9/11 trial will test Boise attorneys

Defense team members David Nevin and Scott McKay will be ‘making sure the government plays by the rules’ in the case of Khalid Sheikh Mohammed.

April 20, 2008 

As Idaho’s most famous defense lawyer, David Nevin is no stranger to unpopular causes. But his decision to defend the man the government says planned the attacks of Sept. 11, 2001, puts him in a league of his own.

“In terms of sheer numbers of people killed, wounded and traumatized and the added terror element, nothing compares to 9/11 in the annals of history,” said former U.S. Attorney for Idaho Betty Richardson.

Nevin and his partner, Scott McKay, have volunteered to help military lawyers represent Khalid Sheikh Mohammed, the most important detainee of 300 suspects held at the U.S. military prison at Guantanamo Bay in Cuba. His defense is the top priority of the ACLU’s John Adams Project, which is raising money and finding lawyers to help represent the detainees.

“Taking on this client has got to be the greatest challenge any lawyer has ever faced,” said Ellison Matthews, a Boise attorney who worked with Nevin in the 1993 Ruby Ridge trial.

One case comes close: The Oklahoma City bombing that killed 168 people on April 19, 1995.

“The publicity given to it, the money spent, the notoriety, the infamy of the client — all of those things are comparable,” said Stephen Jones, the Enid, Okla., lawyer who led the defense of Timothy McVeigh, who was convicted of setting off the truck bomb that destroyed the federal courthouse in Oklahoma City. McVeigh was executed three months before 9/11.

Jones said the 9/11 case will take a toll on the lawyers’ personal lives, subject them to media distractions and public condemnation, damage their law practices and perhaps threaten their security. The case will be extraordinarily difficult, he said, because of intense pressure for a conviction, a mountain of evidence, reluctant witnesses and a manipulative and secretive government that denies access to evidence on grounds of national security.

“They’ll just be overwhelmed,” said Jones.

Jones said it took him five years to rebuild his practice following the 1997 McVeigh trial; he now is recovering from heart bypass surgery. “This will take a number of years off their lives and increase their blood pressure, I’ll tell you that,” he said.

Jones has been following the case and is impressed by the Boise lawyers. “I admire them for taking this on. They won’t be the same afterwards. They will learn a lot of things they didn’t know existed — about themselves, about the country, about the world.”

Nevin: ‘A defense for everyone’

Until now, Nevin had declined comment. But he agreed to talk to the Statesman about one thing: His motive for agreeing to defend Mohammed.

Now in Detroit trying a case with celebrity lawyer and Ruby Ridge co-counsel Gerry Spence, Nevin said he’s obligated to defend constitutional principles, including the presumption of innocence for those accused of the most horrific of crimes. “You can’t have a justice system that is really fair and works unless you’re willing to provide a defense for everyone,” he said.

“I don’t know what the government can prove about what Khalid Sheikh Mohammed did or did not do. I’ve heard the rumors; I’ve seen the newspaper stories. But that’s different. You cannot say that if the government makes really, really bad allegations against someone, then no one should step forward. That leads to a justice system that really doesn’t work when it needs to work.”

McKay declined to comment. But Matthews, who knows both men well, said, “He’s brilliant. I think he feels the same way that David does.”

McKay and Nevin will be working with Navy Reserve Capt. Prescott Prince, the lead defense lawyer in the 9/11 case. Prince and Nevin share a similar temperament: They’re both soft-spoken with a record of representing unpopular defendants.

Nevin, 58, graduated from the University of Idaho Law School in 1978. His career is marked by a string of celebrated defenses, from neo-Nazis to Idaho’s worst environmental criminal, from business titans to a mother who helped her 14-year-old buy a pistol he used to kill a policeman.

A 2004 terrorism trial prepared Nevin and McKay for the new case. They represented Sami al-Hussayen, a University of Idaho graduate student and Saudi national charged with three terrorism-related offenses. Despite a rush to judgment by Gov. Dirk Kempthorne and University President Bob Hoover — who called a press conference to say he felt betrayed — a Boise jury acquitted al-Hussayen.

But the case that first made Nevin famous was Ruby Ridge, when his client, Kevin Harris, was accused of murdering a deputy U.S. marshal at the end of a North Idaho standoff. Harris was cleared of all charges by a federal jury in Boise after a 60-day trial. Randy Weaver, represented by Spence, was acquitted of murder and conspiracy but convicted of lesser charges.

“I like to remind people that Gerry Spence’s client went back to jail,” said Tom McCabe, a Boise lawyer who has worked with Nevin. “Kevin Harris walked out the front door of the courthouse with David.”

Nevin is a work horse, not a show horse. “The reason I liked working with David was (that) whenever I was working, I knew he was working as hard as I was,” McCabe said. “If there’s something crawling under a rock that needs to have light shed on it, David’s going to find the rock, he’s going to lift it up, and everybody’s going to see what’s under it.” ‘Making sure the government plays by the rules’

Jack Weaver of Boise was the foreman of the Ruby Ridge jury. He wryly noted that Nevin attracts unpopular clients and attributed that to an “altruistic streak” that holds that even the most unsympathetic defendant deserves a rigorous defense.

“I think he has a little bit of an anti-government vein running through his body — just making sure the government plays by the rules,” said Weaver.

