How a Prisoner Ended Up Alone in Court in a Death Penalty Case

For five days this spring, a defendant in the Sept. 11 terrorism case was unrepresented in court because his capital defense lawyer was out sick.

There had never been such an occurrence in the U.S. military case at Guantánamo Bay, Cuba, and it alarmed American death penalty lawyers. They argued that the judge had a duty to suspend the proceedings to protect the rights of the prisoner, who is accused of conspiring in the attacks.

To the defense lawyers, the episode underscored the inexperience of both the judge and the military justice system, which has not executed a prisoner since 1961. If the case is ever brought to trial and the men are sentenced to death, they said, the defendant’s week without a lawyer would be a reason to overturn the verdict or sentence.

The events unfolded at the military commission in the long-running case against four men accused of conspiring in the attacks that killed nearly 3,000 people on Sept. 11, 2001.

One of the defendants, Mustafa al-Hawsawi, was brought to court for the weeklong hearing in March, but his capital defense counsel, Walter Ruiz, had pneumonia and was unable to leave his hotel room on the base.

Other lawyers asked the judge, Lt. Col. Michael Schrama, to suspend the proceedings until Mr. Ruiz could return to court. But the judge pressed forward, saying the focus of the week was testimony against another defendant in the case. He said the lawyer could join the hearing later.

Robert Dunham, an expert on the topic who has been defending death penalty cases since 1991, although never at Guantánamo, said the law required a capital defense counsel at all stages of the proceedings.

“To go forward without it is illegal and when someone’s life is at stake, it’s unconscionable,” he said. “If a heart surgeon wasn’t available you wouldn’t have an inexperienced doctor perform the surgery.”

Legal experts said the closest known comparison to a capital defendant sitting alone during testimony was the case of Calvin J. Burdine in Texas, who was sentenced to death in 1984 for killing his lover. Mr. Burdine’s court-appointed defense counsel slept through portions of the trial, essentially making him absent.

A federal court overturned that conviction, ruling that an “unconscious counsel equates to no counsel at all.” Mr. Burdine later pleaded guilty in exchange for a life sentence.

Guantánamo prisoners charged in the Sept. 11 case have had skilled death penalty defenders, known as learned counsel, at all of their hearings since their arraignment in 2012. The Pentagon has paid at least $25 million to the learned counsel in the case.

Four of those men are being jointly tried. A military medical panel found the fifth, Ramzi bin al-Shibh, was not mentally competent to stand trial in 2023, and his case is being overseen by a different judge.

Death-penalty cases are rare in the U.S. military and no capital case has gone to trial in the military commissions, which were established after the Sept. 11 attacks.

Colonel Schrama was assigned to the case last year after handling Air Force court-martial cases and then attended a civilian training course on the topic. He has no actual court experience as a lawyer or judge with capital cases.

It was not possible to ask the judge to elaborate on his decision to go forward while the defense lawyer was too ill to come to court. The Guantánamo court dealt with similar circumstances in 2017.

That year, a judge in the U.S.S. Cole bombing case held hearings with an inexperienced military lawyer defending the prisoner, Abd al-Rahim al-Nashiri, because his learned counsel had quit. An appeals court later nullified those hearings because that judge had an unrelated conflict of interest.

Also that year, the capital defender for another defendant, Walid bin Attash, had a health emergency and could not travel to Guantánamo Bay for a hearing. The judge at the time canceled the session but let prosecutors record the testimony of an elderly, ailing man whose family was killed in the Sept. 11 attacks. A future judge will decide whether the recorded victim statement can be used.

For a week in March, Colonel Schrama went further and allowed Stephen Gaudin, a retired F.B.I. agent, to testify.

Mr. Gaudin’s health is also precarious. A prosecutor said in court that he was being treated for three forms of cancer attributed to his work at the ruins of the World Trade Center after the Sept. 11 attacks, and it was uncertain when he would be able to return to testify.

One of Mr. Hawsawi’s other lawyers, Suzanne Lachelier, asked the judge to suspend the proceedings until his lawfully mandated capital defender could come to court. “It’s really not negotiable,” she said, calling the suspension “important for the dignity and legitimacy of the military commission.”

She added: “If other things have to bend, they have to bend.”

But Colonel Schrama said the law required learned counsel only to the “extent practicable,” and that Mr. Ruiz could read transcripts of the missed testimony and question Mr. Gaudin at a future hearing.

In response, Mr. Hawsawi’s other lawyers boycotted the hearing for the rest of the week. Mr. Hawsawi was sitting in the back of the court with only an Arabic-speaking team member beside him.

The judge declared the lawyers voluntarily absent.

Mr. Hawsawi is accused of sending funds to the Sept. 11 hijackers in the United States.

A slight man, he sits in court in a padded rehabilitation chair because, Mr. Ruiz has said, he has continuing pain from rectal abuse in 2003 while he was in C.I.A. custody. Mr. Ruiz calls the abuse rape.

Robin M. Maher, the executive director of the nonprofit Death Penalty Information Center, who has trained some of the Guantánamo defense teams on ethics, said it was “really stunning that the defendant who is on trial for his life was forced to sit by himself because his lawyer could not be there.”

Postponing until the lawyer could attend, even at the risk of canceling court all week, was “not an extraordinary request to make,” she said.

She added: “It’s not like speed is the issue here,” in a case that has been in pretrial proceedings since 2012.

Ms. Maher and several other capital defense lawyers said the pretrial phase is a critical stage of a death-penalty case that requires each defendant have a learned counsel there.

Holding a hearing without one provides appellate lawyers with another argument to challenge any conviction or capital sentence in a case that already has so many issues because of the C.I.A.’s use of torture in its interrogations, she said.