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Defending a Terror Suspect | The Nation

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Defending a Terror Suspect

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Dzhokhar Tsarnaev, left, and his brother Tamerlan, at the Boston Marathon, April 15, 2013. 


Since the capture and arrest of Dzhokhar Tsarnaev, the college sophomore charged with the Boston Marathon bombing, I have thought about another young man who was charged with acts of terrorism. Twelve years ago, I was the public defender assigned to defend Richard Reid, more popularly known as the “shoe-bomber.” Three months after 9/11, Reid tried to detonate explosives packed into his sneakers while on an American Airlines flight from Paris to Miami. When a flight attendant saw him struggling to light a fuse protruding from his shoe, she and others subdued him, restrained him with passengers’ belts and sedated him with drugs from the onboard medical kit. The flight was diverted to Boston, where Reid was taken into custody and charged in federal district court with attempted use of a weapon of mass destruction and attempted homicide, among other crimes.

About the Author

Tamar Birckhead
Tamar Birckhead is a University of North Carolina law professor, criminal defense attorney and juvenile justice...

I had been practicing in Massachusetts as a public defender for eight years (in both state and federal courts) when Reid’s case was assigned to me. I happened to be the attorney “on call” that week in the Federal Defender Office, meaning that I was next on our internal list to receive new cases. I remember watching the news that weekend, hearing that a plane had landed at Logan Airport and that someone was charged with trying to blow it up; immediately I knew that federal prosecution was likely and that the case would come to me. Five months pregnant at the time, with a toddler at home and my husband in graduate school, I found the prospect daunting, to say the least.

As with most federal criminal cases, the government’s evidence against Reid was overwhelming and there was little room for us to maneuver. I wanted to go to trial and force the government to meet its burden, but Reid chose to plead guilty and accept the equivalent of a life sentence, rather than participate in a court system he considered illegitimate. Yet my experiences working on the case were quite positive. Although I had never defended someone charged with acts of terrorism, I had represented many people prosecuted for violent acts—from robbery and kidnapping to rape and murder—and I knew that the nuts and bolts of the advocacy would be the same. I also had the head of the office at the time, Owen Walker, as co-counsel as well as the support and encouragement of our other colleagues and staff.

What I wasn’t prepared for, however, was the intense media scrutiny. We were inundated with press calls—newspaper, radio and television reporters from around the country and abroad. The office was small—just seven or eight attorneys, a couple of investigators and support staff—and we were ill-equipped for that degree of attention. In the weeks and months that followed, I wrote my own press releases and strategized in the hallways over which journalists to give interviews to, what to say to them, and how to try to mute the professional communications machine of the US attorney’s office prosecuting the case.

As for my personal interactions with Richard, they were always cordial and respectful. Although he would not shake my hand, explaining that it wasn’t allowed under the laws of Islam, he listened to the information that I shared, considered it carefully and responded with his own thoughts and questions. Often Owen and I would visit him together, and Richard treated us both as professionals. As with the majority of my clients over the past twenty years of practice, I grew to feel warmly toward him and to enjoy his company.

I learned that Richard, who was 28 when we met, had been born in England to a soft-spoken librarian and an absentee father whose own father was Jamaican. As a child, he had felt quite lost when his mother remarried and had another son; he never quite fit in at school or with his blended family, and by 17 he was sentenced to a year in a juvenile facility for mugging an elderly person. He drifted through his early 20s, served more jail time for theft and began attending a mosque in London, where his ideology became more extreme and anti-American.

I hadn’t thought much about Richard in recent years, but after federal charges were brought against Dzhokhar Tsarnaev, I have spoken out for the rights of this 19-year-old who could face execution or life in prison. When asked how I (or anyone) can defend “those people,” I say that we are each more than the worst thing we have ever done, that youth should be a mitigating factor at sentencing and that the death penalty is immoral. To me, it is a privilege to be the voice for the most hated in the courtroom.

The public defenders appointed to represent young Tsarnaev include my former colleague from the Federal Defender Office in Boston, Miriam Conrad, and Judy Clarke, who has represented such high-profile defendants as the “Unabomber” Ted Kaczynski and the Olympic bomber Eric Rudolph. Conrad assisted in the defense of Reid and has rigorously represented others charged with terrorist acts, and Clarke has successfully negotiated plea deals that have spared her clients the death penalty. In other words, both women are excellent at what they do—skilled, dedicated and extremely effective criminal defense attorneys. Anything less would compromise the integrity of the system.

* * *

That accused terrorists have a right to a defense at trial at all is thanks in large part to a man named Clarence Earl Gideon. In 1961, he lived with his fourth wife in Panama City, a small town located on the Florida panhandle off the Gulf of Mexico. He drank too much, had done time in three states for robbery and theft and was perpetually broke. Before dawn in early June, someone broke into a local bar and poolroom, stealing four bottles of wine, two dozen bottles of beer and soda, and change from the jukebox and cigarette machine.

