“No, your honor.” Quarrington was the epitome of calm, unfazed by Klinsmann’s reputation or demeanor.
“Well then?”
“A confession does not necessarily equate to guilt, as your honor is well aware. A range of exculpatory and justificatory defenses are available to us.”
“Is your client mentally fit to stand trial?” Klinsmann probed.
“Yes. We do not anticipate that Dr. MacDougall’s mental state will be an issue.”
Klinsmann glared at Quarrington. Only a madman would commit this kind of crime. “All right. I don’t want a long stream of motions from either of you. I don’t want to be snowed under with 500-page briefs. I expect counsel to be concise. I’m aware of the intense media interest, and I want all media contact to be preapproved by my office. I want to hear arguments from you directly, not read about them in the paper. I want a fair, expeditious trial.”
“Those instructions are entirely consistent with Dr. MacDougall’s wishes, your honor. However, I would like to make one submission regarding publicity in advance of the trial.” Quarrington leaned to his right and extracted a thick black binder from his briefcase. “This is just a small sampling of newspaper and internet coverage of the case to date. The media obviously are not bound by the presumption of innocence that is a cornerstone of American criminal law. One need only scan the headlines—‘Perc Perp Popped,’ ‘All-American Terrorist’, ‘Shocker: Toxic Doctor’—”
“Are you laying the groundwork for a change-of-venue motion, Mr. Quarrington?” Klinsmann asked, eyes narrowed. “Because if you are, I can save you some time and effort. This trial isn’t going anywhere.”
“No, your honor. I do not take issue with the venue. But I am concerned that the case is already being prosecuted in the court of public opinion. I have advised Dr. MacDougall that he would be wise to present his side of the story in the media as well as in the courtroom.”
“What do you have in mind?”
“We have discussed the possibility of inviting reporters from selected outlets for interviews with Dr. MacDougall at his prison.”
Klinsmann waggled a finger at Quarrington. “That is completely unacceptable. As I said, this case will be tried in my courtroom, not in the media. End of story.”
Quarrington held his gaze steady. “With respect, there have already been hundreds of one-sided stories portraying Dr. MacDougall as guilty. I am merely—”
“You are merely approaching thin ice,” Klinsmann scowled. “Ignore my advice and you’ll be charged with contempt of court. Now, are there any other issues either of you wish to raise at this time?”
“Yes, your honor,” Quarrington said. “The defendant would like to relieve the prosecution of the burden of calling a long list of witnesses to establish proof of the facts. He openly admits having committed the actus reus of the alleged offenses and will sign a stipulation of the facts. The trial process would be substantially shortened.”
Klinsmann looked at Quarrington over the top of his bifocals, as though reappraising his general opinion of defense attorneys. “That strikes me as a very generous offer. I favor any measures that expedite the trial without sacrificing due process. Ms. Marconi?”
“I appreciate the gesture, your honor, but must regrettably decline.” Marconi wanted living, breathing, flesh-and-blood witnesses who could provide gripping testimony about Michael’s misdeeds, not a dry recitation of facts on paper. Stipulation would diminish the impact of the evidence upon the jury. “Please rest assured, however, that we will keep our witness list and our examinations-in-chief as brief as possible.”
“Mr. Quarrington, your offer to stipulate has been refused.”
“You have the authority to compel my friend to accept my offer, your honor.”
“I’m well aware of the parameters of my judicial discretion, Mr. Quarrington, and will exercise that discretion if and when I see fit. Any other questions?”
“Yes,” Quarrington answered, “a minor issue.”
“Make it quick then.” Klinsmann closed his laptop roughly.
“Of course, your honor. I shall endeavor to be brief and compelling. My client is an American citizen, with no previous criminal record, no record of physical violence, no efforts to escape custody—”
“If you’re attempting to reargue the bail hearing, forget it. There are no circumstances under which I would grant your client bail, period.”
“Understood, your honor. That is not my intent. As I was saying, apart from the events forming the actus reus of the counts in the information, Dr. MacDougall has never been a menace to anyone, let alone a menace to society. I would simply like your honor to instruct the marshals to remove the handcuffs and leg-irons before ushering Dr. MacDougall into the courtroom. For him to be manacled like some kind of dangerous offender is a breach of justice and a disservice to all parties involved. Ideally, I would like you to allow him to appear before the court in civilian clothing.”
There was a pregnant pause.
“That’s it?” Klinsmann asked.
“Yes, your honor. It is, I submit, a modest proposal, but if granted will provide Dr. MacDougall with a modicum of dignity.”
“Request refused. Your client is in no position to seek special favors from this court. He will receive the same treatment as any other defendant. Now is there any other pretrial business that we need to attend to today?”
Marconi and Quarrington both shook their heads. They could see that Klinsmann was in a bearish mood, likely to growl at whomever kept him in his office for an extra minute on this sunny day.
