SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_01 0:31

Hello, everybody. This is John Katz of Beat the Prosecution. I am a criminal defense and DUI defense lawyer in Northern Virginia. I tell it to you all the time. I am telling it to you again how excited I am to have today's guest with us. I hope I am pronouncing her name correctly. She just reminds me, Rosa Iliades. She is a lawyer. She is a fellow graduate from uh a few years after I went to the trial or his college in uh 1995. She had her five minutes of fame, or what is Andy War called 15 minutes of fame, uh, unwantingly uh by being threatened with contempt of court and winning that. And I'm gonna want to know if she would have won that if not for this big law firm that helped out and uh the judge in the case bucking for being an immigration judge and not telling uh the defense about it. With that, Rosa, please introduce yourself.

SPEAKER_02 1:29

Hi, John. It's nice to be here. I am a probably 30-year veteran in the criminal defense profession, and I was with the military commissions for nine years now, um, which uh ended back in January. So now I'm back to my own practice and mostly consulting.

SPEAKER_01 1:51

Well, you know, what a wonderful way to meet you for the first time. I know that we've been having some hit and miss uh emails with each other, whether we would see each other at Chris Flora's gatherings that he has the second Saturday morning of each month to help uh lawyers prepare for their trials and otherwise. Uh, are you in Arlington physically?

SPEAKER_02 2:13

I'm actually in Washington, DC.

SPEAKER_01 2:16

Close enough to me.

SPEAKER_02 2:17

Physically, yes.

SPEAKER_01 2:20

How did you end up deciding to go to law school? Where did you go to law school? What was your path from there, career-wise? And when were you over? Uh, when did you start with the trial or as college?

SPEAKER_02 2:33

I decided to go to law school. Um, funny enough, because my mother thought it was a perfect career for me. She said I would argue with everyone and not give up till I won. Um, so she planted that seed, and I knew that I was going to go to law school from the moment I started college. Um and then I went to U of I undergrad and I was in Houston for law school. And I became interested in criminal defense work when I began um dating a gentleman who was very passionate about criminal defense, and he opened up a whole new world for me because I wanted to do international transactional work. My father was in international business, and of course, it sounded very glamorous at the time. But all that changed after I started dabbling in criminal defense to help him. Um, I realized that the issues were real, involving real people, and I also had a knack for it because it seemed like it all made sense to me. Um, I ended up going to the college, John, only after I'd been practicing uh four years, I think. So I was introduced to it in Houston after I was invited to a local group, and John Ackerman was there.

SPEAKER_01 4:09

Yes, I've heard about his legendary biography. I've never met him.

SPEAKER_02 4:13

Yes. He is a wonderful man, and I was very fortunate to have met him early in my career, and he led me down the path of attending the Trier Lawyers College at a very young age, which again, I was very fortunate. Now he and Jerry were original partners back in Wyoming. I don't know if you knew that about him.

SPEAKER_01 4:36

I didn't know that Jerry was partners with John. Yes, so he was Jerry Spence.

SPEAKER_02 4:41

Yes, Jerry Spence, uh, because John was from Wyoming. Um, and I'm not sure what roads led him to Houston, but we were all very fortunate to have him there.

SPEAKER_01 4:52

So you went to the trial or his college four years out of law school. I went six years out of law school. Uh, and as much as uh I've learned great things from Jerry Spence, my main motivation for just uh dropping the rest of my life for an entire month was uh Steve Wrench. Uh I was a public defender at the time, and I heard Legends of Steve and had, of course, his wrench book, and he showed up at the public defender's office. And uh I the first thing out of my mind was what an ordinary looking man. But what I don't know if you ever met Steve, but once he opened his mouth, what a powerhouse. So, you know, Jerry was the into Steve's young or whatever the opposite is, and I was lucky to have Steve there. Steve was there every Monday through Friday, all four weeks of the Trial Laura's College when I went in 1995, and Jerry was virtually as as well as that. Uh so um let's come uh to the trial or as college. So, when did you attend and how long have you been on staff? And are you still teaching over there?

SPEAKER_02 5:58

Yes, I I went in 2000, um, and I was in the second class in October. Um, and I became a faculty member, I think four years later, three or four years later, um I was very active and I was studying psychodrama and I was attending regionals. Uh, and then I became active on staff, was very excited to lead several seminars and re- and I'm still involved. I'm still involved with TLC. Uh, and I just got back from a woman's regional program in Tennessee. So that was a very exciting, very exciting training to be a part of.

SPEAKER_01 6:53

Was Freddie Sisson there? Because I was talking to her on the podcast just two weeks ago, and it seems like she had gotten out of the loop about women's sessions.

SPEAKER_02 7:03

I know Freddie was not there. And as far as I know, as much as I had a great time with Freddie, she has not been involved with the college. I think she broke off and did her own thing, but um yes, uh, I she is not involved.

