Miscellaneous

Knowing, Voluntary, and Classified

By Anne Skove, Esq.

What makes a guilty plea stick? What constitutes effective assistance of counsel? What happens when much of a defendant's information is classified?

Criminal defendants challenge legal norms and push the procedural envelope. Like bleeding-edge artists, they make the rest of us question our legal sense.

Zacarias Moussaoui, who proved that even terrorists can get a fair shake from the courts in this country, now wants to withdraw his guilty plea.

He claims that the able Judge Brinkema infringed on his constitutional rights by only allowing him access to a lawyer who had security clearance, and by not allowing those cleared lawyers to discuss any super-secret evidence with him.

Liptak calls the restrictions "unusual," but this was an unusual case. Even now, it's not clear (legally, at least) whether terrorists should be tried in federal or military courts.

Judge Brinkema did what she had to do, and did it well. She kept the circus at bay, went the extra mile to ensure fairness, and took no b.s. from anyone on any side.

A new answer to these questions would not detract from her work on this historic and notorious case. Liptak's criticism of Moussaoui's first gripe regarding clearance is near-nonsense in northern Virginia where the trial took place. Every other person in NoVa is a lawyer, and those who do not already have security clearance are not daunted by this prospect.

But as for the second point, information about one's client is not like the buffet at Golden Corral. Sharing is OK! In fact, it's considered ethical to work with your client. And a guilty plea can't be knowing, voluntary, and intelligent when information is missing. Did he need to know every last detail? Perhaps not. But the broad gag rule was, well, a bit broad.

See the well-linked The Right to Counsel, in the Right Situations, Adam Liptak, New York Times (February 26, 2008). And we hereby forgive Mr. Liptak for his dunderheaded comments about juries (see the November 30th issue, because we can't link to pdfs directly), proving that yes we can get over it, sometimes.

Full post as published by court-o-rama.org on February 27, 2008 (boomark / email).