Devil’s Advocates

Los Angeles attorney Russell Hayman sits in the United Nations detention center at The Hague. The room is cramped, divided by glass 2 inches thick. Beside him is an interpreter. On the other side of the divider is Tihomir Blaskic, a meaty man with a receding hairline and round-rimmed glasses.

It is July 1996. Hayman has flown to the Netherlands to resolve a moral dilemma. Blaskic is a Croatian general accused of overseeing massacres of Bosnian Muslims and, as such, is the highest-ranking military official to date brought before a U.N. tribunal on war crimes in the former Yugoslavia. Hayman, a former prosecutor, has been asked to defend him, but he is hesitating.

The case offers him a chance to be part of history, on a world stage, and the intellectual challenge of going against U.N. prosecutors. For countless reasons, the odds against a defense attorney on these cases are huge, so any lawyer who pulls out a victory becomes another Johnnie Cochran, so to speak. Also weighing on Hayman’s mind is a guiding principle of jurisprudence--every defendant deserves representation. Certainly Blaskic should have an attorney. Even the Nazis tried at Nuremburg after World War II had lawyers.

But Hayman has qualms, as do many attorneys asked to defend accused war criminals or terrorists these days. If they agree to do so, they enter an arena of moral uncertainty, where definitions of good and evil can blur, where the scales of justice can seem to weigh client loyalty against government allegiance, where legal careers can suffer.

In this instance, Hayman is held back by his own morals. He has spent years defending corporations but has, until now, refused on principle to represent terrorists, drug traffickers or violent criminals. Yet when the request to defend Blaskic came from an American ambassador, Hayman couldn’t quite dismiss it outright. Friends and colleagues encouraged him to take the historic case. The Croatian government of President Franjo Tudjman offered its full cooperation and agreed to pay Hayman’s standard rate of $400 an hour.

So Hayman began reading up on the case.

Prosecutors alleged that Blaskic oversaw many atrocities. Specifically, they said that before dawn on April 16, 1993, shouts and gunfire awoke men, women and children in the village of Ahmici, in Bosnia’s Lasva Valley. As they fled their houses, they were shot down. Those who stayed inside were immolated when Croatian fighters set fire to the village. About 100 Bosnian Muslim civilians were killed, and the massacre became a prototype for eliminating the Muslim presence in villages in the region. The nascent United Nations tribunal accused Blaskic of command responsibility--the first such charge against a military figure since World War II, Hayman says.

However, Hayman also found indications that Blaskic may have been set up by other Croatians. If true, then Blaskic was a victim, not a criminal--in which case he might be worthy of defending. So Hayman flew to the Netherlands to meet the defendant, telling himself he would take the case only if he was convinced Blaskic been accused unjustly. But now as he leans forward toward the glass, with the defendant smiling from the other side, Hayman questions himself once more: “How am I going to find the truth?” The man before him seems kindly, bookish. Most people have a hard time believing someone smiling gently and talking softly to them is capable of horrible acts. What’s more, Hayman is far more familiar with corporate clients, especially hospitals in health-care fraud and abuse cases, than he is with men accused of atrocities. “I thought he looked more like a librarian than a war criminal,” Hayman says.

The two communicate through microphones, but the conversation is broadcast elsewhere in the prison and can be overheard by guards. Hayman interviews Blaskic at length, then reads more about the case. Eventually, he concludes that Blaskic had been framed by other Croatian military leaders who were looking for a scapegoat to save themselves.

“There are always people who say, ‘How can you defend this person?’ ” Hayman says. “But there are cases where, after conducting due diligence, you are skeptical. He was set up. If he wasn’t a moral and ethical guy, I wouldn’t have been interested in defending him.”

