Sunday, February 4, 2018

When is a defense lawyer not a defense lawyer?

A disturbing drama has been playing out, largely behind the scenes, in connection with the prisoners still held at Guantanamo Bay, Cuba. I will not take the time to set out the whole history of the placement of U.S. prisoners at the U.S. military base in Cuba. A brief summary can be found here. History

The short version of this story is that the lawyers for a man whom the United States Government seeks to execute have resigned because they discovered that the prosecution has been eavesdropping on interactions between defense counsel and their client, and has been seizing confidential documents. So, when is a defense lawyer not a defense lawyer? When he or she represents a client before a military commission.

Since 2002, the United States has been holding prisoners from the middle east conflict at the U.S. Naval Station in Guantanomo Bay. The peak population was 684 in June of 2003. Today, there are 41 detainees there. Seven of them have been charged with offenses in the military commission system. One of them is Adb al-Rahim al-Nashiri, who has been charged in the 2000 bombing of the USS Cole. The bombing killed 17 US sailors and injured 39 others.

The government is seeking the death penalty against Mr. al-Nashiri. In October, General John Baker, the supervising attorney for Mr. al-Nashiri’s counsel, agreed to a request from his civilian defense team to resign from the case. The lawyers who resigned included Indiana lawyer Rick Kammen, who had been under contract with the Marine Corps as “learned counsel.” That term refers to a lawyer experienced in federal death penalty proceedings. The other lawyers who resigned are civilian employees of the Justice Department. The law requires “learned counsel” in any federal death penalty case. (18 U.S.C. §3005.) But Mr. al-Nashiri is not being prosecuted in a federal court. Instead, he is being tried before a military commission. This tribunal was authorized by Congress after the prisoners were placed at Guantanamo Bay. The military commission process is much less rigorous than a federal trial. It includes more relaxed restrictions on hearsay evidence, and less availability to the defense of evidence to be used by the government.

The issue which prompted the resignation of Mr. Kammen and the two civilian defense department lawyers was their discovery that the government had been eavesdropping on their conversations with Mr. al-Nashiri. This was not the first time this problem had emerged in the military commission process. In March of 2017, during pretrial hearings for defendants alleged to have planned the September 11, 2001 attacks, lawyers for those defendants asked for information about the surveillance of defense work by government intelligence agencies. They described surveillance devices in rooms where attorneys met with their clients, the placement of an FBI informant within one defense team, and the discovery that an individual unrelated to the defense had access to documents supposedly served on secure servers.

After the al-Nashiri lawyers resigned, the presiding military commission judge ordered Gen. Baker to rescind the resignations and require the civilian attorneys to appear before the commission. Gen. Baker refused to do so, and the judge found him in contempt and sentenced him to 21 days’ confinement. The sentence has since been suspended, but the conviction remains. The civilian lawyers have not reappeared. The only military lawyer (Lt. Alaric Piette) in the case has appeared, but he is not qualified to act as learned counsel and has resisted participating in hearings.

In January, the hearings reconvened. The judge directed Lt. Piette to engage in “self-help” to prepare for trial. He also instructed the prosecutors to continue their efforts to obtain the presence of the two civilian DOJ lawyers. The defense argued that the learned counsel requirement applies to the military commission process. But the judge ruled that learned counsel was not required if it was not “practicable” to obtain one. Prelimary witnesses were presented, but Lt. Piette declined to cross-examine them. More information about this most recent session can be found here: Lawfare

The United States system of justice is threatened in two ways by this scenario. First, the right of defense counsel to confidentiality is central to the adversary system. The government, of course, contends that Mr. al-Nashiri is so dangerous that even his communications with his defense lawyers could harm national security. But if he is to have a fair trial, his right to confidential communications with his lawyers must be preserved. The issue of recordings of confined defendants’ communications with their counsel has been discussed here previously, and continues to be a live issue in the mainland U.S. as well as in Cuba. In fact, the U.S. Tenth Circuit is now considering a government motion to quash subpoenas of the Kansas U.S. Attorneys’ employees in a case involving prosecution monitoring of jail conversations. KCUR

Second, the right of counsel to insist on their client’s interest is also inviolable. Counsel cannot be forced to violate their ethical responsibilities to their client. Gen. Baker and Lt. Piette are to be commended for their devotion to their client and to the rule of law. We can only hope that their actions will expose the second-class military commission system for the travesty of justice that it is.