“Very well then, the trial date must be set in accordance with the Speedy Trial Act. I have space on my trial calendar beginning in one month. I assume that gives both of you adequate time to prepare? I don’t want to set a trial date and then be forced to adjourn it because of heel-dragging by counsel. Once the date is set you will both be prepared. If you must move mountains to get ready, so be it.”
Chapter 37
Life in the special housing unit was safe but miserable. Locked down for twenty-three hours each day. One hour alone in an exercise cage at 6:00 a.m. Escorted by two guards for a shower every third day. Repulsive food delivered through a slot in the door of the cell. Only one phone call per week permitted. Minimal access to books, paper, and writing instruments. And although it was cold, he had only one scruffy wool blanket and no pillow. Michael shuffled back into the visitors’ room, having spent two hours enduring the pre-visit rituals. Shower, get dressed, be strip-searched, get dressed again, and then be left in another windowless room with no books, amenities, or personal items of any kind. As usual, his visitor was Quarrington, whose navy blazer and starched white shirt made Michael feel embarrassed by his crude uniform.
“Hello, Michael. I must apologize for being the bearer of bad tidings. The prosecution has filed a motion in limine to prevent us from presenting the necessity defense to the jury.”
“Meaning?”
“I am sorry. A motion in limine is a pretrial application requesting that the court prohibit the other side from presenting, or even referring to, evidence on matters said to be so highly prejudicial that no steps taken by the judge could prevent the jury from being unduly influenced. The technical legal details are unimportant. What matters is that federal courts have a spotty record when it comes to protecting the right of criminal defendants to present evidence regarding the necessity defense during their trial. In essence, Marconi is launching a preemptive strike against the heart of our case.”
Michael frowned. “What are the odds of them succeeding?”
“Ordinarily, minimal, but in light of our trial judge we cannot take anything for granted. There are two other pieces of disturbing information that I have no choice but to share with you.”
“Maria?” Michael slumped in his chair.
“Yes. She has gone on stress leave from the
university for an indefinite period and has requested that for the time being you refrain from attempting to communicate with her. I am terribly sorry, Michael. And the final piece of bad news is that Marconi served us with a Notice of Intent to Seek a Sentence of Death.”
* * *
The motion in limine was argued four days later. It was Marconi’s motion, so she went first, and wasted no time in going for the jugular. “There are persuasive reasons why the federal courts have been reluctant to authorize the use of the necessity defense. If the door were opened to this defense, it would be prone to terrible abuse. Do we want individual Americans to make their own choices about killing or harming innocent people, under the guise of necessity? Do we want anti-abortion protesters blowing up medical clinics and arguing that their actions were necessary to save the lives of unborn fetuses? Do we want ecoterrorists torching SUVs and arguing that their actions were necessary to protect the planet? Do we want to endow every individual in the United States with the power to unilaterally override government decisions whenever they disagree? Acceptance of the necessity defense in a case like this would be an invitation to anarchy.”
Klinsmann was riveted by Marconi’s argument, even nodding his head in agreement.
“Our courts have been particularly reluctant to allow defendants to take refuge in the necessity defense in political protest or civil disobedience cases. For example, time and time again anti-nuclear and antiwar protestors who committed criminal trespass or criminal mischief against nuclear or military facilities have unsuccessfully raised the necessity defense. Similarly, in cases involving everything from the disruption of naval exercises to the spray painting of government property, courts have ruled that the necessity defense is not available because of three factors. First, there is rarely a clear and compelling emergency that leaves the accused with no choice but to act. Second, there are almost always legal alternatives available to the protestors. Third, the actions of the protestors usually have little or no effect upon government or industry behavior or public policy. All three of these objections apply forcefully to the defendant in the present case. The courts have made it clear that acting upon self-proclaimed good motives is not sufficient to establish the necessity defense.”
Klinsmann looked at the DA like a proud parent. “Thank you, Ms. Marconi. Mr. Quarrington?”
“Your honor, we have heard an impassioned rejection of the necessity defense by Ms. Marconi. While I found myself impressed by the U.S. Attorney’s style and delivery, the substance of her arguments lacks merit. Worse, they display a stunning hypocrisy.
“In essence, Ms. Marconi argued that the defense of necessity should no longer be a part of the criminal law of the United States. Not only would this represent a rupture with hundreds of years of precedent under our common law system of justice, it represents a 180-degree reversal of the government’s position on this issue. Our government repeatedly invokes the concept of necessity. It was used to justify extrajudicial assassinations of suspected terrorists. It was used to justify the torture of prisoners in Iraq, Afghanistan, Guantanamo Bay, and secret CIA interrogation chambers scattered across Europe and West Asia.”
“Objection!” Marconi leapt to her feet. “Mr. Quarrington is presenting conspiracy theories as if they were factual.”
“I share your concern, counselor.” Klinsmann nodded toward Marconi. “Mr. Quarrington, you are walking a fine line. Do not cross it.”
