Stretching The Law

Andrew Cohen On The Depths To Which Prosecutors And Juries Mete Out Frontier Justice

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

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What a week we’ve just had in the legal world. It ought to be remembered in the annals of history as the best example (or worst) of what happens to equal protection under the law when a society interprets its criminal statutes beyond reasonable recognition to satisfy some sort of subjective justice.

You may have no argument with the result. That’s my whole point. But you should be plenty worried about the process which achieved it.

For example, O.J. Simpson this week was sentenced to 33 years in prison (he’ll serve perhaps 10) for the most comical, unserious robbery and kidnapping conspiracy ever dreamed up in the minds of men.

Gun or no gun, let’s please stipulate that none of the rest of us would have ever suffered the same fate as Simpson and Company after they barged into a hotel room in Las Vegas to steal (or "get back") sports memorabilia. We wouldn’t have been indicted as heavily as they where, tried as aggressively as they were, and we wouldn’t have been convicted by our peers based upon the testimony of the prosecution’s icky witnesses.

Despite the trial judge’s lame pre-sentencing comments (about how Simpson was being punished for his current crime and not his past ones), we all know precisely why Simpson was targeted in Nevada the way that he was - by police, prosecutors and, ultimately, jurors. It is society’s late-arriving, curiously-conformed “payback” for Simpson’s own shameful conduct and the fact that many people (many white people, anyway) believe that he was wrongly acquitted in California of the 1994 murders of Ronald Goldman and Nicole Brown Simpson.

Anyone want to make the contrary argument with a straight face?

Now, you could look at the irony of Simpson’s fate - convicted for conduct more becoming a Marx Bros. film than a crime after being acquitted of a savage double-murder - and simply play the karma card: the law “finally caught up to Simpson.”

I prefer a slightly more candid description when looking at this situation: people in power bent the scope of the law like a slinky to achieve a goal (Simpson in prison) that most of the rest of society had made clear it would accept, no matter what the circumstances. That most of you hoped for 14 years that Simpson would get railroaded doesn’t make it any more ethical or moral that in the end he was.

But O.J. was not the only victim of prosecutorial over-reaching. Take Lori Drew. You may know her better as the nasty mother who created a fictional MySpace page to be mean to a young woman who then tragically killed herself.

Now, as horrible as we all think this may be, there is no crime against what Drew did. Not yet.

Both federal and state prosecutors in Drew’s home state refused to prosecute. Society was at that moment stuck between the slow creep of the law of technologies (like, who is liable to whom on the Internet) and the rapid pulses of the people who wanted Drew to pay for playing some sort of role in the young woman’s suicide.

In the old days (like, five years ago), the Drew case might have spawned a new round of legislation prohibiting cyber-bullying. Indeed, that still may occur. What is new, it seems to me, is that Drew was tried anyway by a federal prosecutor in California, and now convicted of misdemeanors for violating the Computer Fraud and Abuse Act.

Trust me when I tell you that the Act does not say much about cyber-bulling. But that didn’t stop the prosecutor from stretching it to cover Drew.

And it didn’t stop the trial judge from protecting Drew’s rights any better. She did not receive reasoned justice based upon well-defined rules. She received frontier justice, with the law contorted to create a crime where none has existed before.

There’s more. On Friday we learned that a federal indictment has been handed up against five of the six Blackwater Worldwide security guards who killed 17 Iraqis in a 2007 bloodbath in Baghdad. Because the men are American, and because America forced the Iraqis to accept legal immunity for contractors, the men couldn’t be charged with murder, or assault, or terrorism under Iraqi law. And because the killings took place in Iraq, the men typically would have been free from U.S. criminal statutes as well. The scope of our domestic laws has never extended to all corners of the world.

Except for now.

Stymied by the current state of the law, and feeling political and diplomatic pressure to do something about the tragedy that took place that day, the feds have decided to charge the guards anyway under the … wait for it … Anti Drug Abuse Act of 1988!

That’s a Reagan-era statute designed to go after drug traffickers enacted during the depths of the crack epidemic. The Associated Press reports that the statute calls for 30-year sentences for crimes (drug-related or not) involving the use of machine guns.

Trust me again when I tell you that the drafters of the Act did not contemplate that its provisions would be used 20 years later to indict private contractors serving in a foreign country who had nothing whatsoever to do with crack or any other illegal drugs.

Supporters of the case against the guards will say that the government ought to use every legal weapon in its arsenal to prosecute people who do bad things. But this is not Eliot Ness going after Al Capone on tax evasion charges; this is Eliot Ness going after Al Capone for stock fraud.

