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Gerry Spence, Stephen Jones, Stanley Cohen discuss an Osama bin Laden trial

Aired October 3, 2001 - 22:13   ET


AARON BROWN, CNN ANCHOR: So we all wake up one morning and the impossible has happened. The Taliban have turned over bin Laden. And Osama bin Laden is in U.S. custody. How would a prosecutor make the case? Where would the case be heard? Who would take him on as a client? If anyone has an inkling of how this might work, it is our first guest.

Stanley Cohen has defended a number of Muslims over the years including one of Osama bin Laden's mentors, Sheikh Omar Abdel Rahman, who was convicted in connection with the 1993 World Trade Center bombing. And he has defended others and he is here tonight and we are going to spend some time on this. Nice to meet you. Welcome.

STANLEY COHEN, DEFENSE ATTORNEY: I should correct you, I didn't Sheikh Rahman. I represented Moussa Abu Marzouk, the head of Hamas.

BROWN: OK, anyone contact you about the possibility doing this, by the way?

COHEN: Other than the media, no.

BROWN: OK. Would you be interested in doing it?

COHEN: I don't know.

BROWN: What would be the factors?

COHEN: I'd have to see the case. I'd have to see the person. I'd have to think about the sacrifices, I'd have to think about the environment. I also think it would probably not be your typical case where someone would want a technical defense.

I suspect whoever is going represent him is basically going to sit there and do nothing for three years and then Mr. bin Laden will probably take the witness stand and engage a denunciation -- or an enunciation of whatever his position is. I don't see that as a kind of case I'd be interested in.

BROWN: Because as a lawyer it is not really a great lawyer case, it's a client's case?

COHEN: I think that's a fair description and I think, as a lawyer, we are obligated to take a look at the facts and circumstances. I might be so overwhelmed by the enormity of the case, and I don't know, that I would be unable to do as a lawyer what I'm supposed to do.

On the other hand I have represented some individuals who have been charged with some fairly horrific offenses and represented them and they've done very well.

BROWN: Lawyers, whether they're public defenders defending an armed robber or -- I mean, you have to make this judgment at some point whether the person is guilty or not isn't the question. The question is something else, which is, he's entitled to a fair trial.

COHEN: Mm-hmm.

BROWN: And Mr. Bin Laden would be equally entitled to that. Don't you have a professional obligation to protect a defendant?

COHEN: A, he will never get a fair trial no matter what. B, although...

BROWN: Let's come back to that.

COHEN: Right. Although I have a professional obligation to represent everyone to the best of my ability, one of the ethics is if there is a particular case or individual that you are so overwhelmed by some component of the case as to interfere with your ability to represent him, your are obligated not to take the case.

BROWN: That is to say that the crime is so despicable, so awful, that even a lawyer can walk away from it.

COHEN: You can, or the person is so mean spirited and problematic that you really feel that you can't do what you're supposed to do, and that's to give him or her the best of your ability from day one through the end.

BROWN: Because of your experience with these sorts of cases, which actually sounds stupid now that I hear myself say it. I mean, there isn't a case like this and hopefully there will never be another one, is it hard for prosecutors to make these cases?

COHEN: No. This is a snap.


COHEN: This is a case where the presumption of guilt is pervasive. It is all controlling from day one, if he should be arrested.

BROWN: But that's a different question. That's the question, is it hard to get a conviction.

COHEN: Is it hard to make the case? Yes, it is. Even with all the incredibly flexible and supportive conspiracy laws in the federal courts which permit easier indictment and arrest, often it is very difficult to piece together this patch work of inference and circumstantial evidence.

And in a case like this based upon what I've learned, which is very little, I suspect that's going to be the problem. I know in the case of the Twin Embassy bombing case, his connection with those convicted was tenuous at best.

BROWN: But it was out there. It was enough to get an indictment.

COHEN: It was out there, and anybody can be indicted. A ham sandwich.

BROWN: As the old saying goes. I don't mean this kiddingly or in any sense flip, but what would the people in your life your friends your neighbors say to you if you took this case on?

COHEN: Well, the fact that I'm even being mentioned in the same breath has already disrupted my life significantly. It's hurt family and friends and loved ones. It's created a lot of stress on my clients in my own clients. I can't begin to imagine what would happen if the case existed and if I were interested in taking it. It would be very difficult, extremely.

BROWN: And is that factor in a decision?

