Akbar Case Being Litigated

Here's a limited-time opportunity for people interested in death penalty litigation. Next week, the Army Court of Criminal Appeals is hearing oral arguments in the case of United States v. Hasan K. Akbar. I assume the lead character needs no introduction here.

Well, I follow their website occasionally (a few of my clients, of whom Akbar isn't one, may get relief there in the next year or two). And I see that nowadays, when they're going to have oral arguments, that page sometimes includes links to the briefs. They've done so in Akbar's case. I expect those links will go down on 1 February, when the oral arguments are done, but in the meantime anyone who wishes can pop over there and read the briefs.

I haven't tried a capital case. In fact, I haven't tried a murder at all, and I'm not going to talk here about the cases I have tried. (Some were certainly disturbing enough.) But I know just a little about appellate work and that capital appeals don't look like other appeals. One thing you'll notice, if you take a read through, is that the defense raises a lot of issues, including many that (according to the government brief) were decided decades ago, and not in the defense's favor. This makes a kind of sense. If you know the appeals could go on for decades, the composition of all the courts could change (the Supreme Court included), and they could reverse themselves on dozens of issues that have already been decided. You don't want to waive those issues by failing to raise them. So I can't blame the lawyers for writing their brief that way. Neither should you. (Though you might wish, as I do, that these appeals didn't go on for so long.) In other kinds of case, the ideal is "a rifle, not a shotgun" - make a few points and argue them in depth, and don't waste time with the oddball or the obsolete.

A few notes for anyone who cares to do some wading through --

The page includes the links but not the evidentiary exhibits, let alone the record of trial. The government brief makes frequent references to "GAE 1" (Government Appellate Exhibit 1). This is almost certainly an affidavit from one of Akbar's trial attorneys. Normally, a lawyer's duty of confidentiality continues unbroken after trial, and he will often decline to explain his decisions, as they may relate to things his client told him in private, or information that has not come to light and that would not be good for the client. But if the client is claiming ineffective assistance of counsel (a common thing in capital litigation), the lawyer is partly released from that duty. He can reveal confidential things, but only insofar as is needed to defend himself against the charge of ineffective assistance (if he was really that bad, that has some serious implications for his career and maybe his license). So if the client claims on appeal, "My stupid lawyer didn't pay attention when I told him about my rough childhood" - the lawyer can write an affidavit saying, "Oh, yes I did, and I didn't raise it in court because it would convince the judge you were broken beyond repair and should be locked up for life" - or whatever. Anyway, this is why the government appellate lawyers are writing as if they know so much about what the trial defense attorneys were thinking.

Only one part of the briefs made me raise my eyebrows - page 68 of the appellee (government)'s first brief. "Mrs. Nerad" is an expert in mitigation in death cases, one of several hired for the defense in that case:
Furthermore, trial defense counsel did not agree with Ms. Nerad's philosophy that "a mitigation investigation was effectively endless and that it was her practice to always request more time and more funding until the state government relented on pursuing the death penalty. If the government did not relent, then, according to Mrs. Nerad,
there would be a built in appellate issue.
In the footnote, the appellate counsel takes a nasty little swipe to say that "Ms. Nerad's strategy is exactly what [Akbar] has placed before this court." The way I was brought up, you don't make that kind of accusation against the other side - at least, not without some very powerful proof. Think it, yes. Say it, no. (And in a death case, there are solid reasons for litigating very differently than in other kinds, as I mentioned before.)

Anyway, if you'd like a little insight into that case that isn't filtered through the press, and you have some time, there's your chance.


rcl said...

In case this may be helpful to others... MIL site certificates always cause me browsing security problems. Same with Joseph's links. If I'm surfing to Seabee Battalion 133 pages in Chrome I get a security warning with a button to Continue Anyway or Go Back. With the Akbar case my only choice in Chrome was BACK. Totally inaccessible.

Other Browsers:

IE... had a Proceed button but then returned an error. Fail.

Safari... brought up a warning dialog with a button to Proceed or Go Back. Hitting Proceed loaded the documents page perfectly.

