by Randy Singer
Finally, he spoke. “I read in the briefs that your client will drop the case rather than produce any names. Is that true?”
Whoa! He has read the briefs. The earlier question was just a setup, a credibility check to see if we would fudge the issue. We passed.
Leslie was on her feet again. “That’s correct,” she said tentatively.
“And if I give you a simple order to produce to Mr. Strobel all the names of alleged church members who worshiped with Sarah Reed, you would rather drop the case than obey my order?”
Leslie shifted her weight from foot to foot, the pain of this answer registering in her eyes.
“I wouldn’t phrase it that way, Judge. But with all due respect, my client has decided not to produce the names under any circumstances.”
Johnson shifted his stare to Sarah. “Is that true?” he inquired.
Sarah stood. “Absolutely, Your Honor.”
“That’s what I thought,” Johnson said. “And it’s the only thing that makes my decision easier.” He flashed a quick grin at Sarah. “You may sit back down, Mrs. Reed.”
“Thanks,” she said, embarrassed.
“This case reminds me of the biblical story of Solomon and the two women fighting over the baby. Solomon said he would split the baby and give half to each woman claiming to be the mother. He knew the real mother would never allow that to happen. And so he awarded the baby to the woman who begged the king not to kill the child.”
Brad felt a small smile creep across his lips.
“In the same manner, I am impressed by the sincerity of Mrs. Reed. She is prepared to drop this case rather than reveal the names of alleged church members. She must sincerely believe they would be persecuted for their faith. I realize that her lawyers missed a deadline, but this court is not willing to make Mrs. Reed pay so dear a price for the mistake of her lawyers.
“Accordingly,” he concluded, “we will take a page out of Solomon’s book and see if we can split this baby. Mrs. Reed must answer each and every interrogatory except she will not be required to reveal the names of the alleged church members unknown to the defendants. In exchange, Mrs. Reed will not be permitted to mention or testify at trial about any alleged church members other than the Friday night group that the defendants already know about. I know it’s not a perfect remedy, and whatever judge tries this case may decide to do something different, but it’s the best I can do for now. After all, I’m no Solomon.”
A collective sigh of relief registered at the plaintiff’s counsel table. They had dodged at least one bullet today. This judge was Solomon incarnate, as far as Brad was concerned. Brad leaned over and whispered to Leslie.
“Nice job,” he said. “You looked pathetic.”
“Thanks,” she whispered back. “It’s my specialty.”
Strobel appeared unfazed. He had undoubtedly seen his share of surprises through the years, and you could never tell from his demeanor if he had been dealt a serious blow. He remained stoic, thanked the judge for the ruling, and launched into his argument on the motion to dismiss with undiminished vigor.
“The courts of the United States have honored the immunity of other nations from lawsuits for more than 180 years,” he asserted. “From the time Chief Justice John Marshall decided the case of Schooner Exchange v. M’Faddon in 1812, through this very day, courts have honored the bedrock principle of international law that each country has exclusive and absolute territorial jurisdiction over actions that occur within its territory. Therefore, countries grant each other immunity over lawsuits—”
“Skip the history lesson,” Johnson cut in. “Let’s bring it up to at least 1976, shall we? Would you agree that in 1976 Congress passed the Foreign Sovereign Immunities Act and that is the statute we need to interpret today?”
“Yes, Your Honor. And that statute makes it clear that the defendants are entitled to immunity from this lawsuit.” Strobel looked the part of the big-firm defense lawyer. He stood erect, and his full and deep voice originated from deep down in his diaphragm, reverberating throughout the courtroom.
“Plaintiff claims there should be an exception to this statute for torture arising out of religious persecution,” he continued. “She says that torture violates a fundamental norm of international law, also known as a jus cogens law, and therefore nations cannot claim the immunity of international law when they act in ways that violate the very essence of international law. But this claim has been considered and rejected by other courts. For example, the Ninth Circuit Court of Appeals, in the case of Siderman v. Argentina, rejected the claim of a Jewish citizen from Argentina who had been arrested and tortured because of his faith—”
“Speaking of the Siderman case,” Judge Johnson said, waving the lawbook in his hand, “let me ask if you agree with some quotes from that case that I find very persuasive. Do you agree, sir, with the following quote: ‘The right to be free from official torture is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens. The crack of the whip, the clamp of the thumb screw, the crush of the iron maiden, and, in these more efficient modern times, the shock of the electric cattle prod are forms of torture that the international order will not tolerate. To subject a person to such horrors is to commit one of the most egregious violations of the personal security and dignity of a human being.’ Do you agree with that, Mr. Strobel?”
Johnson glared down at Strobel, still holding the Siderman case in one hand as if it were an original copy of the Ten Commandments. For the first time all day, Brad slid back in his chair, crossed his legs, and relaxed.
“I agree that torture violates the personal security and dignity of human beings but—”
“Then don’t you also agree, Mr. Strobel, that when a nation violates this fundamental rule of international behavior, the cloak of sovereign immunity that is provided by international law falls away, leaving the nation vulnerable to suit?”