COHEN: Absolutely. I'd like to think it would not, but you have to weigh in the effect -- if you're going to sit with a client in a courtroom for years, you've got a family, you've got other clients, you've got a practice. The oath is important. It's all powerful in your life but you're a human being and they're difficult decisions.

BROWN: We are going add a couple people to the conversation in a minute. I want to talk about this fair trial question, venue, I can't even imagine how you do that. We will do that. We will be joined by Stephen Jones who defended Timothy McVeigh. Jerry Spense will join us as well. We will take a short break. Don't go away.


BROWN: We are spending a few moments talking about the possibility, a possibility that some day Osama bin Laden will be brought truly to justice, brought to trial. Stanley Cohen stays with us. We are also joined now by Stephen Jones, who you will remember, is the lawyer to defended Timothy McVeigh, and Gerry Spence, who has had his share of high profile cases over the years as well.

It is good to see both of you. Steve, let me start this round with you. Timothy McVeigh, you had to move the case out of Oklahoma City to Denver and I think you had some concerns whether he could get a fair trial there. Is it out of the question that you can find a jury here in a bin Laden case that would be fair?

STEPHEN JONES, DEFENSE ATTORNEY: Well, I think that's really up to the judge. I don't have any doubt that a jury will be seated. They'll go through enough to seat a jury. It may take a white. Now, whether the jury seated is actually fair will depend. There probably are places in the United States where you could have at least at realistic opportunity of getting an impartial jury. But it would be upstream.

BROWN: Where?

JONES: Guam, Puerto Rico, the Virgin Islands, North Dakota, Vermont, places that are not in the media mainstream would be the best chance.

BROWN: There aren't many places like that. Go ahead, Stan.

COHEN: Some of the places you're talking about places where there have been some horrific attacks on Muslims just for being Muslims, let alone Osama bin Laden.

JONES: Yes but those people would be disqualified, and I don't think you can paint all North Dakotans as being anti-Muslim. To the contrary North Dakota is one of the most liberal states in the United States.

BROWN: But the trouble is you also can't paint them as being out of the media swirl that's been going on. Jerry, do you think there's a place in the country where Osama bin Laden could get a fair trial, and if not, what then, does the justice system do?

GERRY SPENCE, DEFENSE ATTORNEY: Well, there's no place, let's understand it, there really is no place in the free world where this man can receive a fair trial. And so, you have to recognize that some criminals are so vicious and so despicable and have committed such horrible crimes: killing innocent women and children, murderers who kill men and women and children who are innocent, you cannot defend this person in any jurisdiction in the United States or in the world in my opinion, where he could get a fair trial.

There are some cases that simply can't be defended. And I think this is one of them.

BROWN: So, what do you do?

SPENCE: Well, what you do is you first of all, you understand that the business of winning, I'm talking about winning, in the general sense that lawyers talk about winning which means I'm going get my client acquitted, is not what we are talking about here.

Winning would be to make sure this client gets a fair trial, that due process given to him under the constitution of our country and that we set an example for the rest of the world, without regard to how horrible this man is, without regard to that, he gets a fair trial and we establish a model, a role model for the rest of the world to watch, understand that justice is also fair.

BROWN: Don't you want to see the evidence?

SPENCE: Oh, of course.

BROWN: Oh, OK. SPENCE: Absolutely. I want to see the evidence, you bet.

BROWN: I mean, I don't mean that in any sense kiddingly, but the fact is that a lot has been said about this guy, and a lot of people have been saying it now for a long time and what none of us has really seen is the evidence.

SPENCE: Well, it really doesn't make any difference, Aaron, excuse me. It doesn't make any difference what the evidence is in this case. This man has been so demonized and so already convicted in the minds of every citizen in this country, that there isn't any way that you could remove that from their minds.

So the evidence is important, and yes, I want to see the evidence, and yes, due process would require that you carefully present the case and test the evidence, cross examine the witness, make the prosecution produce the evidence that they are supposed to produce under the due process clause of the United States and use all of the Constitutional rights that we have.

But it doesn't make any difference ultimately. This man would never receive a fair trial despite what the evidence might be anywhere.

BROWN: Steve you wanted to jump in.

JONES: I was going to say, Osama bin Laden, if we are talking about him, his strategy has to be to see that there is no trial, to see that the evidence is not heard and the way he's going to do that, if he's apprehended, is the so-called gray male theory. Even though we have a classified information procedure act, let's face it. A lot of the evidence that may be against him comes from very sensitive sources that the government will not want to give up.

