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KSM and the Single Juror Veto

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Evan Perez reports in the WSJ:

U.S. prosecutors plan criminal trials for five men accused of orchestrating the Sept. 11, 2001, terror attacks, and military tribunals for five others held at the Guantanamo Bay prison.

Khalid Sheikh Mohammed, self-described mastermind of the attacks, and four others will be tried in New York federal court. Attorney General Eric Holder said Friday he expects to order prosecutors to seek the death penalty in the five cases.

Many people are criticizing this decision for security reasons. We don't need to add anything to that debate. But there is another problem with federal civilian courts in a capital case, especially for a notorious terrorist. That is the asinine single-juror veto rule used in the penalty phase of such cases.

A life sentence for KSM would be a travesty of mammoth proportions. It's bad enough that we have Charles Manson and his classmates of the Class of '72 grinning at us from their inadequate punishment, but to have this killer of thousands do so is close to unthinkable.

Yet in federal court, if the jury votes 11 for death and 1 for life, the decision of the 1 prevails over the decision of the 11. This rule is brain dead, but it is followed in a surprising number of jurisdictions. One better alternative is the California rule, where deadlock means a mistrial and retrial of the penalty phase before another jury. Another is the Florida rule, where a nonunanimous jury can make a recommendation to the trial judge, who makes the final decision.

But isn't death so obviously the right punishment for KSM that we don't need to worry about that? No. Although people so adamantly against the death penalty that they would vote against it in every case are supposed to be screened off the jury, some simply lie when questioned about their attitudes. Among the murderers and terrorists who clearly deserved death but unjustly got less because of a small minority of the jury are:

• Zacarias Moussaoui, the so-called "20th hijacker"

• Conspirators in the plot to bomb U.S. embassies in Africa

• In Illinois state court, the perpetrators of the Brown's Chicken massacre

• In Georgia state court, Brian Nichols, the Atlanta courthouse murderer

In most of the states that have this rule, it is expressly in the statute. The badly drafted federal statute really doesn't say, but the Supreme Court found this rule implicit after the Fifth Circuit had interpreted it to be like the California system.

Whatever the source, Congress can fix it. They need to ram through a legislative fix pronto. Don't wait until another horse is stolen, the biggest one so far, before you lock the barn door.

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Or we could have the mandatory death penalty for crimes such as these . . . .

Love to see SCOTUS toss it.

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