SPEAKER_01 7:20

Okay, so how long when did you start doing uh military uh related defense or or whatever you want to call it? And uh what was your path with that?

SPEAKER_02 7:31

My I began in Octo, well, November 1st of 2015, and my path to that was Richard Kamen. Rick Kamen, he was a classmate of mine at the ranch. One day he he asked me if I uh knew some applicant that was looking at going, and I I didn't know a lot about it, to be honest, John. Um, I didn't know uh I knew very little other than Rick was involved. And I said, Would I be qualified? And he said, You betcha. Um, so I went through the application process and ended up working on Rick's team. So and that was very interesting.

SPEAKER_01 8:18

I found that very interesting that Rick attended the trial or as college because if my math is correct, when he attended, he was he had probably already been practicing law for at least 20 years or more.

SPEAKER_02 8:28

That's correct, John. And as you know, there's a full range of us who are there as baby lawyers to senior lawyers. So he was one of my classmates.

SPEAKER_01 8:38

And and now I'm gonna uh veer into a tangent. I've heard you betcha. I may have heard something that sounded Midwestern somewhere else. Where did you grow up? In Chicago. Okay, so when you said U of I, is that University of Illinois?

SPEAKER_02 8:52

Yes, in Champagne, Urbana, correct.

SPEAKER_01 8:56

Okay, so uh through Rick Rick came and you found out about doing uh military defense, and and where did that take you, or where did you go with that?

SPEAKER_02 9:07

Well, I applied and was accepted, and I started in uh November. Um I had to interview with the whole team. And coming from being a sole practitioner, I don't believe I've ever had an interview in my life. So that was interesting, and it was a three-hour interview, and we began working on uh the case that you're probably most familiar with, and that's Mr. Al-Nashiri's case.

SPEAKER_01 9:33

Yes. So when you uh joined with the Al-Nashiri case, who which which government agency was paying your paycheck? Uh, who who was your boss, or was it more of a an independent contracting kind of gig?

SPEAKER_02 9:48

Oh, well, I was a DOD civilian employee. So I worked what for what's known as their uh defense legal services. So those are for the civilians who work for the DoD.

SPEAKER_01 10:02

And did you have to get a uh double top uh secret secret security clearance?

SPEAKER_02 10:08

Yes, that's required for all the military commissions work.

SPEAKER_01 10:12

In all seriousness, uh, I know I joked around about that, but what what was uh your your level, your security clearance level that you needed?

SPEAKER_02 10:19

Oh, you needed a top-level security clearance, T S S E I. Yeah.

SPEAKER_01 10:26

So when you're working on this al-Nashiri case, this was the man who is uh alleged to have been involved with or the mastermind of the uh uh the the uh bombing of uh of of the US uh ship, US military ship off Yemen?

SPEAKER_02 10:40

Yes, the USS Cole, correct.

SPEAKER_01 10:44

And when you were uh when you were working on this case, were were you were you based in the DC area? And uh was this the only case you were working on while uh while while dealing with uh working with the DOD?

SPEAKER_02 10:59

Yes, it was uh the offices were out of Arlington. Um and when I began, I was only working on that case, and I only worked on that case until I withdrew from the case. So yes.

SPEAKER_01 11:14

Yeah, one of the one of the reasons why I wanted to have you uh on this program was because I I I don't think the full story that I want to know about is uh is available online unless there's a book about it that I don't know. And then, of course, I finally found the published opinion and didn't get a chance to fully read it from the uh U.S. Court of Appeals from the DC Circuit, so they may have told me more. So uh please please tell us about uh what your involvement was with that defense and how things came to a head that uh you and the others in the case withdrew and why what was the timing and and you're deciding to withdraw from the case at that time versus earlier.

SPEAKER_02 11:59

Sure, that's that's a lot of um a lot of things to recount for you, but I'm happy to go through that and cover some of the highlights. Uh I think I've been on the team uh about a year and a half, and um I we were working on several issues, and one thing that came up was I'm trying to remember what has been declassified and what has not. Um so what occurred while we were down in Guantanamo was that we were allowed to inspect the meeting areas and the meeting areas for the attorney client meetings. As a result of that inspection, we found out certain things that concerned us about the confidentiality of our meetings and we filed a motion, and in that motion, we requested several forms of relief that the judge denied. The most uh important thing we requested was to be able to talk to our client about our discoveries because they're they were relevant to his determinant determination of whether he um whether he could waive the attorney client privilege. So, as you know, as a criminal defense lawyer, that's privilege belongs to the client and only he can waive it. The circumstances, as usual, military commissions were extremely unusual. And when this issue came up, we concluded that this is you know, this is something he had to know, but as at that time everything was classified and we weren't allowed to tell him, right? So as our motions were all denied, we were faced with a very uh serious ethical dilemma. And lead counsel was Rick Kamen. I will say also, even though I'm not employed, I'm still going to put a disclaimer to what I'm saying that all the views are my views that I'm speaking of, and they do not belong to the Department of Defense or speaking on behalf of myself.