When bad conduct occurs beyond the expressed scope of our criminal laws, it seems to me that we have two choices as a nation governed by the rule of law: We can take our time, do things right, and generate new laws to govern that conduct; or, we can play it fast and loose and pretend that our existing criminal statutes stretch over turf their drafters never would have recognized.

The first path ensures fairness and notice and many other forms of due process. The second path is not just lazy, it sets a terrible precedent.

[Matthew Hurst]

If they can do it to O.J. they can do it to "YOU" Remenber that.

Um, OK. Next time I kill my ex wife and her friend and then years latter get busted for a hold up trying to get my stuff back to hid it from the family of the people that I killed because of the civil judgement against me for those murders... I''ll be sure to watch my back. I am very, very worried.

[Matthew Hurst]

If they can do it to O.J. they can do it to "YOU" Remenber that.

Um, OK. Next time I kill my ex wife and her friend and then years latter get busted for a hold up trying to get my stuff back to hid it from the family of the people that I killed because of the civil judgement against me for those murders... I''ll be sure to watch my back. I am very, very worried.

[sanfelz]

According to post-sentencing analysis by tru-tv anchors and by OJ''s lawyers, Judge Glass lowered the jail time at the last moment in response to OJ''s tearful statement of remorse.

[hitoyou11]

I could not agree more. If they can do it to O.J. they can do it to "YOU" Remenber that. You could be next.

[fmoolten-2009]

The sentence confronts us with a true moral dilemma. Simpson did in fact commit armed robbery, and the penalty is in fact commensurate with that crime. Yet Andrew Cohen is certainly correct that it was the murder for which he was acquitted 13 years ago that dictated the severity of the sentence, and not the seriocomic circumstances of the recent crime.

In a perfect world, Simpson would already be serving a murder sentence since years ago. In a world completely without justice, he might have been imprisoned long ago on trumped-up charges as a means of nullifying his acquittal for the murders. We are in between, and it would take divine wisdom to know the dividing line beyond which selective use of legitimate legal tools perpetrates more injustice than it deters. Despite my visceral rejoicing that Simpson will be punished, I can''t yet claim that Andrew Cohen''s argument is clearly wrong.

I would only add that Simpson, aside from being stupid, was quite unlucky that his sentence came when it did. It would only have been a short time earlier when the sentence would have been denounced as proof that any African American who dared to rise too high would be punished for his audacity. Those obstacles are far from vanished, but the combined events of November 4 and December 5 tell us that we may be moving closer to the day envisaged by Martin Luther King Jr, when each would be judged not by the color of his skin but the content of his character.

Fred Moolten

[habu99-2009]

So the right wingers want to have their cake and eat it too: they rail against President Clinton who admitted he had the opportunity to have captured/killed Osama bin Laden but could find no legal justification to do so, hence the action would have been illegal, both in our law system and in international law. But when it''s mercenaries who are charged with killing civilians and noncombatants, and those mercs happen to be part of the wingnut-run Blackwater, oh the horror of finding a legal justification under which to try the alleged killers, working for an organization that insists it is outside of the scope of the Uniform Code Of Military Justice, and also outside of the laws of the United States, therefore answerable to nobody for any transgression. Give me a break!

As to OJ, you''d think if he had a brain cell left in that head of his, he''d have kept his nose clean after being acquitted of murder. But instead he decided to push his luck, and his luck ran out. Karma''s a bee-yatch ain''t it?

[markangeloo]

The Amerikan legal system of justice is also a bubble
long time inflating with the members again oblivious to
the coming blow up. There is extreme waste & over posturing in both the courts & the police departments.
True justice is rarely metered out because of the necessity of raising money to support the bloated bureaucracy. They have also lost any standing in the general public that the balance is truly blind, as in the OJ case bias & special interest is rampant with the assumption that dollar$ talk. Then there is the
stupid drug war or conviction by media per example Bill Ayers, who was never convicted of a felony but is repeatedly called a terrorist in the paper. Either it works for all or it doesn''t and there is no freedom & equality.
It is that fundamental to democracy . No there is no real law in this country !!!
That is the true reason there is so much fear & uncertainty in this land. No trust !!

[thesmelltest]

The contrary argument is obvious: OJ and his band of thugs used guns to rob a couple of tourists in a Las Vegas hotel. Nothing special here. They got the same sentence the judge has handed out hundreds of times before. The violent robbery was "comic" only to certain people in the media and/or the legal "profession" with a Juicy boner stuck in their eye that impairs their vision. Where did you go to law school? You need to get a tuition refund.