All the defendants raised their hands as far as the shackles allowed.
"Good. I need to inform you of your constitutional rights." He put on his glasses and read their rights. "You have the right to remain silent. You are not required to make a statement. If you have already made a statement, you are not required to say anything more. If you start to make a statement, you may stop at any time. Any statement you do make may be used against you at trial. You have the right to an attorney. An attorney will be appointed to represent you if you cannot afford to hire your own attorney. Ms. Meyers has been appointed to represent you at this arraignment, but each of you must complete a financial affidavit to qualify for appointed counsel. Ms. Meyers will assist each of you after the hearing. Keep in mind that you are swearing to the statements in the affidavits, so false statements may subject you to a charge of perjury. I need each of you to confirm on the record that you understand your rights. Judge Herrin will call roll. Please step forward and answer aloud for the record."
Bobby called each defendant's name, and each defendant answered yes.
"Gentlemen, you have each been charged with conspiracy to use a weapon of mass destruction-specifically, that you and your co-defendants plotted to detonate a bomb within Cowboys Stadium during the Super Bowl-which offense carries a statutory maximum punishment of life in prison, and lesser charges which carry lesser penalties. These are serious felonies brought by the U.S. government. If found guilty, you could spend the rest of your life in prison. Ms. Meyers, have you been given a copy of the indictment?"
"Yes, sir. I was reading it in the elevator."
"And has each defendant been given a copy?"
"I'm having copies made."
Scott turned to the U.S. Attorney. "Mr. Donahue, you have twenty-three defendants. You should have delivered twenty-three copies to Ms. Meyers."
"My bad, Your Honor."
"The defendants haven't had time to read the charges or consult with their attorney, so I won't be taking any guilty pleas this morning. Not that I expect to since Ms. Meyers's boss instructed her to plead them not guilty."
Ms. Meyers smiled.
"Judge, would you like me to read the indictment?" Mr. Donahue said.
A copy of the indictment sat on the desk in front of Scott. It numbered 203 pages.
"Ms. Meyers," Scott said, "do the defendants waive reading of the indictment?"
"Uhh ... should they?"
"We might be here a while if they don't."
"Defendants waive reading of the indictment."
"Very well."
"The government objects," Mr. Donahue said.
"Don't." Scott again addressed the defendants. "Gentlemen, do you understand the charges brought against you? I will need you to answer aloud for the record. And each of you must enter a plea to the charges. You may enter a plea of guilty, not guilty, or nolo contendre, although the only plea I will accept today is not guilty. If, after reading the indictment and consulting with your lawyer, you want to plead guilty, we will reconvene to change your plea. When Judge Herrin reads your name, please step forward, state yes that you understand the charges or no you do not, and then enter a plea."
Bobby again read each name.
"Moammar Rahaim."
A defiant looking young man raised his shackled hands and spoke. Defiantly.
"Yes. I understand the charges the U.S. government has brought against me and against Islam. We both plead not guilty."
"Syed Aboud."
"Yes. Not guilty."
"Adwan Farhat."
"Yes. Not guilty."
Nineteen more defendants pleaded not guilty. Then came the last defendant. Scott addressed him.
"Omar al Mustafa, do you understand the charges brought against you by the U.S. government?"
"I do not."
"What do you not understand?"
"Why I was charged."
"You were charged because a federal grand jury determined that there is probable cause to believe that you committed the alleged offenses. Whether you are guilty or not will be determined at trial where you will be represented by counsel appointed by the government if you cannot afford to hire a lawyer."
Mustafa turned to Ms. Meyers and looked her up and down. He turned back to Scott with a bemused expression.
"This cute little girl? She is my lawyer? She should be home having many Muslim babies."
"I'm not married or Muslim," Ms. Meyers said.
"You could convert."
"I'm Jewish."
"I'm sorry."
"Mr. Mustafa," Scott said, "the question now is whether you understand that you have been charged with serious felonies that may result in your imprisonment for a very long time."
"I do understand that."
