Justice Returns

by William Bernhardt

  Frank left, and Oz took the seat at the opposite end of the table. I gave him my best smile. “How you holding up?”

  “No one’s killed me yet. Though several have offered. I keep to myself.”

  “You should’ve stayed in solitary.”

  “I’m a social animal. You have no idea how painful that would be.”

  Less painful than a shiv to the ribs, I thought, but I kept it to myself. “I know you were disappointed that we didn’t get bail, but the truth is it was probably for the best.”

  “I’m having a hard time seeing that.”

  “Even if the magistrate set bail, it would’ve been so high you couldn’t have made it. Or it would’ve wiped you out financially if you did.”

  “I have friends.”

  “I doubt if you have any with pockets that deep. And if some political organization posted bail, the press would’ve gone crazy with it.”

  “I don’t care what the press says about me.”

  “I do,” I said, plopping my briefcase onto the small table. “And you should. Because every potential juror out there is probably getting some information about this case, one way or the other, and even if they tell the judge it hasn’t impacted their ability to be fair, the truth is everything impacts their ability to be fair. Most of us are not sufficiently conscious of how we reach a decision to say what influences us and what doesn’t. Or to put is more succinctly, everything matters.”

  “You should’ve gotten some kind of gag order.”

  “Tricky little thing called the First Amendment usually gets in the way.” I pulled some folders out of my briefcase. I probably didn’t need them. But I wanted him to see that I’d done the work, I was on top of this, and he was in competent hands. “We have to make a decision about our defense strategy.”

  “Do you have to announce our defense tomorrow?”

  “No. We’ll be lucky if we get past jury selection tomorrow. But eventually I will have to give an opening statement.”

  “Can’t you wait till we put on our case?”

  “I could, but it would be incredibly stupid, so I won’t be doing that. You don’t want the prosecutor to have days to fill the jurors’ heads with uncontested baloney. You want to tell the jury right up front that we have a different theory of what happened so they can keep that in the back of their brains while he’s talking.”

  I could see his eyes widening slightly, the corner of his lips beginning to twitch. “I’m not going to enjoy this much, am I?”

  “Not while the prosecutor is putting on his case, no. I’ve seen his so-called evidence. He’s going to paint you as the world’s worst terrorist minion, more than capable of executing a cold-blooded assassination.”

  “I’m the victim here!”

  “And I will bring that out, when I get a chance. Thrillkill will probably allude to your interrogation. He’s too smart to leave it to me to mention for the first time. He’ll suggest that your prior incarceration is proof of your terroristic leanings. Not to mention a motive for murder.”

  “And what are we going to say in response?”

  Here’s where things would get sticky. “We have several choices.”

  “I hope ‘not guilty’ is one of them.”

  “It is. But ‘not guilty’ has several flavors. Including ‘not guilty by reason of insanity.’”

  “You want me to claim that I’m crazy?”

  I tried to maintain a measured tone. “I want you to consider it as a strategic possibility.”

  “I’m not crazy.”

  “Trials are about putting on the best case. Sadly, they are not about truth.”

  “I thought that was the whole point.”

  “You were wrong. Trials are a means of dispute resolution. Better than trial by combat, but still deeply imperfect. Trials are won by strategy. Anyone who goes off on a rant or a crusade or thinks they’re fighting for truth, justice, and the American Way is probably going to get crushed like a bug.”

  “I’m not crazy.”

  I removed a folder from my file. “I’ve read the psychiatric evaluation. There’s enough there. We could make it fly.”

  “Make what fly? Telling the jury I’m nuts?”

  “Telling the jury that being subjected to twenty-one days of incarceration, abuse, and torture unbalanced your mind. You had already been diagnosed with PTSD. Personally, I’d love to get that before a jury.”

  “What would happen?”

  “There’s still been no serious legal challenge to the rendition and interrogation passages of the Patriot or Freedom Acts or the torture and torturelike policies implemented after it was passed. I could make you sound extremely sympathetic.”

