Patterico's Pontifications

4/10/2007

Never a Lawyer Around When You Need One (UPDATE)

Filed under: General — See Dubya @ 11:16 am



(A post by See-Dubya; these opinions are mine alone and not necessarily those of Patterico!)

On April 17th, Army Spc. Mario Lozano will be tried in absentia for the murder of an Italian secret service agent in Baghdad. Spc. Lozano manned the machine gun on Route Irish the night pro-insurgent reporter Giuliana Sgrena was released, and the car carrying Sgrena failed to stop when Army searchlights and lasers turned on it. Fearing it was a car bomb, Spc. Lozano fired at the car and killed Nicola Calipari, an Italian hero who had just helped to spring Sgrena from her terrorist captors.

This is another friendly fire tragedy, and the United States has cleared Lozano of any wrongdoing. But Italian prosecutors think this was a deliberate murder. It’s in the news because Rep. Peter King, who once served in Lozano’s regiment, is condemning the trial as a farce. (JYB tailwag: MM.)

What caught my eye was this quote from the Post article, emphasis mine:

A National Guard spokesman, stressing the matter was a regular Army issue, said Lozano was “not being left out to dry,” and there was a “combination of civilian and military” lawyers on the case.

That’s not quite what Spc. Lozano’s legal defense website said on April 6th:

Today Mario Lozano is under indictment by an allied nation. The US Army’s response has been to assign Mr. Lozano a part time lawyer. They are encouraging Mr. Lozano to allow the Italians to prosecute him unchallenged. The official stance is that as long as the trial is in absentia, Mario need not worry about the consequences. They are continuing to discourage Mario from seeking a dedicated civilian attorney.

Several prestigious civilian attorneys have recently met and conferred with Spc Lozano. The process of building a legal defense team of civilian and military lawyers is underway. A team that can successfully exonerate Spc Lozano in Italian Court, based on evidence, and jurisdiction, is expected to be up and running by next week. But Spc Lozano is a soldier, not a man of means. The civilian defense costs even with pro bono services by some attorneys will be expensive.

And now we run square beneath the hooves of ol’ See-Dubya’s hobby horse: This is a complicated international case, and important legal principles are involved. So why haven’t ten thousand lawyers jumped in to help this guy pro bono, like they did to defend terrorists in Gitmo? Why does Khaled Sheikh Mohammed get the benefit not only of white-shoe lawyers attacking the authority for his detention for free, but also of a Shearman & Sterling anti-Gitmo PR camapign–while Spc. Lozano is scrambling to raise money and assemble a legal team eleven days before his trial?

Is it because the big firms lack an opportunity to kiss up to big-money state clients like Kuwait and Saudi Arabia? Is that why they haven’t jumped out there to start up a PR campaign to swing public opinion behind Spc. Lozano? Or is it because everybody knows the way you make your bones in the big law firm world is doing pro-bono work to advance the Left’s agenda, and that helping out American soldiers and conservative causes doesn’t cut the mustard?

If it’s the latter, it has to change. And clients have to drive it. Now that’s a heretical thought. They’re already trying to disbar one lawyer here in California–Charles “Cully” Stimson–for even expressing it.

If you haven’t read my rant about that, please do follow the link. I’ve been on that tear since January and the problem keeps coming up. Accused terrorists seem never lack for well-heeled pro-bono lawyers; accused servicemen always seem to. It’s a disgrace.

Cross-posted at Junkyard Blog.

UPDATE: Friend of Mario Lozano John Byrnes, who wrote one of those NY Post articles linked above, stopped by the comments to tell us more:

Some good questions being asked here. Some I can answer some I can’t.
The basic situation with Mario today looks like this. The Army JAG has provided hime with legal support in the form of a part time National Guard attorney for several months. Two weeks ago they provided him a full time Army lawyer. Also two weeks ago they provided him with an Italian lawyer who I hear has a pretty good reputation. Mario only filed the paper work on the Italian lawyer last week.

I don’t know how much that lawyer has communicated to the JAG. Not much info has filtered to Mario. That lawyer said he was going to seeek a postponement, a good idea, since the trial is scheduled for a week from today.