SPEAKER_01 14:36

It goes without saying.

SPEAKER_02 14:38

Well, we are yes, it's it's good to uh still use that disclaimer as I speak. But um, so what happened after that was the this the withdrawal statute, the way it was written at the time, indicated that we could file with our actual uh lead um defense counsel that was over the whole entire defense community that we worked for. And that was General Baker. And we asked his permission to withdraw.

SPEAKER_01 15:13

Yes.

SPEAKER_02 15:14

Uh with that, we had attached a motion, um, an affidavit that included the opinion of a uh ethics individual, ethics professor. So we submitted that to our our um lead defense counsel, and we were granted the right to withdraw of the case. And by we, I mean myself, another civilian lawyer, Mary Spears, and lead counsel, uh Rick Kamen. So that was approved, and we submitted it to the court to let them know we were moving to withdraw and the basis for that, and that's kind of when everything happened. Everything happened with the judge ordering us and denying us the ability to withdraw and ordering us to come to court. So uh a lot transpired between the beginning and the end of this story, and we uh it's hard to that was the span of several months. So fighting that issue and dealing with that issue in the commissions without us even being there took place for uh a few months. Um ultimately the judge, who was Judge Sbath, he ended up abating the proceedings.

SPEAKER_01 16:53

Yes.

SPEAKER_02 16:55

And up until that point, he had tried to force us to come in. Uh, he had also asked for the testimony uh of our expert, and she showed up. Miss Yershevsky, I think I'm saying it right, um, and she showed up and testified. Then he asked for our supervisors to show up. Right. And I'm mixing up the sequence, I apologize. The first one there was Judge uh General Baker, and that's what hit the news. Um, General Baker showed up, and he was trying to order General Baker to withdraw his uh his order, his granting our request to withdraw.

SPEAKER_01 17:41

Crazy.

SPEAKER_02 17:42

And he did not do that, and that's when that's when Judge Bath held him in contempt of court.

SPEAKER_01 17:51

Right.

SPEAKER_02 17:52

Uh, and as a sentence for his contempt, he was ordered confined to his actual um, I don't know what you call it, his chew, that which is what they call the temporary housing down there. Um, so he was forced to stay in his chew for the term of his 30 days.

SPEAKER_01 18:14

Okay, well let me ask you then, uh Rosa, uh, I've heard you saying uh matters that led you to uh uh seek to withdraw. Did you mention uh what the extent to which, if at all, uh you were just not being given confidential communications with uh with your client, or is it was it more having to do with just that you were being uh silenced from uh the information that you could share with him?

SPEAKER_02 18:41

Ultimately, the issue was based on the fact we couldn't share it with him. So, because that was, you know, it's a privilege and it can be waived. Um but we you can't waive what you don't know is happening. So interestingly enough, he was pretty understanding and trusted us enough to tell the judge that if that's what they thought was, if our withdrawal was the right thing, then that's what he, you know, he honored that. That he being our client. So uh even though we couldn't tell him the details. So uh what and then also interestingly enough, once the litigation ramped up on this issue, the government filed on their own an affidavit revealing that what we had found was a legacy, quote unquote legacy microphone in the right.

SPEAKER_01 19:33

So I'm I'm trying to understand. Pardon me if I'm being a dunce. What was this uh privilege about being waived? The meaning that for your client to waive the uh being able to have access to the information, the essential information that his lawyers had access to?

SPEAKER_02 19:50

Well, the attorney client privilege. As I as we noted earlier, it's only the clients to waive, right? So he would have to know that he was waiving that privilege and the circumstances under which he was waiving in order to be able to uh make a valid what voluntary waiver.

SPEAKER_01 20:11

Yeah, I'm I'm I'm so sorry. I'm I'm not understanding, and so I don't know if the answers if we're we're talking about whether whether your client was gonna waive uh doing what? Because I'm I'm hearing you say waving about information you didn't have, so I'm so sorry, but I really want to understand.

SPEAKER_02 20:31

Waiv is not waiving any information, he's waiving the privilege, which is his privilege and his decision to determine whether he's gonna waive it or not. You can't just file and say I'm withdrawing because there's a way around it is if the client decides to waive it, it's his privilege.

SPEAKER_01 20:55

Okay.

SPEAKER_02 20:56

Does that do you follow there, John? Does that make sense? It doesn't, it's not a natural way you think it would go, but legally we can't speak for him on that. So being being that he can't knowingly and voluntarily waive that privilege, then we're stuck and ethically bound. Uh uh, ethically, we do not want to represent him. We made that choice.

