Trial by News Conference? No Justice in That

Probably the most galling moment of Comey's press conference came when he calmly conceded, "I don't believe that we could use this information in a criminal case, because we deprived him of access to his counsel and questioned him in the absence of counsel." Comey seemed to have forgotten why our courts do not admit such evidence or statements produced by coercion. It's because human experience has shown again and again that this kind of proof is unreliable. Consider the many people released from prisons in recent years after DNA proved that their confessions were false.

Finally, the potential effect of Comey's statements on the Supreme Court's decision raises serious ethical issues. Comey said there was nothing strategic about the timing of the release of this information. I am skeptical. The horrors at Baghdad's Abu Ghraib prison, which came to light after the Padilla case had been submitted to the court, chillingly demonstrate the hazards of denying prisoners access to lawyers and courts. With the news seeming to argue Padilla's case for him, the Justice Department was happy to push back with a news event of its own, designed to show that Padilla, by his own word, was a very bad guy.

So what's the problem? For starters, the ABA's Model Rules of Professional Conduct prohibit lawyers involved in a case -- as Comey, the second-ranking official in Justice, surely is -- from making statements "that the lawyer knows . . . will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding. . . ."

Swaying Supreme Court justices with an unverified account of unreliable evidence obviously poses that risk. When asked about this, Comey defended himself by saying that he "assumed" the court had already decided the case. That's nothing more than a guess. Justices read newspapers and often reframe their opinions right up until an opinion is announced. Certainly, in my 25 years of practicing law, I cannot remember the government ever making such an inflammatory presentation about a pending case before the Supreme Court. The proper course was to wait for the court to issue its opinion. The fact that Justice officials chose not to do so reinforces the suspicions about their motives.

I do not know what Jose Padilla did, and it's quite possible that Padilla, a former Chicago gang member, is not just a two-bit thug in a kaffiyeh, but a major menace. Yet the problem all along has been that the government does not have admissible evidence to prove that.

Thus we arrive at the perverse logic that has characterized the Padilla case. Because the government cannot convict him after affording him the due process of a trial, it will skip all of it -- due process, trial, the Bill of Rights -- and imprison him indefinitely anyway. Now the government's lawyers have gone one step further, "proving" Padilla a terrorist via a news conference, without waiting to see if the Supreme Court decides that his rights were abused.

In law school, I was taught that our constitutional rights represent a view of the minimum value of a human being. They are a way of saying that even a dirtball is worth this much, because he is a person, not to mention the fact that said dirtball may turn out to be my brother, my daughter or even me. In the case of Jose Padilla, Comey and the Bush administration have set that value far too close to zero.

Author's e-mail:

scott@scottTurow.com

Scott Turow is an attorney and the author of several novels, including "Reversible Errors," and an essay about the death penalty, "Ultimate Punishment," all published by Farrar, Straus and Giroux.