Marc’s essay, Sex-Shamed To Death: How Oklahoma Prosecutors Used Sex And Infidelity To Put A Woman On Death Row, was published on October 10, 2017, by IN JUSTICE TODAY, a publication of Harvard’s Fair Punishment Project.

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Informal Opinion: Representing ‘Those People’ Achieves Justice

By Alan L. Yatvin

“How can you represent those people?” In three decades as a criminal defense attorney, I had heard that question many times — at cocktail parties and from prosecutors, police, victims, law students, and once even from a judge. It comes with the territory. I understand that people accused of crimes are often automatically condemned, while their lawyers are regarded with contempt. However, as I walked along that steamy January afternoon, I was shocked by the source of the question. This time it was my wife, Laura, prompted by a just completed hour-long audio tour of a former fruit orchard on the outskirts of Phnom Penh, Cambodia.

We were at Choeung Ek, the most infamous of the killing fields of the Khmer Rouge. It was there that Pol Pot’s regime executed 20,000 people. The victims were those suspected of connections with the former government or foreign governments, as well as professionals and intellectuals, members of various Cambodian ethnic groups and, in a cannibalistic frenzy, even regime members accused of some act of disloyalty. The Khmer Rouge death toll from starvation, sickness and execution has been estimated at two million. At Choeung Ek, men, women and infants were slaughtered night after night as martial music blared to cover their cries, and then they were buried in mass graves.

Initially, Laura had not wanted to go to the killing fields. We were on vacation in Southeast Asia, there were many beautiful and exotic places to see, and she knew the story of the horrors of this chapter of Cambodian history. But as we were planning our trip, a friend said, “You have to go. It would be like going to Israel and not going to the Holocaust Memorial at Yad Vashem, or skipping the Anne Frank House in Amsterdam.” I insisted that the visit was necessary to understanding Cambodia and its people today.

Yatvin takes Bar oath before the Appeal Chamber of the Court of Cambodia

This was actually my second visit to these killing fields. I had been there 18 months earlier while in Phnom Penh on business. Along with my work as a Philadelphia criminal defense lawyer, first as a public defender and then in private practice, that visit was part of the reason for Laura’s surprise question. I had been in Cambodia as appointed interim counsel for a suspect before the Extraordinary Chamber of the Court of Cambodia (ECCC), also known as the Khmer Rouge tribunal. My elderly client was a former military officer.

That was not my first war crimes case. In 2006-2007 I spent 18 months flying between Philadelphia and The Hague, where I represented an accused Bosnian Serb before the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY). The ICTY prosecutor had described my client as being perhaps the person most individually responsible for killings in the entire Bosnia conflict. He changed counsel before trial, where he was convicted and sentenced to life in prison.

Thus, this was no stranger at a party expressing shock and distaste for my profession. This was someone who well knew the nature of my work and had lived with it, and me, for decades. Since we were just beginning our three-week vacation in Cambodia and Laos, we had plenty of time to discuss the matter.

Criminal defense is a significant, but not exclusive, part of my practice, which also includes representing victims of police misconduct and children with disabilities. The reality of my core criminal defense practice is that some of my clients have committed a crime. Yet all too often they have been charged with crimes disproportionate to their conduct, their prosecution has been procured by illegal or unconstitutional police conduct, or overzealous prosecutors are seeking excessive or inappropriate punishment. Sometimes my clients are just plain innocent. Often, I have no idea whether they committed a crime.

But what I think about my client or the charges does not matter. I am not the jury who decides guilt, nor am I the judge who applies the law or determines punishment. My job is to do everything in my power to make sure that at the end of the process, my client has been treated fairly, the prosecution has been put to its burden of proof and the law has been followed. International criminal law expert Michael G. Karnavas has said: “The results at the end of the trial will be meaningless unless a robust defense is afforded to the accused.”

Meeting with Roosevelt and Stalin in Yalta in 1945, Winston Churchill urged summary execution of selected Nazi leaders and imprisonment of others without trial. This was rejected in favor of the first international war crimes tribunal. In his opening statement the lead Nuremberg prosecutor, U.S. Supreme Court Justice Robert Jackson, told the judges: “Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.”

I represent “those people” because all people must be ably represented by lawyers who do not judge them or decide their guilt based on their own views; otherwise there is no justice. The hushed courtrooms of the federal courthouse across from Philadelphia’s Independence Hall and the high-tech courtrooms of The Hague’s tribunals are a world away from Cambodia’s killing fields. But it would be a betrayal of the memory of those buried in that now peaceful orchard to allow a legal system, a government, or the mob to decide in advance that some are so guilty that they are unworthy of the legal protections and representation those victims were denied.

Pol Pot supposedly said: “Better to arrest 10 innocent people by mistake than free a single guilty party.” My mandate as a criminal defense lawyer is precisely the opposite, as expressed in this statement attributed in various forms to Voltaire, Benjamin Franklin, and Sir William Blackstone: “It is better that 10 guilty persons escape, than that one innocent suffer.” My wife, at least, now understands why I represent those people, even in Cambodia.

About the Author

Before entering private practice, Alan Yatvin served as an Assistant Philadelphia and Federal Defender. He concentrates his practice in criminal defense in state and federal courts, police misconduct litigation, and representation of special needs students. He is a director of the American Diabetes Association.

© 2017, National Association of Criminal Defense Lawyers™ (NACDL®), All Rights Reserved.

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Mr. Kilolo, a national of the Democratic Republic of the Congo and a member of the Belgian Bar, was convicted of various offences against the administration of justice, relating to the false testimonies of defence witnesses, during his service as defence counsel in the case The Prosecutor v. Jean-Pierre Bemba Gombo.

