Now in Legal Rebels:
Posted Sep 01, 2007 06:15 am CDT
Here’s how some of America’s best-known defense lawyers and legal commentators would represent the world’s most vilified defendant.
Kuby & Perez
New York City
Having represented blind Muslim cleric Sheik Omar Abdel Rahman, Long Island Rail Road murderer Colin Ferguson and Meir Kahane killer El Sayyid Nosair, Kuby is no stranger to the defense of unpopular figures and causes. But bin Laden might be the one person who could make Kuby think twice.
“It would be the trial of the millennium,” says Kuby. “The level of media scrutiny would be more intense than anything anyone has endured. The level of acrimony toward defense counsel would be horrific. I would not volunteer for it. But if I were requested by a defendant and felt that this was a job that I could do better than most, I would feel an ethical obligation and put aside my personal concerns and go forward.”
What happens when an advocate becomes the most unpopular person in the country? Says Kuby: “In the immortal words of Hyman Roth in The Godfather: Part II: ‘This is the business we have chosen.’ ”
If bin Laden allowed a lawyer to represent him, Kuby suspects that he would want his defense to be consistent with his own “nihilistic, jihadist Islamic philosophy.”
“It is unlikely that his primary interest would be to beat the rap,” Kuby says. “Most criminal defendants want to beat the rap or minimize jail time or avoid execution, but there is a small group of politically motivated defendants who are not out to secure an acquittal—partially out of conviction and partially out of knowing that the outcome is predetermined.”
Kuby says his defense would be guided by his belief that bin Laden would prefer that the trial become a forum to denounce the very system that is bringing him to trial. “It seems certain to me that bin Laden would use his trial to inspire his supporters. And as his lawyer, if you are going to represent your client, then that is the avenue you have to pursue,” Kuby adds.
Kuby says that directive would start to play out during voir dire. If permitted to question individual jurors, Kuby would try to bring out jurors’ biases by touching on issues such as Zionism, Israel and the persecution of Islam. Another important part of the defense strategy would be to treat the trial and its players as part of a system of oppression. To that end, bin Laden would show no deference to the judge or jury. “That means you don’t rise for the judge,” Kuby explains.
That strategy also means turning evidence into a political statement. For example, “when the government finally brings out the witnesses, you question them about the way they were tortured or mistreated in custody or what they suffered or their family suffered in the hands of the Americans. The goal is to turn the entire trial into your final act of defiance,” says Kuby.
“If done right it is a very powerful propaganda tool,” Kuby adds. “If done wrong it degenerates into almost a farce, as it did in the Moussaoui case. People walked away from the case thinking, ‘If this is the best that al-Qaida can do, then what are we afraid of?’ ”
Kuby presumes the U.S. government would seek the death penalty. He also believes bin Laden would not fight it because it would allow him to die a martyr at the hands of the American government.
But there is perhaps one way bin Laden might be able to save his life: Turn government witness. Kuby says it is not as far-fetched as it might seem. “One thing we’ve learned from this government is that there is no one too evil to make a deal with. There is no person whose crimes are so great that we are not willing to sit down and convince him to join Team America if we think there is a payoff.
“Presumably bin Laden would be in a position to reveal information that would be vital to the dismantling of terrorism networks around the world and save tens of thousands of innocent lives,” Kuby continues. “He is not the cook for the Taliban. Like all big crooks, he has things to deal.” That strategy also would be a deal breaker for Kuby. “As a rule I don’t represent cooperating defendants, and I’d excuse myself.”
Host of Fox News’
On the Record
Van Susteren makes clear that she would not defend bin Laden. But she still has a thing or two to say about how his trial and defense might play out, and that includes advice to the government about the need for fairness. “I would hope that we would bend over backward to give him rights. It’s not that he deserves them, but we want to send a message to the rest of the world and give the perception that the trial is swift, just and fair.”
Though Van Susteren says she can’t even begin to jump into bin Laden’s mind to guess what, if any, kind of defense he would want, any lawyer defending him would have to be guided by bin Laden’s wishes: “Does he want to be the world’s biggest martyr? Does he want life or death?”
If bin Laden wanted to go to trial, Van Susteren says, she’d advise him to waive his right to a jury trial. “I think in this instance it would be very hard to strip yourself away from the horror of the crime. In this instance he might have a better chance [for a fair trial] with someone who has been trained to be independent.”
As for defense strategies, including allowing him to take the witness stand, Van Susteren says such decisions would have to relate to bin Laden’s goals. “Is it to save his neck or is to give him a platform? That is one of the difficulties of working with a client like this.”