Thursday, January 18, 2018

As I have said before, it’s easy for lawyers to cheat. And very tempting. This is a consequence of the great power lawyers have. And it is an issue we must address, both for the sake of the justice system and for the welfare of our souls. Recent events provide another instance of how cheating by prosecutors distorts the justice system.
On December 20, 2017, the United States District Judge for the district of Nevada declared a mistrial in the then-pending case against Cliven Bundy and three others. The charges the men faced were conspiracy and assault, arising out of an armed confrontation with federal agents over control of public lands, which Mr. Bundy and his cohorts reject. The government indicated it wanted to retry Mr. Bundy and his co-defendants. But on January 8, 2018, the district judge granted the defense motion to dismiss the case with prejudice, meaning that it cannot be retried. Mr. Bundy, who had been in custody, was released.
"The court finds that the universal sense of justice has been violated," Judge Gloria Navarro said. The violation was the failure of the government to fulfill its obligation to provide information in its possession that was relevant to the defense. The government admitted it had omitted information; the prosecutor said that he “culled the database with witness protection in mind” because he thought leaks of information might lead to threats against witnesses. The trial judge called this a “reckless disregard for Constitutional obligations.”
The misconduct came to light when Larry Wooten, an investigator for the U.S. Bureau of Land Management who had been assigned to investigate the events surrounding the confrontation between the Bundys and the federal agents. Mr. Wooten says that he was removed from the investigation after he complained to the U.S. Attorney about government misconduct. You can read his memo here. Wooten memo.If you don’t want to go through the whole 18 pages, a good summary is here. Oregon Live Among other things, he says, “As the investigation went on, it became clear to me that my supervisor wasn’t keeping the U.S. Attorney’s Office up to date on substantive and exculpatory case findings and unacceptable bias indications.” Of course, one of the responsibilities of a prosecutor is to disclose to the defense any exculpatory evidence in his or her possession. And the prosecutor is held accountable for any such information in the possession of anyone on the prosecution team, whether the prosecutor is aware of the information or not.
To their credit, the prosecutors disclosed Mr. Wooten’s memo to the defense. The motion to dismiss followed. The government has 60 days from the date of dismissal to appeal; it has taken no action as of the posting of this article.
But the damage to the justice system has been done. Here’s the way the National Review sees it:
In April 2014, America was transfixed by an armed standoff in the Nevada desert. On one side was a collection of dangerous, out-of-control armed men who were deliberately provocative, prone to saying unhinged things in a single-minded quest to destroy their enemies, and who lied time and again to cover their misdeeds. On the other side was Cliven Bundy.
Mr. Wooten points out that he is no fan of the Bundys. Nor is the National Review: “He broke the law. He defied the government without any legal justification, and his own conduct helped precipitate a crisis that could have led to a horrible tragedy. Bundy was wrong.”
Why does this happen? As a former prosecutor, I can attest that prosecutors do not all have horns and pitchforks; they are not, simply, evil. Two causes come to mind. The first is ego. The prosecutor wants to win his or her case, and if skirting the rules can safely be done to make it easier, then the prosecutor will do it. In a case I read recently that was reversed for a Missouri discovery violation, the prosecutor explained his failure to disclose jailhouse statements by the defendant until just before trial by saying, “If we disclose [the jailhouse recordings] to the defense, they’ll tell their client. And I’m not impugning anyone’s integrity, I’d do the same thing: Hey, they’re listening to your conversations, shut up. So we don’t disclose them until towards the end.”[1]
The second reason arises from the desire to fulfill the prosecutor’s obligation to enforce the law, to protect the public from the likes of the Bundys. The prosecutor in the Bundy said that he wanted to protect witnesses, and therefore limited his disclosures. Protection of witnesses is certainly a legitimate concern, but it cannot be used to justify flaunting rules intended to insure that the defendant receives a fair trial. The government is held to a higher standard. When the justice system itself cheats, it loses its status as a protector of justice.

[1] State v. Johnson, 513 S.W.3d 360, 365 (Mo. App. 2016).

