Procedure for attorney needing emergency hearing for client

raburrell

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Hi - I'm hoping one of AW's legal types can help me out :)

I have a character who's a neophyte attorney, dealing mainly in immigration law, and a ticking clock situation where she's just learned a client is being illegally detained and possibly tortured. She's already filed a habeas petition, which was denied for various reasons, but since then she's found proof which exonerates the client. (I know, shouldn't all attorneys be so lucky...). The short version is the plot involves NDAA.

What I'd like to know is what she could reasonably do to help her client. There is a certain federal judge with an NDAA case pending, and she'd like to reach out to her, but this is definitely out of normal court hours. Is it at all reasonable that she could find this judge's address or phone number? And not get crucified for making use of them?

(My apologies if these are stupid questions, or if I'm completely in the cornfield - next time I start a WIP, I'm going to write it about stuff I know, because the workings of the legal world are a mystery to me.)
 

jclarkdawe

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Is the NDAA you're referring to the National Defense Authorization Act? If so, that's a funding act, and huge, and I'm not sure how it quite applies.

Who is holding the client? Is the client a US citizen? What country is the client being held in? GITMO, for example, has different rules then if it was on US soil.

If the client is being "illegally detained," then regardless of whether the client is guilty of the alleged act, the client should be released on a habe. Unless you're arguing that the client is being illegally detained because the government doesn't possess enough evidence to support an arrest. Enough evidence to support an arrest is a very minimal standard.

Habes used by inmates in state and federal prison are different then what is normally thought of as grounds for a habe. Inmates are allowed to use habes as a way of raising issues after their normal rights of appeal are exhausted.

Normally the best way to get a client out of jail because of something being discovered that would show the client to be innocent is to go to the prosecutor. To get to a judge after hours, you speak to the Clerk of the Court. The Clerk then contacts the judge. Even when I know where a judge lives, this is the procedure. But this isn't a big enough emergency to warrant disrupting a judge at home. In part because no judge is going to buy into a torture scenario.

Best of luck,

Jim Clark-Dawe
 

raburrell

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Thank you, Jim -
Is the NDAA you're referring to the National Defense Authorization Act? If so, that's a funding act, and huge, and I'm not sure how it quite applies.
Specifically, the '1021' section which has gotten a fair amount of play in the media, authorizing indefinite detention of terrorism suspects under certain conditions. There are some disagreement as to whether it applies to American citizens. In the plot, the US isn't even admitting they have the guy.

Who is holding the client? Is the client a US citizen? What country is the client being held in? GITMO, for example, has different rules then if it was on US soil.
The short answer is the US, at a 'black' site. (Foreign ship). The client's citizenship is somewhat questionable. Born in Brazil, raised American.
If the client is being "illegally detained," then regardless of whether the client is guilty of the alleged act, the client should be released on a habe. Unless you're arguing that the client is being illegally detained because the government doesn't possess enough evidence to support an arrest. Enough evidence to support an arrest is a very minimal standard.
He's been held for quite a while (> a year), but secretly, and she's only learned of it recently.
Habes used by inmates in state and federal prison are different then what is normally thought of as grounds for a habe. Inmates are allowed to use habes as a way of raising issues after their normal rights of appeal are exhausted.
Okay, that helps, thank you. The research I've done to this point basically involves the Padilla case and the precedents used in arguing it - really fumbling my way through, obviously.
Normally the best way to get a client out of jail because of something being discovered that would show the client to be innocent is to go to the prosecutor. To get to a judge after hours, you speak to the Clerk of the Court. The Clerk then contacts the judge. Even when I know where a judge lives, this is the procedure. But this isn't a big enough emergency to warrant disrupting a judge at home. In part because no judge is going to buy into a torture scenario.
Hm, okay. The procedure stuff alone here is super helpful - I do think I can sell the rest of it based on the evidence she's got. Although normally, I'd agree with you, it'd be tough to get a judge to believe the scenario I've got going on. (Hopefully, the reader will lol)

Thank you thank you !!
 

Ketzel

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Every court system in the US has a procedure for filing an emergency motion after business hours. For the federal US District Court of Mass. (my jurisdiction) you call the emergency manager on duty (there's a published phone number) and follow his/her instructions.

I don't think it's a given that a judge will ignore a claim of a client being subjected to torture. It very much depends on the situation you are dealing with and the evidence you have. When I handled federal civil rights cases, the judges I practiced in front of would take a claim like that from a lawyer with great seriousness. But heaven help you if you didn't have the goods.

Where is your character's client imprisoned?
 

raburrell

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Thank you, Ketzel - that also helps greatly with the procedural stuff. :)

I think the way I have this set up, you're right, this particular judge would care and take it seriously. (I'm basically fictionalizing the judge who struck down the 1021 provision back in May). And it could make for a fun scene if the other side is making trouble once she gets to see the judge, yes. :)

He's imprisoned on a ship in the Indian Ocean/Red Sea.
 

jclarkdawe

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Thank you, Jim -
Originally Posted by jclarkdawe
Is the NDAA you're referring to the National Defense Authorization Act? If so, that's a funding act, and huge, and I'm not sure how it quite applies.
Specifically, the '1021' section which has gotten a fair amount of play in the media, authorizing indefinite detention of terrorism suspects under certain conditions. There are some disagreement as to whether it applies to American citizens. In the plot, the US isn't even admitting they have the guy.

