with himself, as the defence counsel poked fun at his appearance.
When Col. Jackson began questioning panel members, he asked his client to stand up so he could introduce him.
“Hey,” Mr. Khadr said, nodding to the panel and smiling slightly. “How are you?”
“Didn’t he look great?” Mr. Khadr’s Canadian lawyer Dennis Edney asked reporters afterward. “He was glowing. … He looked like a human being.”
Military judge Colonel Patrick Parrish stopped both sides multiple times, reminding them the potential jurors can’t commit to holding a certain view on evidence they haven’t heard.
As Mr. Groharing assessed their take on the accused’s age – Should it preclude him from standing trial as an adult? Would they still be able to sentence him to life in prison? – Col. Parrish cut him off.
“It’s certainly something you may consider in deciding whether the government has proved its case beyond a reasonable doubt,” the judge said, adding that Mr. Khadr’s age can be a factor in determining his sentence if convicted.
The 15-member panel will be whittled down on Wednesday. Jurors’ identities are protected by a judge’s order; in court they’re referred to by number.
On the face of it, it appears as though facing a jury of military officers will stack the cards against Mr. Khadr.
But Gary Solis, a retired military judge and military law instructor who’s observing Mr. Khadr’s trial for the National Institute for Military Justice, said in some ways, this jury could give Mr. Khadr a better shot at acquittal or a lighter sentence.
“The difference between a military jury and a civilian jury is substantial and very significant. A military jury is better educated, usually. … They are experienced in obeying orders – as in, judges’ instructions. And by their very presence in the military, they are committed to something. And I know it sounds hokey but I think that something is the American way: the right to a fair trial.”
A JURY IN UNIFORM
Who’s in the jury pool?
Fifteen members of the U.S. armed forces; six from the Army, five from the Air Force, three from the Navy and one from the Marine Corps.
How did they get there?
Some were chosen by their superiors and recommended to the war commission’s convening authority. Others volunteered, either out of a sense of duty or because they wanted to get a glimpse of the process at Guantanamo Bay.
What’s their role?
It’s up to these individuals to determine not only whether Omar Khadr is guilty, but what sentence he should receive if convicted. Although military judge Colonel Patrick Parrish will be able to instruct them and will hold some sway, they make many of the crucial decisions.
What happens now?
Defence and prosecution lawyers have another 10 panel members to question on Wednesday before they decide who will remain on the jury.
Once they’re finished with questions, lawyers from both sides will try to jettison panel members they think are problematic. The panel needs only five members, so they could dismiss as many as 10 of those now assembled. After that, the trial itself gets under way.