Banging The Final Gavel At Courtwatch
(CBS)
This column will be my last for CBSNews.com and that means the end of CourtWatch, one of the longest-running, continuously-updated legal blogs ever (indeed, it was a "blog" before that word was even invented). During its run (some 650 full-length columns, some 600,000 words, roughly the length of the Old Testament), CourtWatch relayed in detail large and small the hundreds of chapters which made up the story of American law during the first decade of the 21st Century. If you can remember a legal story from the past ten years, chances are CourtWatch covered it, in whole or in part, as the lawyers say.
Through the years, the column was me and I was the column. Its failings and limitations were (and are) mine and mine alone. Its successes, however, were (and are and will continue to be) shared by my friends and colleagues and bosses at the network, who gave me an opportunity to witness and chronicle some of the biggest legal stories in American history; a presidential impeachment, an election recount, and a terror attack so deadly and unprecedented that its constitutional impact is still uncertain. To be sure, CourtWatch lived through interesting times. That I was able to stick around as long as I did was not just a miracle but a blessing.
There were hundreds of columns about the legal war on terrorism and the death penalty and the politicization of the law. There were columns about the need for judicial independence and about the often murky interaction between the branches of government. There were about a dozen columns over the years calling out politicians for cynically buying into the myth of "judicial activism." There were columns about signing statements and the Posse Comitatus Act. There was even a column or two about good ol' Ruth Jordan. But there was not a single column about Britney Spears' custody problems, unless you count this one and, really, you shouldn't.
Continue »
KSM Trial: A Confederacy for Dunces
(AP Photo/www.muslm.net)
-Andrew McCarthy, writer for the National Review, in an editorial on CBSNews.com, Nov. 16.
"One of the most irresponsible [decisions] ever made by a presidential administration"? Really? More irresponsible than blowing off warnings in August 2001 about al Qaeda attacks within the United States using planes? More irresponsible than starting a war against Iraq based upon faulty intelligence information? More irresponsible than letting Osama bin Laden escape from Tora Bora? More irresponsible than authorizing the torture of terror suspects in contravention of domestic and foreign law? More irresponsible than insisting upon unfair military tribunal rules despite Supreme Court decisions to the contrary?
Conservatives like McCarthy had their chance to prosecute the legal war on terror and America is still cleaning up the mess they have left. For example, the Bush administration and its supporters in Congress had several opportunities to formulate fair trial rules for men like Mohammed. Instead, the executive and legislative branches tried over and over again to force a series of patently unfair procedures down the throats of the federal judiciary. The argument that the "jihadists were prepared to end the military case" before the Obama administration went the federal civilian trial route ignores the legal chaos and inertia that surrounded the tribunals at Guantanamo Bay, Cuba.
Having failed miserably to accomplish the job of prosecuting and convicting terror suspects via tribunal, and being unable to argue against the track record created by the federal courts in trying terrorists, the Right now wants you to believe that there is a great conspiracy afoot. The argument is that President Barack Obama, Attorney General Eric Holder and their apparatchiks are gleefully going to permit or encourage the Mohammed trial to degenerate into a trial of Bush-era torture policies and practices. The premise is that current administration officials would rather punish their predecessors than the man who openly boasts of planning the worst terror attack on American soil. "This will give the Left its promised feast," McCarthy cries.
You need only consider the alleged co-conspirators to this plot to understand how much of a fable it really is. Federal prosecutors will be conspiring with criminal defense attorneys, who will be conspiring with veteran federal trial judges, who will be conspiring with intelligence officials, who will be conspiring with trial witnesses and experts and the media, who will be conspiring with the judges of the 2nd U.S. Circuit Court of Appeals, who will be conspiring with the most conservative Supreme Court in a generation, all to the benefit of al Qaeda and to the detriment of former government officials. In other words, the very same justice system which is designed to encourage conflict and contest in a test of evidence and a search for truth suddenly is going to coalesce around a plan to incriminate Bush officials and help al Qaeda.