She adds, “Lots of times you can take a case where, say, the client has been arrested for a triple homicide and confessed. But you don’t plead. You fight it” by trying to sew errors into the record for an appeal with the ultimate goal of saving the client’s life or extending it through the appellate process.
In the case of bin Laden, Van Susteren says no one wants to give him the chance for a second trial, underscoring the need for a fair and just prosecution. “We want to be certain that the very best lawyers and the very best judges are involved, for the very simple reason that we don’t want mistakes. Legal error would be our worst nightmare—because then he won’t go away.”
Harvard Law School
Dershowitz first wants to know whether he would be retained or appointed. Why the distinction? “Because I don’t do political defenses,” he says. “I only would offer a legal defense.”
Even if bin Laden agreed to a legal defense, the client still would give Dershowitz pause. “I think I have a conflict of interest, because if he had the opportunity to kill me, my children and my grandchildren, he would.”
Then, of course, there is the question of money. “I would not be comfortable taking money from a man who is from an organization [like al-Qaida]. I would have to see where the money came from.”
To defend bin Laden, Dershowitz says his first order of business would be explaining to his client that he is going to lose. “A very important part of a lawyer’s job is not to be a cheerleader but to be the radiologist reading the X-ray. Total honesty would require me to say, ‘You are going to lose the case. But what is your goal here? Do you want to be a martyr? Do you want me to save your life? What is your goal other than making a political statement?’ “
Dershowitz adds: “Do you want to plead? Do you want a verdict? Do you want to prevent the death penalty from being carried out?” The answers might guide decisions such as where to move the trial. “Your change of venue motions would try for a place where the death penalty is less popular.”
Although bin Laden already has been named in other indictments, Dershowitz thinks the government’s best case would be under the Racketeer Influenced and Corrupt Organizations Act. “Al-Qaida is an enterprise, and bin Laden is not necessarily the planner for everything. So to try to get him on an ordinary murder or conspiracy [charge], the proof of the planning might be daunting for the government.”
And those charges might be beatable, Dershowitz says. Venue change and jury selection would be key components. “You can’t try a man in a courthouse where you can practically still smell the smoke of his alleged mass murder.” But, he says, he would have to weigh that move against leaving New York’s diverse juror pool, where he would likely find a holdout juror.
The goal of a holdout juror is why Dershowitz would push for a jury trial. “You hope to get one person who is somewhat sympathetic. It would have to be a jury and an anonymous jury. You’d have to hope for a hung jury because there is no chance of an acquittal.”
Under RICO, Dershowitz continues, one line of defense might be to prove that some of the organization’s goals were legal and force the government to prove its illegal purposes. The tactic, known to some as graymail, would force the government to reveal classified information, he says.
And if bin Laden were convicted and eligible for the death penalty? “You’d have to make the Clarence Darrow-type argument against the death penalty completely as opposed to against this application, and that is hard because under federal law the prosecution can exclude jurors with a conscientious objection to the death penalty. You could probably argue to the jury that we don’t want to get into the vicious cycle of death for death.”
Black, Srebnick, Kornspan & Stumpf
He has worked his “Black magic” on judges and juries for the likes of William Kennedy Smith, Marv Albert and Rush Limbaugh, but Black is not sure whether any defense would work for bin Laden—other than insanity.
“Osama bin Laden is like the Manchurian candidate or Jason Bourne. He is a product of CIA indoctrination. They used him during the Soviet invasion of Afghanistan. They trained him and turned him into a killer and incited the religious fervor in him to make him think that any power invading any land in the Middle East is invading the Muslims and has to be killed,” says Black.
Black says he would play on this delusion to argue, under the M’Naghten rule, that bin Laden is psychotic and not responsible for his actions.
Black would put the strategy before a jury because bin Laden wouldn’t stand a chance in front of a federal judge. “Any federal judge in the United States is going to find him guilty and sentence him to death, so you have to take your chances in front of a jury. Even in New York there will be some percentage of people who have never heard of him.”
Even though Black would ask for a change of venue, he’s not sure he’d find a favorable forum anywhere. Instead he’d focus on trying to obtain individual voir dire of every potential juror. “I’ve done it where you spend three to four hours per person and delve into their feelings. You want to ask people if they have any sympathy for the Muslim cause. You want to try to find people who are sympathetic to their jihad.”