“No, Your Honor,” Strobel said with great confidence. Even when he spoke to a judge, he had a certain air of authority. “You quoted some select language from the Siderman case, but the ultimate decision in that case rejected the very argument you just raised—the court ultimately said that the act of torture did not strip away the right to sovereign immunity.”
“Let me put it to you this way, Mr. Strobel: Suppose I agree with the language of the Siderman case but not the ultimate reasoning. I don’t have to follow that court’s reasoning. Are you aware of any U.S. Supreme Court case that says a foreign nation that tortures U.S. citizens cannot be sued in U.S. courts?”
“No, Your Honor, the Supreme Court has not squarely addressed this issue.” Strobel’s confidence took on a tone of frustration. “Based on other decisions regarding similar subjects, however—”
“If neither the Supreme Court nor the appeals court for this circuit have squarely addressed this issue, then it seems to me I’ve got to do what I believe is right. And it just doesn’t seem right that foreign countries can torture American citizens and then scream sovereign immunity when they get sued in American courts. If all courts in the past had read the law as narrowly as you do, Mr. Strobel, we would still be in the Dark Ages when it comes to civil rights in this country. Justice and common sense require something more. Now that’s just my initial inclination in this case. I’m willing to give you every opportunity to talk me out of it.”
For the next hour, Strobel tried heroically to do just that. But Johnson’s “initial inclination” proved to be a stubborn one indeed. The more Strobel talked, the bigger the hole he dug. And after exhausting every argument and citing nearly every case in his handy black notebook, Strobel reluctantly sat down, needing a miracle.
Brad practically floated to the podium. But before he could speak, Johnson put his upcoming argument into the proper perspective.
“Now, Mr. Carson, there’s one thing I’d like you to keep in mind as you begin your argument.” Brad listened intently to the soothing baritone drawl. He wa
nted to address every concern and allay every lingering doubt that Judge Johnson might express. “I’ve read all the briefs, and I’ve now heard Mr. Strobel’s eloquent arguments. Despite those arguments, I’m leaning toward allowing the case to go forward. Of course, if I did that, I would also dismiss the Rule 11 motion, since you can hardly be fined for filing a frivolous case if I decide the case has enough merit to proceed. Now having said all that, Mr. Carson, I am certainly willing to give you all the time you need to help me rethink this matter and change my mind.”
Brad glanced quickly down at his yellow legal pad and all the arguments he had worked so hard to refine. He thought about the press corps behind him waiting to be impressed with passionate oratory about the virtues of religious freedom and the vices of religious bigotry. He thought about his own reputation, about how few chances a lawyer had to mesmerize this type of gathering. But then he also thought about Sarah and the torture and her children being raised without a father.
Silence was, after all, a virtue.
“In that case, Your Honor, I believe I can be very quick. We would simply like to rest on the arguments previously submitted in our briefs.”
“A wise choice,” Johnson said, and Brad returned to his seat.
“The court will take a ten-minute recess,” Johnson said, “and then I will announce my decision.”
* * *
Thirty minutes later, Brad was in the process of reassuring Leslie when Johnson reentered the courtroom. The chattering immediately stopped. “Remain seated,” Johnson said to the crowd.
“Don’t worry,” Brad whispered. He could tell his words just bounced off Leslie’s furrowed brow.
“Then why did he take so long?”
“What did I say?”
“Do I look worried?”
Brad scrunched his face and nodded. “Yep.”
“I will be filing a lengthy written opinion in the weeks ahead,” Johnson said, “but I thought it only fair to the parties that I state for the record my intentions with regard to the ruling so they can plan accordingly.”
The judge surveyed the crowd, put on his reading glasses, and commenced with the opinion he had written just minutes earlier in his office.
“The United States, Saudi Arabia, and most other civilized countries are members of the United Nations and therefore signatories of the United Nations Universal Declaration of Human Rights,” he began. “Article 18 of that document states that ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.’” He stopped reading for just a moment and glanced up at Sarah. He looked back down and continued.
“Moreover, both Saudi Arabia and the United States have signed the International Covenant on Civil and Political Rights. That document repeats this commitment to religious freedom and also states that ‘Each state party to the present Covenant undertakes to ensure that any person whose rights or freedoms as recognized herein are violated shall have an effective remedy.’ Furthermore, as the court noted earlier, it is a fundamental norm of international law that citizens of all countries should be free from torture at the hands of governmental officials.
“In order to give substance to the international rights contained in treaties and charters signed by our own government, this court must open its doors for serious and substantial human rights claims against foreign governments. It makes a mockery of these treaties, and of the human rights that undergird them, to suggest that nations can violate these rights at will and then hide behind the doctrine of sovereign immunity. Accordingly, I am denying defendant’s motion to dismiss and dismissing defendant’s Rule 11 motion.”
A murmur drifted up from the spectators. Hushed and excited whispering could be heard. Strobel stared ahead, his face betraying no emotion.
“I am also mindful that justice delayed is justice denied. This case has already been pending for more than three months. Plaintiff is entitled to her day in court. Accordingly, I am setting a trial date for the third Monday in October, less than three months from today’s date.”