  “And extremely crazy.”

  “I think our theory would be irresistible impulse. It’s a form of insanity defense that suggests that, sure, most of the time, you’re perfectly sane. But something happened that caused you to snap. You were powerless to prevent your actions.”

  “And what happens if you make that fly? I get off scot-free?”

  “No. But your sentence would be less severe. And you might serve it in a mental institution. Which I can assure you would be less harsh than the prison system.”

  “How long would I be there?”

  “I can’t predict. To some extent, it would depend upon your supervisors.”

  “So you don’t know.”

  “I have many skills, but fortune-telling isn’t one of them.”

  “And you think this is what I should do?”

  I considered each word carefully before I spoke. “I think it’s your safest shot. The evidence against you is strong. You were found at the scene of the murder of a man you openly despised. You were found with the gun in your possession.”

  “I didn’t do it.”

  “But this is a solid strategy.”

  “No. Absolutely not.”

  “At least think about it.”

  “I will not lie. I will not pretend I did a horrible thing I did not do.”

  “Do you want to ask Mina? See what she thinks?”

  “I’m . . . not speaking to her right now.”

  Really? How do you break up with someone when you’re in prison? “How about Kir?”

  “He’s just a kid. He doesn’t know anything.”

  “Julia then?”

  “I’m not crazy, and I didn’t kill Nazir. I won’t pretend otherwise. That’s the coward’s way out.”

  God save me from misplaced machismo. “Oz, this is not the time to play John Wayne. This is the time to tuck tail and give yourself some kind of future. You’re a defendant and—”

  “I’m a freedom fighter.”

  “Which some people translate as ‘terrorist.’”

  “This country was founded by freedom fighters. Some of whom committed acts that the British labeled terrorism.”

  “Ancient history.”

  “Is it a crime to have strong political beliefs?”

  “Depends on what you do about them.”

  “These are desperate times. We’re at war.”

  “And war never solved anything.”

  “What kind of dewy-eyed sentimentality is that? We may wish there were better ways of—what was your term?—dispute resolution. But you can’t pretend war never accomplishes anything. This country was founded by war. There wouldn’t be an America without war. Blacks would still be slaves but for war. Nazi Germany would control Europe but for war.”

  “We’re getting too far afield from the problem at hand. This is a murder case. We’ll be better off if we leave the politics out of it.”

  “Stop being so naive. This case is all about politics. The government was humiliated by 9/11, so it’s employing unconstitutional fascistic policies and justifying it with fearmongering.”

  “This is exactly the kind of rant that would destroy you in court.”

  “We’re up against the enemies of freedom, Ben. They framed me because they want to destroy everyone who opposes them. This is
how they get me, and probably all of PACT, out of the way.”

  “This is a murder trial. Pure and simple.”

  “There is nothing simple about it!” Oz’s shout rocked the room, so loud I saw the guard outside turn his head. I wanted to tell Oz to calm down, but it was pointless. “These people want to destroy me! They want to wipe me off the face of the earth!”

  I tried to calm him. “I don’t know what the CIA wants. But they will not be the jury box.”

  “They’ll get to the judge. Maybe the jury, too.” He trembled like a man in a hurricane.

  “No, they won’t. I know this judge, and while he’s not the perfect choice, he’s certainly no CIA tool.”

  “They’ll find a way.”

  “That defeatist paranoia won’t help. We have to pick a defense.”

  “How can they prove I did something I didn’t do?”

  “Sadly, wrongful convictions happen all too frequently.”

  “Doesn’t the prosecutor have the burden of proof?”

  “In theory. But in practice, many, if not most, jurors think that prosecutors wouldn’t bring charges unless they were certain of the defendant’s guilt. They assume the prosecutors know more than they can say at the trial. They’ve seen too many Law and Order episodes where judges make irrational rulings that suppress evidence. If we hope to win, we have to do more than just say ‘not guilty.’ We need a theory of our own. We have to put on the SODDIT.”