Mr. Kilolo’s Defence team on appeal is lead by experienced international criminal defence counsel Michael G. Karnavas. Yatvin stated: “I have known Michael for decades. He is beyond doubt one of the world’s top practitioners in the field of international criminal law. I am honored to have been asked to consult with him.”

Yatvin continued: “This prosecution implicated important issues of prosecutorial overreach, conflict and invasion of privilege, interpretation of so-called western legal processes through different cultural norms and traditions, the scope of counsel’s liability for the acts of others, and the nature of assumptions regarding witness credibility and motivations.”

In summary, the appeal focuses on three basic grounds: illegally obtained evidence and its fruits; evidence protected by privilege and privacy rights; and sufficiency of the evidence to support the conviction.

Yatvin, who has practiced criminal defence for 34 years, previously served as lead counsel for an accused at the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY) in pre-trial and on appeal, and as interim foreign co-lawyer for a suspect at the Extraordinary Chambers in the Courts of Cambodia (ECCC).

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In court and culture, ‘Miranda’ endures

Alan L. Yatvin is a partner at Popper & Yatvin in Philadelphia

On Jan. 31, 1976, Ernesto Arturo Miranda died of stab wounds suffered in a fight over a card game in a dive bar in Phoenix. His passing made for a few lines in papers across the country.

The mother of law professor Charles Whitebread clipped the story and sent it to her son with the note “Isn’t it a shame, after all he did for us.” What he did for us is lend his name to a landmark June 13, 1966, decision of the U.S. Supreme Court, Miranda v. Arizona.

In 1963, when Miranda was arrested in Arizona as a suspect in three rape/attempted-rape cases, suspects being questioned in police custody had the right to remain silent, and the right to an attorney even if they could not afford one. What was not so clear, though, was whether the police had to explicitly tell a suspect of those rights before questioning.

Miranda agreed to be placed in a lineup. Two witnesses identified him but were not certain. When he asked how he did after the lineup, the police allegedly told him not very well, whereupon Miranda confessed. He was convicted, and the Arizona Supreme Court upheld his 20-to-30-year sentence.

A volunteer lawyer for Miranda filed a petition for a writ of certiorari asking the Supreme Court to take the appeal. The justices agreed to hear Miranda’s case, along with cases raising the same issues from New York, California, and Missouri. Because Miranda’s appeal was listed first, the decision is known by his name. (If the court had listed the New York case first, police could be giving suspects their Vignera rights.)

The consolidated case drew more than a dozen briefs, running hundreds of pages. Ten lawyers argued for more than seven hours, over three days. Former Nuremberg prosecutor Telford Taylor argued for New York and, by special leave, for the attorneys general of 27 states, plus Puerto Rico and the Virgin Islands. Civil rights icon Anthony Amsterdam filed a brief on behalf of the ACLU.

On June 13, 1966, the second-to-last opinion day of the Supreme Court’s term, Chief Justice Earl Warren delivered the opinion of the 5-4 majority. The Miranda warnings were born. From that day forth, prior to questioning a suspect in custody, police read those now-familiar rights, containing the key elements of Warren’s decision:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”

Like no other area of the law before or since, the Miranda warnings took off. They became part of standard police procedure nationwide, often routinely recited upon arrest, even when there was no intention to question. The warnings also quickly became part of the popular culture. A year later, the popular police series Dragnet featured Jack Webb’s Sgt. Joe Friday and his partner routinely reading suspects “their rights.”

In 2000, the Supreme Court considered whether to overrule Miranda. It is apparent from Chief Justice William Rehnquist’s opinion in Dickerson v. United States that he would not have sided with Warren’s 1966 opinion. However, unlike dissenters Antonin Scalia and Clarence Thomas, Rehnquist concluded that Miranda was deserving of stare decisis (Latin for “to stand by things decided”).

The chief justice noted that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” As even the National District Attorney’s Association conceded in a friend of the court brief: “[W]arnings are generally advisable when questioning criminal suspects, and should be embodied in police practices. . . .”

Certainly Miranda at 50 no longer has all of its vitality. If a suspect’s lawyer tells the police the client wishes to remain silent, police don’t have to let that lawyer into the room or stop questioning if the suspect has agreed to speak after Miranda warnings. Even if a statement is inadmissible due to a Miranda violation, some evidence obtained as a result of that statement may be admissible. A statement obtained in violation of Miranda can still be used to impeach a defendant who takes the stand in his own defense.

There is also an exception for public safety. In 2010, the Supreme Court decided a trio of cases further narrowing the rule of Miranda, declaring: A suspect’s request for a lawyer is good for only 14 days after release from custody; and police need not explicitly tell suspects they have a right to counsel during questioning. In the third case, the court stated that suspects must unambiguously announce to police that they wish to remain silent. Or, to paraphrase the irony noted in Justice Sonia Sotomayor’s dissenting opinion, a suspect must break his or her silence to invoke the right to that silence and stop police questioning.

Whitebread, the professor whose mother mourned Miranda’s passing, believed the Supreme Court would never reverse Miranda. On the 20th anniversary of Miranda, he said:
“Too many Americans watch television. Everyone knows that when they get arrested they have some rights. They might not know what they are exactly, but they know they have them. This court, no court, wants to be known as the court that took away America’s rights.”

After the conviction was reversed in 1966, the Arizona prosecutor retried Miranda with other evidence, including a confession to his live-in girlfriend. Miranda was convicted in the second trial. He served a total of 11 years in prison before being paroled. After his release, he allegedly got police officers to give him Miranda warning cards, which he supposedly autographed and sold for a few dollars each.

And the men suspected of stabbing Ernesto Miranda 40 years ago? Each was read Miranda warnings, waived his right to counsel and right to remain silent, and agreed to be interviewed by detectives.

Published: June 12, 2016 — 3:01 AM EDT The Philadelphia Inquirer

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