American Taliban Gets Lawyered Up
CBSNews.com Legal Consultant Andrew Cohen checks out the high-powered legal team assembled to defend American Talbian John Walker Lindh.
There's a lot we don't know about John Walker Lindh. And there's a lot we don't know about the government's case against him or how it will play out in the weeks and months ahead. But it's fair to say this early on - before the defendant even is indicted - that the defense team won't be outlawyered or overpowered by federal prosecutors. In fact, it's fair to say that prosecutors will be hard pressed to keep up with the combination of legal experience and media savvy that Team Lindh will bring to the defense table when this case goes to court for real.
This isn't an imbalance along the lines of what we saw during the O.J. Simpson criminal trial, when Simpson's lawyers, the so-called "Dream Team," thoroughly outmaneuvered hapless prosecutors Christopher Darden and Marcia Clark. The men who intend to prosecute Walker Lindh are relatively experienced and seasoned themselves and won't easily be cajoled into supporting foolish positions or making tactical or strategic mistakes. They know what they are doing.
You don't get to prosecute a case like this with so much at stake unless you know what you are doing and if these prosecutors turn out not to know what they are doing there are literally hundreds of other folks at the Justice Department who are ready, willing and able to help.
But the depth and breadth of Team Lindh - seven lawyers showed up in court on their client's behalf for a hearing of precious little significance - represents a leveling of a traditional playing field which tends to favor prosecutors over defense attorneys. The defense won't be outgunned when it comes to responding to motions or briefs. It won't be overwhelmed when it comes to investigation the allegations against Lindh. It won't be hamstrung when it comes to interviewing witnesses or collecting information which may help acquit the defendant. If prosecutors parry, the defense will have the resources to thrust. And the defense also will have the resources to take the initiative on occasion.
What the extraordinary show of strength on Lindh's behalf tells me is that this case is likely to be the "closest" and most unpredictable of the three terror cases now pending in the United States. It is hard to see how Richard Reid, the alleged shoe bomber, won't be convicted based upon the many eyewitnesses from that airplane who will come forward to testify against him. Likewise, it is hard to see an American jury having any sympathy whatsoever for Zacarias Moussaoui, the alleged "20th hijacker." But the Lindh case is different.
Different because Lindh is an American and at least capable of generating some amount of sympathy or empathy from jurors - more anyway than Reid or Moussaoui are likely to garner in Alexandria, Va. Different because there aren't a lot of eyewitnesses who are likel to offer incriminating information about the defendant. Different now, too, because of the array of legal might forming to help shape the case and public perceptions of it in favor of the defense.
This showed Thursday morning when lead defense attorney James Brosnahan took advantage of a post-hearing press conference to pronounce to the world, like some boxing promoter: "Don't miss this trial."
He also emphasized the notion that his client is innocent until proven guilty, which is a tougher and tougher equation these days in the wake of Sept. 11, and actually challenged potential jurors to keep an open mind about Lindh and the story of "what happened" to him. And, of course, the defense hammered home what clearly will be its central theme throughout this case - that Lind's comments, upon which the government relies so heavily, were involuntarily made and thus inadmissible as evidence in any trial against him.
It was great theater - a former federal prosecutor (Brosnahan) informing the assembled media that other former federal prosecutors would be helping ensure that Lindh gets a fair trial. In fact, the defense was so effective in getting out its message that it forced the feds in the person of Attorney General John Ashcroft to respond only a few hours later.
Ashcroft went on national television to reiterate the government's position that the defendant properly and adequately waived his 5th amendment rights in writing after he was apprehended. If the feds weren't worried about these statements getting into evidence, or if they weren't paying much attention to what Lindh's defense team was doing, I suspect their reaction would not have been as swift or delivered by such a muckamuck.
The case still will turn on whether statements make it into evidence or not. If they are admissible, Lindh probably will be convicted. If they are not, he could be acquitted. But after just one simple unimportant hearing it seems clear that prosecutors are being forced to react to what the defense does and not vice versa. And if that trend holds through the rest of the case, what is shaping up to be a close case may be even closer.
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