Continue »
What Could Go Wrong at KSM Trial, and How to Avoid It
(CBS/ AP)
Monkey Business, Part 1. In 2006, federal prosecutors had to admit during the middle of the Zacarias Moussaoui 9/11 conspiracy sentencing trial that one of their witnesses (the now-forgotten Carla Martin) had violated trial rules by coaching other aviation witnesses set to testify against Moussaoui. The Mohammed trial will draw 100 times the attention the Moussaoui trial drew. The Justice Department simply cannot afford to have one of its lawyers or witnesses go, um, rogue. Its leaders must impress upon its worker-bees that not just history but God will be judging them for the ethical choices they make in connection with the case. No cheating. No hiding the ball.
Monkey Business, Part 2. About a year after Moussaoui was sentenced to life in prison, federal prosecutors had to tell his judge that they had misled her about the existence of certain interrogation videos that might have been relevant to his case. Turns out the Central Intelligence Agency hadn't been exactly candid with its Justice Department colleagues about the tapes—an iteration of the old intelligence versus law enforcement feud. The feds cannot afford such purposely lack of communication now. Federal prosecutors can't be blind-sided by their own colleagues. The President must demand that all executive branch agencies work together. The left hand must know what the right hand has been doing.
Continue »
Young Lives, Long Sentences
(CBS/AP)
At a time when budget shortfalls are causing state and local bureaucrats to release prisoners early from over-crowded and expensive jails, the Justices have chosen to decide whether the Eighth Amendment's prohibition against "cruel and unusual punishment" precludes life sentences without parole for juvenile offenders who have not committed capital crimes.
Two Florida cases bring the topic to the High Court. In one, a 17-year-old was sentenced to life without parole after he was convicted for taking part in an armed home invasion while he was on parole for another crime. In the other, a 13-year-old was sentenced to life without parole after he was convicted for raping an elderly woman.
Continue »
The Trick Was On Us
(GETTY)
First, we learned that Bernard Madoff mocked regulators in a jailhouse interview in which he expressed astonishment that his huge fraud was not unraveled earlier by the Securities and Exchange Commission.
The young investigators, Madoff said, should have "checked basics like his account with Wall Street's central clearinghouse and his dealings with the firms that were supposedly handling his trades," the Times reported. "If you're looking at a Ponzi scheme, it's the first thing you do," Madoff said, in what could pass as an epitaph for the costly debacle.
Continue »
New Pot Policy Is Not Yet a Turning Point
5151079It is easy both to overstate and understate the meaning of the Justice Department's decision Monday to alter its policy toward medical marijuana.
The Obama Administration's ballyhooed shift away from federal prosecution for state-sanctioned pot sales and use does not necessarily signal a turning point in the effort to legalize (and tax) marijuana. We are probably still a generation or two away from that. But the new White House policy is no small matter, either, for it means that tens of thousands of Americans now are free from federal persecution and prosecution for conduct that is completely legal in their own states.
Federal prosecutors now will get little internal blame for failing to bring criminal charges against people who are lawfully selling or using medical marijuana. Nor will federal lawyers necessarily get kudos within the department if they aggressively pursue medical marijuana cases. Forget all the nonsense about federal funding and national endorsements of drug use. The official government position now reverts simply to something akin to legal neutrality: if you smoke it, we won't come, because we have more important things to do with our time.
Continue »
The Obama Administration's ballyhooed shift away from federal prosecution for state-sanctioned pot sales and use does not necessarily signal a turning point in the effort to legalize (and tax) marijuana. We are probably still a generation or two away from that. But the new White House policy is no small matter, either, for it means that tens of thousands of Americans now are free from federal persecution and prosecution for conduct that is completely legal in their own states.
