Trump’s execution call for New York suspect may haunt prosecutors

US president Donald Trump on Thursday backed off his threat to send the suspect in this week's New York terrorist attack to the US military prison at Guantánamo Bay, in Cuba, but once again called for the man to be executed, a public intervention in the case that could come back to haunt prosecutors in any future trial.

In response to questions from reporters, Trump on Wednesday had said he would be open to transferring Sayfullo Saipov, the immigrant from Uzbekistan charged with ploughing a pickup truck into passersby in Manhattan, from the civilian justice system to the military system at Guantánamo. "Send him to Gitmo, I would certainly consider that, yes," he said.

But after his offhand and unscripted remark, aides sought to walk back the idea, saying it was merely notional. And the president was evidently briefed or saw something on television afterwards about how the civilian courts have been more effective at convicting terrorism suspects than the troubled military tribunal system installed after the attacks of September 11th, 2001.

The argument that Saipov should be tried in the same place where the terrorist attack that killed eight was committed mirrored the contention that President Barack Obama’s administration made when it sought to put Khalid Sheikh Mohammed, the self-described mastermind of the September 11th attacks, on trial in a civilian court in New York.

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But an uproar among city officials and business leaders at the time forced Obama’s justice department to abandon the plan and keep Mohammed at Guantánamo.

Surprise complication

Trump’s call for capital punishment for Saipov, however, introduced a surprise complication that may burden prosecutors and help defence attorneys. Trump first broached the subject in a Twitter message posted shortly before midnight on Wednesday evening.

Presidents are typically advised never to publicly weigh in on pending criminal cases. Such comments can be used by defence attorneys to argue that their clients cannot get a fair trial, especially when the head of the executive branch that will prosecute a case advocates the ultimate punishment before a judge has heard a shred of evidence at trial.

But Trump is not one for cautious detachment, and he has disregarded such advice before. Just this week a military judge said he would consider similar comments by Trump as evidence in favour of a lighter sentence for Sgt Bowe Bergdahl, who pleaded guilty to desertion and endangering fellow troops by walking away from his post in Afghanistan, where he was later captured and held prisoner by the Taliban for five years.

Other presidents have been criticised for offering public verdicts about pending criminal cases. In 1970 President Richard Nixon declared that Charles Manson "was guilty, directly or indirectly, of eight murders without reason" in the middle of his trial for the killings of the actor Sharon Tate and others. By the end of the day the Manson team's lawyers had moved for a mistrial, citing the president's remarks, and Nixon issued what his press secretary called a clarification, taking them back.

“The last thing I would do is prejudice the legal rights of any person, in any circumstances,” Nixon said. The defendant later held up in court a newspaper with the headline “Manson Guilty, Nixon Declares”. But the judge allowed the trial to proceed, ultimately ending with a conviction.

The impact of such comments is more pronounced in military-justice cases, as the president is commander-in-chief of their judges and juries

In 2005 President George W Bush expressed his confidence that Tom DeLay, the former Republican majority leader, would be acquitted, weeks before his trial on money-laundering charges was to open. "I hope that he will, 'cause I like him, and, plus, when he's over there, we get our votes through the house," Bush told a television interviewer.

His successor, Obama, forecast an execution for Mohammed, the September 11th detainee. Defending the later-aborted decision to try Mohammed in civilian court rather than a military tribunal, Obama said critics would not find it “offensive at all when he’s convicted and when the death penalty is applied to him”.

Commander-in-chief

The impact of such comments is more pronounced in military-justice cases, as the president is commander-in-chief of the judges and juries that determine guilt or innocence and hand down sentences.

Responding to a wave of sexual-harassment allegations in the military, Obama declared in 2013 that troops who commit sexual assault should be “prosecuted, stripped of their positions, court martialled, fired, dishonourably discharged”.

In this instance he was not commenting on a particular defendant, but attorneys nonetheless argued that it constituted “unlawful command influence”. Such influence refers to actions by commanders that could be seen as an attempt to sway a court martial.

Defence lawyers in multiple cases cited Obama's words. In one case, in South Carolina, a judge noted the command-influence issue in dismissing sexual-assault charges against an army officer. In another, in Hawaii, a navy judge decided that two defendants could not be punitively discharged because of the president's comments.

Trump has more than once offered strong words about people suspected of major crimes. He called the man who opened fire on a concert in Las Vegas in October a "very sick man" and "a very demented person", but as the man was killed there will be no trial to influence. On Wednesday he called Saipov "this animal". – New York Times