Enemy Combatant Mass market paperbound - 2008

Summary

Excerpt

Chapter One


It was a fluke that I was in the courtroom at all.

The Juan Gomez trial was sensational by any standard, but for the scandal-starved Southwest, this trial was a thrill-seeker's ambrosia, and the good folks of Arizona were dying for a taste. Phoenix Superior Courtroom Number One-B was jammed with the curious and the vengeful as the trial opened on that fateful June 5. The defendant was being prosecuted for plotting two attacks: one in Houston, which, thank God, had been thwarted in the planning stage, and the one in Denver on that terrible May morning that killed one hundred thirteen people, and injured three hundred twenty-eight more. Gomez was the biggest terrorist suspect to be tried in the U.S. since Timothy McVeigh and Zacarias Moussaoui.

The only reason I got to see the trial in the first place was because Sarge, the chief court officer, had saved a seat for me.

Sarge was a former Marine, and the most physically intimidating sixty-five-year-old man I knew. He had started as a court officer at around the same time my dad began his career as an A.D.A. As a child, whenever I accompanied my father to the courthouse, I would always spend a considerable amount of time staring at Sarge's terrifying but mesmerizing flattop haircut. It didn't hurt that he'd sneak me some Reese's Pieces every time he saw me.

My weakness for junk food dried up around the time I became a lawyer myself, but Sarge's affection for my family never did. And he knew that on the fifth day of every June–except for 1995, when my mother's appendix demanded an immediate detour to Phoenix General–my parents, my older brother, Dale, and I would attend whatever criminal trial was taking place at the superior courthouse.
It is the one family ritual I continue to honor even after everything that happened. But more about that later.

At the time of the Gomez trial, Sarge was well aware that my mom and Dale were no longer alive, so it was a real long shot that my father would have the energy to endure the wall-to-wall mob sure to make life in the wheelchair even harder than it already was. But that didn't stop the big court officer from saving a place for us anyway, just in case.

And so the stage was set for my spectacular and ill-advised pratfall into the unique limelight reserved for mass murderers.

I was in the third row, shoehorned between reporters from USA Today on my left and The New York Times on my right. All the big press outlets had swept into town like an Old Testament plague when it was announced that Gomez would be tried here in Phoenix. Fifty of the nearly three hundred seats in the gallery were reserved for them. They complained–hundreds of them were shut out–but they weren't the only ones clamoring for a firsthand view of terrorist justice, Arizona-style. Thousands of ordinary citizens competed for the remaining opportunities to witness what Governor–and current senatorial candidate–Atlee Hamilton had promised would be a demonstration of "good old-fashioned American West jurisprudence," whatever that was supposed to mean. And in a particularly opportunistic move, even for someone as publicity-hungry as Hamilton, he had pledged to attend a portion of every day of the trial.

One thing that was definitely not old-fashioned, however, was the trial's television coverage. That entire aspect of the case was being managed by the new, federally run Judicial Broadcasting System. The idea was to balance the public's right to view criminal trials with the limitations of space by setting up a single camera in the courtroom. That source would then provide a live video and audio feed of the proceedings to any television network or station that requested it.

And according to what I've heard, the system worked very well. Tens of millions watched as Judge Rhonda Klay presided over jury selection on that historic opening day of the trial.

I was sorry to see that Judge Klay had been assigned to the case–not because she was one of the meanest judges in Arizona, but because she was one of the worst.

The trouble was not that the small, lizardlike woman lacked the brains for the job. It was, instead, that Rhonda Klay used her considerable intelligence to twist the rules to make it almost impossible for any defendant to get a fair trial.

I realize that last statement sounds like it was written by a defense attorney, and, well, it was. But for several years before the Gomez fiasco, aside from a handful of very mediocre trial performances, I had made my living almost exclusively as a court-appointed criminal appeals attorney. It was my duty to review trial transcripts, and to spot judges who didn't follow the rules. I was pretty good at it, too. Usually, when I found a problem, it was because a judge didn't know or understand the relevant legal principle.

What made Judge Klay unique was that she knew and understood all the relevant legal principles. She just slithered her way around and through them so that virtually all her criminal trials ended in guilty verdicts. Often in ways that were not ethical.

Or at least they seemed not ethical. No one could prove anything, of course.

