THE RULE OF LAW: AN EXAMINATION OF JUDICIAL DISCRETION IN TERRORISM APPEALS By WESLEY S. MCCANN A dissertation submitted in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY WASHINGTON STATE UNIVERSITY Department of Criminal Justice and Criminology MAY 2017 © Copyright by WESLEY S. MCCANN, 2017 All Rights Reserved © Copyright by WESLEY S. MCCANN, 2017 All Rights Reserved To the Faculty of Washington State University: The members of the Committee appointed to examine the dissertation of WESLEY S. MCCANN find it satisfactory and recommend that it be accepted. Craig Hemmens, Ph.D., J.D., Chair David Brody, Ph.D., J.D. Zachary Hamilton, Ph.D. Thomas Preston, Ph.D. ii ACKNOWLEDGMENT First and foremost, I would like to thank God for the blessings and opportunities that I have been given in my time here at Washington State University. I would like to also thank my Chair, Dr. Craig Hemmens for all of the time, effort, and direction he has provided me in all facets of my program; not just my dissertation, to which I am eternally grateful for. Also, I would like to thank my committee members, Dr. Zachary Hamilton, Dr. David Brody, and Dr. Thomas Preston for the time and feedback that they have provided me over the course of my dissertation. I would like to also thank Dr. Christopher Shields and Dr. Brent L. Smith from the University of Arkansas’ Terrorism Research Center for providing me with the baseline data needed to conduct this study. Lastly, I would like to thank my parents- Don and Michele McCann- for always empowering me to pursue my dreams and to achieve excellence. iii THE RULE OF LAW: AN EXAMINATION OF JUDICIAL DISCRETION IN TERRORISM APPEALS Abstract by Wesley S. McCann, Ph.D Washington State University May 2017 Chair: Craig Hemmens Prosecuting terrorism has proven to be difficult for the criminal justice system in recent decades. Moreover, terrorists are qualitatively different than traditional criminals. As a result, certain complexities arise that are particular to terrorism cases. Understanding the criminal justice system's ability to viably and fairly prosecute terrorists is extremely important to scholars, practitioners, and legislators. However, appellate courts serve an important role in examining the procedural and substantive justice of criminal trials. To date, no study has evaluated appellate court discretion in terrorism appeals, as almost every study has solely focused on the trial stage. This study is exploratory in that while the traditional literature focuses only on judicial discretion at the trial level, this study examines panel discretion at the appellate level in terrorism appeals. This study examines all federal terrorism appeals from 1988-2015 in which the defendant was adjudicated via a trial. Trial- level data was obtained from the American Terrorism Study and appellate-level data was collected from Westlaw's legal search engine. This study uses both a qualitative legal analysis and quantitative analyses to study Circuit Court discretion. First, legal analyses were conducted for certain claims brought forth on appeal as well as content analyses of successful appeals. Next, multiple imputation and binary logistic regression were used to examine which factors were the most important in iv explaining Circuit Court discretion in terrorism appeals. This study found that panel ideology, or the political affiliation of panel members, was significantly related appeal outcomes. This finding is contrary to what prior research has found. Furthermore, Circuit Courts defer to District Court discretion substantially more when considering procedural issues, as opposed to sentencing-related issues, in which panels are more active in altering District Court determinations. Overall, Circuit Courts are not a mere rubber stamp on District Court decisions in terrorism cases, but appellate outcomes are influenced by panel ideology, Circuit Court, and District Court judge ideology. Due to data limitations however, these findings need to be replicated and explored more. v TABLE OF CONTENTS Page ACKNOWLEDGMENTS .............................................................................................................................. iii ABSTRACT ........................................................................................................................................................ iv CHAPTER CHAPTER ONE: INTRODUCTION ............................................................................................ 1 CHAPTER TWO: LITERATURE REVIEW ................................................................................. 7 CHAPTER THREE: METHODS ................................................................................................. 83 CHAPTER FOUR: RESULTS ...................................................................................................... 103 CHAPTER FIVE: DISCUSSION ................................................................................................ 190 CHAPTER SIX: CONCLUSION ................................................................................................ 208 REFERENCES .............................................................................................................................................. 213 APPENDIX A. CASES AND STATUTES ............................................................................................................. 227 vi Dedication To Lindsey, my beautiful wife and best friend, and to my cat, Jax, who endured this study with me. May our family always be peculiar and abounding in love. vii Introduction The criminal justice system serves as a fundamental mechanism for protecting order and ensuring community safety. More specifically, criminal courts process the accused in an effort to uphold the law, demonstrate justiciability, and act in a fair and equitable manner. However, their viability as arbiters of justice can be undermined when national security is thrown into the mix. While conventional crimes are ordinarily adjudicated in the criminal court system, the question remains is how do criminal courts act with regards to highly motivated, politicized and controversial crimes that concern not only the security of the community, but the nation as a whole. A significant amount of the criminal justice, political science, and law-related literatures attempt to explain the phenomenon of terrorism adjudication by examining courtroom actors and those involved directly in the adjudication process. Conventional criminology, as it will be commonly referred to in this study, generally focuses on the decision-making and votes of judges, prosecutors, and defense attorneys. However, little is known, with regards to how these three parties operate during the adjudication of terrorists. More specifically, whether there are any discernable differences between the behaviors of courtroom actors during trials involving terrorism. The literature on terrorism, is generally more interdisciplinary than conventional criminology. This is not to say that criminology does not focus on terrorism, but the hybrid-like nature of studying terrorism generally carries with it normative, psychological, political, and sometimes religious connotations that conventional crime, even violent crime, does not. Thus, while the focus of this study is not to study where criminology fits within this paradigm, it is important to understand why criminological perspectives are not the only ones that will be employed in this study, and more importantly, how terrorism as a crime, carries with it a different set of baggage than is observed in conventional criminology. 1 To further this point, criminology offers significant insight into the etiology of terrorism, its adjudication, and more importantly, policy implications. Criminology in essence is already an interdisciplinary field in which the disciplines of psychology, sociology, political science, anthropology, and even the ‘hard’ sciences have a seat at the table. So to say that this study, and the study of terrorism in general from a criminological perspective is interdisciplinary, is an understatement. That being said, this study does not seek to explain the etiology or psychology of terrorism, nor its formation, but is instead focused on its formal abatement via the criminal justice system, and Circuit Courts’ ability to ensure procedural and substantive justice in District Court trials. This abatement comes in the form of general adjudication processes that are carried out by the federal court system. Both civil and criminal processes operate within the exclusive jurisdiction of the United States District Courts (18 U.S. Code § 2334; 18 U.S. Code § 2338). Thus, almost all criminal cases involving any form of terrorism as defined by 18 U.S. Code § Chapter 113B will be adjudicated in the U.S. District Courts; although some have been adjudicated through the Military Justice System in the form of military tribunals. Nonetheless, this is the exception, and the jurisdiction and processes of the military tribunal system will not be discussed in this study. Given the visibility of terrorism in the post-9/11 world, most of the citizenry along with many scholars overlook the fact that terrorism is a criminal act. In fact, prior to the mass politicization of terrorism in the 1980’s and 1990’s, terrorists were treated like ordinary criminals throughout the adjudication process (Bradley-Engen et al., 2009; Smith et al., 2002). Nonetheless, prosecuting terrorism continues to be a highly salient and complex issue within the criminal justice system, and within the context of national security. Following September 11th, many of the issues courtroom actors faced in adjudicating terrorists were exacerbated by legislation enacted in the wake of the attacks. This shift has 2