Vol. 14 No. 1 (January 2004)

DEFENDING MOHAMMAD: JUSTICE ON TRIAL, by Robert E. Precht.  Ithaca, New York: Cornell University Press, 2003. xi + 183 pp. Hardbound, $22.95. ISBN: 0-8014-4155-2.

Reviewed by Paul Lermack, Bradley University.  Email: pnl@bumail.bradley.edu.

On February 26, 1993, a bomb built into a rented truck exploded in a parking garage under the World Trade Center in New York City.  Six people were killed and many were injured.  Property damage and the interruption of business activities harmed many more.  Though overshadowed by the more destructive 9-11 attacks, the 1993 bombing remains the first shot fired by reactionary Islamists in their self-declared war against the United States.

Authorities determined that the truck had been rented, and later reported stolen, by a 26-year-old Palestinian illegal immigrant named Mohammad Salameh.  (When apprehended, Salameh was trying to get a refund of his rental deposit.)  He and three others were tried in 1993-94 on 38 counts arising from the terrorist act itself and conspiracy to commit it.  A fifth conspirator, Ramzi Yousef, whom authorities considered to be the instigator of the plot, fled the country and remained at large until 1995.

No thought-at least, no official thought-was given to the question of whether the legal process was the appropriate forum for such a case.  Should the defendants have been considered prisoners of war, entitled to certain protections at international law?  Should they have been treated as alleged spies or saboteurs, who are traditionally entitled to much less protection?   The absence of reflection in 1993 has had enormous consequences.  In such a fascinating case, the purpose of a trial is only in part to determine the truth behind an event.  The trial must also provide an official explanation of why some horrible deed was done, an explanation that the public will accept.  Only if such an explanation is accepted can healing begin.

Precht, who is now the Assistant Dean of Public Service at the University of Michigan Law School, had then for 12 years been a public defender employed by New York's Legal Aid Society.  He represented Salameh, and he has now written a brief warts-and-all memoir of his participation.  From the evidence of the book, he is an idealistic and capable lawyer, but his mind does not run to abstract legal theory.  He has not written a book inquiring into the essential nature of terrorism-is it crime, war, or perhaps something else?-like, for example, Philip Heymann's recent TERRORISM, FREEDOM AND SECURITY.   Like everyone else involved in this case, Precht seems to have assumed that Salameh should be treated like the accused felons he routinely dealt with.  Nevertheless, his book is of interest to sociolegal scholars for its insider's view.  Precht's experience also suggests various reasons why treating terrorist events like common crimes may be less than satisfying.

Precht has two goals (p.x).  He wants to show how he tried to get Salameh a fair trial and to explain why he did not receive one. His book is more successful on the first than on the second.

The conspirators were a diverse group, and the four defendants knew each other only slightly.  Precht's defense was based on the proposition that Salameh was not a conspirator but a marginal figure who was unaware of the intent of the group.  He performed various chores, including renting the truck, out of friendship rather than criminal intent.  In essence, he was duped by the people he thought were his friends.  Consequently, Precht's strategy was to exclude evidence harmful to Salameh and to try to show that evidence against other conspirators did not apply to Salameh.

This strategy created three difficulties.  It put him at odds with the other three defendants, each of whom had his own lawyer.  In distancing his client from the most damaging evidence, Precht became the object of resentment from the others for abandoning them.  Moreover, some of the other defendants wanted a more explicitly political defense.  Their lawyers had different goals and courtroom styles, and two tried to plea bargain before the trial, apparently without telling the others.  Indeed, the lawyers barely tolerated each other and came into conflict several times during the course of the proceedings.

Precht's strategy also strained his relationship with Salameh, who felt demeaned by being characterized as a patsy and probably placed little trust in his attorney.  It is clear that he was guarded in what he revealed about himself, leaving Precht to discover important details of his client's life and behavior from the mass media.   As a consequence, Precht seems never to have understood his client.  He was often off-balance, responding to unexpected revelations-e.g., that Salameh belonged to a gun club (p.27), that he may have wanted to wear Islamic clothes in the courtroom (p.55) and that he had very different views of what the summation should be like (p.155).  To his detriment, Salameh's guardedness may have been visible to the jury.  In any case, juries are rarely sympathetic to patsies.