  “Excuse me? What?”

  “SODDIT. It’s an acronym. Some Other Dude Did It.”

  “Like who?”

  “That’s the problem. I don’t have a halfway-likely suspect. Who could I make look guiltier than the guy who was caught with the gun in his hand.”

  “You’re smart. You’ll think of something.”

  “I’m not that smart. And I already told you what I think we should do.”

  “Well, we’re not doing that.”

  “Oz—”

  “Please.” He squeezed my hand so tightly it left impressions on my skin. “I’m all alone here. Help me.”

  He broke down completely, weeping and shaking like an infant. I walked around the table and held him in my arms. I knew the guard wouldn’t like it, but I didn’t think he’d interfere. He’d been around enough to know what people like Oz went through. He wouldn’t be a jerk about the contact rules.

  “I will do everything I can for you, Oz. That’s a promise I made you before, and it still stands.”

  “I’m going to die, aren’t I? They’ll give me that injection that tortures people to death while they can’t even scream.”

  He clutched me tight, tight as possible, so tight we were practically one.

  I wasn’t going to lie to him. “I can’t make any promises about the result, Oz. But I can promise this. Christina and I will make sure you get a fair trial. When you go before that jury—you will not be alone.”

  30

  The gavel striking the bench never fails to make my heart skip. It’s a melodramatic and completely unnecessary gesture, but it works. If anyone doubted the gravity of what was to follow, it would not be for long.

  Judge Santino peered through the reading glasses perched precariously on the tip of his nose as he read the case style. “The United States v. Omar al-Jabbar, Case Number FJ-49-1886S. The court is now in session. Please note on the record that the parties are present and represented by counsel. I will ask counsel to enter their appearances at this time.”

  And so began the mindless rigmarole that kicks off the modern-day trial. There is a reason why TV lawyer shows leave all this out. It’s tedious. Nerve-racking, when you realize this is the prelude to a determination of whether another human being continues living. But still an endless succession of eminently skippable stuff. Some is required by law, but most is simply habit and routine, lawyers jumping through hoops devised in the Victorian era or earlier, repeated today primarily because no one has the creativity or initiative to do it differently.

  Judge Wayne Santino came out of the JAG court and was later appointed to the federal bench. He had a no-nonsense, take-no-prisoners judicial style. He was conservative by nature and appointed by a Republican administration. That wasn’t typically the best judge profile for the defense, but the truth was, I liked Santino. He called lawyers on their BS, regardless of which side they were on. He didn’t allow anyone to waste his time. And most of his vehemence seemed directed not at defendants, but at lawyers. He had no tolerance for litigation pollution, motions practice, or discovery disputes. A judge after my own heart. The military background was troublesome, but given how much press coverage this case was getting, I knew he’d be on his best behavior.

  “Roger Thrillkill for the United States.” My opponent then introduced his six assisting attorneys, including the woman who represented the CIA. It appeared the government was sparing no expense on this one.

  “Ben Kincaid for Mr. al-Jabbar,” I said. Christina introduced herself.

  Oz looked good, well scrubbed and well dressed. If you didn’t know, you’d never guess that only an hour before he’d been wearing orange coveralls and shackles. Christina spent a fair amount of time selecting his trial wardrobe, mostly blue suits and white shirts. Nothing too exciting, but certainly nothing that would seem criminal or radical or terroristic. The tie he wore was even more boring than the one she’d chosen for me.

  Profound human insight was not required to see the strain behind the suit. Which was good, because I’ve never been a person of great human insight. Other people baffle me. But I couldn’t help but notice the dark circles beneath his eyes, the tense posture, the constant crossing and uncrossing of his legs. He was doing his best to contain his anxiety. But there was only so much a human being could do when his life was on the line.

  The judge peered up from his paperwork. “Are there any matters that need to be addressed before we select a jury, Counsel?”