Thursday, April 20, 2017


Beginning on the day after Easter, the State of Arkansas planned to execute eight people in ten days. Arkansas Plan. As of Wednesday, April 19, four of the inmates have received stays of execution. No one was executed Monday night, when Bruce Ward and Don Davis were scheduled to be executed. Both were granted stays by the Arkansas Supreme Court. The execution of Stacey Johnson, scheduled for April 20, was also stayed by the Arkansas Supreme Court. The execution of Jason McGehee, scheduled for April 27, was stayed by a federal court after the Arkansas Parole Board recommended clemency for him. The other four executions are now subject to a stay based on a lawsuit by the provider of one of the execution drugs, who says the drugs were improperly sold to the state for executions:  “The company said it would suffer harm financially and to its reputation if the executions were carried out.” McKesson Lawsuit

 Meanwhile, a recent article sheds light on an aspect of the execution ordeal which is not often examined. Dr. Allen Ault, a former commissioner of the Georgia, Mississippi and Colorado Departments of Corrections, has written a piece in Time Magazine explaining the effect of executions on the people who must carry them out. This is an aspect of the death penalty that doesn’t get enough attention, and Dr. Ault’s views are worth considering. Dr. Ault presided over five executions. He was the man who instructed the executioners to go forward. After five executions, he resigned. The stress was too much. Interviewed in The Guardian, Dr. Ault expressed concern for the mental health of the men and women who would have to kill so many people so quickly. ““As the old saying goes,” he said, “you dig two graves: one for the condemned, one for the avenger. That’s what will happen to this execution team – many of them will figuratively have to dig their own grave too.” The Guardian

Dr. Ault explained how he felt when he conducted executions: “For me, unlike the ‘kill or be killed’ mindset of war or other forms of self-defense, carrying out executions felt very much like participating in premeditated and rehearsed murder. . . . It exacts severe mental trauma—even when done under the auspices of state law. As I have written before; I don’t remember their names, but I still see their faces in my nightmares.” Allen Ault, “Former Warden: Arkansas Execution Rush is Dangerous and Risky,” Time Magazine, March 28, 2017.

Dr. Ault is not alone. Two former execution workers in South Carolina, Craig Baxley and Terry Bracey, sued the state for pressuring them to assist in executions with little training or counseling. The suit was dismissed; the trauma remains. As Mr. Bracey put it, “Taking that plunger and pushing it in set me on a course I wasn’t prepared for.” Frank Thompson, the former superintendent of the Oregon State Penitentiary, told The Guardian, “There is absolutely no way to conduct a well-run execution without causing at least one person to lose a little bit of their humanity, or to start at least one person on the cumulative path to post-traumatic stress.” This is just another example of how the death penalty creates more victims.

Sunday, February 19, 2017


On Friday, January 29, 2017, at 4:42 p.m. Eastern Time, President Donald Trump issued his executive order concerning immigration. I found the timing interesting. I’m aware of anecdotal evidence that law enforcement officers like to execute arrest warrants on Friday afternoons because doing so often means that that the person arrested will be unable to post bond until Monday. That gives law enforcement time to elicit confessions before the person arrested has a chance to talk to a lawyer. I suspect that the timing of Mr. Trump’s order was not coincidental. I suspect that he and his staff hoped that implementing the order on Friday afternoon would mean that nothing would happen to stop it until Monday.

Preventing legal action against questionable executive acts is not a new idea. In fact, Shakespeare memorialized it in Henry VI, Part II, Act IV, Scene II, when his character Dick the Butcher suggested that when the rebels overthrew the lawful government and came to power, “The first thing we do, let’s kill all the lawyers.” If lawyers can be kept from performing their responsibility to uphold the law, then the rule of law can be defeated.

But that is not what happened on January 29. Instead, as the Washington Post noted, “Hundreds of attorneys descended on U.S. airports all over the country this weekend to offer free legal help to the travelers and family members of loved ones detained under President Trump’s executive order.” And by Saturday night, many of the most oppressive aspects of the order were on hold, and refugees held at US airports and elsewhere were able to continue their journeys. I was really proud to be a lawyer that weekend. 

In addition to the willingness of lawyers to mobilize to use their skills to help people who had virtually no resources to help themselves, other aspects of modern law practice made this possible. The first is ease of communication. Various networks of lawyers communicated quickly and efficiently on Twitter, e-mail lists, and other social media. Getting the word out got the bodies there. Here are some of them at JFK airport:

Photo: Washington Post, January 29, 2017

The next reason this worked is the availability of online research and writing tools. When I began practicing law, most lawyers had a library full of books in their offices. The books mainly contained printed legal opinions in court cases, the backbone of the common law system. But there were also books called “digests,” which allowed the lawyer to look up a topic (“executive order”) and see what cases had been decided on that topic. The digest would give a sentence or two about the case and a citation which allowed the lawyer to find the right book and page to read the whole opinion. If the lawyer didn’t have the book with the right case, she would go to a local law library to read it. Maybe the library had good hours on Saturday night. Maybe it didn’t. And the process took a while.