Which means you're talking CIA.
Who is holding the client? Is the client a US citizen? What country is the client being held in? GITMO, for example, has different rules then if it was on US soil.
The short answer is the US, at a 'black' site. (Foreign ship). The client's citizenship is somewhat questionable. Born in Brazil, raised American.

Which means that the immediate problem is going to be establishing jurisdiction of a US court over the detainee. Which unless the US acknowledges US authority, like at GITMO, you've got a next-to-impossible situation. The CIA is very good at reading the law and following it carefully. If it's a foreign ship, the detainee is probably under the jurisdiction of the country that flags the ship.

Citizenship is real simple. You're either naturalized, born in this country, or have a father or mother who is a US citizen. With what you state, he is not a US citizen.
If the client is being "illegally detained," then regardless of whether the client is guilty of the alleged act, the client should be released on a habe. Unless you're arguing that the client is being illegally detained because the government doesn't possess enough evidence to support an arrest. Enough evidence to support an arrest is a very minimal standard.
He's been held for quite a while (> a year), but secretly, and she's only learned of it recently.

If he's being held secretly, how is your attorney going to establish US jurisdiction?
Habes used by inmates in state and federal prison are different then what is normally thought of as grounds for a habe. Inmates are allowed to use habes as a way of raising issues after their normal rights of appeal are exhausted.
Okay, that helps, thank you. The research I've done to this point basically involves the Padilla case and the precedents used in arguing it - really fumbling my way through, obviously.

Everybody is fumbling their way through this mess. But your case is significantly different then Padilla. Padilla was detained in the US, and the US never failed to acknowledge that he was in custody. Nor has Padilla ever left US soil since his detainment. You're more interested in Rasul. Quoting from Wikipedia:
The sole question before the Supreme Court in this case is whether foreign nationals in Guantanamo Bay may invoke habeas corpus (wrongful detainment) at all. Either U.S. citizenship or court jurisdiction is necessary for this invocation, and since the detainees are not citizens, U.S. court jurisdiction over Guantanamo Bay was at issue. According to the U.S. treaty with Cuba over Guantanamo Bay, the U.S. has "complete jurisdiction" over the base, but Cuba has "ultimate sovereignty." The government alleges that the fact that the treaty says this implies that the courts have no jurisdiction; the detainees argue that regardless of what the treaty says, the U.S. has full legal control in the area and should have jurisdiction.
Your problem is that a foreign flag vessel is not under US authority unless within US waters.
Normally the best way to get a client out of jail because of something being discovered that would show the client to be innocent is to go to the prosecutor. To get to a judge after hours, you speak to the Clerk of the Court. The Clerk then contacts the judge. Even when I know where a judge lives, this is the procedure. But this isn't a big enough emergency to warrant disrupting a judge at home. In part because no judge is going to buy into a torture scenario.
Hm, okay. The procedure stuff alone here is super helpful - I do think I can sell the rest of it based on the evidence she's got. Although normally, I'd agree with you, it'd be tough to get a judge to believe the scenario I've got going on. (Hopefully, the reader will lol)

Thank you thank you !!

Every court system in the US has a procedure for filing an emergency motion after business hours. For the federal US District Court of Mass. (my jurisdiction) you call the emergency manager on duty (there's a published phone number) and follow his/her instructions.

I don't think it's a given that a judge will ignore a claim of a client being subjected to torture. It very much depends on the situation you are dealing with and the evidence you have. When I handled federal civil rights cases, the judges I practiced in front of would take a claim like that from a lawyer with great seriousness. But heaven help you if you didn't have the goods. I was thinking of someone detained domestically in a normal correctional facility. Definitely now cases involving overseas operations a judge will buy into a torture claim. But I'm doubting that the judge is going to buy into it in the middle of the night. You need really good evidence.

Where is your character's client imprisoned?

Thank you, Ketzel - that also helps greatly with the procedural stuff. :)

I think the way I have this set up, you're right, this particular judge would care and take it seriously. (I'm basically fictionalizing the judge who struck down the 1021 provision back in May). And it could make for a fun scene if the other side is making trouble once she gets to see the judge, yes. :) So the US Attorney says, "Nope, he's not being held by the US. Even if you issue an order to release him, I have no idea who to issue the order to." What does she do then? And then the US Attorney immediately says, "The US is going to appeal this decision. We request that this order be stayed until the appeals court can hear it." The judge will stay the order, because all of these decisions at the trial court level are on shakey grounds.

He's imprisoned on a ship in the Indian Ocean/Red Sea. So how is he going to be released?

There's a lot of stuff out there that ignores the reality of the legal system in this area. Bottom line is that the attorneys advocating in this arena are getting nowhere fast.

Best of luck,

Jim Clark-Dawe
 

raburrell

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Thanks again, Jim (and impressive job piecing together a fairly accurate summary of the stuff I didn't mention). I really tried hard to thread the needle in a way the CIA could with the legal questions regarding his citizenship. (Basically, his parents are American, but that came about through an illegal adoption). And also, thank you for the pointer to Rasul - she knows she has issues with respondent and jurisdiction. Strait vs. Laird was another case I'd pulled up.

In a way, it's gratifying that you're saying she's somewhat up a tree here - I don't need her to be successful with this judge - it's more of a trigger for the climax/resolution of the story.

Again, my thanks :)