COMM 317: Facts and law, an extreme case

As we keep exploring why -- and how -- lawyers think like lawyers, we'll learn how to brief cases. A good definition of what law students do when they brief a case is put out by the City University of New York's law school. It says:

A student brief is a short summary and analysis of the case prepared for use in classroom discussion. It is a set of notes, presented in a systematic way, in order to sort out the parties, identify the issues, ascertain what was decided, and analyze the reasoning behind decisions made by the courts.

To simplify a little, they analyze a case by breaking it down into: (1) the facts of the case; (2) the legal issues, or questions of law involved in the case; and the court's decision or holding.

Sometimes, the cases can be difficult. One that's in the news this week is the decision by Scottish justice minister Kenny MacAskill (whose office is equivalent to an attorney general in the U.S.) to release Lockerbie bomber Adelbaset al-Megrahi, a Lybian convicted of causing the deaths of 259 passengers and crew aboard Pan Am Flight 103 and 11 villagers who died when the plane was bombed in midair and struck a schoolyard in the Scottish village of Lockerbie in 1988. That decision has been hugely controversial, both in Scotland and in the United States, where the aircraft was bound on a flight from London.

Writing in The Guardian, a British newspaper, editorialist Iain Macwhirter lays out the legal issues:

MacAskill's defence is that he acted in accordance with the laws and values of Scotland – as indeed has been accepted now by No 10 [British slang for the Prime Minister or head of the British government, equivalent to the "White House" in our political slang] in its statement today. The Scottish justice minister is a lawyer and something of a stickler for "due process" – for following the accepted rules for coming to a legal decision. Prisoners in Scotland, no matter their crime, are eligible for release on compassionate grounds if they have a terminal illness which will likely kill them within three months. When application has been made, and provided the medical evidence is sound, the justice minister is required to consult key authorities, including the Parole Board, the prison governor and the social work agencies. This he did. All these bodies recommended that Megrahi should be released on compassionate grounds. ...

So let's try to sort it out ...

What are the facts? According to his profile in Wikipedia, Megrahi, a Lybian intelligence officer, was convicted on 270 counts of murder and conspiracy to commit murder in connection with the bombing. After 12 years of legal maneuvering, according to Wikipedia, "Court proceedings started on 3 May 2000, and the judges announced their verdict on 31 January 2001. They said of Megrahi: 'There is nothing in the evidence which leaves us with any reasonable doubt as to the guilt of the first accused, and accordingly we find him guilty of the remaining charge in the indictment as amended.'" Megrahi has maintained throughout the proceedings that he is innocent, and there is considerable sentiment that Megrahi may be innocent of the actual murders. But his trial, like most trials, was to establish the facts. And the trial judges decided the evidence, i.e. the facts, showed him to be guilty. In appellate cases, the trial court's factual decisions usually stand. So while the facts in the case aren't 100 percent clear, they're clear enough. It is also a fact that Megrahi is dying of cancer.

But what about the law? The law is clear, too. Scottish law says any convicted felon can be released, should be released, on compassionate grounds if certain conditions are met. One of those conditions is a terminal illness. So law minister MacAskill decided he had no choice but to release Megrahi under the law.

There is also an ethical component to this case. Reaction was swift and harsh, and Wikipedia notes that "the White House [our equivalent of No. 10 Downing Street, right?] issued a statement saying it deeply regretted Scotland's decision to release Megrahi and also extended its deepest sympathies to the families of the victims." What do you do, ethically, with a guy who murdered 270 people? Does it matter that Scotland doesn't have the death penalty? Also this: Macwhirter's article quoted former British Labour minister Malcolm Chisholm, who said the decision to release Megrahi was "entirely consistent with both the principles of Scots Law and Christian morality, as evidenced by the widespread support of churches across Scotland."

Lots of gray area there. Enough to make your head ache ...