After reading this last sentence, Judge Johnson banged his gavel, rose from the bench, and walked regally out the back door of the courtroom. Brad thought that the crusty old judge looked remarkably like an angel.
* * *
Later that night, after an impromptu celebration dinner died down, Brad walked Leslie to her car. He gently put his arm around her shoulder. She snuggled against him, and they walked slowly, completely in sync.
The adrenaline that had coursed so freely through her body earlier in the day was now completely gone. She was so totally relaxed, she felt like a limp dishrag. She wanted nothing more at this moment than the very thing now happening. The case was moving forward. And Brad Carson, the man she had thought about nonstop for two months in England, was walking with his arm around her and holding her close, like they would never be apart again.
“Leslie, I’m sorry about that night in Williamsburg . . .”
“You don’t need to apologize.”
“I do,” he urged softly. “I’m sorry that I tried to push our relationship too far, too fast. I didn’t know about Bill. I’ve been doing a lot of thinking since that time, and I’ve come to realize that you were right. It’s not good to start a relationship in the middle of a pressure cooker like this case. Especially when you’re still trying to recover from Bill’s death. Let’s wait till this case is over. That’ll give us both more time to sort things out. If there’s anything real between us, it’ll survive. If there’s not, then it wasn’t meant to be.”
They stopped walking, and Brad took her gingerly by both hands, the same way he had in Williamsburg. “Anyway,” he said, “that’s what I’ve been thinking.”
It wasn’t at all what Leslie had been thinking. And looking deep into Brad’s penetrating gaze, those intense steel blue eyes, was not helping to clear things up. At this moment, she was more confused than ever.
Should she tell him how she felt? Forget that night in Colonial Williamsburg, Brad Carson. Forget my hesitation and second-guessing, my “I need more time” protestations. I’m ready now. I’ve thought this through. Banished my demons of doubt. And I’ve decided that I need you more than you’ll ever know. Not when the case is over, but now. Right now. Tonight.
But when she opened her mouth, none of those words came out; none of those feelings found expression. “Thanks, Brad,” was all she could bring herself to say.
He kissed her gently on the cheek, then turned and walked away. He didn’t even notice the mist gathering in her eyes.
18
IT’S ONE THING TO ALLEGE TORTURE at the hands of a foreign government; it’s another thing to prove it. This harsh reality dawned on Brad and his legal team the morning after the hearing, as the euphoria of surviving the motion to dismiss gave way to the reality of the task before them.
To get this next phase started on the right foot, Brad called an all-hands meeting for 8:30 a.m. Nikki arrived at 9:15, and Bella pried herself free from the phone and a cigarette a few minutes later. Leslie had already been in the conference room for two hours, refining her preliminary game plan and developing a list of potential witnesses for trial.
Brad was pacing, thinking out loud, and twirling his glasses.
“These cases are won or lost with expert witnesses. Experts can give opinions about anything. If we get the right ones on the stand, experts that the jurors like and understand, we can blow this case wide open. We’ve got to have guys who don’t condescend to the jury—juries hate that, you know—and guys who will stand up to Strobel on cross-examination without being obnoxious.
“Our deadline for naming experts is a week from Friday. How’re we coming, Nikki?”
Nikki’s head jolted up. “Yep, I agree.”
Bella rolled her eyes. After twelve year
s working together, Brad knew what she was thinking: We’re paying Nikki how much for this?
“You agree with what?” Brad asked. “I’m asking you, how’re we coming on our experts?”
“Okay, I guess,” Nikki said. She looked a little sheepish. “You said you knew an economist who could testify about the economic impact of Dr. Reed’s death—lost wages, loss of services, that type of thing. So I haven’t done anything yet on the economist.”
“There’s a surprise,” Bella muttered.
Brad ignored her, as did Nikki. Leslie ignored everybody as she continued to write.
“Bella, get Nikki the contact information for Dr. Calvin Drake,” Brad said. “Have him sit down with Nikki and Leslie and draft an opinion before the deadline. The total economic loss needs to be about two million. Who else have we got?”
Nikki casually checked some notes. “We’ve got the toxicologist, Dr. Nancy Shelhorse. She’ll testify about the blood tests and urine tests given at the two hospitals and the toxicological tests that were part of the autopsy. It’s her opinion that Sarah and Charles Reed were injected with cocaine by the police at the time of the arrest.”
Nikki glanced up from her notes, this time looking extraordinarily pleased with herself. She smiled at Bella.
“Sounds pretty strong,” Brad said. “What else do you have?”
“Our star will be Alfred Lloyd Worthington, a Washington lobbyist who works with multinational corporations and serves as an adjunct professor of international law at George Mason University. Worthington is a former congressman who got caught up in the demographic shift from Democrat to Republican in northern Virginia. During his time in Congress he served on the House Foreign Relations Committee. He’s got a great résumé, and he sees this case as his ticket back into the spotlight. He’s qualified to give opinions on international treaties and the miserable track record of the Saudis when it comes to religious liberty. He’ll prove that the Saudi government knew all about the activities of the religious police and sanctioned this type of conduct.”