Photo: New York Times, January 29, 2017

The others are probably sharing drafts of pleadings. Word processing means that documents, legal and otherwise, can be produced much more quickly and efficiently than in the typewriter era, or the handwritten era that preceded that. So those petitions that were filed in courts around the country could be written and edited very quickly.

Finally, electronic filing was indispensable. The cases could be filed in court from the airport. (There were likely people on the phone with the clerk’s office to make sure someone was watching the online filings.) But the availability of that technology meant that instead of having to wait until Monday morning to descend on the courthouse, the filing process could proceed with relative ease.

Lawyers tend to get a bad rap these days. Maybe that’s because they are perceived as having a lot of power and misusing it. But the weekend of January 29 demonstrated that when the government is out to get you, a lawyer with the right tools to act fast is the person you need.

Tuesday, January 24, 2017


On January 10, 2017, a jury in Charleston, South Carolina sentenced twenty-two year old Dylann Storm Roof to death for shooting nine people in an African-American church. At his sentencing hearing, Mr. Roof represented himself, rejecting the efforts of lawyers appointed for him to present mitigating evidence on his behalf. In his closing argument, Mr. Roof said that it would not do any good for him to ask the jurors to give him a life sentence.

Mr. Roof was undeniably guilty, and quickly confessed. During the guilt phase of his trial (a trial involving the death penalty has separate phases concerning guilt and punishment), his lawyers referred to him as “abnormal,” “delusional,” and “suicidal.” Evidence was presented that his crime was motivated by hostility and fear of African-Americans.

Mr. Roof’s victims had varying opinions about what should happen to him. Some of them said they forgave him and asked that he be spared. Others thought the death sentence was appropriate, since Mr. Roof had killed others without justification. The Rev. Sharon Risher, daughter of one of the victims, expressed a poignant ambivalence. She was quoted in the New York Times: “I don’t believe in the death penalty, but I’m my mother’s child and with everything that’s happened sometimes I want him to die. . . . It’s like, you know what, this fool continues to just be evil. I’m just glad that they didn’t leave that decision to me.”

At the end of the guilt phase of his trial, Mr. Roof fired his lawyers and elected to proceed as his own counsel. The U.S. Supreme Court has held that the right to counsel enshrined in the Sixth Amendment to the Constitution includes the right to waive counsel, provided that the defendant is found competent to proceed and is informed of the disadvantages of representing himself. Mr. Roof’s lawyers argued that he was not competent, but the judge found otherwise and allowed the waiver of counsel. Mr. Roof then elected not to present evidence at the sentencing hearing.

Police officers sometimes speak of “suicide by cop,” a description of a situation where a person places himself in a position where officers will be forced to kill him. Mr. Roof’s actions could be described as “suicide by jury.” Since it is not possible, under our laws, for a defendant to agree to a death sentence without the action of a jury, Mr. Roof tried to make it easy for the jury to give him what he apparently wants—to be executed.

But by placing jurors in the position of having to carry out Mr. Roof’s will, we do them injury. The policeman who kill suspects who are committing “suicide by cop” do not emerge unscathed. As one expert puts it, “Officers involved in SBC incidents often feel a sense of powerlessness and manipulation, and this is typically reported to be an especially stressful and demoralizing form of shooting trauma.” Not surprisingly, jurors in capital trials also suffer emotionally, and those who impose death sentences suffer greater PTSD symptoms than those who impose life sentences.

If Mr. Roof doesn’t want to live, why should we care if he is executed? The answer, in my view, is that the justice system is the conscience of the community. Just as the victims, while entitled to express their opinion, cannot determine the sentence, so the defendant should not do so either. Both of them are too close to the issue to be appropriately objective and appropriately merciful. And if we are a nation of laws, we must make certain that even in horrible cases, we do not disregard our most fundamental principles, including the principal that human life is valuable.