This is why he needs a good American trial lawyer supported by independent funds. The army has been dilatory, to say the least. They discouraged Mario from seeking civilian counsel, or raising money. I’m guessing out of concern for their image. Therein lies the crux. Even if the Army pays for his civilian lawyer here, it puts them in the driver seat. So we have finally convinced him he needs his own independent counsel.

The idea of shopping this out to a large firm that would do it pro bono did occur to us. I did ask one former US senator (Dem) if his firm was interested; he politely replied they did not do criminal prosecutions. So be it. Two very successful criminal trial lawyers have signed on. One of them has convinced the JAG that they should cooperate with him. That’s where we are. So I and the friends of the 69th Infantry are asking for supoport.

John blogs at “punditsmyass“.

UPDATE FROM PATTERICO: This fellow might keep in mind that it’s possible that the Army is right. I haven’t done the research and this isn’t legal advice, but I can see an argument that it’s easier to challenge an unfavorable result on the grounds that it was conducted in absentia if the defendant has no counsel whatsoever. Just something to think about. I would think that an American firm might want to render some pro bono advice on that question, if nothing else. That would be a true public service.

39 Responses to “Never a Lawyer Around When You Need One (UPDATE)”

  1. And the Bush White House further leaves him out to dry by failing to put pressure on the Italians to drop this. And, if I’m not mistaken, the result of his conviction (which, absent a defense, will surely be the result), will leave him vulnerable to arrest and extradition if he were ever to leave the US. For all of Bush’s blather about supporting the troops, here we see how he really supports the guys who need supporting. I’m actually somewhat surprised that Bush didn’t order him charged with a crime in an attempt to curry favor with our purported allies.

    steve sturm (40e5a6)

  2. While I know that the True War is always against American Liberals, I’m at a complete loss to see your point. By your own reading, “[s]everal prestigious civilian attorneys” have volunteered to work on this case pro bono, and it is the US government that feels for some legal-tactical reason that the defendant should not appear. Are you complaining that not enough civilian attorneys volunteered to take the case pro bono?

    It would seem to me if you believe this strategy is a mistake, that your criticism should be directed at the Army. Can you tell me what I am missing here? Besides the obvious false dichotomy with respect to defending Spc. Lozano in Italy and due process in America?

    Andrew J. Lazarus (7d46f9)

  3. AJL:

    Are you complaining that not enough civilian attorneys volunteered to take the case pro bono?

    Yes, exactly.

    Plus it’s not free, he was approached at the last minute, and the army didn’t help him.

    And trial in absentia in Italy doesn’t quite meet the standards of due process and fairness Americans expect, so why hasn’t there been a similar outcry? Why aren’t American servicemen a cause celebre?

    See Dubya (b4b335)

  4. Hey Folks

    Some good questions being asked here. Some I can answer some I can’t.
    The basic situation with Mario today looks like this. The Army JAG has provided hime with legal support in the form of a part time National Guard attorney for several months. Two weeks ago they provided him a full time Army lawyer. Also two weeks ago they provided him with an Italian lawyer who I hear has a pretty good reputation. Mario only filed the paper work on the Italian lawyer last week.

    I don’t know how much that lawyer has communicated to the JAG. Not much info has filtered to Mario. That lawyer said he was going to seeek a postponement, a good idea, since the trial is scheduled for a week from today.

    This is why he needs a good American trial lawyer supported by independent funds. The army has been dilatory, to say the least. They discouraged Mario from seeking civilian counsel, or raising money. I’m guessing out of concern for their image. Therein lies the crux. Even if the Army pays for his civilian lawyer here, it puts them in the driver seat. So we have finally convinced him he needs his own independent counsel.

    The idea of shopping this out to a large firm that would do it pro bono did occur to us. I did ask one former US senator (Dem) if his firm was interested; he politely replied they did not do criminal prosecutions. So be it. Two very successful criminal trial lawyers have signed on. One of them has convinced the JAG that they should cooperate with him. That’s where we are. So I and the friends of the 69th Infantry are asking for supoport.

