February 20, 2001

Reporter's Notebook: Arguments in Bomb Trial, but With His Own Lawyer

By BENJAMIN WEISER

Defense lawyers are supposed to fight hard for their clients. But sometimes the two see things differently.

The recent opening arguments in the trial of four men accused in the conspiracy to bomb the American embassies in East Africa in 1998 were a case in point. The prosecution went first, followed by a defense lawyer. And then another defense lawyer. But when the third rose and addressed the judge, he said that he had an "important problem."

"I just have to advise the court," said the lawyer, Frederick H. Cohn, "that my client has instructed me not to open."

He added, "I don't know if I am going to obey that."

Lawyers do not have to agree to all their clients' requests, and opening arguments give the defense an important chance to make a first impression on the jury. The judge, Leonard B. Sand of Federal District Court in Manhattan, told the lawyer: "That's a decision for you to make."

Mr. Cohn said he understood, but that he would abide by the request of his client, Mohamed Rashed Daoud al-'Owhali, 24, a Saudi citizen who could face the death penalty if he is convicted of playing a role in the attack of the American embassy in Nairobi, Kenya, in 1998.

It was not the first time Mr. al- 'Owhali and his lawyers disagreed over tactics.

Last year, different defense lawyers representing Mr. al-'Owhali were preparing to go to Washington to argue before the Justice Department that Janet Reno, who was attorney general at the time, should not authorize the death penalty against their client. But Mr. al-'Owhali told his lawyers not to go.

The lawyers appeared before Judge Sand, saying they felt conflicted between Mr. al-'Owhali's wishes and their own ethical obligations, especially in a potential death-penalty case.

Judge Sand asked the lawyers if they had any doubt about Mr. al- 'Owhali's "mental capacity or the rationality of his instructions" to them. When the lawyers said no, the judge said they could ethically abide by their client's request.

The lawyers did not make the trip, and Ms. Reno eventually authorized the death penalty.

It remains to be seen whether Mr. al-'Owhali will, in the end, allow his lawyers to deliver a closing argument, or, if he is convicted of trying to carry out the suicide attack, prevent them from arguing against execution.

All Rise? Not So Fast

In some ways, the embassy bombings trial is like an Andrew Lloyd Webber musical: it takes a good long time for the stage to be set and the characters to take their appointed places before the curtain rises every day.

After Hanna the bomb-sniffing dog pads through the courthouse with her nose to the ground; after the reporters waiting in the courtroom finish their joking post-mortems on yesterday's news; after the Arabic and Swahili translators discuss the weather and climb into their translation booths; after the prosecutors enter carrying files and the defense lawyers follow recalling courtroom antics of the past; after Joel Blum, the in-house audio-visual technician, checks the microphones and the half- dozen speakers mounted on the walls; after the four defendants are led in by federal marshals with their wrists cuffed behind their backs and are placed in their chairs and their hands are freed and shackles are clamped to their legs; after Judge Sand strolls in from the robing room; after members of the public are ushered toward the last row of the gallery; after motions are heard and an expectant silence settles over Courtroom 318; after everything is finally ready and the 18 jurors amble in and groggily claim their seats; then, and only then, does the trial actually begin.    ALAN FEUER

Time Is No Fugitive Here

Thomas Hobbes, the 17th century British political thinker, once described human existence in nature as nasty, brutish and short. Paul W. Butler, one of the prosecutors in the bombings case, once described the terrorism trial as long, complicated and chilling.

All concerned say the trial is going to be long. But as lawyers are wont to say, there was proof beyond a reasonable doubt offered in court last week as to just how long it is likely to be.

During a break in the proceedings on Wednesday, Judge Sand told the jury that the trial was going to be so protracted that he had already arranged a week's vacation for them. In August.   ALAN FEUER


Copyright 2001 The New York Times Company