Bloomberg News

Accused 9-11 Mastermind’s Lawyer Wins as ‘Velvet Shiv’

August 22, 2012

Accused Sept. 11 Mastermind’s Lawyer Prevails as ‘Velvet Shiv’

David Nevin, center, has defended Khalid Sheikh Mohammed since 2008, when he was recruited by the John Adams Project, a joint effort of the ACLU and the National Association of Criminal Defense Lawyers that has represented some Guantanamo Bay detainees. Photographer: Troy Maben/Associated Press

Attorney David Nevin spent 19 1/2 years fighting to save the life of Richard Leavitt, who was convicted of mutilating and murdering a woman in Blackfoot, Idaho. On June 11, the U.S. Supreme Court rejected a final plea from Nevin and another lawyer, clearing the way for Leavitt’s execution the next day. Nevin, at last, gave up.

“They did everything they could,” Leavitt’s mother, Marjorie, said in a phone interview. “They kept fighting.”

Until a tropical storm forced a postponement, Nevin was scheduled to rise in a military courtroom tomorrow in Guantanamo Bay, Cuba, to defend a man the U.S. government seeks to execute for a far more infamous crime. Nevin represents Khalid Sheikh Mohammed, accused mastermind of the Sept. 11, 2001, attacks, the deadliest terrorist strike on U.S. soil during which 2,976 people were killed.

Six days of legal arguments were to begin tomorrow in the case of Mohammed and four other detainees, including discussion of possible testimony about the defendants’ treatment in custody. A military judge today canceled the hearings in light of the storm, a military spokesman said. No new date has been set.

John Adams

Nevin, 63, has undertaken a task that Morris Davis, chief prosecutor for the military commission at Guantanamo Bay from 2005 to 2007, likens to John Adams’s defense of British soldiers after the Boston Massacre in 1770 and Army lawyer Kenneth Royall’s unsuccessful defense of Nazi saboteurs caught on Long Island, New York, during World War II. Like the Nuremberg cases beginning in 1945, the eventual trial will be watched worldwide.

“You have people questioning your patriotism or your commitment to the country because you’re defending the enemies of your country,” said Davis, who teaches at Howard University School of Law in Washington. “But if our system is going to work, we need people who are going to take on the unpopular cases and fight them hard. History looks back favorably.”

Prosecutors say Mohammed confessed in 2007 to plotting the hijackings that slammed jets into the World Trade Center in New York, the Pentagon in Washington and a field in Shanksville, Pennsylvania. Nevin and lawyers for the other detainees have alleged that their clients were tortured by U.S intelligence agents after being captured.

After Capture

The goal may be to win rulings excluding from the trial statements the detainees made after their capture, or at least to win leniency at a sentencing, said Denny LeBoeuf, a death- penalty lawyer with the American Civil Liberties Union who has consulted with the defense attorneys.

Debra Burlingame, whose brother Charles piloted the hijacked American Airlines flight that crashed into the Pentagon, said it would be wrong for Nevin to press this argument too far and shift the focus to whether Mohammed and other detainees were tortured.

“I would expect the lawyers to make the government prove their case,” Burlingame said in a phone interview. “But to try and turn the case into, somehow, about the Constitution of the U.S. government, foreign policy, national security policy, I think that’s really unfortunate. It’s not what’s supposed to happen in court.”

Oregon Trail

For Nevin, the son of a reporter-turned-author whose first novel chronicled the opening of the Oregon Trail, the Mohammed case is the biggest challenge in a career spent defending white separatists, a toxic polluter and other modern-day outlaws of the American West. His firm, Nevin, Benjamin, McKay & Bartlett LLP, is based in Boise, Idaho.

“To be a criminal-defense lawyer, you have to really have two attributes,” said Klaus Wiebe, the former public defender in Ada County, Idaho, for whom Nevin once worked. “You really have to be for the underdog. The power of the government is so extreme that your client is always the underdog. And you also have to be willing to get your ass kicked fairly regularly and not give up.”

Wiebe said Nevin possesses both qualities and one more: “He thinks the government overreaches and cannot be trusted.”

Nevin, who declined to comment for this story, summed up his mission at a 2009 talk at Brigham Young University. After acknowledging a gracious introduction -- the moderator cited his past honors, his work as a past president of the Idaho Association of Criminal Defense Lawyers, and his scholarship on legal issues -- Nevin spelled out his obligation as a lawyer.

‘Always Defend’

“I always defend,” he said.

Nevin has defended Mohammed since 2008, when he was recruited by the John Adams Project, a joint effort of the ACLU and the National Association of Criminal Defense Lawyers that has represented some Guantanamo Bay detainees. Joshua Dratel, a New York lawyer who approached Nevin and his partner on behalf of the group, said Nevin’s brief hesitance concerned the time commitment and logistical issues of defending a client in Cuba -- and not the notoriety of Mohammed.

“That wasn’t a particular concern,” said Dratel, who has also defended terrorism cases and consulted with Nevin during a 2004 terrorism case that Nevin defended in Idaho.

