October 15 Commissions Session #4: The Right to Be Present and the Obligation to Attend

Our next topic is presence. No, not the Led Zeppelin album by that name. The issue, raised by Judge Pohl and now addressed by the Chief Prosecutor, instead is whether, and under what circumstances, a war court defendant may absent himself from his capital case. Thus we confront, once more, the question of whether “death is different”---so different that the defendant cannot simply decide to skip out.

For Mark Martins, death indeed is indeed different. His proof is Section 949d of the Military Commissions Act. In his view, Section 949d requires the accused's attendance at all commission sessions, save only a few exceptions that don’t apply here. There is a right to be present, Martins acknowledges. But the present issue concerns the permissible waivers of that right, and Martins thinks the appropriate waiver scenarios are set forth in Section 949d---though he concedes that the commission might read in additional circumstances supporting a waiver. Martins then reminds the court of history: in Hamdan, the court mentioned, and evidently disapproved of, the Bush-era military commission’s authority to exclude the accused from proceedings almost willy-nilly. Congress had that on its mind when it enacted the two commission statutes, Martins says, and wanted to create a system that presumed the accused's presence in the courtroom. Judge Pohl is unsure about this history’s relevance. For him, the issue is whether the accused can absent himself if he wants to. Martins responds that no court has recognized a right to be absent in a capital case like this one, and for good reason: there is no more ultimate penalty than death.

Perhaps sensing the court's skepticism, the Chief Prosecutor turns to the procedure that, in his view, the court should in employ, should it be inclined to permit the defendants to skip out on court---as the rules seem to allow them to do. There must be a voluntary waiver of the presence requirement, Martins says. And absence should only be allowed for "good cause." That strikes Judge Pohl as logically flawed. Why bother with voluntariness, if the court must always inquire into the sufficiency of the defendant’s reasons for missing a court appearance? A detailed colloquy between the accused and the court will be necessary, Martins explains, and the decision to miss court can and should be revisited frequently by the military judge. A defendant’s voluntary waiver could grow stale over time, and the prosecution wants to stave off any appeal based upon any denial of the right (or requirement) to be present---however tenuous that claim might be. As for what constitutes "good cause," Martins cites a case in which the defendant elected to forgo voir dire, and explained to the court his confidence in counsel to represent him in his absence; the accused's preference was to stay home, in order to prepare for trial. Simple disdain, he emphasizes, doesn’t amount to “good cause.” Judge Pohl expresses some skepticism before recognizing the defense. He notes, for example, that some of the waiver cases cited by the prosecution applied to pre-trial absconding by the defendant---which doesn’t happen at GTMO.

Is it a right to be present that can be waived? Or is there an obligation to be present, with exceptions set forth by statute as interpreted by the judge? For defense lawyer James Harrington, the questions can be resolved in light of history. In his experience, capital defendants have asked not to attend hearings, and, after a colloquy, the judges have allowed them voluntarily to do so. He adds that there’s no need to demonstrate the existence of the right to be absent---that follows obviously from the fundamental right to be attend proceedings, which, like the rights to counsel and to trial by jury, can be waived knowingly and intelligently. This, by the way, is a constitutional matter, not a statutory one, as a the prosecution contends; but in any case the statute doesn’t say anything about good cause. The relevant rules says that presence is required, subject to exceptions; and further that voluntary absences may be permitted.

Thus the defense’s position: if an accused knows what he’s doing, and marches through the needed caveats with the court, then he can absent himself voluntarily. This prompts a question from Judge Pohl, who wants to know about evidence: if he permits voluntary absences, then how will they work practically? Can lawyers present evidence of an absent accused’s continuing intention to skip sessions? That could present attorney-client issues, the court worries. Harrington isn’t worried, though. He adds that---though, again, “good cause” is not a requirement---the accused’s reasons for not attending a commission session might be unique, and present what they deem to be “good cause.” An accused might not want to participate in an illegitimate or traumatizing process, for example. That's cause enough in Harrington's view. The defense lawyer lastly emphasizes the constitutional stakes. A court must not deny an accused’s request voluntarily to waive a valid constitutional right, he says. Judge Pohl pops in and mentions the need to safeguard the waiver. Suppose he conducts an on-the-record waiver inquiry for each scheduled session of the commission? In the court's posited scenario, defendants voluntarily could waive their presence on Monday, on the record, and thus forgo attending for the remainder of the commission session.

James Connell wants to add to Harrington’s remarks, and asks for his computer to be displayed. The screen thus changes not merely at GTMO, but also here at Fort Meade. Now we hear the proceedings but see only Connell’s Powerpoint: there's no courtroom, no lawyers, and no accused displayed. A picture within a picture, indeed. Weird.

There are many areas in which the parties agree, Connell says. Nobody disputes the right to be present; the dispute instead is about details surrounding that right, and its waiver. (Connell emphasizes nevertheless that the presence right’s exercise is left to the defendant alone, and not to the government.) What matters is the plain language of RMC 804(c), not the statute Martins mentioned. RMC 804(c) generally requires an accused’s presence, but it also provides for voluntary absence. The government strongly argues Rule 804(c) does not apply, Connell argues, but its three explanations as to why are invalid. Prosecutors first say the “voluntary absence” provision only applies to cases where defendants may be released on bail; but, the defense lawyer explains, in GTMO, there is no bail, and Congress and the Secretary of Defense were well aware of that when the rules were written. The “death is different” argument, moreover, is contradicted by civilian and military court rules---which abolish the capital/non-capital distinction. Third, General Martins referred to Hamdan, and to early-era military commissions. According to Connell, the Hamdan case acknowledged that an accused could consent not to attend a commission session. Connell then says a word about “good cause:” the defendant’s judgment is what counts, for example, in deciding whether his lawyer alone will represents him during voir dire, such that the defendant might choose to skip court proceedings. The lawyer next ticks off a few concluding points: regarding Judge Pohl's practical concerns, defendants could indicate their desire not to attend in writing; that might also avoid a self-defeating scenario, in which defendants are brought to court in order to exercise their right not to be court.

Judge Pohl interjects. What will happen, he asks, if the accused is ordered to be present, but nevertheless insists that he cannot or will not attend? This raises the problem of litigating forcible extraction matters, a scenario the court says it is keen to avoid. Connell emphasizes that a written waiver, to be filed at the start of each session, could avoid that and other issues.

The court wants to resolve presence matters today. Doing otherwise, or permitting additional briefing or discussion, would require the defense’s presence tomorrow. It is a question for the defense, Judge Pohl says: filing more presence papers could mean preservation of the status quo. Cheryl Bormann catches his meaning, and thus asks permission for more time to file any presence-related or other requests, such as her request for an order regarding the adequacy of the defense’s office space.

There’s some chatter from the defense regarding housekeeping matters, and we come to the lunch break.