From NJ Law Journal:
In a civil rights suit over the New York City Police Department’s surveillance of New Jersey Muslims, the Nov. 13 terrorist attacks in Paris could make it harder for the plaintiffs to get a fair trial, according to some involved in the case, as well as some outside observers.
The killings of 139 people at a soccer stadium, a rock concert and other sites around Paris, attributed to Islamic extremists, prompted many Americans to express support for the French on social media. At the same time, the attacks prompted some U.S. politicians to call for greater restrictions on Muslims. Donald Trump, for one, said the nation should consider shutting down U.S. mosques in light of the attacks.
As Hassan v. City of New York gears up for a retrial after being reinstated by the U.S. Court of Appeals for the Third Circuit in October, some observers said the plaintiffs’ ability to get a fair trial could be diminished by public concern about the violent attacks in France. The Islamic State of Iraq and the Levant have claimed responsibility for the carnage.
“This is not a time when you want to try a case with Muslims as the plaintiffs. It may be right now it would be too hard to find an unbiased group of people to sit on a case like this,” said Beth Bochnak, a jury consultant and president of National Jury Project-East in Madison.
The Paris attacks could make the public, and prospective jurors, more accepting of reductions in civil liberties in the name of national security, said Glenn Katon, legal director for Muslim Advocates, the Oakland, California, group that filed the suit.
“It will produce a burden. Our job is to show, ‘OK, you’ve got this horrible attack in Paris; we had a horrendous attack here in 2001; what does that mean?’ The point that we will make to the court and to the jury is the NYPD has to show a connection between what they’re doing and keeping people safe. The only way they can do that is by stirring up stereotypes and fear. The program itself never produced a single lead,” Katon said.
The suit claims the NYPD conducted wide-ranging surveillance of Muslims in New Jersey in the wake of the Sept. 11, 2001, terrorist attacks and that they were targeted merely because of their religion, not any criminal activity. The NYPD allegedly infiltrated schools, businesses and houses of worship and produced detailed reports about the activities they found. The program was shut down after it was revealed by The Associated Press in 2012.
U.S. District Judge William Martini of the District of New Jersey dismissed the suit in February 2014, finding no injury-in-fact, let alone one traceable to the city’s surveillance. He also concluded that the plaintiffs failed to state a claim because the likely purpose of the surveillance was to locate terrorists, rather than to discriminate. The Third Circuit reversed in October, however, in a decision that likened the surveillance of Muslims to the internment of Japanese Americans during World War II.
Katon noted that “throughout history … when people get scared, their judgment gets impaired. But the moral of the story is we don’t make public policy based on fear.” Bochnak said that during jury selection, a lawyer’s biggest problem is not prospective jurors with outspoken biases, but those whose biases are less apparent.
“It’s not just the obvious people who are bigoted—those people are easy to spot. It’s people who are very well-meaning who’ve been affected by all this anti-Muslim stuff since 9/11,” she said.
Jerry Goldstein of NJ Trial Consulting in Somerset said an external event such as the Paris attacks would not prevent the plaintiffs in the Hassan case from getting a fair trial.
But such circumstances would dictate extensive voir dire of prospective jurors to learn about their views of Muslims, and of the Paris attacks, he added. Goldstein said that if he were trying the case, he would ask jurors if they knew anything about the case, then move to the topic of the Paris attacks, “and see if people are painting a broad brush stroke of Muslims in general or if they can select out that certain groups of Muslims are involved” in terrorism, he said.
Baher Azmy of the Center for Constitutional Rights in New York, who argued Hassan before the Third Circuit, said the appeals court ruled that a law enforcement program whose subjects were chosen solely based on religion is “presumptively unconstitutional, unless the government can come up with a compelling justification and show that the program is no broader than necessary to achieve their goal. There is not a suspicionless law enforcement program that has ever been upheld.”
Azmy said the next step in the Hassan case is for the city of New York to submit an answer to the complaint, and then the case will proceed to discovery.
As to the Paris attacks’ potential impact on the plaintiffs’ ability to receive a fair trial, Azmy said jurors “are human beings; they pay attention to outside events.” “They also have a duty and will be instructed that their duty is to follow the law,” he said.
Nick Paolucci, a spokesman for the New York City Law Department, declined to comment.