I am delighted to have been invited to engage in this discussion and to offer my reflections on “Saving Nelson Mandela,” Prof. Ken Broun’s important book chronicling the Rivonia Trial. As a former public defender who has represented clients in highly publicized cases, I was most interested in the ways in which the trial was not that different from even the most routine criminal cases. Like my third-year law students who represent children in the juvenile delinquency courts of North Carolina, the defense team, led by Bram Fischer, had to make strategic decisions regarding pre-trial motions, whether to have their clients testify, and what approach to take during sentencing. They also had to master the art of cross-examination — not only to soften the impact of damaging testimony by exposing a witness’s bias but also to demonstrate that hearsay was unreliable in order to convince the judge to exclude it. As Prof. Broun noted, these basic trial advocacy skills were critical in shaping the way in which the evidence came in as well as Justice de Wet’s attitude toward the defendants; in fact, the lives of Nelson Mandela and his co-defendants may have been saved because the defense attorneys were such “devastating cross-examiner(s).” After practicing for over twenty years in a variety of forums (state and federal as well as juvenile, district, superior, and appellate levels), I am still struck by this basic truism of criminal defense — that no matter the seriousness of the charges or the sophisticated nature of the forum, the question comes down to whether the government can prove its case.
Yet, it is also true that the Rivonia defense team confronted systemic challenges that are unlike those faced by most attorneys in U.S. courts today. Fischer and his co-counsel had no right to a preliminary hearing, there was no public funding for indigent cases, and they engaged in constant battles to consult freely and privately with their clients. Perhaps most concerning, however, was the fact that under the Sabotage Act, violations could be established through testimony by a single witness; the authentication of documents by a witness, including notice and review by counsel, was not required; and the burden of proof lay with the defendants. Further, in the unlikely case of an acquittal, the accused could be tried on other charges stemming from the same acts, providing no protection against double jeopardy.
Equally formidable for the defense team was the fact that Mandela was determined to spread the message about the oppression of apartheid while simultaneously persuading the judge that the defendants’ willingness to use violence was borne out of necessity, as peaceful dissent was impossible. So, rather than being able to focus solely on fighting the criminal charges, as attorneys are trained to do, Fischer and his colleagues also had to weigh whether a technical and “lawyerly” approach to the litigation would detract from the power of their clients’ broader message. Given this calculus, the decision to challenge the first set of indictments was a victory — albeit a Pyrrhic one — while the judge’s denial of the motion to dismiss the new charges was a sharp disappointment.
Although I was thoroughly engaged throughout the account of the trial, Prof. Broun’s description of the content and circumstances surrounding Nelson Mandela’s statement to the court was particularly compelling. Generally, the moment when the defendant takes the stand is the most pivotal and dramatic in the course of a trial; the defense attorney holds her breath as her client tries to appear both credible and sympathetic. With this in mind, I found the brilliance with which Mandela crafted his statement, informed by the strategic objectives of his counsel, to be impressive. He had to accomplish several competing goals in a single monologue: provide the public with a history lesson on the African National Congress; admit to sabotage but characterize it as the least extreme form of violence; and demonstrate his own humanity:
“During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for, and see realized. But if needs be, it is an ideal for which I am prepared to die.” (p. 74)
Prof. Broun provides us with a rare glimpse into the mind of Mandela with the revelation that he attributed the judge’s decision to let him live not to the words, “if needs be,” but to the fact that Mandela had “dared him to do so.” One can rest assured that this was a deliberate, well-considered decision by Nelson Mandela and his lawyers, reflecting yet again the power and importance of trial strategy, which not only saved a great leader but ushered in a post-apartheid era for South Africa that was characterized by disclosure and amnesty, rather than recrimination and punishment.
What are your thoughts about the book? Was it a realistic portrait of a criminal trial? What might you have done differently if you had been representing Mandela? Or if you had been prosecuting the case or presiding as the judge? Please share in the comments below, and I will be sure to respond.
Posted by Tamar R. Birckhead on Mon. July 14, 2014 10:00 AM