SPEAKER_01 21:22

Okay, I think I understand. Now, uh this General Baker, who got uh found in um in contempt of court, uh did he avoid uh ethical discipline with the uh uh the bar authorities over being found a contempt? And uh what is he doing now uh professionally?

SPEAKER_02 21:46

Well, he he did not get disciplined ultimately. I think that opinion was also uh that decision by SPATH was taken up to a higher court again in the DC circuit. And I to be honest, I can't remember exactly if he was completely exonerated or what the outcome was, but I he wasn't the discipline didn't um follow him in his records.

SPEAKER_01 22:15

And what is the General Baker doing now professionally?

SPEAKER_02 22:20

He's uh uh leading up the federal defender's office, and I think it's in one of the Carolinas. I'm not a hundred percent sure, but he finished out his uh his tour of duty with the military commissions until and I think he extended again, but then it was done. So he went on and became a federal defender, like the lead federal defender.

SPEAKER_01 22:49

What is the title of the uh case in the DC Court of Appeals that uh vindicated you and and uh Mary, what's her name? Mary Spears?

SPEAKER_02 22:59

Yes, I think it's in Ray um Al-Nashiri, Abdul Raheem al-Nashiri. And I think that's also has both of our names in the title as well.

SPEAKER_01 23:12

Uh Rick Kamen avoid being a defendant for that matter.

SPEAKER_02 23:17

Rick Kamen was able to go to his, he's from Indiana, and he went into a federal court in Indiana, and he was able to obtain a I'm not sure exactly if it was a court or it was a court order, but it was forbidding the military judge to take any action against him in this situation. So and then we never were able to lit, we didn't end up litigating that. Um we were probably easier to pick on, so to speak, because we were DOD employees, and that's a little bit different because his status was a contractor.

SPEAKER_01 24:04

I got that. Uh to what extent would uh you have still been vindicated by the U.S. Court of Appeals of uh, you know, in the DC circuit, had there not been representation by that heavy-hitting law firm, General Block, for you, who I think represented you. And uh, if it wasn't for the fact that Judge Spaff had not disclosed earlier or at all that he was uh looking for a job as an immigration judge, if I have that all correct.

SPEAKER_02 24:39

Uh yes, those are both accurate facts. We did have pro bono representation. Um we were all initially represented by the Federal Defender's Office, and then there were a few connections that um I think led to the representation, led to the pro bono work um by a bigger firm. And you know, I it's really hard to know what made a difference. I hate to say that's what made the difference. I don't know. I don't know. Uh obviously the opinion was based on law. Um, so in the law that, well, um the ultimate issue became the conflict, as you know. Judge Fass uh had not disclosed with the which is really key, he failed to disclose that he was applying for a job with the immigration uh department of immigration. So we happened to uncover that. And I think one of our uh one of the people that took over after we were off the case was able to uncover the fact that that was we we didn't even know he found out that he was in uh had applied for a job with immigration, and and I think there was some discovery that led to the actual date of his application, and that date uh preceded uh everything we had filed in court requesting to withdraw. So there was a sequence that was very key, and even more relevant to all of that was the fact that he did not disclose it to us again. Yeah.

SPEAKER_01 26:34

And am I correct? The uh DC uh circuit opinion uh invalidated it. Was his last name SPATH or SPATH?

SPEAKER_02 26:44

SPATH.

SPEAKER_01 26:45

Okay. Yes, the DC circuit rule that uh it was invalidating any of Judge SPATH's orders, at least uh relating to you and uh and Mary from after the date that he did apply to uh be an immigration judge. Or else I'll just reread the opinion.

SPEAKER_02 27:04

I you know, I for some reason my recollection is it was it might have even predated his application, but I'm not 100% sure. I haven't looked at uh that component because I wasn't involved afterwards. Um so I I can't tell you, yeah, we would have to both look at it again to figure out which how far back the nullification was, because they nullified all his orders.

SPEAKER_01 27:36

Now I'm not gonna stick just on this case because I certainly want to talk about the work you do, but maybe for just for a few more minutes, if you'll indulge me. Uh how long had uh Judge Spaff been practicing law uh at the time of uh having this situation with you, and how long had he been a military judge at that point?

SPEAKER_02 27:57

Yeah, I don't know the uh correct, accurate answer to that, but he was definitely a seni in a senior position with the I think it was the Air Force and um within the military. He'd been practicing and was still practicing. They actually have more than one position, and he uh had some active cases when he joined the commissions. So he was on that case maybe a year before I joined. Uh he he took that case because there was a conflict between the it's a long story, but everything's a long story in the military sense. So he he he took over after the 9-11 judge stepped off of this case.

SPEAKER_01 28:46

So didn't he make this comment uh perhaps at that hearing where the uh the the uniform military lawyer uh uh was reported to saying that uh you and Mary had abandoned al-Nashiri and that Spaz says something along the lines of, well, you know, uh this is not this case isn't a career builder for me, you know, kind of to make himself something that was neutral. My gosh, he didn't even disclose at that point about the uh the immigration judge application.