For example, the pool of potential jurors for the Gomez trial looked almost exclusively Anglo. Considering that the defendant was Hispanic, and that about one quarter of the population of Arizona is Hispanic, anyone in Gomez's position might well have wondered how twelve individuals culled from an all-white group of people could comprise a jury of his peers.

And anyone in Judge Klay's position might well have been concerned, or at least puzzled, at the unusual racial composition of the jury pool.

But the woman with the slicked-back hair and the skinny nose seated at the head of the courtroom looked like everything was just dandy. She knew that potential jurors were supposed to be randomly divided into different groups for different cases behind closed doors, by officials sworn to act in accordance with evenhanded rules. So she also knew that it was virtually impossible to prove that she'd tampered with the selection process to ensure a racial imbalance favorable to the prosecution.
Why was I so sure that Judge Klay had stacked the deck? Because in every one of the major criminal cases that she presided over where the defendant was Hispanic, the jury pool was always disproportionately Anglo. You do the math.

From her perch behind the bench, the judge glanced at the assistant district attorney. Then she turned and smiled in the direction of the defense table, and said in her pinched soprano, "There being no objections to the jury pool, the defendant may exercise his first round of peremptory challenges."

It was a classic Rhonda Klay move–cheat, and dare anyone to call her on it. What was a lawyer supposed to do? Accuse her of manipulating the composition of the jury without any proof?
And then, a surprise. This defendant did.

Or at least he tried to. At the judge's words, the short, brown-skinned man with the curly beard and the wire-rimmed glasses began whispering intently to his lawyer, stabbing his finger at the potential juror pool, then pointing to himself, then shaking his head. Finally he motioned to his lawyer with both hands, as if urging him to stand up and say something.

But Gomez's lawyer did neither. Which, sadly, was not a surprise. Because Gomez was being represented by Silent Steve Temilow, another disgrace to the criminal bar. Temilow didn't belong in the courtroom for any number of reasons, high on the list being that he couldn't lawyer himself out of a bad parking ticket. But Judge Klay had appointed Temilow to the case because Gomez had complained twice during the five months he'd awaited trial that he wasn't being represented adequately.

It wasn't particularly unusual for indigent defendants in capital cases to doubt that the same government that was trying to have them executed was going to provide them with an attorney who was really going to do battle for them. And Gomez was not exactly your run-of-the-mill indigent defendant in a capital case. Because he was suspected of a terrorist attack, he was treated by the government when he was first arrested as an "enemy combatant," which is another way of saying that he was held for the better part of six months without the most basic of civil rights, and regularly tortured for information about future terrorist attacks.

So it was hardly a shock when it was reported that after meeting his first lawyer, Gomez couldn't bring himself to trust the man, and promptly requested another one.

Gomez's complaint about Attorney Number Two–a decent lawyer named Bruno Smithson–was that after months on the case, the attorney refused to do anything except advise Gomez to plead guilty and thereby hope to avoid execution. Bruno actually called me twice while he was on the case. The first time, it was because he couldn't figure out a way to convince his client Gomez that they needed a lot of time to prepare. Gomez thought they should go to trial four days after Bruno was appointed.

The second call, several weeks later, was much more serious. Gomez was insisting that he was innocent, and refused to plead guilty. The problem with that was Bruno had never seen such an airtight case. Gomez had clear connections to the man who actually detonated the Denver bomb, as well as file cabinets full of other thoroughly damning evidence found when the government had searched Gomez's home. Bruno couldn't accept that it was in Gomez's best interests to force a trial, and their inability to get over that disagreement led to his dismissal.

Enter Silent Steve Temilow, the human doormat.

Now Gomez's gesticulations were getting more exaggerated, so the lawyer with the thinning hair and the prominent Adam's apple appeared to take yet another tack–to pretend that the heated whispers and the flailing arms of the man on his left were nothing more than the products of a curious phantasm, best ignored. Stiffly, Steve shuffled through some papers on the table before him, ignoring his client and clearly stalling.

Judge Klay preferred a more direct approach to the situation. "Mr. Gomez, kindly control yourself–this is a court of law. And Mr. Temilow? Is there a problem? May we have the defendant's first set of peremptory challenges, please?"