    John

    John Byrnes (9dbd55)

  5. Why aren’t American lawyers volunteering to act for an American being tried in Italy when they will volunteer to act for a non-American being held in U.S. custody?

    Uh, maybe cause they ain’t Italian lawyers.

    Bob Smith (469c2b)

  6. Bob Smith:

    BZZZZZZT!

    John Byrnes: thanks for stopping by. I’ll boost that into the main post here and at JYB.

    See Dubya (b4b335)

  7. Okay, let’s try that link again. BZZZT!

    Cripes, that’s embarrassing.

    See Dubya (b4b335)

  8. Why is this not seen as a bit thing? Because its trial in absentia, just as you said. He’s not in jail. If he were, things would be different I’m not defending the army’s behavior, but this post is little more than a confused all purpose rant. Your mix up of the army, the government, liberals, leftists[?], the saudis and big business is a heap of contradctions. Also, ever heard of Bandar Bush?.

    AF (c319c8)

  9. Some problems with comments like “One of them has convinced the JAG that they should cooperate with him.”

    If a defense client retains civilian counsel, the JAG attorney no longer sits lead on the case. There’s no “convincing” of the JAG. The decision of whether to retain military counsel or seek civilian counsel is up to the client. The JAG typically sits second chair to assist the lead civ. counsel with the procedural elements of the mil justice system.

    Obviously you have to PAY for a civilian attorney (or at least have it come at no cost to the gov’t), so I’m skeptical of statements that Lozano was discouraged from retaining civ. counsel. Why would he be discouraged? For what plausible purpose would TDS discourage him from retaining qualified civilian counsel at his own expense?

    Moreover, the “part time National Guard” attorney is just kind of silly. What do you think Nat’l Guard and Reserve JAGs do when they’re not on active duty? Hint: It involves being atorneys. And I’m not sure what the claim is that his attorneys are only working on his case “part time.”

    The cited defense website alleges that he even had a “team” of NG JAGs (all attorneys, natch) detailed to his defense. Why assign a team to something you don’t care about the outcome of?

    Moreover, the fact that this is an ITALIAN trial makes me wonder how much benefit a “good American trial attorney” would be.

    My personal opinion is that Lozano did nothing wrong. But that the ITALIANS are trying to turn this into a show trial does not equate to his being railroaded by his chain of command, let alone Trial Defense Services (the relevant branch of Army JAG at issue).

    Fun Fact: TDS is a stovepipe organization. They exist separate from the normal JAG rating chain. The nature of their mission requires such independence.

    This sounds more like a bad game of telephone where a relatively young guy unfamiliar with the legal system (mil or civ) telling his family and friends things that aren’t entirely accurate.

    Army Lawyer (0de2e7)

  10. How much money did they pay to get Sgrena out? I want to know. How many roadside bombs did her terrorist friends buy with it? How much American blood? And then they put our soldier on trial because they were so scared they couldn’t drive.

    We need the Italian alliance like we need Mad Cow Disease. No, it’s actually worse than that.

    Amphipolis (fb9e95)

  11. AF–Let me make this simple. Every one of the major firms listed in my JYB post on the subject–the firms who proudly dispatched attorneys to help the Gitmo detainees pro bono– has an office in Europe. Some of them are right there in Italy.

    They could help. They should help. They helped Gitmo terrorists, but they won’t help an American serviceman.

    You may say–as John Byrnes says they were told–that these major law firms don’t do criminal law. Well then, why did they dispatch lawyers to help accused terrorists who might be facing criminal charges?

    See Dubya (b4b335)

  12. He’s not in jail, and he’s not goinh to be. If he were it would be all over the papers and he’d have lawyers up the ass. I’m not telling you to stop pushing, I’m telling you why you need to do it.
    The government may be playing politics, but most people are simply not aware of the story.
    “More Kafka than Orwell perhaps” Part II.

    AF (c319c8)

  13. If he and his friends and family and JAG lawyers decide conclusively that they prefer to go ahead with civilian counsel over military counsel and that they are seeking assistance through pro bono work and donations for financing, I’m certain that the American legal community and general public will respond.

