“In every family there is resistance to talking about family problems and dysfunction and secrets,” said Bryan Stevenson, the Alabama lawyer who appealed the Hinton and Jones cases. “The whole challenge in criminal defense is to create a dynamic to get past that and get people to talk about abuse.… That’s a very different kind of cultural reality for a lot of lawyers. A lot of lawyers feel, ‘I’m sitting in this bad neighborhood and I’m doing this for them, and if they don’t want to cooperate, I’m gone.’ What we learn is that once you actually position yourself as someone who is prepared to listen, someone who is prepared to care, someone who is prepared to help, people are prepared to talk to you.… What I love about mitigation work is that it can give voice to a family’s plight, a community’s plight. It can be therapeutic.”
This spirit of inquiry is now woven into case law, but only tentatively. Had Alito risen to the high court sooner, Rompilla would be dead: Alito’s appeals court opinion was reversed by only a one-vote margin on the Supreme Court.40 Such mitigation efforts, often derided as “abuse excuse,” are now mandated. In capital cases, at least, going through the motions is not enough. To preserve the Sixth Amendment, defense attorneys have to dig effectively.
WITHOUT REPRESENTATION
A good defense lawyer is essential to justice but not to “justice” as in President George W. Bush’s repeated pledge that terrorists would be “brought to justice.” His administration tried to avoid the inconvenience of attorneys doing what they do: telling clients not to answer questions, filing motions in court, challenging government witnesses, summoning evidence for the defense, and complaining about abuse behind bars. The culture of contempt for the adversarial system reached from terrorism to white-collar crime.
The hundreds of Muslim men jailed in the Ashcroft Sweeps after September 11 were hidden and moved among scattered prisons in the United States. Their families weren’t sure where they were, and lawyers couldn’t always find them. Attorneys who visited a jail were sometimes told by officials at the gate that their clients were not there, when they were right inside.
John Walker Lindh, a young American captured as a Taliban fighter during the war in Afghanistan, asked repeatedly for a lawyer to no avail, although the FBI and the Pentagon knew that his family had hired one of the best in the business, James Brosnahan, who had contacted authorities with multiple requests to see him. Lindh didn’t even know he had a lawyer, because a letter Brosnahan sent to him via the Red Cross was blocked by the U.S. government; the attorney and the client did not meet until fifty-four days after Lindh’s capture, a long while after he was questioned without counsel.
A convert to Islam, Lindh had journeyed to Afghanistan in the summer of 2001, a time when the United States was still cultivating relations with the Taliban. His motive, he insisted, was to fight for a pure Islamic state—not against his own country, which had not yet invaded, but against the Northern Alliance, which only a few months later became an American client. After Lindh and the remnants of his Taliban unit surrendered toward the end of 2001, they were imprisoned and staged an uprising in which a CIA agent was killed.
In U.S. custody in Afghanistan, Lindh was abused and interrogated again and again. Although a hospital stood five hundred yards away, his shrapnel wounds were not properly treated, a bullet was left in his thigh, and he was described as delirious. Kept naked, blindfolded, taped to a stretcher, and locked in a dark shipping container, he made self-incriminating statements that later formed the basis for a criminal case. Some of these were extracted by an FBI agent under instructions to ignore legal advice to refrain from questioning him without his lawyer, advice that had been provided upon request by the Justice Department’s Professional Responsibility Advisory Office.
The breach contaminated the case so badly that Justice Department officials removed relevant e-mails from the file being turned over to the judge, and then hounded and threatened the government attorney who had advised against questioning Lindh.41
On the eve of a hearing to suppress his statements, the government offered a plea bargain that would drop terrorism charges and lower the maximum sentence from life to twenty years. He would plead guilty to supplying services to the Taliban and to carrying an explosive during the commission of a felony and would agree to provide information in other cases. He would declare, disingenuously, “The defendant acknowledges that he was not intentionally mistreated by the U.S. military.” He would also live the rest of his life under the threat of being designated an enemy combatant, a novel tactic at the time, but one used later to threaten defendants into guilty pleas.42
Lindh agreed. Brosnahan didn’t think he had much chance before a jury where the government had chosen to try him—in the Pentagon’s neighborhood, the Alexandria district of Northern Virginia, which became a favorite venue for major terrorism trials. “I thought we could get some acquittals” on certain counts, he said, but with convictions on two or three of the charges “he’d get life in prison, or forty years.” In addition, “our reading was that we were not going to get a lot of pretrial help” from the judge in suppressing coerced statements or allowing Brosnahan to interview potentially supportive witnesses being held at Guantánamo Bay, where the government didn’t want lawyers roaming around at all.
