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Federal public defender Paul S. Kish is outside his Sandy Springs, Ga., home, enjoying a perfect spring afternoon on what he says is his first day off in six weeks. Since September, he has logged nearly 19,000 miles on his Subaru Forester, most of it driving back and forth to Birmingham, Ala., where his client, confessed bomber Eric Robert Rudolph, has been held at the Jefferson County jail. For the past four months, Kish and Rudolph’s other lawyers in Atlanta and Birmingham were negotiating with federal prosecutors to produce the guilty pleas Rudolph entered last week. That time has become something of a blur to Kish, 49. He recalls coming home one Friday night and then having breakfast with his wife and teenage daughters the next morning. After a long stretch on the road, he was running out of fresh dress shirts and suits. “I went out to do laundry,” he says, “and I never came back.” On the way to the cleaners, he received a telephone call about a development in the case and headed back to Birmingham, the dirty clothes still in the car. Kish, who has been with the Atlanta Federal Defender Program Inc. for 21 years, is reluctant to call his representation of Rudolph the biggest case in his career. Every client represented by the federal defenders gets the same amount of energy, he says, and any case involving the death penalty “is always extremely important.” But he acknowledges that the Rudolph case probably took the “greatest amount of effort.” From Kish’s perspective, that effort took the form of a delicate dance with federal prosecutors who had vowed to seek the death penalty but then unexpectedly suggested ways Rudolph could avoid it. While Kish won’t discuss his conversations with his client, it appears he and the other defense lawyers had to step gingerly around the information Rudolph provided — especially when the subject of hidden explosives came up. Sensitive to potential legal and moral conflicts, Kish says he didn’t want to know everything his client knew. Still, Kish needed some knowledge about the explosives in order to move the negotiations forward because the information was key to the deal with prosecutors. What follows is Kish’s account of how the Rudolph deal was reached. Atlanta U.S. Attorney David E. Nahmias declined to comment for this story. “It is our practice not to discuss plea negotiations so we preserve an open and robust exchange between government and defense counsel,” he allowed. By the time the Daily Report went to press Monday, Birmingham U.S. Attorney Alice H. Martin had not responded to a request for an interview. ‘THE GOAL WAS LIFE’ Kish became involved in the case in June 2003, a few days after Rudolph was captured in Murphy, N.C. A federal judge appointed Kish and colleagues Brian Mendelsohn and W. Carl Lietz III to defend Rudolph against charges stemming from three Atlanta-area bombings: the 1996 Centennial Olympic Park bombing, which killed 44-year-old Alice Hawthorne and injured more than 100 others; and the 1997 bombings of an abortion clinic and the Otherside Lounge, described in court documents as serving a gay and lesbian clientele. A team led by federal public defender Judy Clarke would represent Rudolph against charges from a 1998 bombing of a Birmingham abortion clinic that killed Robert Sanderson, an off-duty police officer providing security to the clinic. (Clarke declined to speak to the Daily Report.) Rudolph eluded a massive federal manhunt for five years, hiding most of the time in the Western North Carolina wilderness. After he was finally caught, hungry and rummaging through garbage behind a convenience store, the government announced it would seek the death penalty. Kish says that no one on the defense teams thought the prosecutors would be interested in making a deal to spare Rudolph a lethal injection like the one given to Timothy McVeigh, convicted of the 1995 bombing of the federal building in Oklahoma City, Okla. “It was far, far from our minds,” Kish says. Then last December, Kish was talking by phone to a junior member of the Atlanta prosecution team about what he recalls was a mundane issue such as a discovery deadline. Kish says the prosecutor commented that he was “surprised we’d never made an offer, and we should really do that.” When the Alabama defense team reported having received a similar comment from a prosecutor there, Rudolph’s lawyers realized the government was signaling it was ready to deal. Citing client confidentiality, Kish won’t say how Rudolph reacted to the government’s suggestion for a plea offer. But Kish says his team entered negotiations with clear instructions: “The goal was life.” After the holidays, the two defense teams and the two prosecution teams — about 30 lawyers and investigators — met at the U.S. Attorney’s Office in Birmingham. They sat around a horseshoe-shaped table, with each side facing the other. “It felt like we were at Panmumjom or the Paris peace tables,” says Kish. At issue, Kish says, were concrete suggestions for what the prosecutors could tell their bosses at the Department of Justice in Washington to justify a plea deal. Usually these kinds of meetings are filled with mistrust, Kish