"Good. How do you plead to such charges?"
"Not guilty."
"Not guilty pleas will be entered in the record for all defendants. Under the Speedy Trial Act, a defendant in federal court is entitled to a trial within seventy days of the arraignment. So trial is set for ..."
Scott waited for Karen to consult the court's docket.
"March the seventh," she said.
"March the seventh at nine A.M.," Scott said. "The defense may request a continuance. The case is currently scheduled as a joint trial of all defendants. If any defendant does not wish to proceed jointly with the others, he may file a motion for a separate trial. And each defendant may request separate counsel. That's your right. Defendants who elect to have joint representation will be required to sign a waiver of their right to separate counsel. After the arraignment, the magistrate judge will go through the waiver procedure with each defendant here in court. The magistrate judge will send out a motion schedule to both attorneys in a few days. Last item: the defendants' release pending trial."
"Your Honor," Mr. Donahue said, "the government requests pre-trial detention of all defendants and moves for a detention hearing on the grounds that under the Bail Reform Act, section thirty-one-forty-two-f-two, A, the defendants pose a serious risk that they will flee the jurisdiction before trial, B, they will obstruct or attempt to obstruct justice, and threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror, and C, under section thirty-one-forty-two-f-one of the Act, they have been indicted for an offense listed in eighteen U.S.C. section twenty-three-thirty-two-b, specifically, the use of weapons of mass destruction. And the presumption applies under thirty-one-forty-two-e-three-B."
"Ms. Meyers?"
She stared open-mouthed and wide-eyed at the U.S. Attorney like an English major listening to a computer geek explaining algorithms.
"Ms. Meyers?"
She turned her wide eyes to Scott. "Yes, sir?"
Scott sighed. He had once been where she was, in over her head. Drowning in the complexity of the law. Clueless. She was in desperate need of a teaching moment.
"Ms. Meyers, as I'm sure you learned in law school, under the U.S. Constitution the defendants are entitled to release pending trial unless they are flight risks or dangers to the community. They may not be detained pending trial for any other reason. The Bail Reform Act sets forth rules for release and detention in federal court, rules I must follow. The Act states that I must release the defendants on their personal recognizance unless I determine that they are in fact flight risks or dangers to the community. In that event, I must still release the defendants but I must impose the least restrictive conditions to their release that will ensure their appearance at trial and negate their danger to the community. I am not allowed to set bond in an amount the defendants cannot afford simply to effect their detention. If I determine, after a detention hearing, that there are no conditions that will ensure the defendants' appearance at trial and the safety of the community, only then may I order the defendants detained pending trial."
Ms. Meyers was actually taking notes.
"The Act further provides that if there is probable cause to believe the defendants committed certain prescribed offenses, there is a rebuttable presumption that no such conditions exist; that is, there is a presumption of pretrial detention. One of those offenses is conspiracy to use weapons of mass destruction. In this case, probable cause has been established by the fact of the indictment; an indictment means a grand jury found probable cause to believe the defendants committed the crime. Which, Ms. Meyers, means that the defendants will be detained pending trial unless you, as their duly appointed counsel, rebut the presumption at the detention hearing."
"And how do I do that?"
"You must present some evidence at the detention hearing that contradicts the government's assertion that the defendants are flight risks or dangers to the community. You don't have to prove the defendants' innocence on the charges; you only have to present evidence that they are neither flight risks nor dangers to the community. You may cross-examine the government's witnesses and you may present your own evidence and witnesses. And since the government invoked the presumption, you may subpoena witnesses whose testimony will relate to the weight of the evidence against the defendants, one of the factors the court must consider at the hearing."
She threw her hands up. "Like who?"
"I don't know."
"And when is the detention hearing?"
"Your Honor," Mr. Donahue said, "the government requests the hearing be held now."
"Now?" Ms. Meyers said.
"Ms. Meyers," Scott said, "if you need time to prepare for the detention hearing, you may seek a continuance."
"I seek."
"How much time would you like?"