When speaking with a trial attorney for either side, it is worth remembering that they are storytellers, creatively scripting plausible scenarios by sewing together interpretations of facts and seemingly reasonable assumptions. In borderline cases, the better storyteller often wins. According to Hayman, after several top Croatian military and political officials were indicted, the Tudjman government encouraged Blaskic to go to The Hague to clear his name, knowing that his lack of knowledge of the crimes would make it impossible for him to implicate others who had been charged. His acquittal, the government assumed, would show that prosecutors had overreached--probably in a misguided attempt to counterbalance the numerous prosecutions of Serbs underway. “He was a decoy,” Hayman says.

Showing that in court, however, would prove difficult. War crimes are often born of extreme political opportunism and desperation. Witnesses are ready to lie to convict sworn enemies, and impartial witnesses are, at times, nearly impossible to find. Truth is particularly elusive when evidence sites are despoiled, the lines of command are blurred and official orders are secret. For lawyers, these cases can have more in common with the complex prosecutions of CEOs for the actions of massive multilayered companies than they do with, say, serial killers.

Hayman says that the Tudjman regime refused to turn over intelligence documents that he believed would clear Blaskic and implicate top Croatian political and military officials. “It was obviously difficult to defend him when I was paid in part by a government that concealed the most important evidence,” he says.

In March 2000, 32 months after the case began, the court found Blaskic guilty of ordering a significant number of attacks and of not preventing others. He was ordered to serve 45 years in prison, the longest sentence ever handed down at The Hague.

Hayman says the verdict changed his world. “If you know someone who gets convicted unjustly, it affects the way you view the rest of your life. Some people don’t think that is possible. I know that it is.”

Hayman is appealing the conviction based on information obtained from Croatian Intelligence archives following the death of Tudjman and the loss of power by his party.

*

Attorney Lynne Stewart is resolute in her refusal to take certain kinds of clients. “I don’t do child cases,” she says. Before becoming a lawyer, Stewart spent 11 years as a teacher for underprivileged children in Harlem and on Manhattan’s Lower East Side. She is also a mother of three and a grandmother of seven. “I consider children to be the only innocents left on earth, and I don’t think I can exploit that in any way, so a client can’t get my undivided loyalty.”

Yet Stewart has found it within herself to defend militant leftist radicals, a convicted Mafia hit man, cop-killers and, for a reduced fee, a man later convicted of plotting to destroy much of Stewart’s hometown, New York City. Egyptian Sheik Omar Abdel Rahman, the blind spiritual leader, was eventually convicted of plotting to blow up the United Nations, FBI offices, the Holland and Lincoln tunnels and the George Washington Bridge. Prosecutors also asserted that Rahman was the spiritual author of the 1993 World Trade Center bombing because those held responsible had listened to his teaching.

Stewart, 62, took up the defense in 1995 after half a dozen other lawyers considered representing him but were either ruled out by Rahman or decided against it themselves. “Sometimes a case will come in of a brutal or reprehensible murder that is particularly ugly and I ask: Is this my kind of case?” she says. “But I had very little doubt about this one.”

She saw Rahman through the lens of her own leftist and civil rights activist past. In her downtown Manhattan office, decorated with posters of Che Guevara and other leftist heroes of the past (and a photo of the New York Mets), she hunches forward on her dilapidated wooden desk to explain that Rahman is, in some ways, a visionary freedom fighter, and that if people like him are successful in bringing down Egypt’s unresponsive leaders, they may be viewed as liberators in hindsight, even in the U.S.

To her, Rahman was a persecuted non-English-speaker whom an American jury was prone to fear for his militant calls to battle injustice. “My assumption with most of my clients is that they are guilty of something but not necessarily what they are accused of . . . . With the sheik, I thought he probably wasn’t [guilty] because I knew the political climate around the case.”

Stewart is an internationalist who believes that citizens of any nation have a right to fight their government if it is oppressive, even if that government is an ally of the United States. She thinks it is unacceptable for the “war on terror” to replace the Cold War as a reason for Washington to support oppressive regimes.

Those reasons help explain her belief in Rahman, and why she sounds defiant when asked about defending a man many Americans regard as a sinister killer. She contends that Rahman has done nothing more than condemn U.S. policy for supporting what he considers to be morally bankrupt governments in Egypt and the Middle East. “The priest who preaches against abortion isn’t blamed for people who kill abortion doctors,” Stewart says.

