Friday, May 24, 2002

Acclaimed litigator and law professor Michael E. Tigar is probably best known for having representing Terry Nichols - Timothy McVeigh's co-defendant in the charges arising out of the bombing of the Oklahoma City federal building - and convincing a jury to spare Nichols's life. Tigar has recently written a book about his life in the law, Fighting Injustice (American Bar Association Press 2002), reviewed on this site.

In Fighting Injustice, Tigar shares his experiences of a life devoted to fighting injustice and championing individual rights, and offers tips for trying cases and mini-tutorials on legal issues that been at the heart of cases involving famous and not-so-famous clients. The book also calls on lawyers to realize the opportunities they have to "do" justice. But "doing" justice, according to Tigar, requires that lawyers first "sense" or recognize injustice.

FindLaw book reviewer and attorney and author Elaine Cassel visited Tigar and discussed his new book and his career, attended one of his criminal law classes at American University's Washington College of Law, and asked him to respond to written questions. This interview, completed April 15, 2002, is the result.

Q: You are involved in two endeavors that have the potential, at least, for perpetuating your passion for "sensing injustice" and doing justice. I refer to your clinical teaching program and your work training attorneys to defend capital cases. Describe these programs and give us an example of how you see these playing out in the courtrooms of the country.

A. In the human rights impact litigation clinical program at American University's Washington College of Law, we are training law students in complex federal litigation and helping to redefine the human rights paradigm. We are working on cases that raise important issues about accountability. We are seeking to hold accountable United States officials and corporations who have committed human rights violations. Under our statutes, treaties and case law, there is no question that foreign nationals and entities would be held liable under our law. These are exciting, frontier cases and they provide students with a good opportunity.

In death penalty cases, ineffective counsel is the largest problem. Good lawyers, with access to investigative and scientific experts paid for by the Court, stand a good chance of uncovering the police and prosecutorial misconduct that is pandemic in these cases. Good, well-prepared lawyers stand a good chance of convincing jurors that a punishment other than death is appropriate. The Texas program was to help fulfill a need for good trial counsel in capital cases under that State's unique death penalty sentencing system.

Q. To what extent does the criminal justice system and criminal trials serve a didactic function? How important is that to you in deciding what cases you take? Overall, what is the system teaching the American public? The rest of the world?

A: All trials are didactic, in the sense that they have an impact on the parties and those who know about them. Human rights trials are didactic in a special way. They feature evidence of historic events, and lead to judgments that educate people about human rights abuses. The Nuremburg Nazi trials, at which the Allied powers presented evidence of atrocities, placed beyond the reach of rational debate the crimes of the Nazi regime. Later human rights trials have a similar function.

Q: Understandably, you were physically and emotionally drained after the Terry Nichols trial. You mentioned in the book that you might be reducing your trial schedule. We know that you choose "cases," not clients. What type of cases interests you now?

A: Lawyers who keep on trying cases when their mental and physical abilities are questionable do a disservice to their clients and their cause. I am thankfully not at that point yet, and don't expect to be for some time. But I think we must take seriously the job of introducing a new generation of lawyers to the battle for human rights. In the 15th Century, this idea was taken for granted. Today, legal education is supposed to be done in "law schools" and not by the profession. In general, this is a salutary development. But I feel a special responsibility to share whatever I have learned with this new generation of lawyers. And frankly, they have new ideas and ways of looking at things, and the learning process works both ways.

Q: Your representation of Terry Nichols in the federal trial is credited with sparing his life. Judge Matsch sentenced him to life in prison when the jury deadlocked on the death penalty. Legal challenges to the Oklahoma state prosecutor's plans to try Nichols for capital murder in Oklahoma are wending their way through the courts. How do you feel about this intended prosecution that once again puts Nichols at risk for a death sentence?

A: The federal jury acquitted Terry Nichols of murder. The federal jury rejected a death sentence. No person should have to stand trial for his or her life for the same offense more than once. That is a principle of international law, and one that I hope the Supreme Court will embrace.

Q: You have been involved in at least one high-profile court martial, that of Air Force Major Debra Meeks for sodomy. Can you same something about the similarities and differences in the task of the defense attorney in a military tribunal or court martial as opposed to a civilian court? And would you have any interest in representing any potential terrorist defendants in a military tribunal?

