A Fearless Fighter for the Underdog

15 Dec 2016
Author: Robert Precht
Category:

This Wall Street Journal article is a fine portrait of a defense lawyer who has made a career defending the most unpopular people. Having represented an accused terrorist myself, I can identify with Thomas Durkin.  

 

 Terror Suspect’s Best Hope in Court

By NICOLE HONG, December 14, 2016

Last month, Mohammed Hamzah Khan received 40 months in prison after he admitted to trying to join the terrorist group Islamic State, far less than the average 15-year sentence imposed in similar cases. The man behind the lenient deal for the 21-year-old from the Chicago suburbs was Thomas A. Durkin, a lawyer who has built his career representing suspected terrorists, white supremacists, child pornographers and other highly unpopular defendants.

As the Justice Department cracks down on domestic sympathizers of Islamic State, Mr. Durkin’s clients increasingly include young American Muslim men facing federal terrorism charges. With at least five domestic terrorism suspects as clients, Mr. Durkin is one of the busiest national security lawyers in the U.S.

“He’s earned his reputation as a fearless fighter for the underdog,” said Thomas Sullivan, a partner at Jenner & Block LLP. “He is blunt and doesn’t mind saying what he thinks even though it may get him in trouble.”

Mr. Durkin, who has practiced law for more than four decades, took on his first terrorism case shortly after the attacks on Sept. 11, 2001, when he was asked to help an Islamic charity in Illinois whose funds had been frozen. The American Civil Liberties Union later selected him to be a civilian lawyer helping with the military commissions in Guantanamo Bay, Cuba, where he represented an alleged plotter of the 9/11 attacks.

The 70-year-old says defense lawyers have an obligation to level the playing field for defendants in federal court, where the rate of conviction is higher than 92%.“I don’t do this because I think my clients are wonderful people who should be exonerated,” he said. “I do it because I think I have a role in the system.”

Raised in an Irish-Catholic neighborhood on the South Side of Chicago, Mr. Durkin initially thought he would join the military. But as a college student at the University of Notre Dame in the mid-1960s, he developed a distrust of government after he fell into a crowd of what he calls “kooks” and “leftists” who stoked his opposition to the Vietnam War. He avoided the draft after college by teaching at inner-city schools around the country. Then he enrolled in law school at the University of San Francisco because he liked the idea of defending criminals who were underdogs.

After working as a solo defense lawyer for a few years, and struggling to land enough clients, Mr. Durkin joined the U.S. attorney’s office in Chicago to boost his experience.

Mr. Durkin says he had a choppy six-year stint as a federal prosecutor, partly because he drank too much. “It’s a straight place,” he said. “You’re not supposed to be out drinking in the middle of the afternoon if you’re an assistant U.S. attorney.”

In one case he prosecuted, he faced off against a federal defender named Janis Roberts. She spoke to one of his defendants and called to let him know. His first words to her, screaming, were, “Who the f--- called you?” they both recall. They eventually got married, raised six children and have run their Chicago law firm together for more than three decades.

Mr. Durkin is known in Chicago’s legal community for sometimes sparring with judges. In 2014, during a heated back-and-forth with federal appeals Judge Richard Posner, Mr. Durkin said, “What I don’t understand is why you’re hostile to me in this, why your tone of voice is hostile.” Judge Posner responded, “If you don’t answer my questions, I get irritated.” That combativeness extends to family—and facial hair. He once got into a fistfight with his father on their front porch when Mr. Durkin refused to shave his now-signature bushy mustache.

Prosecutors who have worked against him say Mr. Durkin’s private conversations with the government often veer into philosophical discussions about the war on terror, and are peppered with references to theorists like Michel Foucault.

Mr. Durkin has often been confused with Thomas M. Durkin, a federal district judge in Chicago. They worked in the U.S. attorney’s office at the same time. Mr. Durkin became known as “Evil Tom” because of his frequent battles against the government. The future judge was called “Good Tom.” Judge Durkin, in an interview, explained the nicknames: “The other Tom is sometimes loud, sometimes irreverent. I am not loud. I am not irreverent. That’s why I’m a judge now, and he’s a criminal defense attorney.”

Mr. Durkin says he has gone to great lengths to learn the broader context of the government’s terrorism prosecutions. For eight years, he has taken graduate courses at the University of Chicago in religion and nationalism. After Mr. Khan’s arrest, he visited mosques in the Chicago area to hear concerns from the community.

“He’s often the first attorney people turn to,” said Omer Mozaffar, a Muslim chaplain at Loyola University in Chicago. Mr. Durkin has been criticized by lawyers and judges who say he seeks too much publicity. He admits to using the media strategically in Mr. Khan’s case. He and his legal team encouraged the defendant’s parents to go on TV, where they condemned Islamic State. In news conferences, he repeatedly called the prosecution “politically motivated.”

Between media appearances, Mr. Durkin pushed one message above others: that Mr. Khan was a misguided teenager who fell prey to Islamic State’s propaganda, but had no desire to commit actual violence. Mr. Khan was arrested with his two younger siblings in October 2014 before they were able to board a flight to Turkey.

Following lengthy negotiations, Mr. Khan pleaded guilty and cooperated in exchange for a lighter sentence. In asking the judge for leniency, Mr. Durkin wrote: “A year in college versus a year in prison is what hangs in the balance. It is the right thing to do.”

The judge agreed. Mr. Khan received a sentence that will allow him to leave prison in August 2017. He plans to enroll at College of DuPage, a community college in Illinois.