The strength of the American legal system
Written by Ram Sidi
Before I begin, I would like to emphasize that this is a blog, not an academic review, and therefore, should be treated as such. In this blog I do not attempt to provide an answer for the legal and moral issues that follow, but rather wish to point out issues for further thought.
On Saturday night, 16 February 2002, a terrorist wearing a 25-pound nail-studded explosive device strapped to his body, blew himself up in a packed pizzeria in the Israeli settlement of Karnei Shomron. The blast killed three teenagers (a 15-year-old girl, a 16-year-old girl, and a 15-year-old boy) and injured 27 people, six of them seriously.
The two of the girls who were killed, Keren Shatsky, 15, and Rachel Thaler, 16, were American citizens. The American families of the victims brought a tort suit against the Palestinian Authority (PA) in the federal court of the District of Colombia, claiming that the PA was behind the terror attack and directly responsible for the deaths of their girls.
I have a special interest in this case and have been following it for years. However, until recently, I had never approached this case from a legal point of view or seen it through the eyes of a lawyer. I cared only for the end results.
The litigation started on November 2002, yet for years the families were lacking sufficient evidence to clearly establish that the PA was indeed behind the attacks. On September 2012, however, a fateful event occurred that brought significant change to the case and this fateful event is the core issue of the legal venture of this blog post.
On September 10, 2012, the defendant sent seventeen pages of Arabic-language documents to the plaintiff in response to their discovery request. However the plaintiff counsel requested that the defendant counsel resend better-scanned documents. On the morning of September 12, 2012, one of the defendant attorney’s, John C. Eustice, put—into what he believed was an empty envelope—defense counsel’s copies from which the September, 10 documents were made. However, the envelope he picked up was not empty. The envelope contained at the bottom a folded, unnumbered working copy—at least that is the claim of the defendant counsel—of a client communication to the defense counsel, created in April 2012.
The document was two-page memorandums prepared in April 2012, at the counsel’s request, by Major Ziad Abu Hamid—an official within the PA’s General Intelligence Services (GIS). The GIS Qalqilya memorandum contained at least seven crucial key facts that clearly establish the PA’s direct involvement in terrorist bombing. The “million dollar” evidence that had been sought by the plaintiff had been found. Both the plaintiff in our story, and other parties who had been searching for evidence to prove the Palestinian Authorities direct involvement in terror activities, were overjoyed.
Well, before you get excited, here is when our real story begins. The defendant asked for his documents back claiming they are privilege material under attorney-client confidentiality. In the reasoning of his claim the defendant stated that: (1) the material was made directly for the counsel, (2) it was a work-product since it had hand-written blue ink notes on it.
The federal district court of the District of Colombia (under Judge Richard Leon) ruled on January 1, 2 2012, a minute order stating: (1) the document shall be destroyed or returned back to the PA, (2) the plaintiff will issue a list of all parties that received copy of the document, and (3) the plaintiff will perform proof within five days of the execution of this order.
A case such as this, the fate of which may well rest on civil procedure alone, raises serious questions, both legal and ethical:
(1) should we let important cases to be decided based on technical elements?
(2) is it technical, or it is an issue of utmost importance to our American legal system?
(3) does certain public policy should trump confidentiality?
In essence, this case asks us, what is more important? To do justice? To expose the facts? To punish the guilty? Or to keep our rules? Do we want everyone to see the “naked king”? If yes, at what cost?
Here, in this one case, lie all the serious issues that we addressed in our professionalism and the law class. Issues like civil procedure, attorney-client privilege and the place for ethics within and outside of the law. It is generally felt that attorney-client confidentiality trumps all the other conflicting issues. However, this case stresses additional daily dilemmas that attorneys may face throughout the job. In this case lays the conflict between two types of retribution: empirical retribution—wrong because society said so—in our case to break attorney-client confidentiality, and deontological retribution—pure wrong—in our case a terror attack and the murder of three innocent kids. The defendant attorney might be torn between his duty to his client and his moral conscience. This is an issue we all, as future lawyers, will have to address at some point or another.