Federal prosecutors now will get little internal blame for failing to bring criminal charges against people who are lawfully selling or using medical marijuana. Nor will federal lawyers necessarily get kudos within the department if they aggressively pursue medical marijuana cases. Forget all the nonsense about federal funding and national endorsements of drug use. The official government position now reverts simply to something akin to legal neutrality: if you smoke it, we won't come, because we have more important things to do with our time.
Continue »
L'Affaire Balloon Boy
(AP Photo/Will Powers)
Now, a few days and countless hours of television face time later, he's just as earnestly trying to save his face and cover his butt.
If the Front Range's ill-fated "balloon ride" were a screenplay, it would have been a remake of "It's a Mad, Mad, Mad, Mad World." Little Falcon Heene was in the Jiffy Pop balloon as it soared over the eastern plains. Falcon was not in the Jiffy Pop balloon when it gently bumped down onto a newly-ploughed field.
Continue »
New York the Wrong Place for Mohammed Trial
(AP Photo/www.muslm.net)
Bringing Mohammed to trial in New York in a capital case certainly has historical, political and narrative appeal -- it would take place just blocks from where the World Trade Center once stood. But locating a death penalty case in downtown Manhattan would immediately give Mohammed's lawyers a trenchant argument to change venue because of the possibility of an unfair trial due to pretrial publicity. If Timothy McVeigh couldn't be assured a fair trial in Oklahoma City before the age of the Internet how in the world could Mohammed be tried fairly today in New York City, which bore the brunt of the 9/11 attacks?
Bringing Mohammed to trial in the Eastern District of Virginia—Alexandria, to be exact—or to the Western District of Pennsylvania—Shanksville, to be exact—would also create live change-of-venue arguments for his lawyers. Northern Virginia was the scene of the crash of Flight 77 into the Pentagon. Somerset County saw the demise of Flight 93. But those arguments wouldn't be nearly as strong as the change-of-venue motion filed in New York. The media in those other places does not remotely saturate the market or drive public conversation the way the media does in Manhattan. So why not start the trial where it is likely to end up? Why not preclude a strong venue challenge?
Continue »
Supreme Court Preview: An Odd and Incomplete Tableau
(AP)
First, it started four weeks before the first Monday in October, when the Justices in a September session took up federal campaign finance laws. Based upon the questions (and answers) during a rare summer oral argument, it is virtually a lock that a majority of the Justices will vote to overturn the Court's own precedent and dramatically reduce the impact and effect of the McCain-Feingold law. And if this occurs it will probably be the biggest decision of the term.
Meanwhile, the Court's work this fall, winter and spring is almost entirely devoid of "traditional" hot button cases. I can't remember the last time that occurred. At least at the moment, subject to the addition of new cases to be heard early in 2010, there is no grand abortion case, no Second Amendment tussle, no dynamic environmental law fights over owls or whales or snails, not even a resonant showdown between employee and employee a la Lily Ledbetter. Right now, there isn't even a good, solid, terror law case set for review, although that is likely to change as the Justices round out their calendar.
Continue »
Advantage to Feds as Zazi Case Expands
(AP Photo/Ed Andrieski)
The case against Zazi now becomes a true terror case—it won't be long before terror support charges are added to the blend-- and at first blush it seems much sounder than many of the other terror cases we've seen over the past half decade. For example, the allegations against Zazi and "unknown others" are much more detailed, and specific, than were the allegations and evidence presented against Jose Padilla, the once-upon-a-time-dirty bomber who ultimately was convicted of terror support (after the briefest of jury deliberations) in Florida.
For example, the feds say they have videotape of Zazi, and others, purchasing large quantities of hydrogen peroxide and acetone from Colorado beauty shops—ingredients, government lawyers say, that other terror suspects have tried to use to make bombs. They say they found a suspicious scale in his apartment and incriminating bomb-making instructions on his computer. They say they've found backpacks that might have been used in an attack. And they say they have evidence of Zazi attending a terror training camp in Pakistan.