Weaver complimented Nevin’s understated style. In his closing argument in the Ruby Ridge case, Nevin spoke in a near-whisper and quoted George Washington: “Government is not reason, it is force. Like fire, it is a dangerous servant and a fearful master.”

Said Jack Weaver: “I honestly felt that David Nevin was Gerry Spence’s equal in legal ability, but maybe not in showmanship.”

Mike Johnson, U.S. marshal for Idaho during the Ruby Ridge shootings and the trial, respects Nevin for his commitment to the Constitution. He also can’t think of a better lawyer. “If you were in big trouble, I think that’s who you’d want to look at.”

Johnson said Nevin has a knack for synthesizing complex material and making it understandable. “He’s just down-to-earth, and he has a way of keeping it simple.”

But make no mistake: Nevin’s easy manner disguises a burning desire to win. Working together in their younger days, McCabe said he and Nevin would drive to the courthouse listening to motivational tapes by Tony Serra, a wild-haired California lawyer who defended the Black Panthers, Hell’s Angels and Earth First.

“It would get us fired up,” remembered McCabe. “His whole thing is the criminal defense attorney is a warrior — not a fence-mender, not a pacifier, not a negotiator. He’s a warrior!”

Boise lawyer Chuck Peterson, who also worked on the Ruby Ridge case, is another top defender. He and Nevin are friends and frequent collaborators. “When I look at him getting this case, I can’t kid you: I’m thrilled and jealous at the same time,” Peterson said. “But I do think he is that guy.”

Nevin has a gift for connecting with juries, said Richardson, the former U.S. attorney for Idaho. She worked at Nevin’s firm early in her career and remembers the 1986 trial of Elden “Bud” Cutler, a neo-Nazi who paid an undercover FBI agent in a plot to contract for the decapitation of a witness.

Nevin described Cutler as a farmer, a logger, a grandfather, a man more comfortable on a tractor than in a courthouse. Despite seeing a videotape of Cutler offering $2,000 to kill the witness, the jury deliberated 12 hours before deciding to convict.

“He has a wonderful range of vocal inflection and is able to massage words in an almost musical manner,” Richardson said, adding that jurors identify with Nevin and have a hard time imagining such a fine man would represent a guilty person.

Though his theatrical training is limited to a high school role as Prince Hal in Shakespeare’s “Henry IV, Part 1,” Nevin has performed the final chapter in local readings of “A Christmas Carol” to great effect. He is close to jazzman Curtis Stigers and filmmaker Michael Hoffman, two of Idaho’s most important artists.

“I keep waiting for Michael Hoffman to put him in a movie,” said Richardson. “Maybe they can make a movie of this trial and David can play himself.”

‘There’s no expectation of victory here’

Charm and dramatic talent will be unlikely to persuade members of the military commission that tries Mohammed. “Khalid Sheikh Mohammed is one tough client to represent,” said Douglas Linder, a law professor at the University of Missouri-Kansas City and an expert on famous trials. “At least in McVeigh’s trial, there was a small chance of someone with a Waco-inspired McVeigh-like view of America landing on a jury. Here there’s virtually no chance of someone sympathizing with a plan to crash airplanes into skyscrapers.”

Linder said Nevin’s reputation may benefit from taking the 9/11 case, even if he loses. “There’s no expectation of victory here, which helps. Anything short of a death sentence would be a major surprise, I suppose.”

U of I law professor Elizabeth Brandt applauds Nevin and McKay for taking the case because it “responds to the highest callings in our profession — to help those in need and to serve the interests of the public.”

But she expects problems with the military proceeding, including being denied access to the full range of evidence. She said it will be “virtually impossible” to conduct investigations overseas. Also, the client may not trust his lawyers. Mohammed has yet to agree to be represented by the legal team.

Jones, who defended McVeigh, agreed the client may prove uncooperative. Jones withdrew as McVeigh’s lawyer during the appellate phase because he couldn’t trust his client. “I told him, ‘The reason is I can’t control you any longer. You are self-destructive of your legal position. You will undermine your lawyers.’ And, my God, that’s exactly what he did.’”

Returning to ordinary life

Returning to his practice after 2› years was rough, Jones said. He borrowed money and sold stock to sustain the firm after clients had dried up. He estimated it cost him $1.1 million to restore his business to health.

But ordinary Oklahomans were kind and sensitive, Jones said. “They expressed their support and admiration and said things like, ‘Good luck to you — not your client.’ ” He even made good friends among families of the victims.

Jones said his experience affirmed his belief that providing McVeigh a robust defense was essential to the rule of law. “I felt the bomb had placed the constitutional system under attack. The only way to respond was to see that he had a full and aggressive defense and nothing should be taken from him except by due process of law.”

Jones had court-paid security and said he believes ensuring the personal safety of themselves, their families and colleagues is the “first obligation” of Nevin and McKay, who likely would be housed at Guantanamo during the trial. When the McVeigh trial in Denver ended, Jones returned to Enid, population 46,500. He attends the same church and Rotary Club as before. His office is in the same building. His home number is still listed.

He predicted Nevin and McKay will have a similar experience. “I live the same. If I can do that in small-town America, then any lawyer ought to be able to take on a controversial case and know that he’s going to die in his own bed later.”

Dan Popkey: 377-6438

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