Terrorism suspects at Guantánamo were finally allowed to see attorneys under court order, an annoyance to the Pentagon’s assistant secretary for detainee affairs, a former navy lawyer named Charles Stimson. He let the Bush administration’s culture of contempt for legalities slip briefly into view when, in a radio interview, he named more than a dozen law firms that were sending attorneys pro bono to Guantánamo and slyly suggested a boycott: “I think quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hurt their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms.” An uproar of outrage followed. Law school deans wrote in protest, and corporate clients including General Electric and Verizon endorsed their law firms’ Guantánamo work. Exactly three weeks later, Stimson was out of his Pentagon job and on his way to the conservative Heritage Foundation, where he was treated as an expert on national security and the law.43
In more genteel arenas, too, the law-and-order ideologues tried to undermine the vigor of legal defense. For some years, corporations under investigation for white-collar crimes were presented by the government with an unpalatable choice: either the companies could face prosecution as corporate entities, or they could throw their employees overboard by refusing to pay their legal fees, and also waive attorney-client privilege to allow their company lawyers to turn over all internal research on the alleged crime.
The policy was laid out in a 2003 memo from Larry Thompson, deputy attorney general, who urged his subordinate prosecutors, “in determining whether to charge a corporation,” to consider “whether the corporation appears to be protecting its culpable employees … through the advancing of attorneys fees,” and whether the company shows cooperation by issuing “a waiver of the attorney-client and work product protections, both with respect to its internal investigation and with respect to communications between specific officers, directors and employees and counsel.”44
That broad grant meant that an employee who was required by company rules to cooperate with a firm’s attorneys in an internal investigation could find all of his communications with his company’s lawyers relayed to prosecutors. The company’s lawyers were supposed to warn him that they represented the company, not him, but many a worker got a nasty shock when the feds came rolling around. Furthermore, because of Justice Department threats, he might have to pay for his own lawyer if his contract didn’t require his employer to do so. And the complexity of white-collar crime makes the defense costly; legal fees for one executive who was found not guilty ran to about $2 million, his lawyer said; luckily, he was covered by insurance. Without financial backup, many employees simply plead guilty.
> Corporations are highly motivated to avoid prosecution, for “in many fields a criminal case is a death penalty case for a company,” said Robert Luskin, a prominent attorney in Washington, D.C. The firm can no longer get government contracts, and if it depends on them, he noted, “it can be the end of the company.”
In effect, the government tried to get the corporations to do the investigations, but some thought the approach self-defeating. “Anyone who talks to a lawyer knowing that a lawyer may turn the information over to the government is going to be more guarded,” said an attorney who has worked on both sides—a decade as a Justice Department prosecutor, and now defending the accused. “Maybe in the short run you learn more about the companies, but in the long run you impede the truth-seeking process. I think it’s born largely of an arrogance that the Justice Department is always able to determine and seek out the truth and everybody else—companies and their lawyers—are out to obscure the truth.”
After a federal judge ruled the government practice unconstitutional, and following complaints from the corporate legal community, the policy of pressure was abandoned in December 2006. The Thompson Memorandum was superseded by the so-called McNulty Memorandum instructing that “prosecutors generally should not take into account whether a corporation is advancing attorneys’ fees to employees,” nor should officials “request” waivers of attorney-client privilege for the sake of mere convenience.45 Later, the judge dismissed criminal charges against thirteen employees whose accounting firm, KPMG, had been forced by the government to deny them funds for legal defense. The dismissal was upheld by the Second Circuit, which found that the Sixth Amendment right to assistance of counsel had been violated.46
This was a telling episode of government overreaching—and by conservatives who supposedly valued tight limits on the power of the state. It reflected a view that lawyers could be complicit in crime, both the corporate and the terrorist variety.
Officials were driven by worries that dangerous prisoners might use lawyers to pass messages to confederates outside. So some inmates inside the United States were shackled by the federal Bureau of Prisons’ Special Administrative Measures, which subjected even attorney-client mail and conversations to monitoring when “reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism.”47 The Justice Department followed up with tough enforcement in the case of Lynne Stewart, who had defended radicals throughout her career. She was prosecuted, convicted, disbarred, and sentenced to twenty-eight months in prison for acting as a conduit of communications to and from her jailed client Omar Abdel Rahman, the so-called blind sheik convicted of plotting to blow up the United Nations building and other New York landmarks. The jury found that she had conveyed his instructions to his organization in Egypt, the Islamic Group, to end a cease-fire.
Some lawyers took this as a more general threat from the government, and some sensed that they were under surveillance: Papers were dislocated on desks, files seemed out of place. A few reported menacing warnings. Karen Pennington, a Dallas lawyer who defended Arabs in immigration and criminal cases, quoted a government attorney with the immigration service (whom she refused to name) as saying “that I am putting my citizenship at risk by representing these people, that I am providing material support to terrorists by providing legal counsel. And my family moved to the Dallas area just after the Civil War!”
Some were reluctant to represent accused terrorists, but others fought fiercely for the right to do so. I met with one of them, Andrew Patel, the day before he flew to Charleston, South Carolina, to visit his client Jose Padilla for the first time.