Gray-haired, bespectacled and lanky, with the physique of the cyclist and runner he is, Nevin comes to Mohammed’s case after a series of legal victories.

Ruby Ridge

Nevin’s most acclaimed win came in 1993 when he persuaded a federal jury to acquit Kevin Harris, one of two men accused of killing a U.S. marshal during a shootout at Ruby Ridge, Idaho. In 2004, Nevin urged jurors to resist the impulse “to strike out at people who are not like us” and to acquit Sami Omar al- Hussayen, a Saudi student studying in Idaho, of charges that he recruited terrorists on websites he ran. Jurors did, after Nevin argued there was no evidence al-Hussayen endorsed terrorism.

“He will come in early, he will stay late,” said Terry Derden, a former prosecutor who supervised the al-Hussayen case for the government. “He just never gives up.”

A native of Shreveport, Louisiana, Nevin was raised an only child by parents who paid reverence to civil rights and were distrustful of the established order, wrote Jess Walter, author of “Every Knee Shall Bow: The Truth and Tragedy of Ruby Ridge and the Randy Weaver Family” (HarperCollins 1995).

‘Committed Liberal’

“A committed liberal,” as Walter put it in a later interview with Bloomberg News, Nevin attended colleges in Connecticut and Iowa before graduating in 1974 with an English literature degree from Colorado State University. He spent a year working road construction and teaching English in Germany, briefly considering a career as a heavy-equipment operator.

Instead, Nevin chose the University of Idaho (27307MF:US) law school. For inspiration, he and classmate Breck Seiniger drove to class listening to taped summations of civil rights lawyer Tony Serra, who had defended Black Panther leader Huey Newton.

He stood apart in other ways, too. A class photo of the lawyers-to-be, most in suits, showed Nevin “with hippie-hair, sitting Buddha-style on the law school steps,” according to a 2008 profile in the Advocate, an Idaho bar association magazine.

“David was a great law student,” Seiniger said in a phone interview. “Not a hippie, but someone with a cultural point of view, a person who questioned everything.”

Cum Laude

Nevin graduated cum laude in 1978. He taught law for a year in Ohio and took a clerkship on the Idaho Supreme Court. As a public defender, his clients included a so-called naturopathic physician convicted of involuntary manslaughter when his patient died after tap water enemas, according to court records. The man wasn’t a licensed doctor. Nevin lost the appeal.

Nevin also defended Lacey Sivak after he was convicted of murder during a gas station robbery in the first of at least eight death-penalty cases he has handled on appeal or at trial, according to his firm’s website. Sivak, convicted at a trial, hasn’t been executed. Nevin is no longer involved in the case.

“Ten people may look at evidence and be meticulous,” said Celeste Miller, a former federal prosecutor. “But Nevin will likely come up with a theory or argument that others didn’t think of.”

The Ruby Ridge shootout followed an attempt by federal marshals to arrest separatist Randy Weaver on weapons charges at his remote Idaho cabin. In an ensuing gun battle, Weaver’s son and a U.S. marshal were killed. Weaver’s wife was killed by FBI sharpshooters in a standoff that lasted 11 days. Harris fired the shot that killed the marshal.

Gerry Spence

Gerry Spence, a Wyoming lawyer who wore his 10-gallon hat to court each day, defended Weaver, while Nevin agreed to a judge’s request that he represent Harris.

The two complemented each other, with Spence framing the case as a government cover-up of a botched raid and Nevin boring in on inconsistencies in the government’s evidence. The central issue was who fired first. Jurors acquitted Harris entirely and Weaver of all but one count; both won payouts later with civil claims against the government.

“He sees the pieces of the puzzle that I overlook. I see the big picture,” Spence said in a phone interview. “He is extraordinarily intelligent.”

The same year, Nevin and another Idaho lawyer, Andrew Parnes, took on the appeal of Leavitt, who had been convicted at a 1985 state trial of murdering the Blackfoot, Idaho, woman and cutting out her genitals. The lawyers attacked the trial judge’s handling of the case and argued in court filings that Leavitt was denied a fair trial in a small town where there was “incredible pressure” to convict, Parnes said. Their efforts lasted until Leavitt was executed.

Professorial Manner

Inside the courtroom, Nevin is almost professorial in manner, said Detroit lawyer Geoffrey Fieger, whom Nevin successfully defended at a 2008 trial on federal charges of making illegal campaign contributions. Recruited to the case by Spence, Nevin showed a mastery of facts and exacting cross- examinations of government witnesses that served as the counterweight to Spence’s theatrics, Fieger said.

“Gerry is a more all-consuming, larger-than-life trial attorney,” Fieger said. Nevin “dissects people without them realizing they’ve been dissected. He’s a velvet shiv.”

Yet Nevin also has sharp elbows. Miller, the ex-prosecutor, did battle with him at the 1999 trial of Allan Elias, who was convicted of illegally disposing hazardous waste in one of the largest federal environmental crimes prosecutions. Elias was sentenced to prison for 17 years.

