New York juries are often loath to impose the death penalty, even for terrorists.
In fact, a jury spared the lives of two Osama bin Laden followers a month after Sept. 11, while the World Trade Center’s ruins were still smoldering.
Now comes a case unlike any other: the trial of professed 9/11 mastermind Khalid Sheik Mohammed.
“If there was any case where a New York jury would impose the death penalty, this is it,” said James Cohen, a law professor at Fordham University.
Nevertheless, a jury might steer clear of the death penalty — not out of any opposition to capital punishment, but out of fear of making a martyr out of Mohammed.
“We don’t care about capital punishment,” he said earlier this year at a Guantanamo Bay military hearing. “We are doing jihad for the cause of God.”
Ephraim Savitt, a veteran New York lawyer who works on death-penalty cases, said that if he were Mohammed’s attorney, he would try to save the man’s life by telling the jury: “You’ll make a shahid out of him. Don’t allow him to get what he wants.” Shahid means martyr.
The Justice Department announced last week that Mohammed and four other terrorists would be brought from Guantanamo to New York to face a civilian federal trial blocks from Ground Zero.
Despite the city’s reputation for liberal juries, death sentences here aren’t unprecedented: In 2007, a federal jury in Brooklyn sentenced a man to death for killing two undercover detectives.
But the Brooklyn sentence was the first in New York since cases from the 1950s — including that of Julius and Ethel Rosenberg — when death was automatically imposed upon conviction. There have been no death sentences here since the 2007 case, not even in prosecutions involving ruthless drug kingpins and gruesome killings.
Experts agree that selecting a jury in the Mohammed case will be a long and arduous task. Los Angeles-based jury consultant Philip Anthony said only people who can convince a judge they can set aside their emotions and opinions about Sept. 11 will qualify — not a typical sampling of New Yorkers.
“You’re going to have an unusual group of jurors who may not be willing to impose the death penalty,” Anthony said.