Padilla, a native-born U.S. citizen, had been arrested on American soil first as a material witness, which is why he had been assigned a lawyer by the court, but was then designated an enemy combatant by Bush and was secretly transferred from a civilian jail in New York to military custody in the naval brig in Charleston. The White House asserted its right to keep him locked up indefinitely without formal charges and without access to courts or lawyers. For twenty months, he had not been allowed any outside contact and had no idea that his appointed attorneys, whom he had never met, had filed brief after brief until they reached the Supreme Court, which they hoped would grant a writ of habeas corpus so that he could get before a judge.
Only on the verge of the Court’s decision on hearing the case did the government suddenly resolve a key dispute by inviting Patel and a colleague to see Padilla, but under certain conditions: he could not ask Padilla how he had been treated (recall that Padilla later claimed to have been drugged and tortured), and the military would record the conversation with an officer present.48
Such a breach of attorney-client privilege exceeded anything Patel had experienced, even in representing defendants charged with monstrous crimes. Therefore, the lawyer planned to do all the talking. He shipped twenty pounds of legal documents to Padilla in the brig to bring him up to speed, but wouldn’t let him say anything during the monitored meeting. “My career has been spent as a criminal defense attorney, which means I deal with aberrant human behavior,” Patel remarked. “Usually, it’s aberrant behavior by my clients, not by the government.”
CHAPTER FOUR
The Tilted Playing Field
I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.
—Thomas Jefferson
THE POWER OF THE PROSECUTOR
IMAGINE A SOCCER MATCH unseen by referees. They pick the winner afterward, but there is no tape of the game. They study still photographs and listen to the accounts of players and fans, then try to assemble the fragments of information into a mosaic depicting the plays, fouls, and goals as accurately as possible.
Unfortunately for the refs, most of the snapshots are provided by the home team, and while it’s supposed to offer photographs favorable to the visitors as well, many of those are withheld, at least until it’s too late for careful examination. Further, the refs may not realize that some of the “trustworthy” witnesses to the game have been given season tickets by the home club. Finally, a peculiar rule holds that every foul committed against the home team counts toward the home team’s score, even if the refs have only a strong hunch that the violation occurred and cannot prove it beyond a reasonable doubt.
In something of the same manner as this imperfect metaphor, the criminal justice system seeks truth and levies punishment. It gives the home-team advantage to the executive branch—the police and prosecutors who wield immense discretion to choose what crimes to charge, what pleas to accept, what evidence to present, and what unproven fouls to cite in advocating enhanced penalties.
Perhaps the judges and jurors who referee the adversarial process get it right most of the time. Perhaps they don’t send innocents to jail in huge numbers or routinely impose egregious sentences. Yet even if injustice were uncommon, it would be no more tolerable than the unusual plane crash, the rare school shooting, or the atypical death from medical malpractice. An aberration is not benign, especially when it derives from systemic flaws. And these injustices are deeply embedded in rules and laws and standard practices.
They lie on the same spectrum as the dramatic seizure of power by the executive branch in times of war, for just as national security threats enhance executive authority, so do criminal threats. During the Civil War, President Abraham Lincoln suspends habeas corpus, that venerable principle allowing the prisoner to summon his jailer to court. After 9/11, President George W. Bush unilaterally eavesdrops without warrants and imprisons without indictment. And less visibly but more pervasively, the prosecutor also circumvents the courtroom and tilts the playing field. To coerce guilty pleas, she is allowed to withhold exculpatory evidence, hide witnesses’ unreliability, and threaten long jail terms to intimidate defendants into waiving their constitutional right to trial. At sentencing, she can get penalties increased by presenti
ng evidence that has been suppressed, not proven, or actually rejected by jurors.
The right to “an impartial jury” as prescribed by the Sixth Amendment occupies a revered place in the Western legacy of justice. From Athens, which assembled a jury of some five hundred for the trial of Socrates, the concept passed to early Rome with jurors drawn from the ranks of nobles, and into the Magna Carta’s guarantee that “no freeman is to be taken or imprisoned … save by lawful judgement of his peers or by the law of the land.” That promise and its breach contributed to the ideals and the resentments that fueled the American Revolution. When the Crown sought to control trade by imposing duties and requiring cargo to be shipped in British vessels, the jury stood as a bastion of defiance, nullifying the hated laws by freeing colonists accused of violations. So Britain created special courts to try the commerce cases without juries, and in the process inflamed rebellion.
The revolutionaries understood that rank-and-file citizens of an orderly democracy can hold decisive authority in only two ways—as voters and as jurors. Only by stepping into the jury box do they gain power in the cloistered hierarchy of the court and, once there, check the autocratic impulses of the police, the zealous temptations of the prosecutor, the compliance or corruption of the judge.
The jury is a human institution, imperfect but indispensable. If all twelve jurors in every case were flawless, the jury room would be as intellectually clean as a sterile operating room, free from the impurities of emotion, illogic, assumption, sloppy thinking, racial bias, and other contamination. No trial is antiseptic, yet the jury remains the obstacle between the vast authority of the state and the vulnerability of the individual at the brink of losing liberty, “the grand bulwark,” in the words of Sir William Blackstone, the esteemed scholar who codified English common law.
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 15