“This is a hard case,” Judge Bruce Selya, the senior member of the three-judge panel hearing oral arguments yesterday in Tarek Mehanna‘s appeal. Hard cases make bad law, the old saw goess, and Selya said that’s why “we have to be very careful.”
The maxim refers to the problems inherent in making law based on extreme cases, and there are some extreme elements of this case. Mehanna’s lead appeals lawyer, Sabin Willet, stressed the extreme amount of prejudicial evidence prosecutors put before the jury – pictures and images of 9/11, references to no fewer than five beheadings – none of which had much to do with the charges against Mehanna, and things he certainly had nothing to do with, and the judges seemed receptive to the idea that the government “piled on.”
The test, Selya said, is “have they so poisoned the well that the outcome of the trial was affected?”
Arguing for the government was Elizabeth Collery, who said the evidence showed Mehanna was “obsessive” about Islamist violence, and was necessary to establish the criminal intent behind Mehanna’s one-week trip to Yemen. It’s no crime, of course, to travel to Yemen, and Mehanna didn’t actually do anything in Yemen. He stayed for a week or so, didn’t like what he saw, never met any terrorists, talked to his dad on the phone and came home. But, as Mehanna’s lead attorney, J.W. Carney, explained to me after the hearing, the trip to Yemen is the only part of the government’s case that doesn’t directly involve First Amendment rights. Everything else Mehanna is charged with – writing, proselytizing, translating, chatting online – should be protected speech.
I’ve got no skill in reading the tea leaves of appellate judges, but Selya’s words started me thinking. What “bad law” could this “hard case” make? Would upholding the conviction establish a new acceptance of the criminalization of free speech in terrorism cases? Would overturning it hurt terrorism prosecutions? Would remanding the case back to the trial court on narrow grounds avoid setting a precedent? One such possibility came in for some discussion: whether the judge should have allowed the jury to issue a “special verdict” that declared which part of the case had been proved beyond a reasonable doubt, traveling to Yemen with evil intentions or propagandizing as al-Qaida’s “media wing.” The judge had rejected the defense motion, leaving the court with a verdict that may stand on an unconstitutional leg.
It was a sparkling summer day in Boston Tuesday. While the legal arguments continue, Tarek Mehanna spends his days quietly in a federal penitentiary where he’s serving an 17-year sentence, waiting for justice.