So, on my Windows laptop only Safari would follow the link.

Thanks Joseph. I've downloaded the docs and will give them a read this evening.

In ten years that SOB should have been planted by now. I was heartened by the strength of the fiancee and wife quoted in the linked article. Impressive. I hope Akbar is off their radar screen ASAP.

Joseph W. said...

rcl, sorry to hear that - I assumed it'd work for everyone since I can get at it from my personal laptop (using IE) as well as my work machine. (But I probably downloaded certificates from AKO a while ago and forgot I'd done it.) And thanks for the tip.

I think, 'round here, most folks would prefer this kind of speed in executions.

bthun said...

Firefox complains about the cert but allows you to take responsibility for accepting it despite the warning. Bless it's iddy biddy heart.

"I think, 'round here, most folks would prefer this kind of speed in executions."

Heheh. Depends on the crime and the evidence agin' the defendant.

Allow me to thank you too Joseph. Maybe in another life I will have an opportunity to study law since it seems to fascinate me so in this one. Well, now that I'm at this point in my life it fascinates.

BTW. To your Ms. Nerad's strategy matter. There was a local case not so many years ago in which a man snapped, went homicidal, killed several people, many bystanders witnessed the act, the Courthouse CCTV recorded the crimes in the courthouse, plus he held a young lady (IIRC) hostage after killing the federal agent and he gave her a blow by blow confession as she attempted to talk him into surrendering. IIRC she was the reason he surrendered.

Yet despite the barge load of evidence against the fellow, like in the case you post, the expense for providing a public defender, expert witnesses, et al. almost bankrupted the county's judicial budget.

Given the actions of pendulums, I wonder if some boundaries can be placed on pilfering the public purse in order to provide the best possible defense in such cases. Or at least placing boundaries around or trying to quantify best possible defense. Otherwise one accused individual, through the efforts of his legal representation, can apparently bankrupt the public treasury leaving all the other accused in need of a public defender, in the words of Curly Howard, Sortinly outta luck, aka SOL.

Any thoughts on that part of the matter?

Grim said...

I'm afraid I have the browser security issue too. Probably an incompatible security certificate -- military sites use a different format.

Joseph W. said...

Bruce - well, in the federal budget criminal justice is not one of the big-ticket items - I don't know if there's any state where it is - but, no, I don't have anything intelligent to say about the case you mentioned.

On the Army side, the system for hiring experts is pretty rational. The defense attorneys' command (TDS) doesn't get a budget (except for travel). If they want to hire an expert or an investigator, they ask the command to hire him (or assign a military person if that works) - and if the command refuses, they can ask the judge to compel the expert. There is no "blanket" entitlement to expert assistance - but in death cases the command's more likely to grant a lot of requests to kill appeal issues. (They don't want to try the case again.) I like that the defense attorneys in this case didn't believe in endless requests to make the case expensive - that is not a proper way to practice law. So, anyway, the boundaries are there, at least with the system I know about. Imperfectly policed, maybe, but there. But they're conceptual boundaries based on "What rights do you have to an effective defense?" rather than monetary boundaries based on, "How much is allotted for you to spend?"

As you can see from the government's brief, the standard is not "a perfect defense" or even "the best possible defense" -- the whole thing's got to be done by human beings and the legal standards recognize that.

Back in the Nineties Congress passed the "Antiterrorism and Effective Death Penalty Act" - part of the purpose was to cut down on post-trial litigation. (The parts I've dealt with in the past are designed to stop people from using habeas corpus petitions to relitigate their appeals...or litigate all the appeal issues they didn't raise the first time.) I do not know why these cases still take as long as they do.

douglas said...

She may find that bit may hurt her in the future (if I have any clue about law at all- which I don't).

I would think a prosecutor facing appeals from her, and seeing the use of multiple serial requests for time and funding would point out that she has admitted that it is her standard tactic, and that whatever she is preparing should be able to be done in a finite period of time and still qualify as a fair defense- no defense requires an infinite time period of preparation would seem to be a reasonable statement.