Game Day

The day I have been praying about and preparing for over the course of three years finally arrived.

This morning I awoke at 2:00 a.m. to the kind of thunderstorms I have only experienced in Africa.  They are Biblical in proportions.  In addition to the bunker-busting thunder strikes, I could hear the showers ricocheting off the roof, the side of the house, the window, and . . . pieces of paper?  After a few moments, I remembered that there are screens above the windows not covered by glass, and the side-winding, cloud-borne sprinkler system pelting the side of the house was also penetrating the screen . . . onto the papers I had foolishly left by the window.  I scampered out of bed and moved the court papers I needed later in the morning.  Fortunately, nothing important was damaged, and I was back in bed within a couple minutes.

As I lay there listening to the thunder and rain, I wondered whether this was the final angry gasp of a three-year storm, or whether it was the opening another darker chapter.  I dozed off and on until 4:00 a.m., then got up to run through everything one more time.

The driver picked me up at 5:30 a.m., and we picked up Henry at 6:00.  As I climbed into the back seat of the taxi with Henry, I stepped in a mud patch and caked my shoes.  Brilliantly, I then set my backpack on the floor of the taxi at my feet.

Unsurprisingly, we encountered no significant traffic, so we were into Kampala by 6:45.  Since the hearing wasn’t scheduled to start until 9:30, we had some time to kill.  We decided to do so at David’s office in the Commercial Court.  When I went to open my backpack, I cradled it against my body.  Big mistake.

“Oh, sorry, sorry,” said Henry as he pointed to the mud streaking my stomach. I spent the next five minutes trying to wash out the red stain on my tuxedo shirt, which is what Ugandan advocates wear when they appear in court.  I met with only limited success.

Ugandan Red Dirt on a Tuxedo Shirt

I had brought along a Flip video camera, so I interviewed Henry for a few minutes so we could capture the moment.  Henry then said it was my turn to answer questions, and that he wanted to make sure we never forgot how we were both feeling at that time.

Since the court of appeals does not video the arguments, I decided to tape myself doing one last run through with Henry at my side.  At 7:45, we headed to the court of appeals and had breakfast in the restaurant next door.  Before we left the restaurant, we spent some time praying together.

At 8:45, we walked into the courthouse.  I felt much more calm than I had expected – prayers and preparation proved rather beneficial.

At 9:00 a.m., the court staff confirmed there was a full three-judge panel ready and that everything was a go.  Two weeks ago, the panel was announced, and it included the acting Deputy Chief Justice (DCJ).  The DCJ has been rather sick and has been inconsistently appearing in court.  And when she is not there, the cases on the panels to which she is assigned are adjourned until the next session, which is typically three to six months later.  Compounding this problem, the DCJ’s brother died last week.  He was the Deputy Prime Minister, so this created the additional risk that the DCJ would not attend the hearing.  But by 9:00 a.m., the court staff had confirmed that the DCJ was being replaced another judge on the panel today, so I thought everything was a go.

At 9:15, Edward Sekabanja (local counsel working with me) arrived and helped me tie on the requisite silly neck scarf and put on the robe.  Still no sign of the prosecution lawyer.  Still quite calm.

At 9:30, another lawyer with whom I have worked on the juvenile justice projects arrived, as he had a matter before the court this morning also.  This lawyer told me he had spoken with the prosecutor the day before, and she was considering not contesting the appeal.  Excellent.

At 9:45, the prosecution arrived.  I introduced myself, told her I would be arguing the case, and tried to make small talk, hoping she would tip her hand.  No dice.  Edward had a little more luck, but my heart sank when he reported to me what she said.

“She will be asking the court to adjourn the case.”

“Why?”

“She says she is not prepared for the hearing.”

“Why not?”

“She says she didn’t think the hearing would take place today, so she didn’t prepare.”

“Wait.  What?  How long does she want to the delay the hearing?”

“Until she has time to prepare.”

I knew this session was ending on Thursday, so I feared the worst.  She would be seeking to kick the can down the road . . . again.

Just before 10:00, a loud “boom” echoed throughout the courtroom as the judges were “knocked in” by the court clerk.  My own heart aftershocked the “boom” as the judges filed into the courtroom.  This was it.  As they sat down, I became a magnet for the six judicial eyes who appeared not to have expected a mzungu to be sitting among the other robed advocates.  Not that I could blame them — no American has ever appeared in the Ugandan Court of Appeals, or any other Ugandan court.

On the docket for the day were four cases.  We were third in line, and the fourth case involved six co-defendants, whose families had all come to watch.  The first two cases were summary proceedings whereby the defense lawyer moved that the cases be remanded to the trial court in light of a recent Uganda Supreme Court decision casting doubt on the sentences issued in those cases.  The prosecution did not oppose these motions, so it was game time.

When our case was called, Henry was led to the dock and I stood before the court.  I introduced myself, my co-counsel Edward, and the prosecuting attorney (as is the custom).  As soon as I introduced her, she asked to be heard on a motion.  Edward gently pulled down on my robe, indicating I should sit.  Apparently, they have a one-lawyer-standing-at-a-time rule.  Good to know.

The prosecutor proceeded to request an adjournment on the grounds she was not prepared because she did not expect the court to sit today.  The judges just stared at her blankly, and then one asked “Why not?”

