Defending Mohammad
Defending Mohammad: Justice on Trial, By Robert E. Precht
Cornell University Press, Ithaca, New York, 2003. 183 pages, $22.95.
Review by Heidi Boghosian
It is simply not practical for a Legal Aid attorney to argue that the government may have been involved in the 1993 World Trade Center bombing – even if the theory has merit. After all, a lawyer could incur the wrath of a prickly presiding judge. And the judge, once riled, could toss the defense attorney off the case. Worse still, the courts could cancel the New York Legal Aid Society’s contract.
Defense trial strategy is just one example in Defending Mohammad of how issues of magnitude are informed by the mundane. Robert Precht’s true account of being jolted out of “mid-career doldrums” into the limelight with a high-profile assignment grapples with the integrity of the justice system. A central question emerges through his informative, sometimes self-critical, analysis of the legal and human factors involved in meting out justice: is a fair trial possible for defendants accused of acts of terrorism against the United States? This question is especially relevant a decade after the events described.
Written for a lay audience, the book’s fast pace is set from the first paragraph when Precht misses his piano lesson because the Trade Center bombing caused subway delays. By page four this federal public defender from the New York Legal Aid Society is assigned to represent Jordanian immigrant Mohammad Salameh, the renter of the van that carried the bomb, in the first case of terrorism on United States soil. By page ten we’re hooked by a gripping mix of testimony and statements taken verbatim from the trial transcript.
Precht’s determination to ensure that Salameh receives a fair trial is metaphor for preserving the rule of law. Readers will identify with the courtroom blunders that mark Precht’s first few encounters with U.S. District Court Judge Kevin Thomas Duffy. He angers the judge by challenging a gag order. He fails to shepardize a case and misspells the name of another one. We root for larger justice while knowing that these errors will affect the outcome. Who hasn't had a thorny dynamic with a judge and feared offending him or her? Here, such fear damages the defense’s effectiveness when Precht shirks from making an objection that could have been preserved for appeal. He reminds us that the Legal Aid Society has a contract with the courts to provide public defender services, a contract that can be canceled by a judicial oversight committee. These factors make it difficult to guarantee a fair trial for a young, impoverished immigrant, especially when the FBI leaks inflammatory statements about him to a hungry press.
Chapters correspond with phases of the trial and related themes. “Cross-Examination” could be a trial advocacy lesson with examples of effective and ineffective attempts to elicit that government witness Aashref Moneeb was pressured to identify defendants who had apparently met and planned in secrecy. In “Mosque,” Precht visits a Jersey City mosque and urges 100 worshippers to attend the trial, recognizing his responsibility to expose Salemeh’s humanity to jurors. “You Don't See the Case for What It Is” quotes William Kunstler as he unsuccessfully tries to persuade Precht and co-counsel John Byrnes that the case is political and should be tried that way. A theory was that FBI informant Emad Salem entrapped Mohammad and his three co-defendants; an embarrassed FBI may be trying to hide that fact. Byrnes reminds Precht that a good reason not to call Salem to testify is to avoid angering the judge.
As the trial proceeds, we long for impartiality. We hope that faith in the system will be reaffirmed despite Judge Duffy’s disregard for the rules of evidence in allowing highly prejudicial victim testimony to be presented. It is thus a relief when the judge reminds counsel that co-defendants cannot take the stand to exonerate themselves because their testimony could be challenged by proffers made during plea negotiations. He seems to have the defendant’s interest in mind until he bluntly states: “I think your client will be convicted. … I’m fairly certain he did it.” We cringe when we realize that Duffy’s knowledge of the confidential proffer statements convinced him early on that Salameh was guilty. And we learn, after the conviction, that the Office of the Inspector General found the FBI chemist’s testimony on the bomb to be either false or unsupported by scientific evidence. (This was one of the findings in a 1997 report on allegations of corruption in the FBI laboratory.)
Contrasted with these glimpses into the courtroom, Precht’s relationship with Salameh exposes the frailties and humanity of the accused. Attorney visits, telephone conversations with Salameh’s parents, and a visit to the mosque contrast with the negative picture painted in the press by unnamed FBI officials linking Salameh to a sect of violent Muslim fundamentalists.
The prejudices against “others” referenced in Defending Mohammad are now widely institutionalized in the name of national security. In the past two years the government has deported thousands of non-citizens, especially Arabs and Muslims, subjected them to interviews and registration, and held them indefinitely based on secret evidence. It has issued a military order providing that non-citizens may be tried by military tribunals with the possibility of executions and without possibility of appeal to civilian court. The recent rash of anti-terrorism measures is in stark contrast to the subtle and thoughtful insights Precht provides about fairness in our justice system.
An expert media commentator, Robert E. Precht is now assistant dean of Public Service and director of the Office of Public Service at the University of Michigan Law School. Precht’s final message is that our system of legal safeguards works only if the participants use them: the best weapon against terrorists is the rule of law and the tools designed to promote neutrality – the jury, an impartial judge, and appellate review. Such unwavering trust in the rule of law may seem naïve to readers who question the constitutionality of recent government actions. Yet Defending Mohammad is a refreshing testament of hope that each individual’s efforts may ensure integrity in the judicial system.