He was convicted, she says, because ethnic and religious stereotypes trumped her defense. As he was sentenced to life in prison, tears welled up in her eyes. “As far as him personally sanctioning any attacks against the U.S., I don’t think that is true at all, and I don’t think he had any knowledge of any attacks.”

Since the terrorist attacks of Sept. 11, Stewart says, prosecutors have begun encouraging top defense lawyers to refuse to defend accused terrorists. “They are trying to get us to make a moral judgment along the way about whether we are supposed to do this, and I will not.” Her opinions about Rahman and the conditions of his detention even led her to defy a U.S. government requirement that led to her own arrest in April. The government, fearful that Rahman could communicate to terrorists from his cell, denied him any contact with friends and limited his family to a single visit. Stewart was allowed to see him in his Minnesota prison cell only if she agreed not to transfer any messages from him to the outside world. But in early 2000, she agreed to issue a press release on his behalf, intended as an open letter to his lawyer in Egypt.

Stewart says his treatment in prison is unfair, and that the government’s practice of spying on his conversations with lawyers reminds her of the persecution of leftists by the FBI in decades past. She considers her violation a minor affair--and she insists that it had no impact--but, if convicted, she could face a maximum sentence of 40 years in prison.

*

Los Angeles attorney Ed Medvene had flown halfway around the world to stare into the bulging eyes of Dr. Gerard Ntakirutimana, trying to assess whether he seemed capable of evil. During the 24-hour trip to the U.N. detention center in Arusha, Tanzania, Medvene had tried to prepare himself for what he would find. But when a gun-toting escort led him through a yard on the way to meet Ntakirutimana, Medvene noticed that the bored faces of prisoners sitting on dusty wooden stairs were the same as those in the case files he had studied. “All the guys on the little stoops were alleged to be genocidal killers,” he thought.

He suddenly felt disoriented, as if his moral compass were searching for absolute north in a universe where it didn’t exist. He had worked on cases involving brutal crimes. He helped represent Fred Goldman in a successful civil action against O.J. Simpson over the killing of his son Ron Goldman. He defended a Mexican businessman convicted of torturing and killing a U.S. drug agent. He has spent a decade trying to spare a man on California’s death row from execution. For a time, he had even prepared to defend Serbian strongman Radovan Karadzic before the war crimes tribunal for the former Yugoslavia.

Still, during that first visit to the detention center in Arusha, the 72-year-old lawyer couldn’t help but think: “I am so far from home.” It was a thought as true literally as it was figuratively. Ntakirutimana was accused of committing unspeakable crimes at the tail end of Rwanda’s civil war, when an estimated 800,000 people were butchered in 100 days in mid-1994. “Even if you do criminal cases, you aren’t used to the machete and what it can do to people, or seeing rooms with hundreds or thousands of skulls laid out in systematic order,” Medvene says. “You have to find a way to deal with that.”

So Medvene crossed the world to end up in a 4-foot-by-8-foot room, with a simple desk and a couple of chairs. He wanted to examine the face of Ntakirutimana, a once-respected Hutu doctor. Ntakirutimana is accused of helping to set the stage for the massacre of ethnic Tutsis during the Rwandan civil war. Specifically, he is alleged to have encouraged Tutsis to gather at the Mugonero Adventist Church and Hospital Complex on April 16, 1994. In a Hutu-led orgy of violence that began at 9 that morning, as many as 5,000 people were killed.

Medvene, like Stewart, had few moral qualms about defending such a person. Yet he was looking for something, some spark of humanity in the defendant that would serve as the decisive element in his decision. He had already dealt with a host of other issues, some practical, some personal, that often confront attorneys asked to defend such clients.

He had consulted with the partners at his law firm, Talcott, Lightfoot, Vandevelde, Sadowsky, Medvene & Levine. He was concerned about the commitment of his time, possible public relations fallout to the firm, and the likelihood that he would not pull his financial weight for the duration of the trial. The most he would be paid was $125 an hour--the maximum the United Nations pays for the defense of suspects classified as indigent, an amount far below his standard rate.

