Taking a Stand

You think you have a tough job? Try being Thomas Ullman. Ullman has spent the last three years defending Steven Hayes. After unsuccessfully defending Hayes at trial, Ullman, a public defender, spent the last few weeks trying to convince a New Haven jury that his client’s life should be spared. The jury, this week, disagreed and said that the death penalty is the appropriate punishment for Hayes, the first of two defendants being tried for the gruesome murder of Jennifer Hawke Petit and her two daughters, Hayley and Michaela.

Thomas Ullman

Our system works best when in an adversarial manner; two skilled professionals battle it out, with a fair and impartial judge presiding and jury deciding. Hayes’ defense team was a rather skilled and dogged one. Nonetheless, this case was a rather one-sided affair. First, there is the utter depravity of the allegation—the family was tortured for seven hours, the mother and her eleven-year daughter both sexually abused, and then the house set ablaze. Then, there was the sheer volume and quality of the evidence. The father, Dr. William Petit Jr., miraculously survived and was able to testify convincingly and sympathetically as an eyewitness to the graphic details.  And Hayes confessed.

It shouldn’t matter, but in reality, Ullman’s task was also made more difficult by the stark contrast in the background of his client and his victims.  The Petit family was that of a well-known doctor, a leading endocrinologist, his beautiful 48-year-old wife, Jennifer, who directed the health center at the Cheshire Academy. Their 17-year-old daughter Hayley was en route to Dartmouth.  And 11-year-old Michaela was entering sixth grade. Hayes, on the other hand, was in and out of jails since 1980, was already on parole for a 2003 burglary, a parole he had already violated once before. The sheer innocence of these harmless creatures, the torture imposed upon them, all collided to create a maelstrom of international media coverage.

The Petit Family

It was pretty lonely in Ullman’s corner. Hardly a soul was rooting for him to win. Not even Hayes. Asked how Hayes reacted to the death sentence reached by the jury last week, Ullman told CNN Hayes was happy with the verdict. “Suicide by State,” was how he said his client described the verdict. “If he can’t do it to himself, he’s happy the State will do it,” Ullman said. Hayes has been attempting to commit suicide for much of the time he has been incarcerated, according to his lawyer.

Ullman’s defense of Hayes will make him unpopular forever, wherever he goes. It’s wrong, but people will connect him with the barbaric acts of his client, rather than the indispensable constitutional rights he upholds. It can take a toll on an attorney, personally and professionally. As the hours approached the execution of Michael Ross, the last person to be executed in Connecticut, his lawyer, T.R. Paulding, saw his law license threatened by a federal judge, who ordered Paulding to reconsider his representation of Ross and Ross’ desire to die, questioning whether Ross was truly stable enough to opt for execution.

The next time you think you have it tough at work, think of Thomas Ullman. He has it tougher.

I envy my dentist. I know that runs contrary to conventional thinking, but it’s true. I envy him because as a dentist, he has the capacity to do what I, as a criminal lawyer, can never do.

I was a bad patient. I cracked a tooth and rather than tackle the problem, I ignored it, procrastinated and it eventually became a mini crisis. It cracked again, and over a period of months, a giant hole in the middle developed. One night at a cocktail party, without warning, it became excruciatingly painful, to the point of being unbearable. The next day I called my dentist, Dr. Jeffrey Cahn of Stamford, and his assistant squeezed me in after work for an emergency appointment. He gave me the bad news: “the tooth is abscessed, and there’s a massive infection in the root.  You need root canal therapy and a crown,” he said.  I grimaced. It sounded like I was headed in the direction of more pain and a lot of it. “I’m going to give you a prescription for an antibiotic and some painkillers and it should start feeling better right away,” he said. “You’re going to be O.K.”

Wow. What soothing words. I was going to stop feeling the excruciating pain. I was going to be O.K.  Those are words I, as a criminal lawyer, don’t get to say very often. People come to me, quite frequently, after being arrested for very serious crimes. They are going through what probably is the worst experience of their life. The stress feels like their whole world is collapsing around them. And in that first meeting, I can tell them the range of penalties for what they are charged with, but I can’t tell them what the outcome will be. There are way too many variables and at that first meeting I have so precious little information to go on. What is the evidence against them, and how much of it do the prosecuting attorneys have, and how strong is that evidence? Which prosecutor and judge will be handling the case? What will the attitude of the victim be?

