The Unpopular Defense
Five of the region's top criminal defense attorneys talk about representing accused polygamists, neo-Nazis and terrorists
Published in 2008 Mountain States Super Lawyers magazine
By Michael Moore on June 26, 2008
Wally Bugden and Tara Isaacson of Salt Lake City argued that Warren Jeffs was a political prisoner. David Nevin represented an accused Saudi Arabian terrorist in Idaho. Michael Krampner got three men off death row in Wyoming. Randi Hood handles public defense for the entire state of Montana.
If there’s one thing these criminal defense attorneys have in common, aside from a dissident streak, it’s that they relish an uphill battle.
Trial of the Polygamist
Salt Lake City’s Wally Bugden and Tara Isaacson went to bat for Warren Jeffs
When Warren Jeffs made the FBI’s Ten Most Wanted List in 2006, the polygamous leader of a fundamentalist Morman sect knew he couldn’t evade the law much longer. Enter Salt Lake City attorneys Wally Bugden and Tara Isaacson of Bugden & Isaacson.
“I think Warren felt like we understood the nature of the prosecution, the difficulty of the issues and the fundamental principle of freedom of religion that was at stake,” says Isaacson.
Says Bugden: “This was religious persecution. It was as if they had captured a political prisoner and were prosecuting him as such. It’s like he was Saddam Hussein—and in fact the media made that comparison.”
Jeffs, the leader of the Fundamentalist Church of Jesus Christ of Latter-day Saints from 2002 to 2007, was charged as an accomplice in the rape of a 14-year-old girl whose extralegal marriage to a 19-year-old member of the church Jeffs had arranged. “This was a backdoor way to prosecute him, and it was bizarre and overreaching,” Bugden says. “We always felt that we could prevail on the facts.”
Nevertheless, in November 2007, Jeffs was sentenced to 10 years to life in prison. Bugden and Isaacson say they were unable to seat a fair jury in a county where 52 percent of residents believed their client was guilty before the trial even began. The attorneys are currently seeking post-conviction relief, but will appeal to the Utah Supreme Court should that effort fail. (In two separate pending cases, the state of Arizona has charged Jeffs with eight additional counts, including sexual conduct with minors and incest.)
“This was the prosecution of a religion and a culture that the state no longer prefers,” Bugden says. “We have significant legal issues: from the change of venue to the legal theory being wrong to insufficient evidence and juror misconduct. We still think we’ll prevail.”
From Boise to Gitmo, David Nevin defends civil liberties
David Nevin sees himself in the same line of work as his novelist father. “We’re both in the business of storytelling,” says Nevin, of Nevin, Benjamin, McKay and Bartlett, who has practiced criminal defense in Boise for more than 25 years. “His stories are acts of the imagination, but even real stories are a function of perceptions and biases and memories. As lawyers, we tell those stories, looking for ways to find the common experience with jurors.”
Nevin has told some page-turners. He currently represents one of the six “High Value” detainees facing prosecution at Guantanamo Bay, as part of the ACLU’s John Adams Project, which aims to ensure that due process and justice are upheld in military tribunals.
He represented Kevin Harris after the notorious standoff at Ruby Ridge, Idaho, in August 1992, when Harris and Randy Weaver held off federal authorities for 12 days. A U.S. marshal, Weaver’s wife and Harris’ 14-year-old son Samuel were killed. Nevin argued that federal authorities were overzealous and escalated the standoff unnecessarily. Harris was acquitted of all charges.
Harris and Nevin are on opposite ends of the political spectrum, but they found common ground. “Freedom is more important than money or honor in this country, and freedom is always worth fighting for,” Nevin says. “I’m a civil rights liberal from Louisiana, and I don’t need their politics, but it’s not about their politics. It’s about their freedom.”
In 2003, Nevin represented Sami Omar Al-Hussayen, a Saudi Arabian graduate student at the University of Idaho accused of running a Web site to recruit, fund and support terrorists. Nevin found himself telling an unfamiliar story, with foreign actors and belief systems, to a public distrustful of Middle Easterners.
