Oregon State Bar Bulletin — JULY 2004

Parting Thoughts
Fear in a Time of Terror
By Steven T. Wax

Two months ago, one of our own, attorney Brandon Mayfield, was arrested by the FBI in his law office on a material witness warrant, taken to federal court, told that he has been connected to the March 11 Madrid train bombing by a 100 percent match in fingerprints, and locked up in the Multnomah County Jail. Mr. Mayfield’s law office was searched, client files were taken, and the information was distributed to half a dozen intelligence agencies. Two weeks later, Spanish authorities said the fingerprint belonged to someone else, the FBI stated there was no match, Mayfield was released, and the FBI apologized.

What have we witnessed? Horror story, or vindication of our system? Misuse of the material witness statute, profiling of Muslims, and the abusiveness of the Patriot Act? Or, proper reaction to apparent facts and rapid correction of an honest mistake? People are using Mayfield’s situation to argue all of these positions, sometimes with limited knowledge of the facts. Important as these questions are, however, one overriding point emerges: the importance of the rule of law to our freedom — and how the rule of law flourishes only when served by a strong and independent judiciary, defense bar and prosecution.

The reality of our times includes the existence of terrorists and the death and destruction they can wreak. The reality includes the fear that terrorism engenders, fear that can disrupt the rule of law’s delicate balance between freedom and security, leading to changes in the law, such as: enacting the USA Patriot Act; redefining crimes as acts of war; redefining "war;" writing legal opinions sanctioning torture; and calling people (even U.S. citizens arrested at home) "enemy combatants," so that they can be taken out of the criminal justice system, deprived of counsel and held virtually incommunicado on military bases. The reality also includes a palpable fear of our government among those people who feel singled out by its response to terror.

Brandon Mayfield’s arrest came just two weeks after the Supreme Court arguments in the Padilla and Hamdi cases, in which the solicitor general’s office told the Supreme Court that those men were taken out of the criminal justice system for the express purpose of depriving them of counsel because the government knew that counsel would advise them to assert their Constitutional rights. One of the greatest fears we dealt with in our representation of Mr. Mayfield was that he too would be removed from the judicial system.

Outside our judicial system, there would have been no defense counsel to: assist Mayfield in asserting his rights; argue for the return of his law office files; complain about the media leaks; or press for disclosures of information. There would have been no assistant U.S. attorneys working in the familiar court setting to: recognize that Mayfield needed his client files back; negotiate a gag order that allowed defense disclosures during investigation; and negotiate an order for disclosure of the latent fingerprint. There also would have been no federal judge to: order Mayfield’s client files brought in for in-camera review and returned within 5 days of Mayfield’s arrest; sign and personally serve the gag order; and order production of the latent fingerprint.

In many ways, Brandon Mayfield’s case is an easy one for all of us to identify with. The system worked to vindicate him quickly (from a systemic perspective, though it was an eternity to Mayfield). He has been exonerated. Yet people see that if his life could be turned upside down, it could happen to anyone. It is important to remember that no one but Mayfield knew at the outset that he was innocent. The prosecutors and judge were told there was a 100 percent fingerprint match. Defense counsel have heard protestations of innocence many times that eventually evaporate.

Mayfield’s case is, then, a stunning reminder of the continuing need for vigilant attention to the protection of our constitutional rights and the rule of law, even in the face of fear of terror. It is a reminder that the Bill of Rights exists to protect the innocent as well as the guilty. It is a reminder to defense counsel that we must defend all our clients with the same zeal because we never know which "100 percent match" will be mistaken. This is summed up in Robert Bolt’s play, A Man for All Seasons. Sir Thomas More, who was executed based on perjured testimony when he refused to take an oath that recognized the king as supreme, proclaims that he would "give the devil himself the benefit of the law." Why? Because, as he eloquently asks, "where would you hide" "when the last law was down, and the devil turned around on you?"

© 2004 Steven T. Wax

Steven T. Wax is the federal public defender for the District of Oregon. With assistant federal defender Chris Schatz and the federal defender team, he represents Brandon Mayfield on the material witness matter.

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