Q: There is a big difference between a "court martial," and a "military tribunal" of the kind proposed by President Bush for trying so-called terrorists. President Bush's proposal has no constitutional basis, and is simply a recipe for denying some defendants even the semblance of a fair trial. He is faithless to his constitutional oath for even proposing such a thing.

A court martial, by contrast, does surround the military accused with a number of procedural rights, including appeals to a civilian judicial system. In the Meeks case, I was impressed by the regard that many military personnel had for fairness and decency. The acquittal of Major Meeks for an alleged consensual act of oral sex with another woman showed that this system can be fair.

I would try another general court-martial case, based on the protections and standards in the Manual for Courts Martial. However, it is important to insist that cases not arising in the land and naval forces must be tried to an Article III constitutional civilian court.

Q: You have spoken publicly, as well as in the afterward to your book, about our country's response to the terrorist attacks of September 11 and how attorneys had best not forget the lessons of history. You have been quoted as referring to the law as "a fence built around the people and their rights." Can you expound upon this sentiment and in light of the federal government's legislative and prosecutorial responses to September 11 terrorist attacks?

A: Our leaders' strident vow that terrorism is always illegitimate sounds cynical and hypocritical. After all, our own CIA has sometimes sought out practitioners of vengeful extremism. We have paid them and equipped them. We have sponsored them in the arts of assassination and bloodshed. One year ago, we had, in the Hinchey report, confirmation that our intelligence services cooperated, funded and received the benefit of General Augusto Pinochet's reign of terror in Chile.

Indeed, in the Islamic world many of the groups we today denounce as terrorist were funded and armed by the United States as counterweights to the Soviets. Many of the guns our troops face today were furnished to arm the opposition to the Soviet army. Our leaders' failure to acknowledge this history puts us all at the terrible risk that it will be repeated.

The second form of terror, which usually takes the form of urban violence, often begins with insurgent groups fighting injustice. Then, at some point, a group of insurgents loses touch with the imperative need to embrace human values even in the struggle against inhumanity. Frighteningly, to those of us who watch the angry crowds on television, desperate people give their support to that kind of leadership. When I say desperate, I mean that kind of poverty and deprivation of which those in this room can scarcely imagine. I have walked in villages littered with the shards of shattered lives, and I have seen that anger. The desperate followers of that kind of terrorist leadership are as much victims as those who perish in the attacks of which we read and hear.

Both state-sponsored terrorism and insurgent group terrorism are criminal. I have no doubt that there must exist the duty and the right and the power to investigate and to judge the killings of innocent people. But investigations, prosecutions, and punishments should be based on principles that abhor terrorism and violence from all sources, seek to understand the causes of terrorism, support the norms of human rights recognized by international law, and respect individual rights.

To put the matter another way, the only kind of justice worthy of the name is social justice. Social justice includes both process and legitimacy. It includes process because that has been the lesson of history for three millennia. It includes process because we have seen the cost of doing otherwise. We have seen how the arrogance of power has detained people without probable cause, refused or subverted impartial judicial review of detention, and drowned out calls for reason and proof with strident cries for vengeance. Hundreds of people, perhaps more, are being held right now while our government disregards these guaranties. The Department that calls itself Justice is using this excuse to repeal dozens of guaranties of procedural fairness, not only in so-called terrorism investigations but across the board.

Social justice includes legitimacy because the proper exercise of force can only be in the context of redressing the social ills that have led people to follow false echoes.

Q: A reader of Fighting Injustice could fairly surmise that you would think that suspected terrorists are entitled to a full and fair trial. Do you agree that this is important. If so, why?

A: It is important, first because three hundred years of constitutional history in England and America have shown it to be important. It is also important because in these high-profile cases, the government often, if not usually, overreaches, falsifies evidence, overstates the charges and seeks unfair procedural advantages. The Moussaoui case, for example, represents an extreme overuse of conspiracy law, as well as systematic disregard of an accused's right to humane treatment. The norms of fairness are not derogable in the name of "security." They were fashioned in the wake of armed struggle by men and women who knew that purchasing safety by giving up liberty forfeits both liberty and safety.

Q: How would you feel about representing an accused terrorist?

A: I have not been asked to do so, but if I were, I would feel that it would be my duty to serve.

Q: Do you think that Zacarias Moussaoui and John Walker Lindh can receive fair trials in the U.S. District Court for the Eastern District of Virginia?

