The Good, The Bad, And The Ugly

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.


I'm sure that when Wonda Strand woke up this morning she had no idea that she would become an icon for one of the most fascinating days in recent legal history. But there she was, live on cable, shown rubber-stamping (literally) the criminal complaint that marked the official start of the court case against Michael Jackson. If everyone eventually gets 15 minutes of fame, surely Ms. Strand should ask for a do-over.

And if anyone any longer harbored doubts that cable television is the scourge of journalism, surely the breathless coverage of a clerk stamping a document no one could read ought to dispel them.

The filing of child molestation charges against a pop idol normally would be an interesting, if not terribly significant, event in the world of the law. On Thursday, however, it was overwhelmed by three other legal developments, any one of which is monumentally more important than what happened to the bizarre singer.

Why did it all happen on Thursday? Because no one in the legal world wants to work, or work hard, next week. It was, you might say, a "clean off the desk" sort of day. Call it the confluence of convenience. And call it a day of the Good, the Bad, and the Ugly.

First, a federal appeals court in New York handed the White House its worst setback yet in the legal war on terror, ruling that the President and Defense Department could not designate a U.S. citizen as an "enemy combatant" and then hold him indefinitely without charges.

Then another federal appeals court, this one in California, ruled that the government had to provide lawyers to the terror detainees in Guantanamo Bay, Cuba so that they could at least explore their legal options.

Finally, a Virginia jury came back with guilty verdicts in the case of Lee Boyd Malvo, the young sniper who killed or helped kill all those people in the Washington, D.C.-area last fall.

Those are three results that will resonate, each in their own way, for years to come.

The Good comes in the form of the two appellate court rulings. Not since before Sept. 11, 2001 have the federal courts similarly stuck up for the rights of individuals against the might of the government.

In the New York case, the judicial panel, by a 2-1 vote, ruled that the executive branch had violated the constitutional rights of Jose Padilla by holding in him limbo for about a year and a half. If he is truly a "dirty bomb" planner, the court said, then charge him accordingly and try him in court. If he isn't, then let him go. The decision is the clearest assertion since the Twin Towers fell of the judicial branch's power to check the power of the executive branch. And it presages a showdown on this issue at the U.S. Supreme Court, which might be even more zealous in ensuring a vigorous judiciary.



The other appellate ruling is less sweeping -- and yet less likely to withstand review -- but still makes it harder for the administration to do everything it wants to do in the name of fighting terrorism.

By permitting the Guantanamo Bay detainees to get legal help, the 9th U.S. Circuit Court of Appeals recognized that the men are something different than mere prisoners of a declared war. In doing so, the court also recognized real limitations on the power of the executive branch, even in a time of terror. That's no small thing for a branch that rubber-stamped the actions of the White House and Congress in the two years following Sept. 11.

The Supreme Court already has agreed to review this issue in a similar case that emanated from the D.C. Circuit Court of Appeals. Now, with this ruling by the routinely overturned California panel, the Justices will have a clear choice to make between alternate visions of how far the Constitution extends beyond our shores.

The Bad comes in the form of the Malvo case. Not because of the jury's verdicts -- they were fair and reasonable and clearly supported by the great weight of evidence -- but because of the horror of the story itself. A young man gets abandoned and left to fend for himself. He meets up with the wrong person, goes bad, and then does great harm to a great many people. Then he gets caught and, presumably after Thursday's verdicts, executed. A story that already has seen so much death and sadness surely will result in more. Add to that badness the notion of those poor jurors, who have to decide a man's fate -- whether he lives or dies -- during Christmas week. Anyone want to trade places with those poor folks? Didn't think so.

Malvo was convicted because the jury chose to believe his own words instead of the words of his doctors. He was convicted because after he was arrested he said horrible things to the police about his victims; things his lawyers later tried to claim were just the bravado of a troubled young man. He was convicted because jurors chose to believe what they heard about Malvo and not what they saw with their own eyes in court. The young sniper looks even younger than he really is -- BabyFace Nelson for a new generation. He was convicted despite a thorough defense strategy that still might result in a life sentence for him based upon his awful childhood and John Muhammad's role in the sniper shootings. He was convicted, let's face it, because many people are dead and millions more on the East Coast were terrified last fall. He was convicted because he did it.

The Ugly, naturally, is the aforementioned Jackson case. If the ministerial task of stamping a complaint is brought to us live -- with graphics, no less -- what does that say about how the rest of the case will be played out on television and over the Internet? Compared with Thursday's antics, including a prosecutor who seemed to shout like a madman during the obligatory press conference, the O.J. Simpson trial seems like a Quaker funeral. And that's before you consider the graphic nature of the allegations themselves, and of what their proving will mean to the alleged victim and the rest of us. I'm sure there is great relief now in the Jackson camp -- relief that the axe finally has fallen and on a day when there were more important things to talk about on the evening news.

I can tell you now, today, before the Jan. 16 arraignment or the filing of a single substantive motion, that the Jackson case will be decided upon what the jury thinks of the fact that California's notorious social services folks cleared Jackson months ago of the very same allegations with which he now is charged. If the jury believes prosecutors that the child welfare folks aren't worth a darn when it comes to investigating abuse cases, Jackson very well could be convicted. If jurors believe the defense that the initial investigation should have been the end of the matter, or even if there is some doubt about what's what, Jackson will walk back to Neverland. The Jackson case is ugly before it has a right to be. And it was by far the anomaly on a day when the American justice system, in many of its forms, showed just how solid and forthright it can be when it really tries.

By Andrew Cohen
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