    Until Lozano, et al move forward in that direction, you’re foolishly spinning your wheels with this rant against lawyers, leftists, etc.

    The Liberal Avenger (b8c7e2)

  14. Bob Smith,

    Uh, maybe cause they ain’t Italian lawyers.

    Tell it to Ramsey Clark, who never saw a foreign courtroom he couldn’t defend a genocidal maniac in.

    AF,

    He’s not in jail, and he’s not goinh to be.

    Unless he’s convicted in absentia and then ever sets foot in the EU.

    Pablo (08e1e8)

  15. AF–Let me make this simple. Every one of the major firms listed in my JYB post on the subject–the firms who proudly dispatched attorneys to help the Gitmo detainees pro bono– has an office in Europe. Some of them are right there in Italy.

    How many do criminal defense there is the question. My guess is: few. In any event, the question of whether to appear via counsel or to default is should be decided first, right?

    Andrew J. Lazarus (7d46f9)

  16. AJL: If they don’t do criminal defense, why are they rushing down to help the terrorists at Gitmo?

    I don’t think they’re brokering mergers down there.

    I offer two explanations, for those who accuse me of rambling around here–one is that many of these firms had clients such as Kuwait (who Debra Burlingame explained was actually subsidizing some of Shearman’s detainee advocacy) and Saudi Arabia.

    The other is that there is an institutional bias toward ACLU-approved pro bono work. Defending terrorists is sexy, gets you invited to cocktail parties, gets you guest speaker gigs, gets your law journal articles published, and may fast-track you for a judgeship.

    Defending the military carries none of these incentives for big firm lawyers.

    If I’m wrong, please correct me. But while some of these firms brag about their Gitmo work on their pro bono webpages, I don’t see them offering to help out, say, the Haditha Marines.

    See Dubya (b4b335)

  17. Pro bono work is for people who can’t afford lawyers. The United States government can afford lawyers.

    James B. Shearer (fc887e)

  18. wow… So pretty much fuck the soldier then, huh James…

    When the invading Hordes come, I totally vote we chuck you out in front to be our lil speed bump…

    Scott Jacobs (e3904e)

  19. my less than 2 cents worth-

    Alan Dershowitz is sympathetic to the “war against terrorism”, isn’t he? (I haven’t seen my old buddy Alan in a few months-“NOT”- I’m sure someone who reads this blog either knows him or is one step removed.)

    MD in Philly (3d3f72)

  20. “This is a complicated international case, and important legal principles are involved.”

    Right now its a trial in Itayl no? I don’t see how you’re gonna get american law firms that interested in that.

    marc (9139bc)

  21. Marc — You mean to tell me that NO Major American Law firms have dealings in Italy? No representations at all?

    This is why most Americans feel lawyers are scum. Because frankly many are. Here’s a man who served his country and faces a kangaroo trial in absentia where the verdict is already in (trial by mob, basically). In a corrupt and cowardly society.

    How many big-time international lawyers are jumping to defend him? Where’s Ramsey Clark and Amnesty International and the ACLU? No where.

    Moreover his legal jeopardy’s intense. Italy can demand extradition and the Supreme Court (with it’s reliance on International Law over-riding the Constitution, see Justices Kennedy, Ruth Buzzi excuse me Ginsberg, etc.) would happily extradite the man. To face life in prison for something he’s already been exonerated for.

    Lawyers are indeed mostly scum. Happily defending scum at great expense to themselves because it’s valued by their natural supporters: Liberals. And filled with hatred towards the average guy doing his job. The Cop. The Soldier. The man on the plane who reports a terrorist.

    Osama himself would find Howard Dean and half the Senate Liberals fighting to free him. Spec. Lozano? Heck most Liberals would like to see him imprisoned for life.

    And yes See Dubya is right. Most Liberals and Lawyers are on the Saudi Oil Money pad. The Peace Movement. The Gitmo lawyers.

    Jim Rockford (e09923)

  22. Marc–

    Asked and answered. As I said in comment #11 above, every one of the firms I know about that helped out at Gitmo has an office on European soil–some of them in Italy.

