Military Commissions

2/13 Hearing #5: Present at the Creation...of the ABA Guidelines

By Raffaela Wakeman
Wednesday, February 13, 2013, 5:50 PM

Col. Sterling Thomas, counsel for al-Baluchi, calls our next witness: Ms. Robin Maher, a law professor and (most relevantly) Director of the ABA Death Penalty Representation Project.

Thomas inquires about the ABA's 2003 Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (the “Guidelines”). Between prosecution objections---and after a few changes in tack by Thomas----Maher discusses the process by which the Guidelines were drafted and adopted by the ABA.  The Guidelines apply to all lawyers, civilian and military, handling capital cases.  That marks a change: the old regime applied only to trial lawyers.  Thomas asks why the military was included in the 2003 guidelines.  Maher’s answer is simple enough: Military attorneys were facing the same struggles as their counterparts in civilian courts.  This satisfies Thomas, who sits.

Bormann seems to revisit one of Thomas’s questions, which drew an objection earlier.  What about Guideline 10.5’s revisions?  These made the rule say that open communication is necessary to capital representation. Does Maher know what motivated the ABA to add that language in 2003?  She lists reasons: court cases, what courts were saying about the performance of counsel in those cases, and the lack of client contact.  The latter was the number one reason underlying complaints to states’ bar associations. Were there any particular cases that you referred to, Bormann asks? Maher doesn’t recall.

Prosecutor Jeffrey Groharing stands, and asks questions focused on Maher’s resume and qualifications.  The defense objects to many of them.  Groharing seems to be asking whether Maher really has expertise on the death penalty? Maher hasn’t tried any criminal cases as a lawyer. Objection again: Maher’s job is to organize people, KSM lawyer David Nevin argues, not offer any personal opinion.  But Groharing thinks her background relevant---to what, Judge Pohl isn’t sure. After all, she’s testifying as to the ABA’s Guidelines, not as an expert witness.  The lawyer then shifts gears, from background to the Guidelines themselves.  Maher was there when they were created, and, she continues, she doesn’t think the death penalty works in a constitutionally-sound manner.  Groharing sees an opening.  So, your objections to the death penalty are centered around whether there’s adequate representation to defendants in a capital trial? Yes. Well, then, I guess you’re fine with a prisoner’s execution, provided his lawyer performed in a constitutionally adequate way?

Maher doesn’t answer because the court sustains a defense objection. Nevertheless, she articulates her views in subsequent answers to other queries.  For the ABA, the death penalty is the law of the land.  Maher says the organization takes no position as to the rightness or wrongness of capital punishment.  Groharing strains hard to unearth Maher’s personal biases about capital cases, but to little effect: Judge Pohl sides with the defense’s many protests.  After several do-overs, the court instructs the prosecutor to frame his question carefully.  This is your last chance, warns Judge Pohl. Here’s the windup, and the pitch: are there circumstances where you personally would support the imposition of the death penalty?  Maher answers no, not at the moment.  She doesn’t think the system can provide the constitutional requirements to sustain a capital punishment system.

The prosecutor pushes on.  What about the commentary attached to the Guidelines, which weren't formally adopted?  No matter, says Maher.  Or the Guidelines' advisory committee: didn't DOJ lawyers object to the Guidelines' provisions on mitigation?  No, criminal prosecutors within the ABA's criminal justice section did, Maher says, not DOJ specifically.  And can an attorney be effective without following every single Guideline?  Sure, if in the attorney's reasoned judgment, there is a strategy that they believe would be more effective.  Finally, we come to the MCA 2009.  Did Maher play a role in its creation?  No, though she acknowledges that the Guidelines could have been considered during the statute's drafting.

The newest addition to KSM's defense team, Gary Sowards, wants Maher to talk a bit more---about her interpretation of the Supreme Court’s Van Hook case, and about certain other facets of the Guidelines. The lawyer's long-form, chatty approach (he does a good deal of reading aloud) draws scrutiny from the bench.  Judge Pohl says Sowards is testifying, and instructs him not to lead Maher---who eventually adds more detail.  There's a bit more in this vein. Among other things, Maher explains the need for mitigation specialists---and then the lawyer is done.

Ruiz gestures towards the accuseds' vague legal status, by asking whether Maher still would have concerns about the death penalty, if the Constitution didn't apply at Guantanamo.  Judge Pohl thinks the question to be self-answering---but allows it anyway, given the Guidelines' great significance for filings in the case.  The court's interruption, however, seems to swallow the witness's answer.  Judge Pohl goes on to ask some questions of his own, regarding adoption of the Guidelines (it's different in every state); determining effectiveness of trial counsel who deviate from the Guidelines (courts have to exercise judgment here); and how judges can preclude, at the ground level, ineffective representation (that's beyond Maher's level of expertise).  Sowards rises and picks up where the court left off.  One of his queries: what if a particular attorney, after relying on the Guidelines, wants to base a decision on his professional judgment? Absolutely, Maher answers.  The Guidelines allow for that.

Cheryl Bormann is back, and asking Maher about Illinois’ adoption of the Guidelines. The Government objects.  So does Judge Pohl, it seems: he cares about federal practice, not practice in the several states. The colloquy brings Maher's testimony to a close.  Judge Pohl excuses the witness.

15 minute recess time.