Ignore the expert commentary you’ve heard so far and the prosecutors’ statements about how this is an open and shut case. Initial descriptions of a criminal case are always one-sided, because the prosecutors are the ones who get to hold a press conference under the American flag talking about how bad the bad guy is.
Defense lawyers always look like they have an uphill fight at the beginning, and the smartest ones will wait and not say much publicly, while they figure out the details of the prosecution’s case. Remember, too, that the burden of proof on TV talk shows gets reversed in court, where defense lawyers only have to establish reasonable doubt.
Pretrial publicity won’t hurt Walker; in fact, it will probably help him at trial. Many, if not most of the most famous cases over the years-William Kennedy Smith, O. J., the John DeLorean drug case, the state trial of the cops who beat Rodney King-resulted in acquittals. And I know from talking to jurors in many of these cases that one of the reasons for the acquittals was their surprise that the evidence in court was so much weaker or at least more ambiguous than all the “evidence” they had read about or seen on TV.
The key legal question in this case is going to be the extent to which interrogators can lie or leave things out when grilling a suspect. The issue is not so much whether Walker really did waive his right to have a lawyer present when he was questioned; after all, the government has a signed form saying he did so. Rather, it’s going to be what he was told before signing that waiver.
I predict he’s going to say that the agents questioning him did not tell him what they knew to be true-that his parents had hired James Brosnahan, one of the country’s best lawyers, to represent him and that Brosnahan was prepared to come see him immediately. Instead, I bet Walker claims something to the effect that the agents told him that his parents and the entire country were ashamed of him and that he was on his own. Sure, they’d get him some kind of legal aid lawyer if he really wanted one, but that that would be a waste of time. This was his opportunity, right now, to cooperate and avoid a treason trial that would humiliate his family and get him executed.
Think Andy Sipowicz and “NYPD Blue.” The U.S. Supreme Court has ruled that cops can lie to people they’re questioning; they can tell them their prints have been found at the crime scene, for example. But while the high court has also said that the police don’t have to tell a suspect that his lawyer wants to see him, it is not clear whether they can deceive a suspect, as may be claimed here, into waiving his right to a lawyer by telling him or implying that the one he’d get is whatever legal aid lawyer they can find in Afghanistan, not the hot-shot counsel who has been retained by his parents. Nor is it clear that if Walker was under the influence of painkillers that he could have, as the law requires, “knowingly and intelligently” waived his right to counsel.
Whether he really meant to go it alone in the questioning rather than have Brosnahan there is not a mere technicality; it may have to do with his actual guilt or innocence. Suppose Walker’s defense is that, yes, he joined a radical Islamic group, and, yes, he agreed to aid and fight for the Taliban, but he never knew about September 11, never knew that American troops were engaged against the Taliban, and never knew the organizations he was involved with were terrorists, because he was persuaded (or maybe he’ll say brainwashed) that they were merely defenders of the faith. He only admitted the opposite because he was heavily sedated, in terrible pain, and was assured that he could avoid a treason charge that way and that the government would go easy on him. Thus, if he’d had a strong lawyer from the get-go, he would not have made these false statements.
The key to whether this case goes to trial instead of getting plea-bargained may be whether Osama bin Laden or some other higher-up is caught and stands trial. Under that circumstance, the government would need Walker to testify about the terror training camps he’d seen and the fact that he’d met bin Laden there. (Who else have they got to offer such testimony?) However, it is unlikely that bin Laden or other big guys will be taken alive. That makes it unlikely that Walker’s testimony-assuming he could testify truthfully that his prior confession wasn’t made up to appease his questioners-will be needed. Which means there will probably be a trial.
Don’t underestimate the Walker lawyers’ effectiveness in front of a conservative Virginia jury. Brosnahan is an Arizona native who has led a large national corporate law firm and been elected to lots of positions with establishment bar groups. And he’s added two top former Virginia prosecutors to his team. The government may have handpicked Virginia for its conservative jury pool, but these guys won’t drown in it.
This case will be dramatic but relatively unimportant. Sure, the drama of the “American Taliban” is irresistible, kind of like a star African-American football player charged with killing his blond wife. But as a legal issue it’s not terribly important, since we don’t have a lot of Americans charged with aiding foreign terrorists. The really important criminal law issue arising out of September 11 is what we’re going to do with all those prisoners at Guantanamo Bay.
Capturing terrorist armies is, unfortunately, destined to be a recurring issue. If they’re not prisoners of war because they’re not soldiers in any national army, and if they’re not criminals who violated American laws and should be tried in American courts, then what are they and what does a nation that cherishes the rule of law do with them at these tribunals planned by the Bush administration?