  Motions were generally made outside the presence of the jury lest they be influenced by something the lawyers said in argument. Thrillkill made some motions that were denied, then I made some motions that were denied. It was all a waste of time, particularly in a high-profile case where the judge wasn’t going to do anything controversial that might create reversible error. But lawyers had to cover their tracks. If they missed a hoop, some after-the-fact losing party might say counsel was incompetent. On appeal, the record needed to show that the trial judge was given a full opportunity to rule in your favor on anything of importance. So Christina and I brought up anything that could possibly be of importance.

  Thrillkill tried to suppress some evidence, all without success. The judge would never let me appeal based on the suppression of evidence that might help Oz. I made a motion to dismiss based on insufficient evidence. The judge predictably said he would rule on the motion after the prosecution presented its case. I felt stupid making the motion, even though I had to do so. The gun was found on Oz, for crying out loud.

  I also made a motion to exclude all discussion of politics and political leanings. “We live in America, Your Honor, and the First Amendment guarantees us the right of assembly and freedom of speech, most especially for political speech. It’s completely inappropriate to allow someone to imply wrongdoing based on a party’s beliefs. If the court lets the prosecutor do that, we’re back in the McCarthy era.”

  Thrillkill replied in a flat tone. He saved his energy for when it mattered. “Goes to motive, Your Honor.”

  “Which we all know is not actually an element of this crime,” I replied. “Nor part of the prosecutor’s burden of proof.”

  “But it goes a long way toward convincing a jury,” Thrillkill answered, “as we all also know.”

  “That’s no excuse for violating someone’s constitutional rights.”

  The judge raised his palm, cutting off the less-than-scintillating debate. “The motion will be denied. If you hear anything inappropriate during the trial, you may object or renew your motion and I’ll rule on spe
cific instances. But I will not issue a blanket prohibition. The First Amendment guarantees the freedom to speak, but it does not absolve the speaker from the consequences of his speech. If the defendant’s remarks or associations are of probative value, they are unlikely to be excluded.”

  And so it went. I tried not to take it personally, because I knew this was a lame argument from the get-go. But something about the judge’s demeanor bothered me. Did he really curl his lips when he mentioned Oz’s “remarks or associations,” or was it just my imagination? I recalled what Oz had said before about the CIA “getting to” the judge. I didn’t believe it then.

  Or, perhaps, I didn’t want to believe it.

  The judge dispensed with the remaining motions, and we slogged through more nonsense that no one cared about. Finally, it was time to select the jury.

  In state court, this could take forever, and in a capital case, it could take forever and a day. Federal courts tend to keep the questioning in check. The judge has the right to do all the questioning himself, and Judge Santino did. Counsel can submit suggested questions in writing. The fact that they are written and submitted in advance usually prevents lawyers from engaging in the tricks and ploys that exacerbate the process, inquiring into personal matters or trying to subtly introduce themes favorable to their case.

  Most trial lawyers hate having judges do the questioning. I much prefer it. This relates back to not deluding myself that I possess keen insight into people. The idea that we can predict how these randomly chosen driver’s licenses will vote based on a series of questions is preposterous. Sometimes lawyers need to get out of the way and let the process take its course. This was a good example. There is no evidence whatsoever that extensive voir dire produced more favorable jurors. Too often it degenerates into stereotypes, trying to eliminate members of a particular race or gender or socioeconomic class. Better to let the judge handle it, eliminate the few obviously biased, and get on with the show.

  The standard questions always include something designed to root out antigovernment or anti–law enforcement biases and looking for anyone with negative past experiences. This time, the questioning was expanded to include negative experiences with foreign nationals, political advocacy groups, and terrorism. None of the first eighteen took the bait, but the questions must have aroused their curiosity. I also managed to get in a question hunting for bias “against people of foreign faiths, including but not limited to the Muslim faith.” Two people actually raised their hands on that one. I made a point of removing both from the panel first chance I had.