Legal Docket: Terrorist on trial

NICK EICHER, HOST: It’s Monday morning, August 21st and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket—summer edition.

We spend the fall, winter, and spring covering Supreme Court cases while the court is in session. And those cases often turn on narrow legal questions.

Cases far removed from the facts. The original dispute that gave rise to the initial lawsuit. By the time the case reaches the high court, the people involved can be forgotten.

EICHER: Right, we talk in terms of “parties” or “petitioner and respondent.” The facts have been distilled to a couple of short paragraphs in the briefs and are rarely acknowledged at oral argument. But it’s a different story at the trial court level, where cases usually begin.

Today, legal correspondent Jenny Rough joins us to talk about a federal case that went to trial.

Good morning, Jenny!

JENNY ROUGH, REPORTER: Good morning!

So you might recall the news stories. About a decade ago, the terrorist group ISIS kidnapped four Americans. Two of them were journalists, two of them were aid workers. Three men, one woman.

Horribly, ISIS eventually beheaded the three men. It claimed an airstrike killed the woman.

To help give the context, here’s a news report from ABC.

ABC REPORTER: They are among the ISIS terrorists accused of taking part in the abduction, torture, and murder of hostages, including four Americans in Syria between 2012 and 2015. Now Alexanda Kotey and El Shafee Elsheikh are finally facing federal charges in the United States.

REICHARD: The trial against one of the terrorists took place just last year.

The setting was in the U.S. District Court for Eastern Virginia. A criminal case against the captor for the kidnapping and torture of the four Americans.

Let’s not forget their names: James Foley, Steven Sotloff, Peter Kassig, and Kayla Mueller.

ROUGH: Seven years after the last hostage was killed, the life of a man living in Arlington, Virginia, intersected with theirs: A married father of three. His name is Wayne Phoel.

One day he received a summons in the mail.

It was jury duty.

He’d received a few of these in the past, but had always been dismissed.

WAYNE PHOEL: The ones before they had filled up the jury before I even got called. And this time I think I had a feeling like this one was going to go differently.

EICHER: It would go differently because this was a jury summons for a federal trial. He had no idea what the case was about. But during jury selection, a process known as voir dire, the prosecution and defense attorneys posed questions that began to give him an idea. Questions like: Do you know any FBI agents?

PHOEL: There was a question: Have you ever been kidnapped or held against your will? And that was I think the one thing where I started to wonder: What have I gotten myself into?

REICHARD: It wouldn’t take long to find out. He made it through the process and onto the jury.

When the prosecutor’s opening statement came, it was clear what the case was all about. The defendant, El Shafee Elsheikh, was accused of abducting the four Americans that had traveled abroad to Iraq and Syria.

EICHER: The terrorist and his conspirators were originally from Britain. They had English accents. So the hostages referred to them in code: John, George, Ringo, in other words, the ISIS Beatles.

The defendant on trial was the one hostages called Ringo, that is El Shafee ElSheikh.

And to be clear about what happened to the others: One of the ISIS Beatles had already been killed. Another one pleaded guilty.

ROUGH: At Elsheihk’s trial, the prosecutor presented evidence of how ISIS captured the hostages. Wayne Phoel, the juror, says it sounded like a scene right out of a movie.

PHOEL: Some truck pulls up in front of their car, some truck pulls up in the back of their car, these guys jump out, grab them out of their car, stick 'em in the trunk and drive off.

ISIS notifies the parents, not the federal government. And demand ransom.

PHOEL: They get an email from some strange e-mail address, right? Typically not a name, just some sequence of characters at some domain.

When the ransom requests come in, the families don’t know what to do. They don’t want to put their loved one in further danger. Don’t know how to interact with captors. They operate out of fear.

Eventually, the families ask for proof of life. Asking questions that only their son or daughter could answer.

REICHARD: As the trial progressed, the prosecutor put on evidence that became more difficult to hear. The recounting of torture. Foreign hostages who had been held with the Americans, and later released, came to the trial to testify about what they endured.

PHOEL: Beating until they couldn't move anymore. They would have large welts on their body. I think that they're sometimes like forcing them to stand in very, very uncomfortable positions for really long times, like 12 hours or something like that. There was some, I think, electrocution that happened. I mean, it was horrendous just to think about.