SPEAKER_02 29:20

Well, I'm not I'm not sure I'm following you, but I do know that he he did disclose that he was working on the case when he uh submitted his application, which was another factor that the court relied on.

SPEAKER_01 29:35

Right. So yeah. He disclosed uh his work on the Al-Nashiri case to the immigration authorities or whoever, but he didn't bother uh telling that to you or the other uh or or Mary or Rick. Right. Um so did Judge Spath to that point have any experience or effort to empathize with what it is like to be a criminal defense lawyer inside or outside military cases, or was he just far removed from that uh uh that that approach?

SPEAKER_02 30:10

You know, uh John, interestingly, something I learned when I started working in the military commissions was most JAG officers do both defense and state work or prosecuting work. So by the time they reach the bench, they've had both experiences. And frankly speaking, he was it was shocking that he took this position because he was fair up until that point. Um, he did a pretty good job of holding the government's feet to the fire. Uh and we, I don't think there were anything that stands out as um that felt like we were just going through the motions and he was always ruling for the prosecution.

SPEAKER_01 30:59

He he had what appeared to be empathy for both sides or even the defense side, which is the one sounding it sounded to me, Rosa, that with this contempt citation to you, he was set in his ways and just digging his heels into the ground and uh immovable.

SPEAKER_02 31:21

Uh you know, it's funny, he backed off saying that he was ever held was threatening to hold us in contempt. Um I don't know if you uh that's one of the nuances. He never really held us in contempt because obviously that would put us in a real conflict of interest with our clients. So that that dawned on him probably um later. I mean, I think there was some discussion, and so we're not at the hearings, we're hearing this all through the the Twitter feed. Uh, as far as what we're in real time, as they say, we're not in the courtroom. So, but I do know the reporter who covers all that is the one who said that he was going to threaten, you know, arrest and bring us in, and then he backed off of that the next day. Um, so yeah, I think it was the pressure of trying to move on and get this job that might have interfered with his um better judgment.

SPEAKER_01 32:30

When you were communicating with Mr. Alness, Shiri, was that always at uh face-to-face, Edwantonamo, and uh were you having to use an interpreter? And what was the quality? I assume the quality interpretation was excellent, but I don't want to assume, so please let us know that.

SPEAKER_02 32:49

Well, we all we had assigned to our team an interpreter, so he was strictly our interpreter, um, and it seemed to be for all important purposes, from what we could tell, a pretty decent interpret um translations. So he knew his English, uh our clients' English wasn't as good. Some of them have better English skills than others in that are detained in Guantanamo.

SPEAKER_01 33:21

So how many times did you visit over at Guantanamo and what kind of accommodations did you have there?

SPEAKER_02 33:28

Well, it depends. I don't know the total number. That'd be interesting to tally, but it would depend on um where we were in the litigation. When I joined, we were on uh what we weren't litigating. So there was some appeal that was going on, so we had been abated. Once we were litigating, it was a very, very intense litigation schedule. So we'd go down there, it seemed like every other month at least.

SPEAKER_01 34:01

Did you have fancy?

SPEAKER_02 34:03

Pardon me? The accommodations accommodations? Uh I we didn't have fancy. That would be a real stretch, but we had appropriate accommodations for government work, let's say that. We had they have a a Navy lodge and um different uh what they call BOQ uh housing. So it's just like a normal hotel room.

SPEAKER_01 34:28

And what year range were you uh going over to Guantanamo?

SPEAKER_02 34:33

What what?

SPEAKER_01 34:34

I'm sorry, I didn't hear you. What year did you start going over to Wantanamo? Was it 2000?

SPEAKER_02 34:40

The end of 2016. Yeah, 2016 to 2017. So it was just about a year on that case. Yeah.

SPEAKER_01 34:50

I'll have to check with my uh former legal assistant if that's when she was over there with the army. She had the privilege or lack thereof of uh dealing with the Wantanamo inmates when she was in the army over there.

SPEAKER_02 35:03

Ah, so she was working for JTF, the uh military down there, the uh guard force.

SPEAKER_01 35:11

I'll have to figure that out. And her husband is still with uh uh with the military now. Rosa, um, let's talk about um the work you're doing now. So, well after you left this case actually uh involving Mr. Al Nashiri, uh did you continue to do uh work with the Justice Department or was your uh uh employment with the Justice, not just with the DOD, was your uh employment with the DOD ended, or did it continue at that point?

SPEAKER_02 35:44

My work did continue, but it continued on a different team. So I eventually went to another team in Guantanamo and represented a different individual. So I was there up until my last case in January. I worked on the Southeast Asia charges, I've worked on the 9-11 charges, and I've yeah, those are the other two cases.

