Defense: U.S. Made First Move in Rudolph Deal

The guilty pleas Eric Robert Rudolph entered on Wednesday were the result of four months of negotiations that began with a surprise offer from prosecutors, according to Paul S. Kish, Brian Mendelsohn and W. Carl Lietz III of the Atlanta Federal Defender Program Inc. The offer led to a series of moves that included, the lawyers said, defense-team investigators searching the woods of Western North Carolina for a cache of explosives prosecutors said Rudolph had hidden. Those explosives eventually were identified and destroyed by government agents, according to prosecutors. U.S. Attorney David E. Nahmias said during a post-plea press conference that removing the dangerous materials was key to completing the deal that will keep Rudolph in prison for life but spares him the death penalty. Kish, Mendelsohn and Lietz had been appointed to defend Rudolph against charges that he was responsible for the fatal Centennial Olympic Park bombing and the bombings of a Sandy Springs abortion clinic and an Atlanta gay-and-lesbian nightclub. Another team of federal defenders, led by Judy Clarke, represented Rudolph on charges from the fatal bombing of a Birmingham abortion clinic. At Wednesday’s hearing, Northern District Judge Charles A. Pannell Jr. asked Rudolph whether he was guilty of the bombings that killed two and injured scores more. Rudolph, dressed in a blue sport jacket and light-blue shirt, replied, “I am.” Rudolph was facing separate trials for the Birmingham and Atlanta bombings when the U.S. Department of Justice announced last week that it had struck a deal with him. Rudolph, who could have faced the death penalty, agreed to plead guilty to all four bombings in return for life sentences without parole. Kish noted that his client never spoke to a federal agent. He said defense investigators found the explosives after their locations were identified on a topographical map. Citing client confidentiality concerns, Kish, Mendelsohn and Lietz would not say whether Rudolph identified the sites. But prosecutors said Wednesday that the deal had been contingent on Rudolph’s supplying information leading to the explosives. PLEA NEGOTIATIONS Negotiations began in mid-December, when a junior member of the prosecution team asked defense lawyers whether Rudolph would be interested in making a deal, Kish said. “We were happy the government would be willing to discuss” a deal that could let Rudolph avoid the death penalty, said Kish. A 21-year veteran of the Federal Defender Program, Kish said the government’s making the first move was “very unusual.” The negotiations involved a complex series of parallel meetings in which two sets of prosecutors dealt with two sets of defense lawyers, Kish said. Mendelsohn, another of Rudolph’s defense lawyers, said, “The government realized that there was a potential danger to the community” from the explosives. The only way to remove the danger was to make a deal that would lead to the explosives’ location and safe destruction, he added. Once the Atlanta prosecutors agreed to the deal, Kish said, “the problem became the Department of Justice,” which was undergoing a power transfer as Attorney General John D. Ashcroft gave way to Alberto R. Gonzales. Gonzales signed off on the deal and said in a press release last week, “The best interests of justice are served by resolution of this case and by the skillful operation that secured the dangerous explosives buried in North Carolina.” In a press conference after Rudolph’s guilty plea, Nahmias declined to say which side made the first move in the course of the plea negotiations. Nahmias called the Olympic bombing the most serious crime in the Northern District of Georgia, saying, “It was very hard … to reach any deal” given the seriousness of the crimes. He emphasized the danger avoided by locating Rudolph’s hidden explosives, calling a part of Western North Carolina “a hidden minefield.” Two dynamite stashes were buried in “popular hunting and camping areas, where a tent stake driven into the containers could have detonated the dynamite,” Nahmias said. As a result of the plea deal, he said, “Eric Rudolph will spend the rest of his life where he belongs, locked in a prison cell, hurting no one and, we hope, thinking of his victims and the tremendous harm he caused to them, this city, our region and our nation.” Nahmias credited the numerous law enforcement agencies that participated in the investigation and prosecution of Rudolph. The Atlanta case was prosecuted