    See Dubya (c1b804)

  23. Let me exempt from Jim Rockford’s blanket indictment of big firms Faegre and Benson, one of whose partners volunteered to represent the John Does pro bono when threatened with a suit by the Flying Imams and CAIR.

    See Dubya (c1b804)

  24. Pro bono work is for people who can’t afford lawyers. The United States government can afford lawyers.

    The United States government isn’t being tried.

    Pablo (08e1e8)

  25. “Marc — You mean to tell me that NO Major American Law firms have dealings in Italy? No representations at all?”

    No i don’t see how i said that. I said its a trial in Italy and its not that interesting. What could be interesting is his extradition. Which you guarantee the US supreme court would allow. Me? I’m not so sure.

    Does anyone even know how common or not a trial in absentia in italy is? My guess is that its not as uncommon as the extraordinary system we’ve created for detainees. Even then, it is sort of Italian.

    “And yes See Dubya is right. Most Liberals and Lawyers are on the Saudi Oil Money pad. ”

    Yup. Holding hands with Saudi Princes. NY liberal lawyers of unspecified ethnic and religious descent, holding hands with saudis.

    “The United States government isn’t being tried.”

    If this guy was just doing his job and following orders, then it looks like the US government is being tried.

    marc (23e36b)

  26. Web Reconnaissance for 04/11/2007…

    A short recon of what’s out there that might draw your attention….

    The Thunder Run (59ce3a)

  27. Army Lawyer

    If a defense client retains civilian counsel, the JAG attorney no longer sits lead on the case. There’s no “convincing” of the JAG. The decision of whether to retain military counsel or seek civilian counsel is up to the client. The JAG typically sits second chair to assist the lead civ. counsel with the procedural elements of the mil justice system.

    We do have some folks on the team who’ve read AR 27-3.

    Let me clarify. I advised Mario to get a civilian attorney several months ago. Mario waited to see what the Army would put on the table. The Army has not agressively pursued his defense. They have, at every opportunity tried to talk him out of hiring a private attorney. If you meet Mario you’ll understand why this has been possible. The “PT” Lawyer I described is a NG JAG. He works for a Corporate law firm, where he “focuses on all aspects of tax law” according to his bio. Yes he was working on Mario’s case part time. While I believe his intent was to do what’s best for Mario, I don’t believe he was up to the job. He was easily influenced by his Army/NG superiors. And he was extremely resistant to working with civilian counsel. Mario, his new JAG lawyer and Mario’s civilian lawyer are meeting over the next few days to hash out his defense startegy.

    I’m sure you understand our concerns about JAG representation. While JAG lawyers are competent counsel. Their clients can’t help their career. They are restrained by virtue of uniform from certain defense strategies. They will not sue or threaten to sue. Finally INHO as an NCO with over fifteen years in the military, the JAG lawyers are the Army’s lawters and Mario should have a lawyer, at least one, who is in no way beholden to the Army. Army Lawyer please feel free to contact me at my Blog if you are really interested in the details. As you realize I am explaining the situation tersely to non-lawyers.

    As to the question of pro bon assistance. As i said I think we have the team. This is a case of needing a good solution now rather than the perfect solution too late. Any one who wants to help can also stop by my Blog to help.

    John Byrnes (5aeac7)

  28. Or is it because everybody knows the way you make your bones in the big law firm world is doing pro-bono work to advance the Left’s agenda

    This may be the dumbest sentence ever written on this blog.

    helped out at Gitmo has an office on European soil–some of them in Italy.

    …full of corporate attorneys whose expertise is deal negotiation. Not litigators. I doubt any of the outrage brigade represented here have even set foot in a big firm, much less worked at one.

    Moops (8fcb37)

  29. Moops:

    And yet, somehow, these dealmakers jet off to Gitmo when there are terrorists to defend.