SPEAKER_01 36:17

What was what was the alleged crime or crimes in Southeast Asia?

SPEAKER_02 36:22

I don't know if you're familiar, recall the Bali bombings.

SPEAKER_01 36:26

Yes, I I was in Bali in uh 1988, so I I missed any bombings at least. That's fortunate, yes.

SPEAKER_02 36:33

That happened in in um I think it was 2000. Now I'm I'm there's a lot of facts after I by the time I finished my job or my employment there. So yeah, that was the uh Bali bombings. And those were cases that weren't brought till a lot later. They were held in custody for a great deal of years before they ever filed charges against what's known as the Southeast Asian cases or detainees.

SPEAKER_01 37:08

So what made you think when you uh were withdrawing from the Al-Nashiri case that things would be any uh better for you to be able to serve your clients properly in Guantanamo, uh where you were unable to properly serve Mr. Al-Nashiri because of all the uh hurdles that were set up for you against you?

SPEAKER_02 37:28

Well, what was unique um about Mr. Nashiri, and I don't know how much of this I can discuss, but every I I can say that there were different loc different meeting rooms. So um so having only been privy to what what we discovered in in his in his place, um it left I didn't have any actual evidence of what was going on anywhere else. Um and I think that a lot of the work you do down there does question what uh to what level you could be effective, but I do know that the work that especially with the combination of civilians, uh military, and contractors has resulted in uh a real defense for those people. Uh those detainees are getting real representation, and I don't think that was the expectation when this court system was first set up. I think the vision they had was that people would all plea and everything would go away. Um so I do feel although it can be frustrating, we are really litigating down there.

SPEAKER_01 39:02

Uh let's talk about this then. I have both of my legal assistants are badasses in the best way. Well, a bad ass is always a always in the best way, of course. And she uh wanted me to ask you, and I think I know what the answer is. If you had any discomfort about uh Mr. Al-Nashiri uh himself about representing them, I assume the answer is gonna be no. And I'll expand that if you've felt any discomfort about representing any of your clients. I never have in terms of what they did or Leslie did. And uh uh related to that is did you uh create any buffer in uh joining the Defense Department in a civilian capacity to make sure that you wouldn't be ordered to do prosecution, to make sure that you would only be doing criminal defense?

SPEAKER_02 39:54

Well, you're right. I did not have any problem representing Mr. Nishery or any of my other clients. It was, like I have always said, an honor and a privilege to do this work. Um and I think what really is sad about it is uh to go through the details of what has been done to them to this date by the time you encounter them. Um I always applied for what is the McDo, which is the Military Commission's defense organization, which means I only worked for them. I could not be drafted for the other side. That that I I've never done any work for the prosecution. I'm not making a comment on that or whether that's did you just freeze?

SPEAKER_01 40:53

So okay, good. You're back. You froze for a moment.

SPEAKER_02 40:56

I did.

SPEAKER_01 40:57

Oh, I did where did you lose me? Unless it's my internet connection. It says my internet connection stable. Okay. Uh unless uh so the last thing I heard you say was you're not gonna comment on such, such. I assume you're gonna say you're not gonna comment on whether it's good or bad to do prosecution role. I don't know.

SPEAKER_02 41:16

Yeah, that's where I was heading. But my experience has never been doing that uh prosecuting. So uh I don't have, I think, you know, it's a job people have to do, and I always hope people do it that are uh that are fair. So um, but there's no way they would have drafted me for the other side and forced me to do that kind of work any more than anybody else could in the in the civilian world, force any of us to do any kind of work.

SPEAKER_01 41:46

So Rosa, what is your level of experience actually uh doing trials themselves and uh connected to the answer or not? What is uh what are your two or three uh key approaches to beating the prosecution? Beyond such obvious things as preparation, and beyond such things as uh get involved with people who uh know how to uh try cases to the level of people who who apply uh trial laws college approaches and uh what I call make-in approaches, trial practice institute of the National Criminal Defense College approaches.

SPEAKER_02 42:30

I practiced uh criminal defense and did trial and appellate work for over 20 years before I began at the military commissions, and I did it as a solo and practiced with other individuals. I had my own practice, and I was board certified in trial and appellate law, which is something not every jurisdiction has, but we did have that in Texas. That's where I started out practicing. Um, so I had a fair amount of experience. I did not have the experience of a public defender because public defenders are constantly in a courtroom trying cases. I didn't have that kind of volume, which I consider was a huge luxury for me, even though I did indigent representation. So uh, and then I also had a federal practice. Uh I think that my approach could be a little bit different from a lot of people in that I have a very client centered approach, which is consistent with uh what we learned at Trialores College. And what I and you know, I used what we've learned at Trialores College to develop the story, um develop the story of my client. Case and there, you know, I've actually had my client testify in new under new numerous circumstances and been successful with that.

