Q: Your client Richard Ness is on trial because he managed a mine accused of polluting a bay; Bill Long was not charged. How did you get involved?
A: Initially, the family (of Bill Long) contacted me. I contacted one of the lawyers at the company, and I was in Indonesia five days later.
Q: Why did you agree to take it?
A: I had read what was happening with Bill, and that was not a good thing. That was a bad situation. That’s what I do. I help people in bad situations. He was in a very dire situation at that point, No. 1. Second, I understood where his family was coming from and understood their concerns. Third, it just sounded incredibly interesting and challenging, and it certainly hasn’t been disappointing in that regard.
Q: How has it affected you?
A: I’ve traveled there every month. That has been difficult on my family. But this is a case where as a lawyer you have tremendous energy because you have clients that did nothing wrong who worked for a company that did nothing wrong that are subject to a jurisdiction that you just don’t have much control over or familiarity with.
When you have clients in that situation who, on top of everything else, are really decent people, I’ve probably internalized this case more than most cases.
Q: What’s your role?
A: American lawyers are not allowed to appear in court in Indonesia. Both the company and Rick have Indonesian counsel. My role has been to represent Bill and Rick in an individual capacity. That means advising them on issues relative to them personally. I’ve also been involved with some of the strategizing as it affects my clients and as my expertise is needed.
Q: How is the Indonesian legal system different from ours?
A: First of all, it’s not a jury system. There’s a five-judge panel. It’s based on the inquisitorial system, which they have in Spain and Holland. Also, the judges can be more active in the questioning of witnesses. The third big difference is the rights that individuals have. There’s no Fifth Amendment there. You don’t have a right not to answer questions. You don’t have a right to have an attorney present.
Rick also is expected to testify. Here one of the big decisions in a criminal trial is, do I testify. Over there you don’t get that choice.
There are other differences. Rick is not alleged to have committed any crimes. The prosecution has taken the view that to prosecute the company, they have to prosecute Rick as well. Our lawyers disagree. He has never to this day been told what he did wrong.
Q: So you’re concerned he’s not getting a fair hearing under Indonesian law?
A: The individuals and the company have not been afforded the rights that they are guaranteed under Indonesian criminal procedure.
When the government investigates a case, they are required to provide evidence that supports the accused’s case. But the police refused to interview witnesses that we told them have information that would be helpful to us. We filed an appeal in December and we won. But it was overturned on appeal by the police, even though under Indonesian law that type of appeal on that type of decision is unappealable. The court basically said it may be unappealable generally but this is a very important case, and it’s going to go forward.
Q: Are politics at play?
A: I think it would be naive to assume they aren’t. If the laws and the facts were in control, this case would have been over with a long time ago. Politics plays into prosecutorial decisions in the U.S. as well. However, politics gets trumped pretty quickly by the law and by the facts. It’s difficult for me as a former prosecutor and a defense lawyer. When the law favors your position and the facts favor your position, you’re not supposed to lose.
Q: What appeals to you about criminal defense law?
A: No. 1, generally I represent individuals instead of entities. I work with people and I enjoy those personal relationships. No. 2, I deal with the Constitution every day, our base level rights of due process and individual liberties. No. 3, the subject matter is interesting. The cops-and-robbers aspect of law enforcement.
Edited for space and clarity from an interview by staff writer Greg Griffin.
