Oregon | The Mohamud Trial

Oregon Bomb Plot Suspect's Attorneys May Mount Entrapment Defense

OPB | March 21, 2011 2:59 a.m. | Updated: Jan. 3, 2013 10:32 a.m. | Portland, OR

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Attorneys for Mohamed Mohamud have filed court documents that suggest they may explore whether the FBI entrapped their young client. Mohamud was arrested last November. The FBI says he plotted to set off a bomb in downtown Portland, during a Christmas Tree lighting ceremony.
Mohamud is one of several young men in recent years FBI agents pursued in sting operations.


Phillip Mudd says there’s a good reason federal investigators talk to  young men in their late teens and early 20s. Mudd’s a senior Global Advisor for Oxford Analytica. He pursued counter-terrorism cases for years with both the FBI and the CIA. We spoke after Mohamud was arrested last year.

Mohamed Osman Mohamud

Mudd suggested the FBI is not the only group with an eye on impressionable young men. 

Phillip Mudd: “Increasingly you see people from places like Yemen, Oregon, Washington, New York or Miami, who saw what al-Qaida did on Sept 11th for example, and they say ‘I want to be a part of this revolution’.”

Mudd says it’s unquestionably sad when young men – kids, as he puts it -  get involved in something that evolves into a crime. But in his view, they can’t be ignored.

Phillip Mudd: “You have kids, in this case, a young man, who, once they decide to go down a path are going to go down that path. My experience, I’ve been doing this for 25 years, when they make that decision, they can’t be turned back. Before they turn to violence, you can have a conversation with them, their family, their church, their mosque their synagogue. But once they say “I believe in this ideology” strongly enough, they’ve made a choice.”

If Mohamed Mohamud’s attorneys do decide to argue entrapment, it’s unclear what direction their defense might take. For instance, would they make Mohamud’s age an issue?  He was 19 when he was arrested. From a legal standpoint, he’s an adult. But the science of the adolescent brain has been used in defense arguments in other kinds of crimes involving young men.

Dr. Richard Kolbell is a neuropsychologist who practices in Portland. He’s also a forensic expert who’s testified in court about the relationships between the brain and behavior.
Kolbell says  the adolescent brain is a pretty wild place to be.

Richard Kolbell: “Essentially what’s going on are very significant changes in the growth and development of different brain areas.”

Kolbell says as the brain moves through adolescence,  major material changes get underway. He describes it as the pruning of an orchard. Gray matter, where information is fully integrated, is starting to thin out. And the brain’s white matter, which transmits information, is growing and becoming more efficient.

Richard Kolbell: “This pruning, the thinning of the cortex is essential so that the forest that is our cortex will grow healthy - in a healthy fashion….particularly through late adolescence, and this runs into the mid 20s.”

Kolbell says it takes a few more years for the brain’s function to catch up with its own growth. The last part to develop is the pre-frontal cortex. That’s the place where all the information we get about the world meets up with all our experiences and emotions.

Richard Kolbell “We put them together in a way that then guides our decision-making, moral reasoning, ability to anticipate consequences, make decisions based on that  - things that I think most parents will recognize, are skills that are not particularly well-developed in most adolescents. In fact those that are well-developed I would say are statistically abnormal.”

Another way to put this, Kolbell says, is to say the adolescent brain dumps tons of information into a place where the machinery is not fully developed to put it to optimal use.

And that, he says, is why teens and people in their early 20s can fall more readily under the influence of others.

The FBI  will not comment on the sting that led to Mohamud’s arrest, since his case is still open. He may or may not go to trial within the next year. But the weekend Mohamud was arrested, Special Agent In Charge Art Balizan had this to say about his case.

Art Balizan: “The threat was very, very real, he was very, very motivated to commit a violent act.”

Balizan confirmed that FBI operatives approached Mohamud, as detailed in a court affidavit. The two agents met with Mohamud repeatedly, talking to him about his stated interest in taking part in jihad. They taped the conversations, but as yet, those tapes have not been made public. The affidavit says the operatives questioned Mohamud about the seriousness of his intentions. Could they be of any help? Balizan said in November the record will show the plot was Mohamud’s idea.

Art Balizan: “We have someone here, who, time and time again, as the complaint lays out , expressed his desire, took independent steps to accomplish the ends, selected the locations to park the vehicicle, selected the methodology, selected the site, selected the date. Not everyone has a mind to do that. This individual did.”

The FBI has also said a technical problem during the initial meeting left the bureau without a tape of who first mentioned a bomb plot.

While there’s scientific evidence that young men in late adolescence share volatile traits, that doesn’t mean the courts have looked kindly on youth or brain chemistry as a defense.

Karen Greenberg “Basically what comes up in these cases they say ‘Look, you know, he could have chosen not to do this”  that is their argument. “And he chose to do this.”

Karen Greenberg directs the Center for Law and Justice and New York Universtiy. Her group has made in-depth studies of counter-terrorism cases and how they’ve played out in the courts. Greenberg notes the government has gone after about a thousand people prosecuted for terrorism since September 11th 2001.

Of those cases courts have already resolved, Greenberg says, only six people  have chosen to mount an entrapment defense. They weren’t successful.

Karen Greenberg “… But  there’s obviously going to be more on the table, b/c FBI has made it their strategy to use these kind of underc or informanet cases that lead to stings going fwd. So I think we’re at the beginning of this conversation.”

Greenberg hasn’t found age or brain science figuring into the defenses of young terror suspects. But she says it’s an interesting legal avenue that may yet be explored, either by Mohamed Mohamud’s defense or defendants elsewhere.

She says another case with potential to shift precedent will be heard in New York’s Southern District this week. Four men arrested in an FBI sting were found guilty of plotting to bomb synagogues. But entrapment issues riddled the oral arguments in their case. A New York  judge will hear post-trial motions Thursday (March 24) on whether the case will be tossed out of court.

 

This story was produced with help from OPB”s Public Insight Network. To share your experience, go to http://opb.org/publicinsight.

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