says, but this time, “Both sides were very surprised each was being so open.” As with other early plea negotiations, Kish says both defense teams made presentations focusing on weaknesses in the government’s cases against Rudolph. While two witnesses said they had seen Rudolph near the bombing site in Birmingham, the Atlanta bombings had more tenuous links to Rudolph. “The cases were all circumstantial,” says Kish. The defenders also reminded the prosecutors that even if they won a conviction, residual doubt among jurors sometimes tips the scales in favor of a life sentence. What the defenders were offering the government, Kish says, was the chance to get a life sentence without parole without risking an acquittal or spending the millions of dollars it would take to bring the cases to trial. After two hours the meeting ended. An idea was on the table, but nothing had been decided. CONVINCING THE DOJ Attending the meeting in Birmingham was Nahmias, 40, whom then-U.S. Attorney Kent B. Alexander had assigned years earlier to be one of the prosecutors in the Atlanta bombing cases. Since that time, Alexander had resigned and was followed by three successors — Richard H. Deane Jr., William S. Duffey Jr. and Nahmias, who had spent three years at the Justice Department before President Bush tapped him to be U.S. Attorney in December. “It became clear the Atlanta prosecutors were driving” the government’s effort, says Kish. It was also a solid bet that any suggestions from Nahmias would get a good hearing from DOJ officials in Washington. One of Nahmias’ jobs in Washington had been supervising the Capital Case Unit, which by protocol would be overseeing the Rudolph case. And Nahmias’ boss at the time, Assistant AG Christopher A. Wray, head of the DOJ’s criminal division, is himself a former Atlanta federal prosecutor. Kish says that on Feb. 1, he and his colleague Mendelsohn went to the Atlanta federal courthouse and met with Nahmias, First Assistant U.S. Attorney Sally Quillan Yates and Assistant U.S. Attorney Phyllis B. Sumner. “Dave made it very clear he was not yet at the point” where he could recommend a plea deal to his superiors in Washington, who were now under new management, as Attorney General John D. Ashcroft had given way to Alberto R. Gonzales. Nevertheless, Kish says, “He seemed very close. Brian and I were very encouraged.” A BARGAINING CHIP About 2 1/2weeks later, Kish was on the telephone with Yates, who, like Nahmias, had been assigned to handle the bombing cases from the beginning. As had happened with the government’s December entr�e, Kish was surprised by what sounded at first like a casual suggestion. Kish cannot recall Yates’ exact words, but in effect she asked: “Can Rudolph tell us where there are any hidden explosives?” The tone of the question was offhand, but Kish knew the veteran prosecutor well enough to know she was sending a signal. “Sally’s a very thoughtful person,” he says. Indeed, former U.S. Attorney Alexander, now the general counsel of Emory University, wrote in an e-mail to the Daily Report that investigators had long suspected Rudolph of some dynamite thefts. “I’m sure they wanted to know where it was,” Alexander added. After finishing the call, Kish told Mendelsohn about Yates’ suggestion. “Within about 10 minutes, we were in the car” driving to Birmingham, where Rudolph was about six weeks from facing trial for the Birmingham bombing. Kish will not say what Rudolph told him. But he says, “We got some very good information.” The good information brought with it troubling ethical questions, says Kish. The defense lawyers realized Rudolph’s information could cement a deal with the government. On the other hand, says Kish, there were human concerns about possessing information about bombs buried in North Carolina. “We didn’t want this dangerous stuff out there,” he says. Legal ethics rules generally require a lawyer to keep his client’s secrets. New York University’s Stephen Gillers, a nationally known legal ethics commentator, wrote in an e-mail that State Bar of Georgia rules allow lawyers to break confidences if doing so will “prevent serious injury or death.” But the rules leave such revelations at the discretion of the lawyers, meaning there is no penalty for failing to reveal information that could have prevented an injury or death. Kish says he and his team decided to know as little as possible until the very end of the deal. “It was a very tentatively discussed subject,” he adds. The result of all of this tiptoeing was paragraph 11 of the plea agreement. It says that once the agreement was signed, Rudolph would agree “to truthfully disclose to the Government the existence and all locations of any and all dangerous and/or hazardous materials, including dynamite and firearms, that are in his constructive possession or that he has hidden.” U.S. v. Rudolph, No. 100-CR-805 (N.D. Ga. April 13, 2005). Kish points out that the agreement says nothing about the government’s being able to find the explosives. It also states that the government may not prosecute Rudolph with any evidence it might find at the sites of the buried bombs. But another section states that if Rudolph fails to meet any obligation of the plea