ROUGH: The foreign hostages said the punishment they endured didn’t even compare to what the Americans went through.

PHOEL: There was one incident where they had a, um, a mock execution. So they lined people up.

For the three American men it became all too real.

PHOEL: And so the videos of the beheadings were put into evidence. They weren't shown in the courtroom.

Instead, a testifying witness looked at the picture or video and then described it.

If the jury members wanted to watch, they had that option. Wayne Phoel declined. He believed the Americans had been killed. He said watching the videos wasn’t necessary.

EICHER: But if the prosecution’s evidence in the Elsheikh case was difficult to take in emotionally, the defense presented difficult evidence, too. Difficult in the sense that it posed a challenge to the prosecutor’s burden: guilt beyond a reasonable doubt.

The so-called ISIS Beatles wore masks when interacting with the hostages. And in the case of ElSheikh, the jury never heard his voice. So the defense argument tried to take advantage of that.

PHOEL: The Beatles were really, diligent about protecting their identity. So they always had their faces covered. And when they came in, all the hostages had to be kneeling, facing the wall. They weren't ever allowed to look up at any of the Beatles.

Unlike the movies where the victim points to the guy who did the crime: “That man sitting right there!”

But one of the other trial witnesses was a former ISIS member who did make a visual i.d.

PHOEL: Somebody who had been in ISIS and had been captured who claimed to have seen them in some ISIS headquarters. And so he could make a visual i.d.

REICHARD: The prosecutors also presented evidence of Elsheihk giving interviews on TV. Those revealed insider knowledge of the events like locations, timelines, personal details of the hostages.

One of the most touching pieces of evidence related to journalist James Foley. He was held hostage with a man from Holland, a photographer set to be released.

But James Foley?

PHOEL: Near the end it became clear that the Americans were never going to be released.

ROUGH: Still, Foley wanted to give his parents a message. So he wrote a four-page letter that the photographer memorized every single word of.

PHOEL: And one of the first things he did when he got released was call up his parents… [voice breaks].

He recited the entire letter to Foley’s parents.

REICHARD: Overall, the trial took about two weeks. The jury convicted Elsheikh of all eight counts he was charged with, ranging from hostage-taking to conspiracy to murder.

Wayne Phoel wasn’t allowed to talk about the case to anyone during the trial, not other members on the jury, not his spouse or kids. But wife Cindy could see the toll the trial was taking on him.

ROUGH: She said she’d never seen him so sad. After the trial, when he finally could talk about all he’d been carrying inside, they had long conversations over dinner.

Cindy recalls waking up one night smelling smoke. It was the outdoor fire pit.

CINDY PHOEL: And Wayne had made himself a fire and was just sitting out there watching fire. I was amazed that there was a lot of processing for him to do. He was never going to be able to unhear what he had experienced. I mean, this was not a triumphant ending by any stretch of the imagination.

EICHER: The sentencing phase is separate from the trial phase. And when Wayne Phoel saw an announcement in the news that the sentencing date had been scheduled, he and his wife decided to attend together. He was the only jury member there.

They thought it might bring closure.

ROUGH: They also thought it would be just perfunctory. A judge handing down a prison term. But it was so much more.

CINDY PHOEL: I guess we should have understood something was going happen when we saw somebody distributing tissue packets.

Before the judge issued the sentence, the families read victim impact statements.

CINDY PHOEL: What we hadn't anticipated was that there would be two hours of families trying to articulate how horrible this had been for them. And it was like a really emotional experience. I mean, even the judge, his voice broke. Even the defense lawyers, you saw them dabbing their eyes.

I asked Wayne Phoel what has stayed with him the most from this jury experience. Two things, he said. First, that all four Americans went overseas to help.

WAYNE PHOEL: These people, they weren't on a side. They would go into the thick of things, and if there's somebody injured, they're gonna help them.

And the second thing was that many of the hostages who did get released are still doing similar things to what they had been doing before they were captured.

WAYNE PHOEL: There were at least two journalists who came back from Ukraine in order to be witnesses at the trial. I think a lot of the aid workers are still working for these aid organizations.

Right back in the field making the daily decision to bless others instead of hurt them.

That’s this week’s Legal Docket. I’m Jenny Rough.

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