The government’s evidence against bin Laden is another hurdle. Instead of trying to refute it—a task that Black says is improbable—he’d use it to play into the defense strategy. “That’s why I like the insanity defense because you can take everything the prosecution puts into evidence and add to it—that he perceives us as his mortal enemy, that he sees himself as a freedom fighter. It all fits into his delusion.”
Black also thinks that bin Laden might help himself by taking the stand because his likely ranting and raving would “serve as proof of a diseased mind.”
Even if a jury convicted bin Laden—something Black thinks likely—and went to death penalty sentencing, Black would continue to plead insanity in hopes of saving his life. “You’d argue that since he is operating under a diseased mind that he shouldn’t be executed.”
Black says he would need a team of lawyers and investigators with significant resources to travel the world for bin Laden’s defense. “You have to hire someone who would go up into the mountains and find witnesses because I would not be going.”
Professor, Washington College of Law
Having saved the life of convicted Oklahoma City bomber Terry Nichols, Tigar says he would draw on the lessons from that case.
First, he would assemble the same defense team. Next would be getting to know the client. “No lawyer should take a case [like this] without spending a lot of time with the client,” Tigar says.
“It’s not my case. It is his. I’d really need to understand everything about the social, psychological and historical context in which he grew up and acted,” Tigar says.
“Here we have a man who, from a very early age, had anger against what he regarded as the colonial occupiers” of his homeland, he says. “It’s the concept of umma, the Muslim community of believers. The concept that the U.S. occupied these territories made a number of people very angry.
“Three or four years ago it would have been very difficult to talk about this. But now, because of the Iraq war, which also has made more people angrier and drawn more people to the banner of Islam, we do have more to talk about.”
And he would want to talk about those issues in front of a jury, not just a judge. “You always want a jury,” he says.
“People are going to say, ‘My goodness, the jurors are going to be prejudiced.’ But I’d rather have 12 prejudiced people than just one.”
Tigar also would push for a voir dire process similar to the one in the Nichols case, which, he notes, took approximately five weeks and involved the individual questioning of some 1,000 prospective jurors. “It’s indispensable in a case like this because jurors are reluctant to talk about their attitudes.”
Some may see the issues in a criminal case against bin Laden as involving a world foreign to a potential juror. But, Tigar explains, “the issues are no different than in any other case. The job of a lawyer is to address those issues.”
Tigar says that point must be made right off the bat during opening statements. “Assuming this case is about Sept. 11, I’d start out by making a statement about the horror of that day, so all of us in the courtroom understand what happened and that we at the defense table agree that is what happened.
“We would remind the jury that the prosecution may very well play for them images that they have seen, sounds of horror that they have heard, and repeat all of the images in the mind to get them so worked up that they say, ‘By golly, someone needs to be punished for this.’ ”
“It is the defense task to provide this jury with as much evidence as we can muster as to what really happened, to the extent that it is relevant to the decision that the jury has to make.”
Tigar says he would call psychologists and social historians to help the jury understand how attitudes like bin Laden’s are formed. These defense experts also could negate the intent required to make some of the acts a crime.
“Many people who commit acts that the state regards as criminal do so because they are placed in positions where they feel that they had no choice. I have never met Osama bin Laden, but I have met people who are very, very committed to a certain ideal about social change.
“I have found that sometimes, on the issue of intentional violation of a known legal duty, that psychologists and social historians can help us understand why the state might not be able to meet its burden of proof on the intent element,” Tigar explains.
Tigar also believes in maintaining courtroom decorum. “The danger in a case like this is that the circus part would come from the prosecutors who want the jurors to get worked up and emotional to the extent that they go beyond what they are there to decide,” he adds.
And should the case proceed to a death penalty phase, Tigar says that he would bring up proportionality and political attitudes. That means, for example, talking about how U.S. government policy 20 years ago supported Islamic radicals in Afghanistan. “These folks were armed and financed by the CIA. What did we think was going to happen? And then, in terms of proportionality, how many Iraqi civilians have died? These are the questions we need to answer about proportionality.”
Tigar also might argue to the jury that the killing needs to stop somewhere and that the bin Laden case might be the place. “In a trial of Osama bin Laden, a life verdict is a powerful message.”
And no matter the outcome, Tigar says the U.S. government must remember that the world would be watching.
“A case like this tests our commitment in a very important way. A trial of Osama bin Laden, like Nuremberg and others, says as much about the entity that does the trying as it does about the defendant.
“It represents the real test of the commitment to providing fair, just and transparent procedures, even to those perceived as terrible enemies. It is not only demanded by the Constitution, but by the international community.”