Quarrington continued, unfazed. “Our intelligence agents were frustrated by their inability to extract useful information from prisoners through the use of conventional interrogation techniques. So they crossed the line. A secret memo prepared for former defense secretary Donald Rumsfeld by the attorney general and the Department of Justice argued that the use of torture to aid the interrogation of prisoners was necessary, and therefore legally justified, to prevent the loss of American lives.”
“Objection!” Marconi rose again. “That memo is a confidential government document, protected by executive and solicitor-client privilege from public disclosure. I urge your honor to maintain its secrecy.”
“I’m inclined to agree. Mr. Quarrington, you will not—”
Quarrington interrupted the judge. “My apologies, your honor, but this allegedly secret memo was leaked to the Wall Street Journal, and the portions I intend to quote were published by that newspaper both in print and online, thus entering the public sphere. May I proceed?”
Now Klinsmann glared at Marconi, who’d led him into making a mistake in open court, in full view of the public and the media. He waved his hand, signaling that Quarrington should resume his argument.
“Thank you, your honor. I quote, from page twelve of the memo: ‘Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law. . . . In particular, the necessity defense can justify the intentional killing of one or more persons . . . so long as the harm avoided is greater.’ The authors of the memo buttress their argument by citing the preeminent scholarly text on criminal law in the U.S., Substantive Criminal Law by W. LaFave and A.W. Scott, as well as a monograph on criminal defenses by another academic with a reasonably solid reputation.” Quarrington was referring to himself.
“Move on,” Klinsmann said. “You seem to be a long way from the facts at issue in this case.”
Shifting slightly in his wheelchair, Quarrington continued. “The Supreme Court has described the essence of the necessity defense in the following terms: ‘The peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable.’ That is precisely the situation that faced Dr. Michael MacDougall. As a medical doctor, he confronted a humanitarian disaster so horrific that his instincts cried out for action. As a volunteer surgeon, he could only save a tiny fraction of the lives that were needlessly being lost. He attempted to use a variety of legal avenues to persuade the government of the United States and this country’s corporate elite to allocate the requisite resources to prevent and treat the diseases killing African children. His lawful efforts were unsuccessful, and the magnitude of death and suffering that he witnessed firsthand made ‘a counsel of patience’ utterly unreasonable.
“Consider what Dr. MacDougall was doing in Africa. He was caring for the world’s most unfortunate, destitute, victimized people. Not for money. Not because of any contractual or employment obligation. Dr. MacDougall was there as a volunteer, providing essential medical services in brutal conditions because he valued the Congolese as fellow human beings. The doctor was trying to defend the right to life, the most basic and fundamental of all human rights. Without life itself, how can one enjoy all of the other rights, freedoms, and liberties?
“Contrary to the arguments of my friend Ms. Marconi, the necessity defense does not legitimize lawlessness or anarchy. Instead, it allows the jury to distinguish between necessary and unnecessary illegal acts, recognizing that the overwhelming majority of illegal acts are not necessary and cannot be reasonably justified.
“Establishing the necessity defense often requires the production of expert testimony to establish the underlying crisis or emergency and the presence of imminent harm. For example, when twenty-nine concerned citizens were charged with criminal trespass in their campaign against a plan to build a hazardous waste incinerator near a primary school in Ohio, they were allowed to present several public health experts. Experts testifying for the defense in that trial included the Chair of the School of Public Health at Boston University, a world authority on (or regarding) the impact of toxic exposures on young children.
“Two further points bear consideration. First, it is a fundamental principle of the American Constitution that a defendant has the right to be tried by a jury of his peers. This is a cornerstone of our legal system, to ensure that the people of America, not a single judge, are the final arbiters of freedom and justice. In the words of Thomas Jefferson, ‘I consider the trial by
jury as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.’ Precluding Dr. MacDougall’s right to present evidence in support of the necessity defense would violate his constitutional right to a jury.
“Second, the case law is clear that the judge must allow the necessity defense to be presented to the jury whenever there is ‘some evidence’ to support it. And that evidence ‘must be viewed in the light most favorable to the accused.’ Applying these legal standards to the present case leads inexorably to one conclusion: the necessity defense must be presented to the jury for their consideration and judgment. Those are my submissions, your honor.”
“Thank you both for your capable advocacy.” Klinsmann was polishing the record in case his decision was appealed. “Having studied your written briefs and listened to your oral arguments, I am prepared to issue my ruling immediately, in the interests of expediting the trial.”
Neither Marconi nor Quarrington was surprised. Mad Max was known for shooting from the hip.
“I am persuaded by Ms. Marconi that there is a very real danger of turning a formal criminal proceeding into a debate about politics. It is Michael MacDougall who is on trial here, not American foreign policy. At the same time, I am aware of the central importance of the jury in our criminal justice system and am reluctant to usurp their duties. Therefore, I will permit the defense to make arguments regarding necessity. However, I will impose a limit of two witnesses to provide supporting evidence, including the defendant himself.”
“Your honor,” Quarrington said, “such an arbitrary limit will hamstring the ability of the defense to make its case.”
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