My Lessons from the Cover of Time Magazine: How Defending an Accused Spy Made Me a Better Prosecutor and Teacher

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Richard E. Myers II
Richard E. Myers II '98

Richard E. Myers II '98 is associate dean for student affairs and Henry Brandis Professor of Law at UNC School of Law. This article appeared in the Spring-Summer 2014 issue of Carolina Law.

In September 2000, I received a call from my dad, who was on his cellphone in an airport. “Do you know you’re on the cover of Time Magazine?” His voice held a mix of wonder and fatherly pride. I had no business being there, really. I was there because I was the junior associate on the defense team for Wen Ho Lee.

Dr. Lee was a Chinese-American nuclear scientist at Los Alamos National Laboratories who did classified work for the American nuclear program. When I was assigned to the case, Dr. Lee was facing 59 counts, many of which carried potential life sentences. At his bond hearing, the accusations that he had sold U.S. nuclear secrets to China led the government to characterize the risks to national security should he be granted bond as “potentially catastrophic.” At the time that the magazine cover photo was taken, he had just been released from federal custody. Because I happen to be a relatively big man, I was one of the lawyers who escorted him through a mob of reporters and well-wishers, and that’s how I landed on the cover of Time. That pro bono representation was incredibly rewarding. I got to know Dr. Lee and was part of the team that ultimately helped bring about a just result in his case.

But it was also incredibly risky. When the law firm where I worked took the case, it wasn’t clear whether the firm was going to be infamous for representing a nuclear spy. To his everlasting credit, a senior partner at O’Melveny & Myers, which would put together the defense team, spoke up and said, “I don’t know how this will turn out, but if anyone on Earth needs a good lawyer right now, it’s this man.” The law firm decided to take the case. When I begged to be added to that case, there was a risk that my father would see his eldest son excoriated, not feted, for defending someone accused of damaging the national security of the United States. The better part of my time for more than a year was spent working for free to defend Dr. Lee. Thanks in great part to the tireless work of his legal team, he walked free after admitting to mishandling classified information, rather than spending the multiple life sentences in prison that he was facing under the Atomic Energy Act.

I don’t dwell on that case too often — the river of time has long since flowed past that point. But in February I joined a panel of speakers on the subject of prosecuting terrorism cases at a symposium put together by our students at the North Carolina Journal of International Law and Commercial Regulation. I was transported back to the early uncertainty in Dr. Lee’s case, when we didn’t know who was wrong and who was right. I reflected on the choices we all have to make about building a legal system that is capable of protecting our collective security while defending the rights of every individual who stands accused by the state. At the symposium, I explained some of the legal mechanisms that we use to try to strike the balance of interests — such as the Classified Information Procedures Act, designed to ameliorate the risk that defendants will threaten to reveal our secrets in order to “graymail” the government into dropping a prosecution.

I also talked about the ethical responsibilities of the lawyers on both sides of national security cases. As part of the defense team, I held a security clearance at a classified level above top-secret, and I know things that I can never share. Mandated silence is a restrictive box for a former newspaper reporter and current law professor, by the way. But it’s a proud part of my past that I represented Dr. Lee in the most trying time of his life. In one of life’s interesting twists, after representing Dr. Lee, I went on to become a federal prosecutor and worked with one of the attorneys from the other side of the case, who is now one of my closest friends.

Being a good lawyer, either as a prosecutor or a defender, requires an undefinable mix of self-confidence and humility, courage and sympathy, energy and creativity, and old-fashioned hard work. I tried as hard as I could every day I practiced law to get that blend right, and my work as a prosecutor was irrevocably affected by my time as a defense lawyer. I hope that the lessons I teach my students, explicitly and implicitly, help prepare them in some small way for the balancing act that they will go forth and face. It’s fashionable to mock the legal profession, but when what you really need is a good lawyer, nothing, and I mean absolutely nothing, else will do. I chose to come back and teach at Carolina Law so I could spend my time helping train good ones.

-June 12, 2014

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