Most critically, Precht's strategy required obfuscation and denial.  To the jury, it seemed to put his client at odds with clear facts.  In his book, Precht does not spend much time defining fairness.  He has no abstract definition; rather, he is concerned with "process values."  Salameh would, he assumed, receive a fair trial if procedural rules are followed in his case with the same precision as in the many rape and murder cases that Precht routinely handles.  In consequence, the bulk of his narrative is consumed by discussion of rules and tactical maneuvers for using them to gain advantages at trial.  Fairness, in his view, consists of such things as the exclusion of tainted evidence, the prevention of ex parte communication with the judge, and correction of misleading questions. 

To this end, Precht initially attempted to rush the trial, hoping that the prosecution would make a fatal mistake (p.19). He tried to suppress evidence gained from the search of a rented storage locker, not because the evidence was untrustworthy, but because the FBI made a technical mistake when applying for the search warrant (p.40).  He objected to the prosecution's emotional arguments, but gave up his complaint about an unfruitful discovery request because the prosecutor stayed within the technical rules. Precht notes that when making a motion, there will always be at least one precedent available to support any conceivable legal argument (p.25), and a key to successful trial practice is to find and utilize those precedents. Precht is explicit and unwavering in his faith in the adversary system.  Although as an advocate, a lawyer is not a "truth seeker," vigorous advocacy, he asserts, is important in maintaining public confidence in the process, and it also aids the search for truth.  The jury will have more confidence in evidence if it survives muscular efforts to exclude, weaken or distort it (pp.77-79).

He does not consider alternatives to this perspective, but socio-legal scholars are familiar with many.  In practice, as Federal Judge Marvin E. Frankel (1975) pointed out, "the rules and devices of adversary litigation as we conduct it are not geared for, but are often aptly suited to defeat, the development of the truth" (at 1036).  Moreover, [t]he shop talk in judges' lunchrooms include tales, often told with pleasure, of wily advocates who bested the facts and prevailed" (at 1034).

The skill of the rival lawyers and many other variables all play roles in obscuring, rather than revealing, the truth.  Precht's account is valuable because it unintentionally illustrates the working of one generally overlooked variable - sheer accident.  Experienced and capable lawyers on both sides make mistakes.  Under the pressure of time and public scrutiny, a prosecutor loses control of a witness, who botches a critical identification (pp.94-102).  A defense attorney pushes his cross-examination beyond the point where it helps his client, inadvertently causing harm.  Most embarrassingly, Precht cites an overruled case in an ill-advised motion, thereby earning the enmity of the judge.  A mistake harms the side that makes it.  It is no less harmful for being unintended, and  Precht's experience suggests that mistakes are inevitable in complex trials.

Though the various defense attorneys scored some telling points, they were unsuccessful in rebutting the prosecution's concept of an Islamist conspiracy that included all the defendants. The lawyers disagreed on how to summarize the defense, and one of them, accusing Precht of hurting his client, demanded a mistrial.  Salameh publicly repudiated Precht's cautious summary and, after he and the others were convicted on all counts, he expressed strong Islamist views.  In the end, each defendant was sentenced to 240 years in prison.

Was the trial fair?  Precht believes that it was not, and throughout the book he identifies rulings that went against him, damaging jury instructions and similar problems.  Surprisingly, he doesn't provide many specifics for one key point - the biasing effects of publicity - though he notes the refusal of the judge to change the venue.  Nonetheless, he didn't persuade me that these "bad" calls by the umpire add up to fundamental unfairness in this particular game.  Felix Frankfurter was fond of saying that a criminal defendant is entitled to a fair trial, but not necessarily a perfect one. Salameh's trial was certainly not perfect.  Perhaps complex modern trials, run by fallible human beings and subject to accident and misadventure, can never be perfect.

Is an imperfect trial better than no trial at all?  In an epilogue, Precht argues that terrorism cases should be tried by civilian juries because the military tribunals that have been proposed for this purpose cannot be impartial.  He describes no experiences with military tribunals, but we can assume that military trials, too, are not perfect.  It is rather ironic, in view of his interpretation of Salameh's trial, for him to conclude that common-law courts are inherently better.  Certainly the accident-ridden and perhaps fallible process he describes cannot provide the clear and unambiguous explanation that the public needs after such an unsettling event as a terrorist attack.  Precht's faith in courts is the faith of an advocate-one who, perhaps, has not learned the lesson of his experience.

REFERENCES:

Frankel, Marvin E.  1975. "The Search For Truth: An Umpireal View."  123 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 1031-1059.

Heymann, Philip B.  2003. TERRORISM, FREEDOM AND SECURITY: WINNING WITHOUT WAR. Cambridge, MA: The MIT Press.

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Copyright 2004 by the author, Paul Lermack.