Crime

Getting In Over Your Head As An Attorney

How do you learn that a case is more than you're ready for? Sometimes, the hard way. 

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It’s a careful dance when you’re an ambitious attorney interested in taking on challenging work, but concerned that some cases may be just too hard to handle.  Examples include: your first murder trial; a giant conspiracy with dozens of defendants; or a matter involving terrorism.  All of these are big ticket items with sometimes thousands of pages of discovery and possible sentences of life in prison.

Because many criminal defense attorneys have Type-A personalities, with oversized egos and natural moxie, many think there’s nothing too big to handle. But some matters are.  How do you learn that a case is more than you’re ready for?  Sometimes, the hard way.

Recently a young colleague came to me crying.  She’d been retained on a murder case but never imagined it would go to trial.  The case against her client was weak, and she assumed the prosecutors would have the sense to dismiss it once they saw the exculpatory evidence she’d gathered.  Unfortunately, that didn’t happen.

Having not practiced more than five years, with only a handful of low-level misdemeanor trials under her belt, my colleague found herself picking a jury in a four-defendant murder case.

The stress literally made her sick.  She called me in a panic, needing advice and solace.   With her consent, I contacted the judge.  Ultimately, she was relieved from the case to both her and her client’s benefit.  The prosecutor went ahead and tried the other defendants and after getting a conviction against one, decided to dismiss the case against her client.  It worked out in the end, but it was a close call for her — physically, emotionally and professionally.

I went through similar anguish when I tried my first (and only) terrorist case.  I’d never tried a federal case before and thought it wouldn’t be much different than a state case.  I was wrong.  Not only were the stakes higher, but everything from where you stand in the court room, the voir dire of 500-plus jurors, the processing of voluminous discovery in a “clean room” that only attorneys with top security clearance could enter — was new to me.  A friend had brought me into the case as co-counsel.  I should have said no. Although I learned a hell of a lot, the client is now doing a life sentence.  Would more experienced counsel have fared better?  Probably.

That’s why I was particularly interested when I read about attorney Alaric Piette, a navy lieutenant assigned to represent alleged terrorist Abd al-Rahim al-Nashiri, the Saudi man accused of bombing an American destroyer in 2000.  Nashiri is being prosecuted in Guantanamo Bay, Cuba, by a military tribunal.  It’s a death penalty case.

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Normally, assignments on capital cases are handled by what’s called “learned counsel,” appointed through the federal Criminal Justice Act.  These attorneys have extensive experience and expertise in navigating the complex ins-and-outs of death-penalty logistics.  Questions like how and whether a case gets “authorized” for death; unusual discovery issues concerning classified documents often withheld from defense; the complexities of getting witnesses to testify from other countries — these are only some of the shoals an attorney dealing with a capital punishment case has to navigate.

Navy Lt. Piette had none of this experience.  He was originally hired as one part of a larger legal defense team, but when the other defense attorneys quit to protest having their private conversations with Nashiri monitored, Piette was the only one left standing.

Although the other attorneys were ordered back to the courtroom to continue the hearings, they refused.  Piette knew he was in over his head, but he felt it inappropriate for the defendant to be in court alone.  According to a New York Times article covering the case, “No lawyer with so little experience has ever led a case before the tribunal, and in fact, regulations prohibit it.”

Some view Piette as a hero, unwilling to let his client be unrepresented while the judge pushes the case forward.  However former lead attorney on the case, Richard Kammen, said Piette’s decision was “complicated” and probably not the right thing to do.

Although Piette goes to court and sits next to his client, he has refused to participate in the proceedings except to repeat, “Defense counsel takes no position other than to object to these proceedings continuing without learned counsel.”  His gambit is that if the case goes on, any conviction against his client would ultimately have to be reversed.

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Getting new “learned counsel” appointed to Guantanamo could take up to a year.  Security clearances alone take several months.  Then there’s the issue of which defense attorneys are willing to practice in such restrictive circumstances with limited discovery and lack of confidentiality.

Piette is taking a very big chance.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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