Feds Lay Down For Rudolph

Legal Analyst Andrew Cohen Takes Justice Dept. To Task For Deal

(CBS)  Legally-speaking, unless there is 'way more to this story than has been publicly revealed, I don't think the deals necessarily are a poor choice. But the political and ethical and moral compromise they represent — the contradiction in prosecutorial policy they stand for — is appalling. After today, how does the government refuse to make a deal with Zacarias Moussaoui, another terror suspect, but a man who, unlike Rudolph, never actually murdered anyone? How does it justify life sentences for criminals who do not kill and maim hundreds and then tie up precious police resources for years? And what happens the next time an abortion clinic is bombed in the name of politics? Won't that defendant ask for, and expect to receive, the Royal Rudolph treatment from the government? These deals are bad policy, folks, and bad policy makes for bad precedent we'll be stuck with for years.

Indeed, what gives these deals the unique odor they possess today is the fact that there was never a reasonable chance that Rudolph would have been acquitted of all of the charges against him. There was never a chance he would have been able to walk the streets and terrorize again. He would have been easily convicted and — here is where Rudolph the legal analyst is again right on the money — there might have been a tussle or two during jury deliberations over the death penalty. But then the feds would have been no better or worse off than they are today — with Rudolph facing the prospect of life in prison without parole. It would have cost more, and taken longer, and it would have put Rudolph's surviving victims and the family members of the slain through an emotional ordeal. But so what? We pay our prosecutors to prosecute and we gratefully ask our victims to bear witness even in difficult circumstances.

These weren't smart deals designed to avoid the risk of acquittal. They were deals designed to lock into place the safest (and perhaps the most likely) result of the potential Rudolph trials. It was a risk-adverse day for an Administration that typically doesn't make risk-adverse decisions when it comes to trying men accused of terrorism. It was a play-safe strategy from a government that has spent the last decade aggressively — some, like me, have called it at times "recklessly" — pursuing a zero-tolerance approach to criminal justice. The deals make a mockery of all the rhetoric we have heard from Washington since the Twin Towers fell about not showing weakness to those who would do us harm. Rudolph reportedly winked to prosecutors Wednesday during one of his court appearances. I wonder if that felt as stomach-turning to them as it does to the rest of us. And I wonder if they would have made the deals if they had read Rudolph's hate-o-gram first.

So this man, this unrepentant murderer, just stared down the federal government and won. It's as if John Allen Muhammad, the Beltway Sniper, had been given a plea deal by the government because prosecutors weren't sure they would get a death sentence in each jurisdiction in which Muhammad was to be tried. It's as if Terry Nichols who, like Rudolph, knows a thing or two about terror bombing, hadn't been tried for his role in the Oklahoma City bomb blast because the survivors of the Alfred P. Murrah building needed to move on with their lives after the McVeigh trial. I've criticized the government before for taking lousy cases to trial or for seeking the death penalty in cases in which I did not think it was warranted. I never dreamed I would be criticizing the government, in 2005, for being afraid of a courtroom fight with a terrorist.