“We asked the jury pool if anyone was a Muslim, and no hands went up,” Nevin recalls. “Then I asked if anyone knew a Muslim. No hands went up. Then, slowly, one hand went up. ‘Have you traveled to the Middle East?’ No hands.”
The scene reminded Nevin of a famous cartoon, where a dog finds himself in court facing a jury made up entirely of cats.
The jury still found Al-Hussayen not guilty. “We are very conservative as a state,” Nevin says. “But people take their rights very seriously here. Very seriously.”
The Defense Never Rests
The poor are in good hands in Montana, thanks to Randi Hood
Randi Hood tried private practice once. Didn’t take.
It wasn’t the practice itself that bothered her. And the money was certainly better than being a public defender. But the work didn’t feel right.
“I grew up in the 1960s, and something about coming from [that] time just stuck with me,” says Hood. “I just didn’t feel like I was serving, and that made me uncomfortable.”
For most of her career, Hood worked in Helena as a public defender for Lewis and Clark County. In 2005, she became the state’s first chief public defender. The new agency was created after an ACLU lawsuit claiming that the access to and quality of free lawyers was inequitable across the state. Now, instead of leaving it to counties to handle indigent defense, Hood oversees a statewide operation that has regional offices in Montana’s major cities.
“My clients, no matter what they’ve done, are human beings. I treat them with respect and they return that respect to me,” says Hood. “There’s something wholly human in everyone, and this work gives you the chance to be in contact with that, no matter the person. I love my clients for teaching me that.”
She’s tried hundreds of cases. Some haunt her—the cases she knew she’d win but didn’t. Like Paul Jenkins, who was convicted of homicide in 1994 for beating a young woman to death. His appeals failed, and he’s still in prison to this day. “That was a very difficult case, in part because I was convinced of his innocence,” she says. “Those don’t disappear for you. It’s easy to remember that he’s locked up every day.”
There are also victories. “The hardest case I ever had involved a guy accused of attempted deliberate homicide,” she recalls. “The guy’s ex-wife was the main witness, and I just knew she was lying.” All the evidence in the case worked to Hood’s advantage. That worried her. “When it looks too good, you start to wonder what you might do to make it turn out poorly,” she says. “That really keeps you on your guard.”
It worked; the client walked.
“I still get just as excited about the next one that comes in,” she says. “I like that feeling of challenging authority, of making the prosecutors prove what they say they’ve got. Sometimes it doesn’t go your way, but part of it is the doing, making sure that the role is served and served well.”
What a Piece of Work is a Lawyer
Mike Krampner of Casper looks to the classics for inspiration
Michael Krampner likes to quote Shakespeare.
Shakespeare, he says, laid out the essence of the human condition—its joys, its horror, its trials. The Bard may not have known it, but he’s a lawyer’s perfect companion. “I think as attorneys, we’re trying to appeal to the best in people, and Shakespeare has that covered,” says Krampner, of Krampner, Fuller and Hambrick, a “Jewish kid from Brooklyn” who has worked as a defense attorney in Casper for 30 years. “He’s not a bad place to start.”
The Bible works pretty well, too; there’s a thread of social justice in both, which appeals to him. “I wanted to be a lawyer since I was a teenager, and a big part of that part of my life was understanding social justice as a force in our lives,” says Krampner.
Today that means representing people accused of everything from possession of child pornography to fraud against the government. Although Krampner is reluctant to define any one case as his most important—”that makes it feel like there’s more value to one case over another, and I don’t see it that way”—his work on death penalty cases stands out. He has spared three men from death row.
“There was a special responsibility for the outcome that came with them,” he says. “If you screw those cases up, they get to take your client out and kill him. So you don’t screw up.”
Nor do you necessarily view a conviction as a failure. “In some of those cases, they are less about acquittal and more about working for an outcome,” he says. “None of those men were acquitted, but none of them were put to death, either.”
Those cases taught Krampner the value and power of empathy. “The big thing for me is the pain and suffering on both sides of the case,” Krampner says. “You can be zealous in your defense and still recognize the common humanity that runs through everybody.”
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