    See Dubya (6ac867)

  30. No they don’t. Litigators from the US defend (alleged) terrorists in Gitmo. You do understand that practice at big firms is specialized and corporate attorneys do deals and litigators try cases, don’t you? Foreign officers of big American firms are typically full of corporate attorneys who would be completely lost representing a criminal defendant. You should really make more of an effort to understand what you’re posting about, especially if it’s your “hobbyhorse”.

    Moops (8fcb37)

  31. Also, since you apparently need an education on such things, one makes one’s “bones” at a big law firm by billing a lots of hours, doing high-quality work, and bringing in clients. Nobody cares about pro bono.

    Moops (8fcb37)

  32. Sorry Moopsie. I understand most of these firms will retain, say, an Italian attorney to be “of counsel” for actual litigation in Italy. But these firms do retain litigators in Europe and in the case of one firm at least, in Italy. Many of these guys are experienced in litgation before the EU as well. They’re also experienced lobbyists and advocates who can get things done on the US side of things and probably in Italy as well.

    In short, most of these firms which have taken up the detainees’ cause also have something to offer someone in Spc. Lozano’s position. If they wanted to.

    See Dubya (6ac867)

  33. That link you provided showed what appeared to be all italian lawyers. Why are these lawyers supposed to do pro bono work for an american soldier in a criminal trial? And what does that have to do with americans that choose to challenge an extraordinary system with clear constitutional implications? Does the italian bar even have our tradition of pro bono?

    marc (468fff)

  34. It is amply clear that Sgrena was not kidnapped at all. She set it up with her terrorist pals. They got money; she got free publicity, a book and the awe of her peers. Note how she becomes demurely vague whenever there is a possibility of mentioning any identifying characteristic of her “captors” or her places of “confinement.” It looks as though she has suckered everybody. Nice job.

    Bleepless (c4e100)

  35. See Dubya: of course major law firms have attorneys who do criminal defense in the United States and who are therefore qualified to represent prisoners at Gitmo. (They also have Constitutional experts, likewise essential.) I’m pretty sure that doesn’t do much good in preparing one for a trial in Italy. You know, minor details like admission to the bar, a completely different legal code and philosophy, and the pesky problem that they presumably speak Italian. So the question is: do these firms with offices in Italy have lawyers experienced in Italian criminal defense, or only in here-irrelevant fields like international trade?

    As always, for the right wing, now reduced to its fringe, cursing the liberals is better than lighting any sort of candle.

    Andrew J. Lazarus (db0ec5)

  36. “he is not in jail and never will be in jail” is a canard. If found guilty he will never be able to leave the US without the posasibility of being picked up and extradited. Additionally, depending upon the judicial and political powesr that be in this country he may well be extradited at some time in the future.

    davod (bbf058)

  37. Sorry Moopsie. I understand most of these firms will retain, say, an Italian attorney to be “of counsel” for actual litigation in Italy.

    Yes. If a client retains a firm to handle litigation in a jurisdiction in which the firm does not have a presence and may not have a licensed attorney, the typical approach is to hire local counsel in that jurisdiction to assist. This, of course, has nothing to do with pro bono, wherein an attorney at the firm itself represents the client for free. You can add this practice, and the distinction between it and typical pro bono representation, to the growing list of things you don’t understand about the practice of law in the United States.

    But these firms do retain litigators in Europe and in the case of one firm at least, in Italy.

    Yes, it appears Cleary has some Italian lawyers experienced in international trade litigation and arbitration. Why you think they would be good candidates to litigate an Italian criminal trial is unexplained.

    All these errors born of ignorance lead the reader to wonder if you actually care about Spc. Lozano’s case, or instead if you simply wish use it as a club to attack those law firms who, to you, have committed the grave sin of successfully challenging the administration’s actions at Gitmo.

    Moops (8fcb37)

  38. …the growing list of things you don’t understand about the practice of law in the United States.

    Dangit! Now I’ll never get my bar card!

    The guy leading the charge on the Gitmo detainees,Tom Wilner of Shearman Sterling, isn’t a criminal lawyer. He does trade issues on behalf of Venezuela and OPEC.

    See Dubya (c62281)

  39. The Gitmo proceedings aren’t criminal trials.

    Moops (8fcb37)


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