MCBA hosts Law Day CLE on John Adams

By Denise M. Champagne
Posted: 4:03 pm Fri, April 15, 2011

Imagine trying to defend people accused of taking part in the Sept. 11 terrorist attacks. What about representing a serial killer or militia member who just gunned down local citizens?

It has been done, sometimes at great personal cost, such as the scorn John Adams suffered when he represented a British officer and soldiers who fired into a crowd of protestors, killing five in what came to be called the Boston Massacre.

His courage and the importance of upholding the rule of law, even in the face of controversy, is the subject of a new Continuing Legal Education program being presented May 3 in conjunction with Law Day 2011.

Sponsored by the Academy of Law of the Monroe County Bar Association, “The Legacy of John Adams from Boston to Guantanamo: Representing Controversial Clients” features attorneys who have been involved in controversial cases, and a panel discussion.

The featured speaker is Brian Mizer, a federal public defender in the Eastern District of Virginia, who represented Salim Hamdan, a Yemeni national who was Osama Bin Laden’s driver.

Hamdan was captured in Afghanistan during a U.S. invasion about 11 weeks after Sept. 11. An alleged al-Qaida associate, he was imprisoned at Guantanamo Bay, Cuba, and eventually charged in July 2004 with conspiracy and providing material support for terrorism.

Hamdan, according to court documents, asserted that the military commission lacked the authority to try him because conspiracy was not an act of war and that the procedures adopted to try him violated the basic tenets of military and international law allowing a defendant to see and hear evidence against him.

His trial by military commission was halted four months later by the U.S. District Court for the District of Columbia, which ruled Hamdan was protected by the Geneva Convention unless he was adjudged not to be a prisoner of war and that the proceedings, regardless, violated the Uniform Code of Military Justice.

The D.C. Circuit reversed and the matter went to the U.S. Supreme Court, which reversed the lower court and remanded the case back down for trial. In reaction to Hamdan v. Rumsfeld 548 U.S. 557 (2006), Congress passed the Military Commissions Act of 2006 that authorized trial by military commission “for violations of the law of war, and for other purposes.”

That’s when Mizer became involved. He and three other military lawyers defended Hamdan who was eventually convicted (August 2008)) of the lesser charge and sentenced to five and half more months than the time he had already served.

Mizer said Hamdan was acquitted of conspiracy to commit the 9/11 attacks and attacks on the USS Cole and embassies in Africa.

Mizer said one of the great ironies in the Hamdan case is that he was convicted of a war crime that didn’t exist at the time he was charged. Mizer is working on an appeal even though Hamdan, who is back in Yemen, faces no chance of being returned to the U.S.

Mizer is challenging the fact that his client was charged after the fact and whether or not material support for terrorism is a war crime.

“I don’t think there is any evidence or reputable scholar that will say that it is,” Mizer said in a telephone interview, noting that it is a federal crime.

His defense of Hamdan was unpopular and controversial, something Mizer knew from the start that it would be. He said he was apprehensive about representing a man he had been told was a member of al-Qaida, involved in allegations of the worst crimes imaginable.

Mizer said reaction was all over the board. He said people were obviously upset and angry, but that most recognized he was a military attorney who took an oath to uphold the Constitution of the United States.

He was surprised at what he found at Guatanamo where he said coercion, hearsay, sleep deprivation and other tactics were being used against the accused — things that would never have happened in a civilian or military court.

“I thought I would find the full fair judicial process we were promised when we went down there,” Mizer said. “That’s not what I found. We had a man that the president (George W. Bush) said no law applied to. The Supreme Court said some laws apply. It was just as important for applying the rule of law. These are the ideals that our country was founded on. Defending Hamdan was as much about that as defending the charges that he was accused of committing.”

Mizer said it is important to debate how to bring those responsible for the attacks against the U.S. to justice in accordance with American values and the rule of law.

“When I hear people advocating for military commissions as some sort of fair judicial process, I think they ought to know what’s really happening at the military commissions at Guatanamo Bay,” Mizer said.

Prior to becoming a federal defender, Mizer spent more than nine years on active duty in the U.S. Navy Judge Advocate General’s Corps, which is how, through a mutual acquaintance, he was selected by local attorney Mark Pedersen, a law clerk to U.S. District Court Judge Charles J. Siragusa, and a member and past dean of the Academy of Law.

Pedersen, who also served active duty in the Navy JAG Corps, thinks Mizer fits in well with the John Adams theme, which originated with the American Bar Association.

“I think it was very brave of [Adams] to expend his considerable political capital in choosing to represent these British soldiers at a time when the British were hated by the colonists,” Pederson said. “He put his duty to the law before his own popularity and he zealously represented these very controversial clients. Every lawyer has that duty. Some exercise it better than others.”

James Moore of Harter Secrest & Emery LLP will give historical background on John Adams and his role in the 1770 Boston Massacre trials as an example of the commitment to the rule of law and defense of unpopular clients.

The program is MCBA’s first Law Day-themed CLE. It also includes a panel discussion that will focus on experiences in dealing with difficult clients and related topics such as gag orders, ethical dilemmas in civil and criminal cases, handling the media, and how to balance serving as a zealous advocate versus an officer of the court.

Thomas Smith, a Harter Secrest partner, selected the panel, which includes U.S. District Court Judge David G. Larimer, state Supreme Court Justice Francis A. Affronti and attorneys David Murante, Joan de R. O’Byrne, John Speranza and Paul Cambria Jr., a senior partner at the Buffalo office of Lipsitz Green Scime Cambria LLP.

Smith said Murante represented Arthur Shawcross, who was convicted of murdering 11 women, 10 in Monroe County. Cambria is a highly regarded First Amendment and defense lawyer who represented Larry Flynt of Hustler, Marilyn Manson and others in controversial cases.

Smith, a former MCBA president, said Speranza has been at the forefront of major criminal cases and O’Byrne has a reputation as a zealous advocate who has challenged judges from time to time with her level of advocacy. The judges were included for their perspective.

“I know Judge Larimer and Judge Affronti have had challenging cases over the last several years in high-profile matters,” Smith said. “They have had to sometimes discipline lawyers or deal with lawyers who perhaps get a bit aggressive or over reaching in their representation. We want to cover that zealous representation.”

Smith said Adams, who also suffered financial loss when his practice was shunned, acted courageously which should be respected and used as a model for lawyers today.

“The role of a lawyer is to make sure everyone gets the best representation they can get,” Smith said. “The system only works well if both sides of a controversial case have quality representation. Can we truly have equal justice for all if lawyers are unwilling or reluctant to take on controversial clients because they fear public scorn or retribution? That’s a really important topic that needs to be discussed and we’ve got a great panel.”

Also collaborating on the program was Louise Spinelli, MCBA’s CLE manager.