Choosing Tables

Nevin would arrive early and seek to assert control over the courtroom by claiming the table closest to the jury, which is traditionally reserved for the prosecutors. “That is unique to David in my years of prosecuting,” said Miller, now a partner at Boise’s McDevitt & Miller LLP.

Still, his zeal may sometimes get the best of him, as when he misreads a prosecutor’s motivation for some action, she said. “I don’t think the fact finders, whether the judge or jury, are interested in the innuendo or righteous indignation,” Miller said.

Nevin shows more humility outside court. In Boise, he has participated in public readings of “A Christmas Carol,” owned a stake in a popular downtown bar, and joined friends for a 300- mile bicycle trip. He is married and has two grown children.

Restraint will not be part of Mohammed’s defense. At a May 6 press conference at Guantanamo Bay after his client and the other defendants were arraigned before the judge, Nevin at first stood near the back of the room as other lawyers took the podium to answer reporters’ questions.

Voicing Alarm

Only as the questioning intensified did Nevin come forward to voice his alarm over military rules that bar the lawyers from discussing with their clients whether they were tortured after capture.

“We are forbidden from talking to our clients about very important matters,” Nevin said. “Now the government wants to kill Mr. Mohammed. They want to extinguish the last eyewitness so he can never talk about his torture. They want the political cover so he’ll be convicted and executed.”

Nevin also assails the military tribunal where Mohammed will face trial, saying in his 2009 Brigham Young speech that participating in a process with murky rules is like going “down the rabbit hole.”

For instance, while the law bars prosecutors from using statements made under harsh interrogation, it’s unclear if other information gathered that way -- like leads to witnesses -- will be allowed, said Victor Hansen, a retired Army lawyer now a New England School of Law professor in Boston.

Legal Protections

Even with enhanced legal protections established in a 2009 overhaul of the military commission law, defense lawyers said at the May arraignment that the terror cases belong in civilian courts where, they say, defendants’ rights will be better protected.

The trial of Mohammed and the four other detainees won’t start before next year. James Connell, a defense lawyer, said at a press conference today that the trial may be as long as four years away because of the hundreds of motions that will need to be resolved.

Connell, a lawyer for Ali Abd al-Aziz Ali, a Pakistani accused of helping finance the attacks, said at a press conference yesterday that the trial itself may have “very little meaning” because the defendants are unlikely to be ever freed even if acquitted. Still, evidence at a trial that they were tortured while in custody might help save the defendants’ lives in the event of a conviction.

Nevin hasn’t elaborated further on defense strategy because, he told reporters in May, government rules forbid him from disclosing information the military deems classified. Davis, the ex-military prosecutor, said the defense may have no choice but to focus on such issues after Mohammed allegedly confessed to planning the attacks “from A to Z,” as he put it in a statement read to a Guantanamo Bay tribunal by a military official on March 10, 2007.

‘Earnest Desire’

At a 2008 court appearance, Mohammed said he wanted to plead guilty and be martyred, saying, “I do not trust the Americans.” Other defendants joined in the request, which Mohammed called his “earnest desire.” While Mohammed made no such comments in May, Mohammed may be the “attorney’s nightmare as far as being a difficult client to manage,” Davis said.

“Defending on the facts is going to be impossible,” Davis said. “So you have to attack the process.”

The lawyers’ strategy will be on display as legal arguments get under way. Among the issues before a military judge will be whether the defense may summon Jose Rodriguez, an ex-Central Intelligence Agency official, to testify about detainee interrogations while in CIA custody. The detainees say Rodriguez’s testimony will establish torture. The military denies the relevance of Rodriguez’s potential testimony.

Detainee Accounts

The judge will also hear a challenge by the ACLU and 14 media organizations including Bloomberg News to a military rule that they say bars trial observers from hearing detainee accounts of their treatment in custody.

U.S. officials do so with a 40-second delay of statements broadcast from the courtroom, enabling them to hit a white-noise button.

Military lawyers say in court papers that the U.S. seeks to withhold classified secrets about its “sources, methods and activities.” The ACLU says the military is seeking to suppress details of torture through a categorical and illegal gag order.

One challenge for Nevin is conferring with a client jailed thousands of miles away. According to a May 31 legal filing, he and his colleagues can’t phone or write Mohammed and may speak to him only at the naval base. Another may be winning Mohammed’s confidence. In a July 19 filing, Nevin said he’d been unable to tell Mohammed that hearings scheduled for Ramadan were postponed.

“Timely communication with Mr. Mohammed on this issue is particularly important for the relationship of trust,” he wrote.

Ramadan Delay

Prosecutors had opposed a defense request to delay the case until after Ramadan. That drew a heated response from Nevin and colleagues, who said in a July filing that the “accused, whose lives are very literally on the line,” shouldn’t have to choose “between participation in their defense and fulfillment of their religious obligations.”

On this issue, the defense won.

The case is U.S. v. Mohammed, Military Commissions Trial Judiciary (Guantanamo Bay, Cuba).

To contact the reporter on this story: David Glovin in New York at dglovin@bloomberg.net.

To contact the editor responsible for this story: Andrew Dunn at adunn8@bloomberg.net.


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