The truth is that if I’m honest I can’t give them a lot of good news, at all, only that I will dig hard to find a defense, fight hard to protect them and try my best to get them an acceptable resolution of their case. But I’m in the bad news business.  I’m like the guide the military hires in foreign, hostile territory. I know the terrain like the back of my hand, but I can’t stop the bombs from falling or the mines from exploding. As an expert I can guide them through the painful experience, and minimize the damage where possible, but it’s still a minefield and it just might have a very bad outcome. In many cases, we’re going to have a long, drawn out process and a result that’s going to hurt, because they have committed a serious crime which will have very serious consequences. Their life may never be the same.

My dentist called me late that night to check up on me, a very caring and thoughtful thing to do, I thought. And I took the antibiotic that he prescribed. By the next evening the excruciating pain was subsiding and by the second day there was virtually no pain. The following week we started on the root canal treatment, and the tooth felt a whole lot better, just like my dentist said it would. I was O.K.

That must be nice to have a job where you can say with confidence, “you’re going to be O.K.” It might not be the most glamorous of occupations, but on most days he can predict the outcome and he can fix the problem. I don’t quite understand why it’s all not covered by my health insurance, but that’s an entirely different problem and one I don’t expect my dentist to solve.

United States Attorney General Eric Holder and The Obama Administration were presented with a choice. They could have chosen to submit Khalid Shaikh Mohammed and the four other alleged 9/11 terrorists to face prosecution either in federal court by federal prosecutors before a federal judge conducted under federal law and procedure, or in the alternative, could have had them face a trial before a military tribunal.

Either decision would have been legally justifiable.

It would have been justifiable to try them in a military tribunal because, as the grieving family members of the 9/11 victims rightly point out, Mohammed, Al Quaida and radical Islam have declared war against the United States. The 9/11 attacks were an intentional expression of a wartime agenda, and Mohammed was a key general in that war. The Americans murdered on 9/11 were innocent victims of an assault on the United States and the American way of life.

The murders, however, were also a violation of federal law, the crimes were committed here on our soil in New York City and not abroad. Mohammed, not an American citizen, is classified in international law as an “unlawful combatant,” not a prisoner of war (POW). Under the Geneva Convention of 1949, a person is a POW if they: (a) are commanded by a person responsible for his subordinates; (b) have a fixed distinctive sign recognizable at a distance; (c) carry arms openly; and (d) conduct their operations in accordance with the laws and customs of war.

Since Mohammed is clearly not a POW but a foreigner alleged to have plotted a horrific and barbaric mass murder on our soil, kidnapping Americans and murdering them with American civilian airline jets, either system of prosecution is justifiable. Neither system will provide true justice for this rogue act of barbarism. As with all horrific crimes that shock our sense of a civilized human existence, any procedures with rules and decorum will feel out of place and elevate Mohammed to a level he seemingly does not deserve.

So why do it?

A civilian trial in a United States District Court will be held to an even higher level of decorum than a military tribunal. The rules of evidence in federal court are stricter than in a military tribunal. The following evidence is allowed in military tribunals but will not be allowed in a federal civilian trial: coerced testimony, hearsay testimony, and written statements not subject to cross-examination. Federal judges and prosecutors have, since 1993, accumulated an impressive record of trying and prosecuting hundreds of suspected terrorists. They prosecuted in a federal court in New York Ramzi Yousef, the mastermind of the first World Trade Center bombing, Omar Adbel Rahman,  the “blind sheik,” and a federal court in Virginia put on trial Zacarias Moussaoui, the “20th hijacker.”

At this time in history the United States needs to further repair an image tarnished during eight years of the Bush Administration. That administration and the manner it treated military prisoners gave minimal rights to the accused, allowed torture and had to be reined in a number of times by the Supreme Court, a court known to be otherwise conservative when it comes to the rights of the accused. In one such strong rebuke, Supreme Court Justice Anthony Kennedy wrote for the majority in Boumediene v. Bush, “the laws and constitution are designed to survive, and remain in force in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

Mohammed would like nothing more than for us to summarily execute him; he craves for us to imitate his barbarism. He wants us to do that so that he and his fellow radicals can hold us up as international oppressors. The appropriate way for us to defy him is to make no apologies, to hold our heads up high and conduct the most fair, dignified proceeding possible. Not because we are weak, but because we are strong. And in acting with elevated rules of procedure and decorum, and conducting an open and public trial in a federal courtroom in New York we will demonstrate to the world, and history shall record, that we are a nation where the overriding principles are the rule of law, of fairness and a dedication to human dignity.

The memory of the victims of 9/11 deserve nothing less.