At home, Medvene wanted to make sure his wife supported his decision. “This meant defending someone accused of genocide and other terrible things,” he recalls. “I thought it might generate a lot of bad things, like people saying, ‘How could you defend someone accused of killing hundreds or thousands of people?’ I wanted her input on how she’d feel if I did it.” He also knew he would be working where vengeance killings were common, which ruled out bringing his family, and that they would grow lonely spending so much time apart.

In the end, she told him: “It’s your call.”

Medvene’s friends, however, suggested that he had better things to do with his time, especially with the prospects for acquittal seeming so dim. Tutsi rebels, who eventually overpowered the Hutus, now run Rwanda. This means that the Ntakirutimana defense team would be left to search for witnesses and evidence in a country controlled by victims, who are now the victors. Potential defense witnesses were held in crowded, squalid Rwandan jails, where they have been held for years, often without being charged with any crime. Others live freely, but with a fear that they or their families will be harmed if they testify on behalf of Hutu suspects.

Medvene had been contacted about the case by Ramsey Clark, the former U.S. attorney general whom he had met in 1996, when Clark was representing Karadzic on a civil matter in New York and Medvene was getting ready to defend him in absentia at the war crimes tribunal in The Hague. (The court later decided against holding that proceeding.) A few years later, Clark was retained to defend a Seventh-day Adventist pastor named Elizaphan Ntakirutimana at the U.N. tribunal for Rwanda. He asked Medvene to defend the man’s son, Gerard, because they would be tried jointly.

Now Ntakirutimana, a stocky man in his early 40s, sat before Medvene at last. The doctor had forgotten his round, gold-rimmed glasses. Medvene looked into his eyes. Looking back, he says, was a gentle family man, someone privileged and refined, like other detainees who made up much of the cream of Rwandan society for two decades. “I had a good feel about him,” Medvene says.

He decided to take the case, despite the concerns of friends and colleagues. “You lose your bearings if you do like politicians and take a poll before deciding how you think about an issue,” he explains. “The controversial nature of the case just can’t be the bright line test. The test is, how does it feel in your stomach?”

The trial began in September 2001 and a verdict is expected in the next few weeks. Prosecution witnesses testified against Ntakirutimana in English, French and Kinyarwandan from behind ceiling-high bulletproof glass. A colleague at the hospital told the court Ntakirutimana had discharged dozens of Hutu patients one day before Hutu militia soldiers, who were linked to the ruling party, appeared at the village, singing, “Let’s exterminate them [the Tutsis].” The soldiers and Hutu civilians then opened fire, chasing villagers into a church, where they were slaughtered. Many other Tutsis were killed at the hospital as attackers fired guns and tossed grenades through the windows.

Witnesses said Ntakirutimana fired a rifle and chastised attackers for sparing women and children. One Tutsi witness said Ntakirutimana pursued him and a few other survivors to the nearby craggy Bisesero hills. The witness said he thought the doctor would help him because their fathers had exchanged cattle in the past, a sign of a familial bond. “Instead, he shot at me.”

Medvene soldiered through the first half of the trial, vigorously cross-examining all 19 prosecution witnesses. Then the court went into recess for months before beginning the defense. During the break, Medvene backed out as lead counsel because of a family medical problem after making sure that a lawyer was prepared to replace him. “Another lawyer was ready. They had a road map to defend the doctor.” Otherwise, Medvene insists, he would have continued, and says he still consults with the defense from afar.

Yet reflecting on the case amid the memories of Rwanda’s hell, Medvene does ask himself questions about taking such cases in the future. “Would I have taken the case if the guy had told me he had masterminded and done it? It may not be the right answer, but I don’t think I would have,” he says. “If the guy did it, or if he told me that he had done it, I think rightly or wrongly, I would have been judgmental and I wouldn’t have wanted to spend years working on it, and been that far from the family.”