But back to our story, the defendant filed a motion to get the documents back. Court gave a minute order. That, being the final decision in middle of a case, leaves our plaintiff without a possibility for remedy. Civil procedure comes to the rescue again. This is an exemplary case for procedural litigation. The plaintiff claims that the document is not covered under attorney-client confidentiality for the following reasons:
(1) the plaintiff claims that the Qalqilya document was written for the PA GIS and not for the lawyer,
(2) the defendant failed to protect the document, and, therefore, waived its confidentiality,
(3) the defendant failed to produce or list the document in the privilege log as required by law, and therefore, waived its confidentiality,
(4) the defendant kept changing its version as far as the origin of the document—the basis for the privilege:
(i) who wrote the document,
(II) when the document was written, and
(III) to whom the document was written.
(5) the GIS memorandum is a pure factual account of the bomber and the bombing, including events leading up to and following the bombing.
Since the judge gave a minute order we ask ourselves, does the plaintiff has a possible way for remedy, or these evidence will be lost forever? The American legal system leaves the plaintiff with possible remedy. He may file two types of motions:
(1) motion for stay – an order to suspend all or part of a judicial proceeding,
(2) motion for mandamus – a writ issue by court to compel performance of particular act by a lower court.
The 6th Circuit Court of Appeals has utilized a balancing test of five factors for Mandamus review:
(1) the party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired,
(2) the petitioner will be damaged or prejudiced in a way not correctable on appeal,
(3) the district court’s order is clearly erroneous as a matter of law,
(4) the district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rule,
(5) the direct court’s order raises new and important problems, or issues of law of first impression.
These factors need not all be met, and some factors will often balance in opposition to each other.
Our plaintiff claims that all of these factors exist in this case and the evidence in question is therefore liable for mandamus motion.
This case demonstrates the complexity of the remarkably balanced American legal system, which provides a last resort when we fear that the court abused its discretion. It will be interesting to follow this case and see what would be the appellate decision. Regardless of what our wishes to be in this case, it simply nice to see that the system works.
The plaintiff in this case raised other legal issues and issues of public policy:
(1) the plaintiff argues that the defendant’s thorough material misrepresentation of fact intended corruptly to ensure the destruction of this evidence—a crime under 18 U.S.C §1512(c),
(2) the bombing was the subject of an FBI investigation which is still ongoing. The Qalqilya memorandum is evidence of a crime and key for any federal investigation of the Karnei Shomron bombing, and
(3) the plaintiff believes that a copy must be provided to the Department of Justice, the appropriate congressional committees, and should be publically disclosed.
Thinking through the issues of a case like this—one that affects me on a very personal level—forces me to reexamine if what I have been taught to protects may, in some circumstances, make me do a greater wrong. Even though I am too early at my studies to answer that question, I believe the answer is no. However, as long as this question never stops rolling in my head, and as long as I constantly seek to understand the complex and sometimes conflicted interaction between what initially seems to be the just path versus what the law appears to require, I will be a good servant of justice and a good servant of my community.
To conclude, I find that this case presents many of the issues we have often debated in our first semester, while also showcasing the complexity and strength of the American legal system. On the one hand it may seem unfortunate when a very serious case will be decided on procedural issue. To a person outside the legal system that might look simply wrong. However, it is very important that while seeking justice we will not trump others rights. When serious matters are at stake, it is the hardest and most challenging time to make sure we do not violate rights. We cannot, under the guise of protecting one’s rights, wave the rights of others.
Yet what we also see in this case is a good example of the system working both ways. While at first glance, procedural issue appears to be halting the full investigation—the judge has initially ruled that the evidence in question must be returned to the defendant—the plaintiff does have recourse to fight this ruling, and uses it. This is the strength of the law. It will be interesting to follow the case and see what the appellate court will rule. However, regardless of the ruling, the fact that both parties in the case have their possible remedy shows the unique checks and balances of the American legal system.