by Nahmias, First Assistant U.S. Attorney Sally Quillan Yates and Assistant U.S. Attorneys Phyllis B. Sumner, R. Joseph Burby IV and John A. Horn of the Northern District of Georgia. BOMBING DETAILS REVEALED At Wednesday’s 75-minute hearing, prosecutors described in great detail — including types of metal used to make the bombs — the evidence that they would have presented in trials. One prosecutor said that Rudolph, who received training in explosives when he was in the U.S. Army in the late 1980s, told a friend in 1995 that the Olympics would be a good terrorist target because “the whole world would be watching.” After the plea hearing, Rudolph’s lawyers issued a written statement by Rudolph in which he said the police officer killed in the Birmingham bombing and the abortion clinic worker severely injured there “were targeted for what they did, not who they were as individuals.” Despite having admitted his crimes in court, Rudolph wrote that his guilty plea “in no way legitimates the moral authority of the government to judge this matter or impute my guilt.” “I have deprived the government of its goal of sentencing me to death,” the confessed bomber wrote. Nahmias said he had only skimmed Rudolph’s statement, but that facts in it would be useful for preventing other crimes. “The rest of the statement is garbage,” he said. He also said, “There can be no doubt anymore about who was responsible for those crimes, and no uncertainty about the results of long and complex trials.” REVEALING CLIENT’S SECRETS What Rudolph’s lawyers knew about the explosives prompted intriguing ethics questions about defense lawyers’ responsibilities to their clients and to the public at large. Stephen Gillers, who teaches legal ethics at New York University, wrote in an e-mail, “If the lawyers knew the location of the explosives and if, as we can assume, the explosives posed a threat of death or serious injury to others, then under Georgia ethics rules, the lawyers could have revealed the location, but they were not required to do so. “Georgia’s confidentiality exceptions include revelation ‘to prevent serious injury or death,’” Gillers added, but the lawyer has discretion whether to reveal the information. “If the lawyers knew the location of the explosives, they might have chosen not to reveal so as not to undermine Rudolph’s effort to negotiate a life sentence in exchange for the information,” Gillers wrote. “Had that negotiation failed, perhaps the lawyers would then have revealed the information.” Roy M. Sobelson, who teaches legal ethics at Georgia State University, wrote in an e-mail, “In a case like this one, it seems obvious that the lawyer did reveal the info to the government with the result that lives were quite possibly saved. “I’m confident that Rudolph and his lawyers talked long and hard about the decision to reveal the information, but the lawyer could probably have revealed it even in the absence of Rudolph’s consent.” Doing so, Sobelson added, probably would have forced the lawyer to withdraw from the case. PLEA CALLED WISE The prosecutors’ actions also posed questions, given that, in international hostage situations, the government’s policy has been not to negotiate with terrorists. Kent B. Alexander, who was U.S. Attorney when all three Atlanta bombings occurred, wrote in an e-mail that prosecutors have historically made deals with organized crime figures to get information leading to the prosecution of mob bosses. “In this case it looks like the dynamite was the mob boss, and the government wisely viewed the certainty of four guilty pleas, no appeal, no parole and maximum-security prison for the rest of Rudolph’s life as a reasonable trade off,” Alexander added. “I don’t know whether Rudolph used the dynamite as leverage to avoid the death penalty or if the government used the death penalty as leverage to find the dynamite. “I do know that investigators have long suspected Rudolph was responsible for more than one dynamite theft in the area, so I am sure they wanted to know where it was. “From a prosecution perspective,” he added, “I think the plea was wise.” If Boy Scouts on a hike had stumbled upon some of Rudolph’s hidden dynamite years from now, Alexander asked, “what would [the] public think about a decision by the government in 2005 to pursue the death penalty instead of finding the dynamite?” “On top of that, death penalty prosecutions are rarely certainties,” he added, noting that Oklahoma City bombing conspirator Terry Nichols did not get the death penalty.