SPEAKER_01 44:14

That can be a wild ride.

SPEAKER_02 44:16

It is, and I will say this, it takes a lot more time to prepare.

SPEAKER_01 44:21

Yes, indeed.

SPEAKER_02 44:23

But uh I've had you know good fortune with that. Um not every single time, but close. So that's that's where I would say I'm I'm a little unique. Um, but the rest is what we all do. We work hard, we try and know the facts as well as we possibly can. Um and it's not hard to know them better than our opponents. Uh, I think that's an advantage um that we have. And when I look at a scenario, I feel like one thing, you know, that you developed is over the years of doing this work is an instinct for what's going to matter ultimately at trial. Uh that is something I've felt was the most important thing to develop. And and you know, we know the law, you have to know the law very well, so you know your boundaries in a courtroom. And then you go in and push the boundaries as far as you can. Uh uh I I do believe in holding the government to its burden, but I think you have to have a theme and a story, and more than just that. I don't believe in waving opening statements like some lawyers do.

SPEAKER_01 45:47

Of course.

SPEAKER_02 45:48

What's that?

SPEAKER_01 45:50

No, never never wave the opening. That needs to be I have seen it done, John.

SPEAKER_02 45:57

I I uh I've seen them wait, I've seen them hold hold their cards and go into a courtroom with a lot of anxiety. Um, I feel like when you go there, you may be anxious a little about everything because there's a lot at stake. But I feel like you have to um be confident about what you're about to present and not worry about how much uh you have to answer to what the prosecution's arguing. Sometimes I'll go in there, and I'm sure you've had this experience. You're striking some of the same people because you're you're you're wondering how on earth are they seeing the case versus how I am, right? So um it's it's I think with the what we've learned at the trialures college, and I've gone to NCDC, is that what you're referring to?

SPEAKER_01 46:52

Yes.

SPEAKER_02 46:52

Other yeah.

SPEAKER_01 46:54

When I went in 1994, uh uh they were doing the Mercer Law School in Macon, but yes, hurricane hurricaned it out, but uh enough people stepped up financially to make it still work, and we did it at some airport hotel in Atlanta.

SPEAKER_02 47:08

Yes, I well give more access to Atlanta. It's back. I actually went just to see. Sorry, I actually uh attended that program too. Um, and I think it was an excellent course on the nuts and bolts. Um and I learned things. Um, I'm always I think you can learn from anything. Uh, and I believe that was a well-run program. And like I said, it's an excellent nuts and bolts. Um, but I remember asking uh Ackerman about this because I said, Do I need to go back and do this? And he said it's it's all good, just like I said. He said, one's like being a carpenter, and the other one is like being an architect. So to quote him, that's really what it is. It's like more how are you gonna put it all together? I think we we we have a great um set of tools for that um as graduates of the trial orders college program.

SPEAKER_01 48:16

Well, yes, I'm I'm happy, I'm happy I did both. Now you did mention, so you were recently doing a seminar involving women, I think it was. Please tell us more about that.

SPEAKER_02 48:27

There is a new program that I've done, I've led and participated as an instructor uh that the Trialores College is doing that has an all-female cast and all female students. And I remember being at the college when this idea was first proposed, and it was shot down immediately.

SPEAKER_01 48:56

Um and when was that that it was shot down?

SPEAKER_02 49:01

I want to say in the early 2000s because that's when I first started. Um got it. Maybe mid, maybe 20 uh 208, something like that. And as you may know, there's been a schism in.

SPEAKER_01 49:19

That's what I call it.

SPEAKER_02 49:20

Yeah, yeah. Um, and then after that happened, there was a movement to have this program for women, and I was so uh flattered to be a part of it and to be involved in it, but I didn't realize how amazing it would be until we actually completed our first program. It was just remarkable how different it was for the women who participated in this program, how different of an experience it was, and how much more they got out individually, you know, they were able to get a lot out of it individually. And I think all the programs are great. I I don't, you know, I don't say only go to this to a woman who asks me. Um I just think this is this um helps women deal with all the other things we have to deal with as women in a courtroom. And um it's wonderful when you see the younger young ladies go, you know, the very new lawyers are in there. And just like with the trial lawyers college, they don't have to unlearn anything. Yes, they are learning it for the first time. And and when they're women coming in, I think they're given a lot more uh confidence and freedom to be women in a courtroom. So your associate, your young associate, you said, um, I recommend the program highly for it. It's once a year and it's takes place in Nashville at an all-girls, a formerly all women um college campus.

SPEAKER_01 50:59

So it's I adore I adore Nashville in Memphis. Uh okay, so when I had Freddie Sisson on the show two or three weeks ago, she was talking about having worked with the three sisters. Yes, Mary Peckham and Joan uh uh Carlo uh Garcia Colson or whatever. Um that ended a few years ago. So this sounds like maybe the closest follow-up. So how many days is this program? What are the prerequisites? And and what go what goes on there beyond what you've already said?