agreement, the government can void the deal. Kish says that the government could have backed out “if they had come up with empty holes.” LOCATING THE EXPLOSIVES Throughout the negotiation, the Alabama prosecution and defense teams continued to prepare for the trial on the Birmingham bombing. By March 28, the day before evidentiary hearings were to begin in the case, the deal had been approved by Nahmias and Birmingham U.S. Attorney Alice Martin and the midlevel reviewers at the DOJ, says Kish. Kish was told that Gonzales, the new attorney general, looked over the deal on a March 29 flight to Mexico, where he was to meet with President Vicente Fox and other leaders to discuss cross-border cooperation. “He was lining out stuff,” says Kish, who adds he heard early that evening that Gonzales had approved the deal. A DOJ spokesman could not say when Gonzales reviewed and approved the deal.The teams worked feverishly to complete the paperwork, finishing the following Monday, April 4, says Kish. Among the papers to be collected was a letter from Fulton County District Attorney Paul L. Howard Jr., who had the jurisdictional authority to bring state charges against Rudolph for the Atlanta bombings. In a March 30 letter appended to the plea agreement, Howard told Nahmias that Fulton County “agrees not to bring criminal charges against Rudolph” if the deal is completed.A similar letter from Jefferson County District Attorney M. David Barber was not attached to the Alabama agreement, but Kish says state prosecutors agreed not to bring charges against Rudolph. Barber declined to discuss Rudolph’s plea agreement. With different versions of the plea agreement flying over e-mail, Kish adds, the process became “maddening.” As Rudolph, Kish, Mendelsohn, Lietz, Nahmias, Yates, Sumner and Assistant U.S. Attorneys R. Joshua Burby IV and John A. Horn prepared to sign the six-page plea agreement, defense and government investigators began to gear up for the search for the hidden explosives. “I was very concerned about their safety,” says Kish, but the defense investigators “jumped” at the chance to get away from their computer screens for a few days in the Western North Carolina mountains. Once the deal was signed, the defense team received — and passed on to government agents — very specific information identifying the locations of five areas where dynamite had been buried. Assisted by the defense investigators, the government agents found and destroyed more than 250 pounds of explosives. On April 5, the first explosives were found and detonated safely by government agents. As the week went on — and as jury selection began in the Birmingham case, with the deal still a secret — explosions rocked the mountains as teams found the dynamite and agents blew it up. Kish says he began to worry that people who lived in the area would ask questions. But the secret stayed intact until after the last explosives were found and destroyed on April 8. Late that afternoon, the government announced a deal had been struck. ‘JUST BARELY’ ENOUGH EVIDENCE On April 13, Rudolph pleaded guilty first in Birmingham and then a few hours later in Atlanta. At the Birmingham hearing, Rudolph was reported to have been cocky, winking at government agents and telling Judge C. Lynwood Smith Jr. that the government had “just barely” enough evidence to convict him. At the Atlanta hearing, Kish introduced his client to the defense team. Pointing to several rows of reporters packed into the courtroom, Kish said to Rudolph, “And these are the rest of the people.” “Hey,” Rudolph said with a half-smile. During the hearing, U.S. District Judge Charles A. Pannell Jr. asked whether Rudolph agreed that the government had enough evidence to convict him. Kish averted another “just barely” response by answering for Rudolph: “We’re not quarreling” with the government’s ability to secure a conviction. Kish also noted that Yates had sent him a letter stating that Rudolph had fully complied with paragraph 11 of the plea agreement. When Pannell asked Rudolph if he was guilty of the bombings, Rudolph said, “I am.”After the hearing, Rudolph’s lawyers distributed copies of an 11-page diatribe by their client. Rudolph announced that he had not meant to kill anyone at the Olympics but that he had hoped to plant five bombs, alert law enforcement so that venues would be evacuated and “confound, anger and embarrass” the federal government. Rudolph made no apologies for killing Sanderson, who was guarding the Birmingham abortion clinic, because he was “instrumental in protecting these murderers” at the clinic.The bombing at the Otherside Lounge, Rudolph wrote, “was meant to send a powerful message in protest of Washington’s continued tolerance and support for the homosexual political agenda.” In a press conference after Rudolph’s guilty plea, Nahmias said that beyond any help it could have in providing information for future cases, Rudolph’s statement was “garbage.” He declined to say which side made the first move in 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. Nahmias emphasized the danger avoided by locating Rudolph’s 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.”

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