"A year."
"How about five days? That's all the time I can give you under the Act."
"I'll take it."
"I thought you might. Detention hearing is set for ..."
"Friday at nine," Karen said.
"Friday at nine."
"Your Honor," Mr. Donahue said, "the government requests that you preside at the detention hearing rather than the magistrate judge."
"I was planning to but why do you ask?"
"Timing. With the Super Bowl only twenty days away, if the magistrate judge rules on detention the losing party will file an appeal for the district judge-you-to hear the issue de novo, and we'll be back at square one. We don't have time for that."
"Good point. Given the number of defendants, I think Judge Herrin and I will work this case together."
"A good decision, Your Honor."
"Thank you." To the defendants: "Gentlemen, a Pretrial Services Officer will consult with each of you before the detention hearing to prepare a release report. This officer works for the court. His or her-actually, her ... Ms. O'Brien-her job is not to obtain a confession or other evidence or information concerning your guilt or innocence of the crimes for which you are charged. Her sole job is to obtain information about you to determine if you are a flight risk-that is, if you will flee the jurisdiction to avoid trial-or if you are a danger to the community. She will ask for information about your family, criminal history, employment, and other background material. Please help the officer help you. Again, the detention hearing is your only opportunity to secure release from jail pending trial."
Scott sat back and surveyed the courtroom. As the king said in Lord of the Rings, "And so it begins." The girls loved those movies, so they had watched the trilogy more than once. Good prevailed over evil on the battlefield of Mordor. Would good prevail in a courtroom of the United States of America?
"The defendants will remain in custody pending the detention hearing. The magistrate judge will handle the joint representation matter with the defendants. I'll see counsel in chambers. Court is adjourned."
"You're a federal judge. Which means someone will always be mad at you. Because all the issues of the day come before you-abortion, gay rights, gun control, Obamacare, immigration-and you have to decide who wins and who loses. You don't want to, but you have to. It's your job."
The distinguished looking man with wavy white hair was a Democrat but he looked like a Republican. He sat directly across the desk from Scott as if he had called this meeting. Which was understandable. J. Hamilton McReynolds III was one of the most powerful men in the world. He presided over the Department of Justice, the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Drug Enforcement Administration, and the Federal Bureau of Prisons. He was the United States Attorney General, the chief law enforcement officer in America; he reported only to the president, the most powerful man in the world. An Assistant AG sat to his left, the U.S. Attorney to his right; they both knew to keep their mouths shut in front of the boss. The FBI agent named Beckeman whom Scott had seen on the news report stood at attention by the windows; he did not seem the type to keep his mouth shut. The public defender sat on the couch like a child at a gathering of grownups. Scott reached for the bowl.
"Toffee?"
"Don't mind if I do."
Scott flipped a toffee to the AG. The others shook him off, but the FBI agent held up an open hand. Scott fired a strike.
"Amazing what people expect from federal judges, isn't it?" the AG said. "God didn't choose to make life fair, but somehow we must. If only we could. I couldn't." He grunted. "These are good."
Scott pushed the bowl to the AG's side of the desk. "Help yourself." He did. "You were a federal judge?"
He nodded. "Up in Philadelphia. Appointed for life to a lifetime of letting people down. So I jumped when the president offered me this post. Attorney general, I don't have to even think about fair."
"What do you think about?"
"Terrorism."
The attorney general had flown to Dallas for the arraignment of Omar al Mustafa-and a photo op to assure other prospective jihadists in America that the Joint Terrorism Task Force would hunt them down and bring them to justice. He sighed as if the weight of the world-or at least the safety of America-rested on his shoulders. It did.
"So, Judge, can I count on you?"
"To do what?"
"The right thing."
"Which is?"
"Detain Mustafa and the other defendants pending the Super Bowl."
"You mean pending the trial?"
"No, I mean the Super Bowl. That game is the biggest security risk to the homeland we face each year. It's the biggest worldwide sporting event. They would love to attack us then and there, during the celebration of the American way of life."