Q: Speaking of the Moussaoui case, legal commentators have frequently mentioned it in connection with the Terry Nichols case, in the context that Moussaoui's attorneys will try to show, as you did with Nichols, that he was not aware of the nature and extent of the plan - for Nichols, Timothy McVeigh's plans to blow up the Oklahoma City federal building. Can you shed a bit more light on that defense, how it played out in the Nichols case?

A: To be a conspirator requires proof beyond a reasonable doubt that you knew of the unlawful objective and entered the agreement with a desire to bring that objective into being. Justice Jackson warned us of the dangers of the conspiracy laws, and the Second Circuit once cautioned against "substituting a feeling of culpability for a finding of individual guilt."

In the present cases, there is the added factor that defendants such as Mr. Moussaoui and Mr. Walker Lindh apparently hold deep-seated religious and political views that are anathema to most Americans and certainly to the Department that calls itself Justice. In such a case, there is a heightened danger that conspiracy law will be used in a way that threatens First Amendment rights. This was a principal theme of the First Circuit's opinion reversing the convictions in the Benjamin Spock case.

Q: The Department of Justice has implemented a procedure known as a special administrative measure (SAM) that requires attorneys of suspected terrorists to allow the monitoring of their phone calls and other contacts with their clients. New York defense attorney Lynne Stewart, who represents Sheik Omar Adbel-Rahman, serving a federal life sentence in connection with the 1993 bombing the World Trade Center, was indicted in April 2002 for conspiring with Adbel-Rahman and his terrorist organization allegedly linked to Al-Qaeda. It is alleged that she not only facilitated communications between her client and terrorists but that she reported to the press that he was against a terrorist cease-fire in Egypt. What are ramifications of interposing this surveillance of attorney-client communications for the criminal justice system?

A: A well-known criminal defense attorney shares her client's ideological agenda and many of her client's political beliefs. She has said so publicly. She does not publicly endorse her client's methods, and in fact opposes many of them. Her client is, however, responsible for disrupting thousands of lives and for untold amounts of financial harm. Should the government, without a warrant, without judicial review, based on secret evidence, intercept lawyer-client communications of that lawyer? Is that lawyer a good target for a highly-publicized conspiracy indictment? But first, who is that lawyer? That lawyer is almost any lawyer representing an Enron/Arthur Andersen person or entity, or any other apostle of greed. But of course, this is America, and sucha lawyer has nothing to fear.

Q: Would you sign such an agreement as a condition to representing a client?

A: I would not agree to get a security clearance to represent a client, a requirement of some of the attorneys who are representing alleged terrorists. Nor would I agree to do anything other than honor my oath as a lawyer and to obey the law. My obligations as a lawyer and a citizen are the same in every case and situation. To exact anything more from lawyers representing particular clients is, in my view, unlawful. It is the kind of "test oath" that the Supreme Court invalidated in the post-Civil War era. And, it singles out lawyers representing particular types of defendants, unfairly and in my opinion illegally.

Q: You have a reputation having a flair for the dramatic that has quite an effect on some juries. One article on the Nichols trial referred to your skills as "mesmerizing." You have written three plays, write about opera and the law, and even have your first year criminal law students analyze the play, "Trifles," in which a female character is suspected of murdering her husband. How do you see drama being metaphor for civil and criminal trials?

A: In the United States, as in no other country, questions of social organization take the form of judicial proceedings. So it is not unusual to see that dramatic events are played out in courtrooms. This is not to say that this peculiarly American tendency is unprecedented. The Greek dramatists understood the didactic function of their work, and their themes of justice were designed to instruct the society of their time. Indeed, we can see a vital development in the work of Sophocles. Oedipus, in the first play in the cycle of three plays, did not know that his sexual partner was his mother, yet he was punished nonetheless. In Oedipus at Colonnus, written many years later, Sophocles reflects a changing view in Greek political thought, and Oedipus exclaims at one point, "I did not sin." That is, he was not a punishable wrongdoer because he did not know he was doing wrong. That play is therefore a drama about just deserts. In our own culture, we have seen dramatic court cases, and dramas about court cases. The law is part of our dramatic literature, and dramatic literature is laden with episodes about law.

Q: Do you think that criminal and/or civil trials ought to be televised? If so, why? If not, why not? If your answer is that "it depends," what factors should be considered?

