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A Letter On The Law In 2006

Attorney Andrew Cohen analyzes legal issues for CBS News and
Dear Friend:

What a year it's been in the law! We'll fill you in on the details in a bit but first a few updates on the family. The kids aren't so young anymore! The Constitution, which turned 217 this year, is beginning to look its age, especially as it is asked to determine the rights of men and nation in an age of terror. The Bill of Rights is just four years younger, remember, but it also had a tough year no matter which side of the political spectrum you are on.

Most of the grandchildren — the Foreign Intelligence Surveillance Act and Roe v. Wade — are embattled but surviving and, well, we just don't yet know what to make of our newborn — the Military Commissions Act. Mother thinks that the Supreme Court will slap it down faster than it slapped down the last lame effort by the White House and the Congress to strip terror detainees of due process. But I'm not so sure. You know how those Justices get when they are worried about their role in history. Oh, and remember we added a new Justice this year to our family, Samuel A. Alito, Jr., who takes over for one of our all-time favorites, Sandra Day O'Connor.

As usual, we saw some high drama and low comedy in our courthouses this year. In Houston, two corporate criminals named Ken Lay and Jeff Skilling were convicted for their role in Enron's fraud by a jury of people who surely were not in any way their peers. Lay died in his bathroom in July, and Skilling went to prison for 24 years just a short time ago. Other Enron figures, including mastermind Andrew Fastow, also spent their first Christmas in prison this year for their massive white-collar schemes.

Also hanging out in prison this holiday season, never to be seen again, is our old friend Zacarias Moussaoui, whose federal trial this past winter in Alexandria, Va., surely will go down in our history as one of the most eventful, if not the most significant. That's the case, remember, where Moussaoui aligned himself with prosecutors and bailed out their case every time it was in bad trouble (which it often was) and the jury eventually aligned itself with Moussaoui's attorneys when it came back without a death penalty for the zany terrorist wannabe. It may be many more seasons before we see the likes of a case like that again!

Like most families, we have to admit we've seen our share of squabbles this year. We just can't agree on whether it's permissible to allow the White House to allow the National Security Agency to spy on us without getting a court order to do so. I'm afraid to say that fight will be with us, and it's even likely to get more intense, in 2007. We also still can't agree as a family about how we should be able to execute our murderers. As the year ended, our sloppy use of lethal injections as a way to carry out capital punishment was being halted by judges and politicians alike. Stay tuned for that one, too, in 2007.

And of course we still aren't entirely sure what to do about same-sex marriage. Most judges who had to face the decision this past year said that same-sex marriage was unconstitutional based upon the state constitutions where the issue came up. But more than a few judges declared that this was more of a legal reality than a factual necessity. Meanwhile, same-sex marriage got pummeled at the ballot boxes while support for same-sex unions (even those which give marriage-like rights only without the use of the "M word") seemed fairly strong and stable. I wish we could tell you all on this holiday that we are ready to put this squabble behind us. But alas, we are not.

One of the worst things that happened to us this year, or at least the trend that cut the deepest for us, was the way in which judges all over the country were subjected to concerted and vile politically-motivated attacks upon their integrity, credibility and authority. We've seen this before from cranks and kooks. But not to this extent from elected officials and other social and cultural leaders. Nothing good will come from these efforts, especially during this dangerous and trying time when we need independent and courageous judges to protect us from the worst excesses of government.

Another dangerous sign this year came from those pesky Supreme Court Justices, who decided in June by a 5-4 vote (with that new Justice Alito making the difference) that prosecutors can use at trial evidence obtained by the police even when the cops neither knock on the door of a home they are entering or otherwise announce their presence. And via two closely-watched decisions that are awfully difficult to reconcile, the Justices endorsed Oregon's physician-assisted suicide law but blocked California's medical marijuana law. Ah, the sweet mysteries of the minds of the Justices.

If you don't count anything to do with Paris Hilton or that creepy supermodel who keeps throwing household items at her staff, there weren't many good Hollywood tabloid stories this year. In fact, for the first time in a long time, our holiday note won't be dominated by trashy stories (Jackson 2005, Kobe 2004, etc.). Sure, there were a few murder mysteries that briefly made heads swim at the cable channels. That poor girl down in Aruba is still missing, for example. But none of these stories gained the sort of traction we've seen in years past. At least in 2007 we will be able to look forward to seeing the Duke Lacrosse case put behind us, and the Lewis "Scooter" Libby trial and a few others that have been burrs in our saddle during 2006.

My word, this is a gloomy holiday card! So let me end then with a few bits of good news. First, O.J. Simpson's stupid new book never saw the light of day. That's good. The aforementioned Ms. O'Connor came back from the Court with a vigorous defense of judges everywhere. That was good. Bernard Ebbers, the convicted Worldcom leader, was sent away to prison for a few decades. Except for his family, that was good, too. The House of Representatives passed a measure that would ban the slaughter of our horses for human consumption overseas. That was (a) good (start, because the Senate just blew the whole thing off).

It was also good that the Democrats took back the Senate because now, finally, the White House will have the political incentive it needs to send moderate judicial nominees to the Congress for approval. There has been a logjam for years in filling vacancies on the bench—now perhaps it will break. And that would be good.

So we here at the rule of law are alive and kicking after a grueling 2006. We've faced some major challenges and so far survived and plan to do the same in 2007. And, really, isn't that all any family can hope to expect?

Happy Holidays!

By Andrew Cohen