11:35 PM PDT on Friday, July 15, 2005

By kgw.com and AP Staff

U.S. government attorneys repeatedly apologized again for having wrongly arrested Portland lawyer Brandon Mayfield in connection with the deadly Madrid train bombings, but his attorneys told a federal court Friday that sorry wasn't enough.

AP File

Brandon Mayfield walks arm-in-arm with his daughter, Sharia Mayfield, 12, left, and his son, Famir Mayfield, 10, outside a federal courthouse in Portland.

A little more than a year ago in May 2004, the bespectacled Mayfield sat in a holding cell inside Portland's federal courthouse, suspected of involvement in bombings that ripped through commuter trains in Madrid, killing 191 people that March.

Mayfield's fingerprints, the FBI said, were found on a bag of detonators near the scene of the carnage -- prints which three senior agents analyzed and vetted. But their analysis was wrong and they later said the prints belonged to someone else.

Now, a year and two months after FBI officials released Mayfield and first apologized for bungling the fingerprint examination -- the 39-year-old man returned to the courthouse, this time wearing a suit instead of prison scrubs and accompanied by a team of attorneys to sue the U.S. government.

During a pretrial hearing in a packed U.S. District courtroom, government attorneys expressed their regret for Mayfield's two-week incarceration, calling the incident an "unfortunate mistake," but they refused to bend on the key issues of his civil suit, filed last October.

"This is case of a reasonable mistake," said U.S. Department of Justice attorney Richard Montague. "He's an innocent man, husband, father, attorney, member of this community. But that was not apparent at the time."

But celebrity attorney Gerry Spence, Mayfield's lead lawyer, pointed his finger at the table of government lawyers and said: "Although they say 'We're really sorry,' we haven't had an opportunity to say if sorry is enough."

Mayfield alleges his civil liberties were violated and that he was singled out because of his conversion to the Muslim faith. He is seeking unspecified damages.

He is also asking the government to return to him the copies of personal effects seized from his home during secret searches conducted prior to his arrest. And more importantly, he wants the sections of the Patriot Act, the law which authorized those secret searches and the installation of wiretaps, to be declared unconstitutional.

Lawyers for Mayfield pressed their demand in court that the FBI return or destroy copies of paper and computer files seized, arguing that keeping copies of any seized files amounts to an invasion of Mayfield's privacy.

"A man we now know was innocent found himself in the crosshairs of the FBI and the Department of Justice," another Mayfield attorney, Elden Rosenthal, told a three-judge panel of the 9th U.S. Circuit Court of Appeals. "An innocent man should not have his private papers seized."

Mayfield's lawyers, gov't fight over seized files

In the first of two pretrial hearings to be held in his lawsuit, attorneys for the two sides sparred repeatedly over Mayfield's demand that copies made of his private papers, including the confidential files of his clients taken from his Portland law office, be returned.

Department of Justice lawyer Jeffrey Bucholtz said that the government "does not want to keep the materials for a nefarious purpose."

Kirby Heller, another Justice Department lawyer, argued the federal government needs the copies of the files to prepare its defense against Mayfield's civil suit because it challenges the Patriot Act.

The act broadened the Foreign Intelligence Surveillance Act of 1978, or FISA, which allows federal agents to collect information on suspected terrorists. The Patriot Act now permits that information to be used in criminal prosecutions.

But Rosenthal said the government should not benefit by keeping private records obtained by mistake.

KGW photo

Brandon Mayfield holds a copy of the Quran he was given by Multnomah County deputies while in jail.

"The government has said we are satisfied we made a mistake. We got the wrong man," Rosenthal told the judges.

Judge Andrew Kleinfeld, who sharply questioned both Rosenthal and Heller, said the search of Mayfield's home was lawful despite the mistake.

"If it was an unlawful search I'd have no problem destroying all copies," Kleinfeld told Rosenthal. "But once there is a lawful search, the subject of the search has already lost his privacy."

Heller said the government acted in good faith but now needs the copies of the files to defend itself. "The test is reasonableness," she said. "The sanction of destroying copies is extreme."

Kleinfeld, however, appeared skeptical: "Why are you entitled to more to defend yourselves than any other litigant in a civil suit?" he asked Heller.

The three appeals court judges gave no indication when they would rule.

An internal FBI e-mail released this week with court documents said agents did not have enough evidence to charge Mayfield with a crime as the FBI raced to make an arrest before reporters found out Mayfield was a suspect.

The FBI instead arrested Mayfield as a "material witness" under a law originally intended to protect witnesses but now criticized by the American Civil Liberties Union and other civil rights advocates as a tool to hold suspects without charging them with a crime.