Thursday, January 5, 2017


Most people who enter the criminal justice system are guilty. And that is how it should be; our law enforcement system would not be worth much if it only arrested guilty people half the time, and the remainder of arrestees were innocent. When I was in law school, one of my professors opined that only half of the people who enter the criminal justice system were guilty of anything. I thought that was a low estimate of the number of innocent people in the justice system then, and still do. It is true that the advent of DNA testing revealed that there are more innocent people convicted than was previously thought. Conviction of the innocent is a serious problem. But so is oppression of the guilty. The question is, who are those guilty people, and how should we treat them?

I’ve learned a lot about who they are from dealing with them for almost 40 years of legal practice. The main thing I’ve learned is that most of the time, there but for the grace of God go I. They are just people. It is easy to think that someone who has killed another person, or robbed a bank, or burglarized a home, or sold drugs, or snatched a purse, must be a different species from me. But she is not. She is just someone who made a wrong choice or a mistake. He likes hot chocolate in the winter and swimming in the summer. He looks out the window of his cell and enjoys watching the farmer let out his cows. My clients worry about their families, their loved ones, even about me. “Drive safe!” they say as I leave the prison—and they mean it!

Prisons these days do little to rehabilitate those who inhabit them. But the one gift they can give is unstructured time, which can allow those who are so inclined to rehabilitate themselves through prayer, study, and consideration of those they have hurt. Given the lack of foundation many of them experienced in early life, that happens more often than I, at least, would expect.

So, why should we protect the guilty? Here are some important reasons.

1. If we want to enforce moral and legal imperatives, we should abide by them.

2. We are all guilty and all members of the human family.

3. If we take shortcuts to convict the guilty, we run the risk of convicting the innocent.

4. If the guilty feel they have been treated with fairness and compassion, they are more likely to be rehabilitated.

In future posts, I will examine each of these principles individually. But for the present, it is sufficient to say that the criminal justice system exists, and should function, to protect the guilty as well as the innocent.

Wednesday, June 25, 2014


Who are the victims of capital punishment? Not just the person executed. Not just his or her family and friends. Read on.

“Three minutes before Wellons was declared dead a nurse standing to his left was seen asking one of the corrections officers if he was ok, just before the officer fainted.” 
By all accounts, Marcus Wellons’s execution was routine, as those things go. He went to sleep and stopped breathing. But it was apparently not routine for the officer who fainted. The list of former prison wardens who, after retirement, talk about how painful it was to preside over executions, grows ever longer. For example, Don Cabana, who presided over executions in several states, eventually left prison work for academic life. “’There is a part of the warden that dies with his prisoner,” he often said.’” 
Asked to comment about the “botched” execution of Clayton Lockett, who died of a heart attack after prison personnel failed to insert an IV into his femoral vein, the retired prosecuting attorney said, “Did he get what he deserved? I don’t know, As I’ve gotten older, I’m a devout Christian, and I just have more and more trouble, honestly, of the question of ‘get what I deserve.’” 
Some of those involved in executions, then, admit their pain. For others, the execution seems to bring out the worst parts of their nature.
Recently, a Missouri prison employee told the lawyer for a prisoner facing execution that their client was in the top 1% of prisoners, and that he always obeyed rules and assisted new or weak prisoners to stay out of trouble. He would like to support clemency for him, but the prison administration discouraged him and started an investigation for “over-familiarity.” As a result, the employee withdrew his support.
Another troubling aspect of capital punishment is the response of victim families. A family member of the victims killed by John Ruthell Henry, recently executed in Florida, commented after watching the execution, “I actually feel good. I don’t feel sorry for him. . . . I wish it could've been different. I wish he could’ve died the way he killed them.” 
Or, as a victim family member who witnessed an Oklahoma execution where the prisoner, Scott Carpenter, “convulsed, clenched his jaw, made noises and his legs lifted,” put it, “Who knows whether he felt pain or not, but if he did endure a little pain again, so what? It’s in no way in comparison to what his victim felt.” 
These are a perfectly understandable responses, but, I submit, not particularly healthy ones. Does the fact that a loved one suffered pain really justify the desire to inflict pain on others?
Many victims long for answers from the person who killed their loved one; few get them. A man said that he watched the execution of his father’s killer, Scott Carpenter, “in hopes that he would make some comments or make some explanation. He robbed me of that as well. He was just quiet.”
Why do we persist in imposing a punishment that wounds us, troubles us, and brings out the worst in us?