She explained that she knew the DCJ would not be here, and no one contacted her office to tell her the hearing would still proceed anyway.  To put it gently, they were not impressed.  “So you want us to adjourn because this is not the panel you wanted?”  They asked her if she could be ready tomorrow.  She hemmed and hawed and ultimately agreed she could be, if necessary, but preferred a longer adjournment.  Then came my turn to stand.  I calmly, but unapologetically requested that we proceed with the case as scheduled.  I explained we had provided extensive briefing well in advance of the hearing, and that it was very difficult to get Henry out of school for today’s hearing.

The judges conferred amongst themselves for about a minute and then the judge in the middle began writing.  Three minutes later, he was still writing.  One of the other judges who had been leafing through the record turned to Henry and said with a warm smile,

“How old are you?”

“I am nineteen.”

“I see you will be twenty very soon.”

“Sir?”

“When were you born?”

“I was born on the 18^th of March, 1993.”

The judge nodded and smile widely back at Henry.

“It was a Friday at 7:00 p.m.,” Henry said with an even bigger smile.

The audience of about forty erupted in laughter.

“How do you know that?” The judge playfully responded.

“My mum told me.”  More laughter.

This back and forth cut through the heavy tension in the room, as we all waited for the court’s ruling on the prosecution’s motion.

When the laughter died down, the judge in the middle began to read his ruling.  He reiterated the request and the supporting reasoning, . . . then denied the motion.  The hearing would proceed.

Now, both energized by the ruling and relaxed by the banter, I stood again and re-introduced myself, explaining I was appearing pursuant to a Special Practising Certificate (that’s how they spell it here) and I was ready to proceed whenever directed to do so.

“Where is your certificate?”

“Right here,” I responded and handed it to the clerk, who brought it to the judge in the middle.

He inspected it, nodded ever so slightly, and handed it to the judge on his right.  She inspected it, nodded approvingly, and passed it back to the judge on the other side – the one who had been chatting with Henry.  He squinted at it and then pointed to one portion of it as he handed it back to the judge in the middle.  He squinted as well, shook his head, and then passed to the third judge.  Crap.

I knew exactly what they were looking at.  It was the first thing I noticed when I saw it for the first time.  It has my name, the date, and the necessary signature.  But the space for the identification of the single case in which I am authorized to appear . . . is blank.  My heart sank again.

Can you find the blank spot?

“Why is the case not included?”

The one-lawyer-standing-at-a-time rule turned the bench into a gravitational field and sucked by butt straight down.  Up popped Edward, who proceeded to explain to the court the number of difficulties encountered to get the certificate issued in the first place, and that his office had not gone back to the law council to fix the mistake.  That argument struck me as about as strong as the prosecution’s motion to adjourn the case.  At that moment, it seemed like it would meet with the same fate.

The judges again conferred, and then the one in the middle declared that since the special practising certificate did not contain the name of the case . . . it would be deemed to be a general practising certificate, which contained no limitation.  The magic words “you may proceed, counsel” followed.

“May it please my Lords, I would like to request 30 minutes for my opening submission, though I hope to conclude in less time.”  What I heard in response was “you may have twenty minutes,” though David Nary assures me he actually said “you may have thirty minutes.”  (I still occasionally struggle with the accent).

Somewhat surprised, though not shaken, I replied, “Thank you, my Lord.  I will conclude within twenty minutes.”

During my time as a law clerk on the federal court of appeals, and during my time in DC at Kirkland & Ellis, I have seen a handful of stellar advocates argue before the courts of appeal and Supreme Court.  I could easily imagine someone who saw my argument say, “I know Ken Starr.  Ken Starr is a friend of mine.  You are no Ken Starr.”  And I would agree.  Without reservation.

That being said, I truly feel like things went as well as I could have hoped or imagined in my opening argument.  Whatever level my potential is, I reached it.  And I could ask for nothing more.  I (mostly) overcame my tendency to speak quickly, and didn’t feel nervous even for a moment.  Prayer and preparation.

The judges didn’t ask a single question.  As I sat down, I glanced over at the prosecutor and noticed she had several pages of notes she had taken while I spoke.  She would not be conceding.  Over the next fifteen minutes, she made all the points I would have made in response to my argument, and she made them well, even citing to several pages in the record to make her points.  She was prepared after all.  Why had she sandbagged?

On rebuttal, I got in and got out on about six different points over the course of about six minutes.  I felt like I hit back hard on each of her strongest arguments.

And then it was over.  Relief washed over me.  The case was now where it has always been – in God’s hands.  He has entrusted it, however, for the time being, to the Ugandan Court of Appeals.

Adrenaline coursed through my veins for the next half hour as Edward, Henry, David, and I replayed the action while we talked outside.  Edward said he feels good about the likely outcome, but what is he going to say?  “You sucked and we are going to lose?”  Another lawyer there said he thought the court could go either way.  We shall see, though likely not for another several months.

We took some photos, hugged it out, and then I put Henry into a taxi back to school.

Post-argument team photo

David and I are now on the way to Fort Portal to visit another juvenile remand home and an adult prison to see if we can be of assistance in expediting the cases of those awaiting trial there.

Henry and I have been so blessed and overwhelmed by the outpouring of prayers and encouragement.  He specifically asked me to thank everyone who has been praying for him, and to tell them he loves them.  I echo his sentiments.