Even the likes of Khalid Shaikh Mohammed deserve a fairness that even cynics wouldn’t question.
One would have to live under a rock to not believe that U.S. District Judge Tanya Chutkan, who sits on Donald Trump’s D.C. prosecution, has negative views about him, whether it’s just from her being an aware citizen or because she has presided over the prosecutions of a number of January 6 defendants and has said that Trump allegiance was at the root of their criminal conduct.
Still, she declined to recuse herself from the pending Trump prosecution regarding Jan. 6, saying she could “faithfully and impartially” discharge her duties. And that’s probably true, particularly inasmuch as she will not be the fact-finder in that case.
Judges aren’t automatons who can view cases or the parties before them with no biases or even preconceived views about them. It’s somewhat the same as with jurors, who invariably have thoughts about the parties, issues and circumstances that might be presented at the trial. We are the sum or totality of our lives and life experiences. Judges aren’t exceptions. Nor, as Justice Benjamin Cardozo famously said, should we realistically want or expect them to be.
The issue is especially focused, however, in a pitched legal battle where a criminal defendant and his conduct are particularly outrageous and odious. Should — or can — we expect the judge to be able to put aside her undoubtedly “outraged” view of him in order to dispense justice?
Let’s take the case of Khalid Shaikh Mohammed (KSM). He is roundly considered to be the mastermind of the 9/11 attacks — the most heinous assault on America and its citizens in history.
KSM has been detained at Guantanamo Bay for a number of years and was interrogated between 2003 and 2006. According to his interrogator, FBI special agent Frank Pellegrino, at the outset of his January 2007 interrogation KSM asked for counsel, which he “brushed off” (oddly, perhaps, not violating American law as the interrogation occurred offshore). After the brushoff, according to Pellegrino, KSM “voluntarily” confessed to his unparalleled crime during a 12- or 13-hour interrogation that occurred over several days.
Let’s put aside momentarily the denial of counsel, which is a strictly legal issue. Importantly, years earlier, the CIA had held KSM at CIA black sites around the world within its clandestine prison network. There, in addition to extensive periods of isolation and as acknowledged by the prosecution, KSM was waterboarded some 183 times, along with other means of torture.
That was, of course, years earlier, as Pellegrino maintained in his testimony. Pellegrino claimed that he wanted to hear KSM’s story “independently” — uncontaminated and sufficiently removed temporally from the confessions obtained in the context of CIA torture. He also testified that he hadn’t been aware of KSM’s waterboarding, although he believed that his subsequent interrogations were totally voluntary, albeit acknowledging his personal disapproval of the prior torture. Pellegrino’s stated unawareness of the torture — how could KSM have failed to mention that to Pellegrino when he was conducting an interrogation? — would certainly be an important issue for the fact-finding judge.
This piece isn’t intended to challenge the CIA or FBI for their challengeable conduct in how they attempted to obtain confessions in order to convict the worst criminal in American history. Indeed, I accept, for these purposes, that KSM was indeed the architect — just as surely as if I were one of the CIA torturers or FBI interrogators who thoroughly believed that, and that their laudable goal was to ensure America’s safety.
Let’s assume instead, though, that you’re the judge sitting on KSM’s motion to suppress the Pellegrino confession. Especially as a New Yorker, could you be expected to put aside your “bias” that has made you believe that KSM is indeed guilty of having been the 9/11 mastermind, but nonetheless judge him fairly as he seeks to suppress the (allegedly) “independent” confession obtained by Agent Pellegrino? This, particularly when the confession’s suppression might result in reducing the prosecution to a potential nullity.
As that sitting judge, are you being asked to perform a virtually impossible mental task to rule in favor of KSM, even though more than 20 years have elapsed since 9/11 and one’s visceral hatred of him may have somewhat faded?
Can a judge realistically be balanced and fairly judge KSM’s legal fight simply because he or she took an oath to administer the law without fear or favor when the robes are on? Or do we sometimes ask too much of judges? Judges will quickly say “no,” but is that kneejerk reaction always truthful, especially when all trial judges know that their fact-finding regarding witness credibility in particular will likely to be the last say, and typically undisturbed on appeal?
The man/woman on the street, of course, could care less whether KSM is afforded a fair criminal proceeding, as is the case with most horrendous, especially violent, criminals. After all, “only a criminal lawyer would really care!” In reality, though, the typical man (or woman) on the street — if there is indeed such an individual — shouldn’t be the one making the determination how a defendant in the dock receives dispassionate justice. Such determinations must be made by legal and ethics rules that decide if a judge is sufficiently immune from the biases that would render his or her decision to not recuse absolutely untenable.
And, because a defendant’s motion to recuse a judge is filed directly with the judge in question (a denial typically appealable only if and after the defendant is convicted), we need the trial judges to conscientiously look deeply into their own souls right from the outset: “Can I be fair to this defendant even if I think, going in, he’s as guilty as hell?” What’s more, “If I insist on keeping the case on my docket, what will the appearance of that be to the public at large?”
Judges should always ask themselves those questions, whether the defendant is Donald Trump, KSM or any other public figure where the criminal conduct charged is particularly deplorable. Even the likes of Khalid Shaikh Mohammed deserve a fairness that even cynics wouldn’t question. So if we indeed believe, as we do, that the notorious KSM can get a fair shake from his judge, the system virtually requires us to believe that Trump can from his.
Joel Cohen, who practices law at Stroock & Stroock & Lavan in New York, is a former state and federal prosecutor. He is the author of “Blindfolds Off: Judges On How They Decide” (2014) and teaches about judging at both Fordham and Cardozo Law Schools.