Continue »
The Latest Drafts of the History of Torture
Ninety years ago, in the shadow of the Great War, long before the invention of cable news and bloggers, the great American writer and journalist Walter Lippmann wrote in Liberty And The News that:
Americans could not go see for themselves the effects of the Bush Administration's torture policies. There are no commuter flights to Guantanamo Bay, Cuba and the train doesn't run on time to Baghdad's Abu Ghraib prison. The digital cameras that recorded the degradation of Iraqi prisoners at the prison were never supposed to see the light of day. And the video recordings of the Gitmo interrogations were improperly destroyed by the CIA so that they never would.
Continue »
The world about which each man is supposed to have opinions has become so complicated as to defy his powers of understanding. What he knows of events that matter enormously to him, the purposes of governments, the aspirations of peoples, the struggles of classes, he knows at second, third or fourth hand. He cannot go and see for himself.
(CBS/AP)
Continue »
Snazzy Zazi Plot But No Terror Charges
(AP Photo/Ed Andrieski)
That didn't stop them, however, from clicking off all of the elements of their perennial song-and-dance number in terror-plot cases; this time from New York to Denver to Washington and back. The prejudicial leaks from law enforcement; the prompt (and promptly repeated) links to al Qaeda; the dramatic headlines, the identification of a "person of interest;" the assurances that no particular target had been specified; the intercession of an overwhelmed defense attorney; the denials, the meetings, the breakdown in talks, and, finally, the arrest (late at night, but with the tipped-off news cameras hovering above and about).
We've seen various iterations of the perp-walk parade hundreds of times before, in cases that merited the attention or not, and certainly dozens of times since Sept. 11, 2001. Often, way too often, the government has in the end been able or willing to prove far less than the initial (and often hysterical and hysterically received) allegations — distributed (typically without challenge) via cable television and the Internet — suggested. For example, off the top of my head, I give you: Zacarious Moussaoui, who was not the "20th hijacker," Jose Padilla, who was not the "dirty bomber" and John Walker Lindh, who was not the "American Taliban."
Continue »
Texas Court Whitewashes Conflict of Interest Case
(AP)
The Texas Court of Criminal Appeals Wednesday whitewashed -- poof, like pixie dust!-- one of the worst examples of conflict-of-interest I have ever seen. The same court that recently defied the United States Supreme Court dismissed in a three-page, fact-less, analysis-free opinion an appeal by lawyers for a convicted murderer who, like any one of us accused (or convicted) of murder, has a right to a fair trial by unbiased and professional agents of the government.
I have little sympathy for Hood. It may be that jurors in his second trial convict him as quickly as jurors in his first trial did. He may be guilty beyond all doubt, let alone reasonable doubt. I don't know. And really, it doesn't matter.
Continue »
Can Ohio Execute the Same Man Twice?
(AP)
Eventually, long after Broom was supposed to be dead, the prison director and execution team gave up. They called the governor and asked for a reprieve. The governor relented and now Broom sits in legal limbo, waiting evidently not just for some medical procedure that would free him up to be put to death but also for some guidance from the state and federal courts about whether it now would amount to "cruel and unusual" punishment to execute him at all under Ohio's evolving (but clearly still troubled) lethal injection protocols.
The grisly details surrounding Broom's failed execution—which read like an outtake from the movie "The Green Mile" or a transcript from a torture probe-- remind us that the United States Supreme Court did not come remotely close last year to fixing the many problems that still surround lethal injection in America. It's true that the Justices upheld Kentucky's lethal injection procedures. But those measures are different from the procedures in place in Ohio, a state that consistently has had problems over the past few years ensuring that its executions are swift and humane.
Continue »
Look To The List
(AP Photo/Peter Foley)
It was as it should be.
One year later, America endured a day dominated by the poignant, eerie, overwhelmingly sad, long reading from the book of the dead. Nothing the politicians could say, and nothing the television and radio commentators could add, was even remotely as true or as honest as was the simple, windswept recitation at ground zero that took nearly twice as long as it was supposed to.
Continue »
- no previous page
- Next
1 / 8