SPEAKER_02 51:34

The program is between four and five days. Um anyone can apply uh under the usual TLC standards. You can't be a prosecutor, you can't represent a government or the uh any other uh corporation. Same criterion. Uh and we focus each time on a different trial skill. This last session was on voisir. Um previously we had direct examination and uh I'm not I can't remember the first session we had. So it proceeds just like most regionals do. We warm up and we start with psychodrama and then we transition into the trial skills portion.

SPEAKER_01 52:27

What kind of dynamics are happening at these sessions that are not happening at uh mixed gender uh sessions? I think maybe uh Freddie was perhaps being diplomatic about it when she didn't call a man splanning, but she's certainly said that uh at least when the women get together alone, they don't face as many interruptions.

SPEAKER_02 52:50

Oh gosh, I miss Freddie. And I wish I had known I would have listened. I would have listened to the I will listen now uh after we're done.

SPEAKER_01 52:58

Um I feel, and I don't know, do you have a daughter or I have a son, he's 18 and a half years old. His name is Dennis, and he's true to his name, Rudin Dionysius. He's full of piss and vinegar and intuition and charisma in the best way.

SPEAKER_02 53:17

Oh, wonderful, wonderful to hear. Um, okay, well then I'll you you you have a wife. Uh so I will I will say that one of the things, and I've been in the criminal defense profession, which is a male-dominated profession, uh, and it certainly was, is if you're a private practitioner, I probably the numbers that may have evened out a little bit in the public defender's office, but we're still at a disadvantage. And, you know, the world in the world, we're at a disadvantage as far as how much freedom we have to be ourselves. Uh, and that's the bottom line. And I think that we all know that at the trial college it's all about being yourself, right?

SPEAKER_01 54:09

Right.

SPEAKER_02 54:10

And so I think where our secret, where we find the recipe for success, is that we really are, it's easier to be yourself in a group of women as a woman than it is in a mixed group, which is probably undeniable for the for the other flip side of that for men. So it may or may not be, I don't know, but there is a certain amount of vulnerability we're allowed to have, there's a certain amount of um individuality we're allowed to have. Um, and there's a certain amount of us learning how much of the societal things we've taken on that we don't need to take on. Um so it's it's not a male bashing session. It really, you know, I think I just want to set the record straight. What it really is is uh women really really becoming who they are. And I don't know that anyone would really argue with the merits of that.

SPEAKER_01 55:23

Um well um I wasn't uh uh close enough understanding what with the politics and dynamics of the Charlores College were were with uh the dynamics of women, but at least from objectively I saw, you know, um there was a healthy representation of women. Uh when I went in 1995, there were almost no minorities. There were no people who were out of the closet uh gay people or whatever the the correct name for that is right now. Uh I don't even LGP. It's it's uh it's been such a long day for me. Uh my understanding is that the trial laws college has come a long way on that. And uh and I I I totally support that kind of program. And I'm happy to hear that it's going on. And I guess I'm just engaging so much information overload. I, as a TLC graduate, didn't even know about this program until talking to you. Rosa, we are essentially at the end of this hour. Uh, you have indulged me in asking my questions, and this is your floor for telling the audience anything you want to say, including putting in a plug for your law firm if you're taking uh clients. If you have a website, I don't think you do, let us know. Or if you want to share a phone number or email address and anything else you wish the audience to share to know about that uh they haven't heard yet.

SPEAKER_02 56:53

Well, thank you, John. I will say I am starting a consulting firm and it's under the name of Emergence Consultants. Um the I'm not sure if the website has gone live yet or not, and it's still, as my sweet father would say, in the embryonic stage. Um, I, as you know, uh I'm uh been on faculty, and one of the things I've loved the most is teaching. So there will be a training component of that, there will be a jury consulting component of that. And I've already started working with another lawyer from TLC on that. Um, and I'm really looking forward to being able to share some of what I've learned over the years with other lawyers in a different kind of forum. So it's emergence consultants, and I am looking forward to this next chapter in my life and whatever adventure it brings with this new practice. So I've thank you so much for having me on here, John. Uh I know I reached out once when I first moved in this area, and you were one of the locals. So hopefully one day we'll get together for a cup of coffee soon.

SPEAKER_01 58:16

You say you're in Washington. I mean, this is about maybe 18 miles from me, from where I'm sitting right now. We're literally 18 miles apart. I really thank you so much, Rosa. Everybody you've heard from Rosa Iliades. She is a trial laurea, a fellow graduate of the trial lawyers college. Check out her website when it shows up. Emergence consulting or wait, emergent consulting or emergence consulting. Emergence consulting. Emergence consulting. This is John Katz. I'm a tri I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. Thank you.

SPEAKER_00 58:54

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.