A Former Public Defender Weighs In On "Saving Nelson Mandela"

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Saving Nelson Mandela book cover

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
Categories: Book Club

Comments

RE: A Former Public Defender Weighs In On 'Saving Nelson Mandela'
As an individual who has not been exposed to criminal trials other than the small segments shown on TV it is very fascinating to hear your perspective on Professor Broun’s book. I cannot speak to the thought you posed about whether it was a realistic portrait of a criminal trial due to my lack of substantial knowledge regarding criminal law. However I do believe that my time working within a personal injury firm, where I was able to assist our attorneys in court, did influence my opinion about Mandela’s case. I believe that the defense team was at a disadvantage from the beginning and achieved the best possible outcome for Mandela and the other codefendants; I don’t believe I would have significantly differed if I had been Mandela’s representation. However I was astonished by the lack of preparation completed by the state, specifically Percy Yutar. Although Mandela and the codefendants were guilty of breaking the law (even though the Sabotage Act was extremely unreasonable), the disrespect of Yutar being unprepared was bewildering to me. It was a strict policy at the firm where I worked to always be professional and respectful to the opposing party. Therefore we would strive to be overly considerate through triple-checking documents and continuously sending evidence as it came to our attention. Perhaps Yutar didn’t follow this etiquette due to him being blinded by his immense desire to become the first Jewish attorney general. However any judge within Utah would have never tolerated the outlandish behavior shown by Yutar during Mandela’s trial and I would hope the same could be thought for judges throughout the U.S. If I had replaced Yutar as the prosecution I would have kept the defense team aware of the trial date and the charges against the defendants and dedicated more time and effort into building a strong motion against Mandela and his codefendants. I also believe that Justice Quartus de Wet was far too lenient with Yutar, excluding his denial of the initial motion. I was under the impression that this was largely due to his prejudices, which were similar to the white population within South Africa. Although this made me wonder why de Wet chose to be the only presiding judge when his preset beliefs were so strong that they caused his opinion to be biased. If I was de Wet and knew my strong biases going into the trial, I believe I would’ve excused myself from the case or chosen to have two other Justices rule alongside me.
Posted by Breegan O'Connor on Mon. July 14, 2014 7:51 PM
RE: A Former Public Defender Weighs In On 'Saving Nelson Mandela'
In response to the question of what would I do different than the defense in the book; I don't know that there are many things that could have been done different that would have achieved results that were any better. The defense had already, to some extent, conceded their clients' guilt through the testimonies and statements that they allowed each of the accused to give. However, I appreciated that the defense counsel showed that strong evidence and law/policy recall is just the beginning of being a lawyer. While you can't discount hard evidence, the deliberation over who should give statements and testimonies and what they should say when they did speak, showed that an effective lawyer has to have a clear understanding of his or her audience, in this case anti-apartheid followers and foreign countries, as well as a knowledge of how far the judge and prosecution will allow you to go without causing negative ramifications. Being able to see a situation from another person's viewpoint was critical as they tried to foresee the reactions that everyone involved in the trial might have based on the statements and cross-examinations of those accused. I appreciated seeing this in the book and being reminded of it by your post. Thank you.
Posted by Adam Sorenson on Wed. July 23, 2014 6:51 PM

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