A: The "ordinary" criminal trial can be televised, using hidden cameras and microphones, with no real harm to the judicial process. The highly-publicized trial should not be telecast, because the very presence of television influences witnesses and tends to intimidate jurors. A witness who knows that his or her appearance signals the start of the "fifteen minutes of fame" is less able to fulfill the function of a testifier. The lawyers and the judge begin to play for the audience outside. These human tendencies are such that they cannot be overcome by admonitions. Just as we limit the evidence that jurors may hear when we fear that they are too likely to overvalue it, so too we should take steps to prevent trials from becoming media circuses.

Q: You have been teaching law for more than 25 years. How have law schools changed since your Boalt Hall days?

A: The main changes are (1) more attention to clinical education; (2) diversity in law faculties and law student populations; and (3) a broader view, at least in some law schools, of what constitutes valuable legal scholarship.

Q: What do you think should be the focus of law school education? Do you think it is important that law education integrate black-letter law with practical lawyering skills? How do you do that in your classes?

A: To answer these two together, I think we must offer students hands-on opportunities to see how legal rules work in the real world. Only then can they see how law moves from the tableau of ritual rules into the lives of people to whom it is applied. Only then can they see how lawyer behavior affects people. Only then can they see what "legal ethics" are really about.

Q: In Fighting Injustice, you say that you chose law as a profession in order to change or effect events. You were an activist law student in a time when that was the thing to be. But in recent times, activism seems to have taken a back seat to efforts to making money and partnership. To what factors do you attribute this lapse? Were/are law schools partly to blame? Are you seeing a shift now, in the 21st century, to a refocus on activism among law students? Are there certain law schools that are more attune to training activist lawyers?

A: I think the percentage of students interested in human rights is the same now as, or perhaps larger than, it was thirty years ago. However, we have seen the systematic beggaring of public interest lawyering institutions. Funding for legal services has been cut dramatically, coupled with draconian limits on what legal services entities can do. Defender services are struggling to keep up with the demand for their services. I have addressed these issues in a recent essay, "Lawyers, Jails and the Law's Fake Bargains," in Monthly Review for July-August 2001, and available on their website. I also refer to this in an essay, "Litigation as a Faustian Bargain," in the Winter 2002 issue of Litigation, the journal of the American Bar Association's Litigation Section.

Q: There are a lot of unhappy lawyers in practice, solo practitioners and those working in firms of all sizes in all legal areas. You have enjoyed the practice of law. What advice can you give attorneys already in practice who are jaded, dissatisfied, and either want more from their practice?

Q: I am sure that there will be many readers like myself who will marvel at the depth and breadth of your knowledge about non-legal subjects such as literature, history, music, and philosophy. How did you come to acquire not only such vast knowledge about so many diverse areas, but the ability to so easily (or so it appears) refer to specific germane examples in the heat of a courtroom argument?

A: I can't answer that one. I read for the joy of watching other people express ideas. I study the history of our profession, with attention to the work of the great ones like Andrew Hamilton, Erskine, Brougham, and Darrow. I pay attention to what other cultures can teach us. And then, I care deeply about justice and the words come.

Q: Can you comment on how you went about writing Fighting Injustice?

A: I wrote Fighting Injustice the way I have written every other book. First, I have a general idea of the book as a whole. I can see it in my mind's eye. Then, I start by writing down all the pieces of it I can think of. Sometimes I will write 5,000 words in a day, and sometimes 1,000 or so. Once I have about 25,000 words, the book takes shape. As I work on this first part, I continue to revisit my overall plan for the book. Once I have done 25,000 words, I am pretty well committed to the structure of the completed project.

Q: Tell us about the latest writing project that you are working on.

A: I have two books in the works. One is a revision of Examining Witnesses {published by the American Bar Association}, expanded and rewritten so that former readers will want to read the new version. I am also working on a novel, but then isn't everybody?

Elaine Cassel practices in Virginia and teaches law and psychology online and in traditional settings. She writes and delivers continuing legal education courses in Internet law, privacy, genetics, and health law and is the author of Criminal Behavior (Allyn & Bacon, 2001). She is Vice Chair of the Behavioral Sciences Committee of the ABA Science and Technology Law Section and Co-Vice Chair of the Section's Genetic Research and Testing Committee.

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