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.