They will not want to be exposed in the same sense that when Julius and Ethel Rosenberg were prosecuted, as we now know, the government did not want to disclose, although it was very damaging to the Rosenbergs, the Venona transcripts, which had been used to break the Soviet code.

BROWN: Hang on Stephen.

COHEN: Yeah, I disagree with you. I think this is a trial cast in the context that is so unusual, in an environment in which so many people are willing to flush the due process. I think this would be a trial held essentially in camera.

I think I would not at all be surprised to see evidence that would just be viewed by the judge, that certain stipulations would be accepted, that the jury would get a really controlled version of the facts and circumstances. I wouldn't -- it wouldn't surprise me if this were not a star chamber.

I think Gerry is right, this is the quintessential case that is much larger than the system's ability to mete out justice. I don't think it's going to be a problem. Osama bin Laden is not going end up in the Southern Districts of New York. I think it is a wonderful academic debate for lawyers to engage in, he's not coming in.

ALLAN: I agree with Mr. Cohen, but I'd like to say that he ought not to be tried in this country. He ought to be -- this was a crime not against just America but it was against a crime against the world. It was a crime against the entire world and this case ought to be tried in a special tribunal established by the United Nations and tried in such a tribunal. It ought not to be an American show but a world show.

BROWN: Well wherever it happens, I suspected it will be that.

Mr. Jones, just, I want to button in part of the conversation up, but since you had McVeigh and McVeigh was I think it's fair to say hated, by a good many people, is bin Laden seen today, as we sit here today, as much worse than that? Is it a much more complicated case than McVeigh was?

JONES: Well, probably in Oklahoma, they would be the same but nationally I don't think there's any question that Osama bin Laden is more demonized than Timothy McVeigh. But I just have to tell you that I disagree with the basic premise that he cannot get a fair trial in this country, although I think Gerry's point about some sort of international trial, and we have the recent precedent of the two Libyan in the Hague, although using Scottish Law, may be an example of something that could be applied here.

BROWN: All right. Now, let me come back to Stanley for a second, because you were the first one, at least in my universe today, to raise the question, it is not going to happen anyway, so it is kind of fun an perhaps interesting to talk about, hopefully. But it's not going to happen. Why isn't it going to happen?

COHEN: Well, I think if -- obviously, we're all privy to a scaled-down version of the profile of Osama bin Laden. But I think it's clear to see that this is a person who plays by, it's easy to say different rules.

He's going to play out his role, vis a vis the world and his view by, one way or another, he's going to be killed. Whether it's by his own hand, his supporters, by the United States. He is not going to allow himself, and anyone I think who knows anything about him, would agree to be dragged in handcuffs, into the United States or any international court.

It's inconsistent with his messianic complex.

SPENCE: Yes, but in a way that's a shame, because to tell the truth, we need to set a standard in this country, this business of returning him dead or alive, is -- response to my heart and probably response to the hearts of American citizens.

But in truth, we ought to make sure that this man is taken live and put before a tribunal and given a fair trial. Absent that, the very things that we are fighting for, namely for freedom, for a rule of law, for a world in which in which due process is given to those who are charged with crimes. Absent that, we are already defeated. COHEN: Well, one of the problems is we don't control perhaps whether or not he's coming in alive. And that ultimately, his ultimate act of independence in his perverse mind may be taking his own life or having his men or his followers doing it, rather than ending up here.

BROWN: Gerry I got to ask you quick one thing, because I'm a little confused. I thought you said you didn't think he couldn't get a fair trial here. And just a moment ago, you said he ought to get a fair trial.

SPENCE: Well, you're listening. And by fair trial, I don't mean that he's going to get a fair trial, but I do mean that we have to use every available method to see that due process, that is, that all of the proceedings that are at our hands.

It's like a doctor who's got a patient that's dying of cancer. He's going to use every method that he can to somehow see that he gets the proper medical treatment, even though he knows that he's going to die.

And absent doing that, absent using every effort that the doctor can to see that this man gets fair medical treatment, he's not performing his duty. And then absent our ability to do that with respect to this man, we're not doing ours.

BROWN: Well, it would make those of us, if we were ever to have a -- who thought a few years back out in L.A., we covered the trial of the century. It would give us something to think about again.

Gerry Spence, Stephen Jones, thanks for joining us. Stanley Cohen, nice to see you and thanks for coming in tonight, all of you. It's been interesting. Thank you. We'll do this again, I have a feeling.




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