Legal analysts differ on strength of Mayfield case

Legal experts agree that Mayfield, who has never been to Spain, was wronged.

But they are divided over whether he will be successful in challenging portions of the Patriot Act, which is currently at the center of a heated Congressional debate.

"Because the Patriot Act is up for renewal, Mr. Mayfield's case is important because it shows how the government can secretly avoid the civil rights and civil liberties of Americans -- and leave no one secure from secret government spying and investigations," said Rosenthal.

In the course of hearings on Capitol Hill, opponents of the Patriot Act have frequently held up Mayfield as an example of how the government's overreaching can net innocent Americans.

AP photo

Brandon Mayfield talks on the phone following his release from jail.

"What strikes me is in a way he's an 'everyman' -- he was born in the Midwest, raised in Kansas. He served honorably in the military. He went to law school," said Lisa Graves, senior counsel for legislative strategy for the ACLU. "His case is in many ways symbolic of the problems with the ways this administration has redefined the law."

The first major hurdle that Mayfield's legal team will have to cross is a motion by the government, asking the judge to dismiss the parts of the case which challenge the constitutionality of the Patriot Act.

Other issues on the table are whether the judge will order the government to disclose exactly what was seized from Mayfield's home and office in the period leading up to his arrest, and whether the three agents who incorrectly matched Mayfield's print to the one found at the scene of the bombings in Spain will be granted immunity.

The case hinges on the larger argument that the U.S. Department of Justice did not have probable cause to arrest Mayfield.

That's going to be a tough case to make, said former federal prosecutor Stephen C. King, former director of Investigations and Law Enforcement for the White House Office of Homeland Security.

"I think everybody understands and feels the outrage he felt for being arrested, but as a legal matter I think he has a tough road to hoe," said King, who is now in private practice.

"He has to successfully argue that the government did not have probable cause to do what they did. The problem with that is at the early stages if you have a fingerprint, you have probable cause because at the early stage, they didn't know they had bungled it," he said.

Mayfield legal team: FBI botched case from start

Mayfield's legal team contends that there is plenty of evidence to show that the FBI was not on firm footing when they made their arrest.

On March 11, 2004, soon after 10 bombs ripped through commuter trains in the Spanish capital, Spanish police found a bag of detonators under the passenger seat of a stolen van parked not far from one of the train stations.

Fingerprints recovered from the bag were sent to the FBI a few days later, where a computer program returned 20 candidates -- including Mayfield's, which the computer ranked as the fourth most-likely match, courts records show.

Mayfield maintains that it was his Muslim faith which led the three agents -- who each analyzed and vetted the print -- to fixate on his fingerprint, rather than the others.

That, Mayfield argues, blindsided their analysis, leading investigators to arrest the soft-spoken lawyer who has never traveled to Spain, even after Spanish forensic experts met with FBI agents to convince them that their analysis was wrong.

"Mr. Mayfield was No. 4, not No. 1. And we'd like to know how someone who the computer says is No. 4, not No. 1, is charged and put in jail," said Spence.

Spence also argued that the FBI deceived U.S. District Judge Robert Jones, who issued the warrant for Mayfield's arrest last May without ever learning that Spanish investigators had raised serious doubts about the match. The FBI instead told the judge that Mayfield's print was a "100 percent positive" match with the one found in Madrid.

A court document filed by the Justice Department counters that "Mayfield was not arrested because he was a Muslim, but rather because fingerprint examiners believed his print to match the Spanish print."

Montague, one of the Justice Department attorneys, said that the Spanish forensic identification system is significantly different from the one used by the FBI. Whereas American agents compare ridges and other features to determine if a print found at a crime scene matches that of a suspect, Spanish investigators use a "points of similarity" system.

"You have two different agencies looking at the evidence through two different protocols," said Montague.

The government offered Mayfield the chance to go to arbitration to resolve some of the issues in the lawsuit. But Spence told the court that many of the issues, especially regarding the constitutionality of the Patriot Act, are "nonnegotiable."

Mayfield's attorneys contend that it was only through the powers accorded to the FBI through the Patriot Act, that agents were able to obtain permission to wiretap Mayfield's home and office and to secretly enter his residence to gather personal items.

"You know what I want you to do? I want you to decide on the constitutionality of the Patriot Act," Spence said, directly addressing Judge Ann Aiken toward the end of the hearing. "I am not going to be on the face of this earth for much longer...and the most important thing I could do is ask you if the Constitution of the United States is going to go flopping down out the window of this courtroom."

Portland attorney John Henry Hingson III, former president of the National Association of Criminal Defense Lawyers, said that whatever the outcome of the lawsuit Mayfield's wrongful arrest "was as black of an eye as the Federal Bureau of Investigation has ever received in any bout."