On a tip from a neighborhood resident named Henry Cook and little else, the police arrested Gideon and charged him with felony breaking and entering. When he appeared in court without funds, he asked for a lawyer but the judge refused, explaining that Florida law allowed for the appointment of counsel only in capital cases. Lacking other options, Gideon did his best to defend himself at trial, but after an hour of deliberation, the jury convicted him and he was sentenced to five years in prison.

Once his appeals were exhausted in the Florida courts, however, Gideon didn’t give up; he mailed a letter, written on prison stationery, to the US Supreme Court, saying that his constitutional rights were violated by the judge’s refusal to provide him with a lawyer. On March 18, 1963, the high Court agreed, overturning precedent and holding that “reason and reflection require us to recognize that, in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

Gideon was retried with private counsel paid by the state. His lawyer carefully chose a jury, objected to improper questioning by the prosecutor and picked apart Henry Cook’s testimony, suggesting that Cook was the lookout for the real thieves. The jury again deliberated for an hour, but this time Gideon was acquitted, and the rest is history. Gideon v. Wainwright made the right to indigent defense the law of the land.

There is a certain irony in comparing Gideon’s case to that of Reid or Tsarnaev: while infamous criminal defendants—those deemed enemies of the state—typically receive the very best that the public defender system has to offer, the anonymous ones—whose cases are quickly forgotten—are mere cogs in a broken machine. Many have no lawyer standing beside them, and those who do rarely notice a difference. For the vast majority, the essence of client representation has been lost: a skilled practitioner who offers advice and counsel, visits the scene of the offense, examines the evidence, interviews witnesses, provides rigorous oral advocacy, files legal motions and memoranda and, perhaps most importantly, has the time, energy and resolve to get the job done.

For the past fifty years, there has been a constitutional right to appointed counsel for indigent defendants, but in many jurisdictions today, the public defender system is broken. It is woefully underfunded, as indigent criminal defendants are not popular with politicians, either in Congress or state legislatures. Many felons have been disenfranchised, and voter turnout in poor communities is consistently low, due to lack of transportation and inflexible work schedules as well as organized efforts to suppress the vote.

In addition, the conditions under which public defenders (“PDs”) attempt to do their jobs are challenging. Many are overworked and underpaid, with little time for case preparation; few resources for legal research, expert witnesses or investigation; and a lack of respect within the profession. With only 15,000 appointed lawyers tasked with representing millions of criminal defendants, PDs must practice basic triage, giving their energy to the most serious cases (based on the charge or the potential length of sentence) or the most pressing ones.

PDs are also out-matched by their adversaries. At the state level, prosecutors have more staff and resources at their disposal and their salaries are higher. The recent Sequester cuts hit federal PD offices harder than federal prosecutors, triggering layoffs and extended staff furloughs—but even under normal circumstances, the federal defender budget is a fraction of that of the US attorney.

Spend just a few hours in your local courthouse to see the real-life impact of over-criminalization. The average criminal court docket is bogged down with misdemeanor cases (disorderly conduct, shoplifting, prostitution, possession of marijuana), and the most vulnerable among us—youth, people of color, the poor, immigrants and the mentally ill—spill out of the corridors, rarely receiving the attention, treatment or assistance they need. The halls of justice have become mere “plea mills.” PDs make “deals” for their clients, while increasing numbers of low-income defendants refuse appointed counsel because “free” actually means hundreds of dollars in court costs, probationary fees and fines. Without legal representation, these folks—like Gideon after his first trial—are locked up and burdened with criminal records that foreclose the possibility of future employment or higher education. Without a lawyer, an innocent defendant held on bail will plead guilty just to resolve the case and go home.

A half-century after Gideon v. Wainwright, the judiciary has done little to follow its spirit. The Supreme Court’s “test” for ineffective assistance of counsel requires proof not only that the lawyer’s performance was below the range of professional competence (using a very broad standard), but also that the defendant was prejudiced (using a very narrow standard). As a result, the legal threshold for adequate representation is extremely low—appellate courts have found that lawyers who were drunk, asleep, or under the influence of drugs did not violate their clients’ rights.

This is not to say that high-profile suspects charged with acts of terrorism shouldn’t receive top-notch representation or that those facing minor misdemeanors need a phalanx of defenders, but something must be done to elevate the quality of counsel across the board. The American Bar Association has recently released a report offering proposals for sustained reform: ways to reduce the number of cases coming into the system on the front-end; improve the quality of representation through performance standards, training and specialized resources (such as immigration law experts); and encourage collaboration and cooperation both within and outside the criminal justice system.

These are all good ideas, but the first step must be a commitment to ensuring that we don’t have two separate criminal defense systems—one for the rich and one for the poor. As Robert F. Kennedy said soon after Gideon was decided: “Equality of justice in our courts should never depend upon the defendant’s wealth or lack of resources, but in all honesty we must admit that we have failed frequently to avoid such a result.”

Dzhokhar Tsarnaev faces his next hearing on July 2, and the media scrutiny will likely be intense and fleeting. Change, as we know, happens slowly and incrementally, but we can’t allow another fifty years to pass only to find that the Sixth Amendment right demanded by an unknown drifter named Clarence Earl Gideon is, in fact, hollow.

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