There would, however, be no denying Juan Gomez. As Temilow rose to address the judge, the defendant rose, too, unwilling to let his attorney off the hook. His increasingly insistent body language demanded eye contact. But Silent Steve soldiered on, bravely disregarding his client's sleeve-tugging and table-banging by repeatedly adjusting his glasses, and by adopting a robotic posture. His neck, shoulders, and upper body were so rigidly held he seemed almost physically incapable of turning and acknowledging the desperate pantomime taking place to his left.

Staring ahead at Judge Klay, he finally spoke. "Um, Your Honor, I'd first like to personally apologize, and to apologize on behalf of the defendant as well, both to you and to the ladies and gentlemen of the jury pool for, well, for any impropriety that may have taken place over the last few minutes at the defense table."

Gomez looked dumbfounded. Could this get any worse? The answer, incredibly, was yes.
"And with further apologies for any delay, and for any inconvenience caused by such delay, I would like now to address the court's inquiry regarding the composition of the jury."

As he realized that his attorney was finally, finally going to confront the extremely non-Hispanic-looking elephant in the room, Gomez seemed to relax a bit. The expression on his face became somewhat expectant. That expression would soon disappear.

Temilow continued. "First, Your Honor, the defense specifically waives any objection to the composition of the jury pool, it being well understood that the process by which these candidates were selected as potential jurors for this case was a random one."

When Gomez processed this capitulation, he began shaking his head back and forth, looking at the judge, and pointing at Temilow, in silent, negative commentary.

The lawyer twisted his body so that although he was still facing the judge, his back was now fully to his client. He seemed to hope that by maneuvering Gomez out of his field of view he might make the distracting little man disappear from the courtroom entirely. "And further, Your Honor, the defendant will also waive all peremptory challenges. The defendant is confident that any member of the community will render a fair and just verdict in this case."

It was at that point that Gomez could no longer restrain himself. "Oh, no," he said, continuing to shake his head, but now raising his shackled hands above his head as if Temilow had just scored a touchdown for the wrong team. "No, no, no. I am not waiving anything. And I am not apologizing for nothing, neither. I am firing this man. Right now. I want a new lawyer, Judge. This one is not working for me. He is waiving everything, and apologizing, and he is not listening to me at all. I ain't waiving nothing. I want a new lawyer."

With the exception of the frenetic scratching of reporters' pens and pencils against paper, the courtroom became deathly silent. Gomez lowered his hands, and just stood there, as if not quite sure what to do next. Then, abruptly, he sat down, and declared, "That's it. I'm done, Your Honor. I need a new lawyer."

Apparently, it was time for someone else to talk.

Yet it was not clear that poor Steve Temilow was up to the task. He had managed to keep his back to the defendant for the entire tirade, but Gomez had failed to dematerialize. Worse, the unpleasant fellow had added a sound track to his heretofore silent performance.

So Temilow did what he did best–he hoisted a white flag.

"Um, Your Honor, if I might attempt to address the court. With deepest personal apologies, of course, for the unusual nature of this situation. . . ."

However, Judge Klay was not so easily assuaged. "Your apology is not accepted, Mr. Temilow," she snapped, glaring at the defendant. "I rather think that it is Mr. Gomez who needs to address this court. Mr. Gomez?"

The defendant rose from his seat before speaking. "Yes, Judge?"

"Am I to understand that despite the fact you stand trial for multiple counts of murder and for conspiracy to commit murder as well as a number of other extremely serious crimes, you wish for me to discharge Mr. Temilow from the case?"

"Well, Your Honor, I don't know about no discharge. All I want is a new lawyer. This one ain't doing nothing for me. He sounds like all he wants to do is give up, but I didn't do nothing wrong, so I don't want him representing me."

The judge took a deep breath. She glanced over the defendant's head at the courtroom crowded with people, reporters, a television camera, the governor and his wife, even those members of the victims' families who had made the trip down to see this fiend get what was coming to him. Then she looked at the prosecutor. Of course I don't know exactly what was going on in Rhonda Klay's mind at that moment, but I would have bet you a stack of pancakes that she was thinking there was no way in the world she was going to be shown up in her courtroom, in front of millions of Americans, on the first day of the slam-dunk trial of a mass-murdering terrorist.