Hatred at Home: al-Qaida on Trial in the American Midwest

22. A Symphony of Unfairness

 22 A Symphony of Unfairness Aguilty plea eliminates one foundational safeguard of the American justice system: the ability to appeal one’s conviction. The tradeoff is basic. In exchange for acknowledging participation in a crime, and oftentimes fingering others, a defendant receives some benefit from the government, typically a reduction in sentence. He also avoids the risk of a trial, where acquittal is rare and sentencing a gamble. Iyman Faris’s guilty plea won him ten fewer years in federal prison, based on the government’s first offer back in April 2003. That didn’t matter to Faris, who was determined to restart his criminal proceedings . Several things burned inside him: his experience with the FBI, his long days at Quantico, his after-the-fact dissatisfaction with his first attorney, Fred Sinclair, and his belief that the government had manipulated and conned him into a prosecutorial corner that ended with a twenty-year sentence. His new government-appointed lawyer, Washington, D.C., attorney David Smith, believed Faris had grounds for a successful do-over. The appeal that Smith filed early in February 2004 raised several legal issues, but came down to two essential allegations: Sinclair had done a lousy job representing Faris, and the information in that forty-four-page FBI interview summary was so significant that the failure to provide it to Faris before his plea was a violation of his rights to items possessed by the government, information referred to in legal parlance as Brady material. Smith contended Brinkema should have held a full evidentiary hearing to allow Faris to explain why he wanted to withdraw his plea. At the heart of that hearing should have been the threat of being sent to Guantanamo as a military combatant. It was a false threat, Smith argued, since it was not government policy to send U.S. citizens to Guantanamo, and furthermore, there was no basis for holding a defendant there who had been apprehended in the United States. “The court was not aware Faris was laboring under A Symphony of Unfairness  this terrible Hobson’s choice at the time he entered his plea,” Smith wrote. “Thus, Faris did not have an accurate understanding of what his true choices were.”1 Smith argued that Brinkema should have explored whether the government reneged on promises for a further reduction in sentence based on information provided by Faris. (Ironically, some of that information , unbeknownst to Smith at the time, led to Abdi’s apprehension .) The judge should also have researched the discrepancies in the FBI interview summary, which seemed to cast doubt on whether Faris really intended to bring down the Brooklyn Bridge. The delay in providing that report to Sinclair was inexcusable and hobbled the attorney’s ability to represent Faris. Brinkema also should have studied Faris’s mental history, which included that attempt to jump off a bridge on the west side of Columbus in 1995. Finally, Smith took issue with the notion that withdrawing the plea was a waste of judicial resources. Faris, Smith declared, had undergone “a veritable symphony of unfairness” leading up to the day he was sentenced.2 The government summed up these arguments as a case of cold feet. “At its heart, Faris’s position distills down to this farfetched syllogism,” Hammerstrom, the assistant U.S. attorney, wrote in a court filing. “‘Believe me now when I say am [sic] innocent because I previously lied to the FBI and the district court.’”3 The May 1 hearing, when Brinkema questioned Faris about the conspiracy point by point, had been fair and exhaustive; not once had Faris suggested he was an innocent man, Hammerstrom argued. Furthermore, Faris never requested the evidentiary hearing he was now asking for, which meant, among other things, it was not eligible to be raised on appeal. The fact that Faris’s plea had been unsealed after the media began reporting on the case was not sufficient evidence that an implied promise of secrecy had been broken. Faris also waited too long between his guilty plea on the first day of May and his decision to withdraw that plea in July, Hammerstrom said. The government had done nothing to violate the defendant’s rights by not producing for Faris a copy of his own statements to the FBI. “During the interviews Faris may have rationalized his conduct, contradicted himself, or minimized his assistance to al Qaeda. But such self-serving efforts to deceive the investigators are legally irrelevant ,” Hammerstrom argued. “When Faris...