Feds Lay Down For Rudolph

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

The Justice Department chickened out, Rudolph surmised, because federal lawyers figured they never could get a unanimous jury in the South to recommend a death sentence for a man convicted of trying to stop the practice of abortion — even though he chose to do it by bombing a clinic and killing a cop (and by bombing the 1996 Olympics and killing an innocent bystander). "They were afraid," Rudolph boasted in his diatribe, "that in at least one jurisdiction they were going to run into this recalcitrant pro-life juror who would hang the jury and deliver a political defeat and embarrassment to Washington's efforts to make an example out of the person who assaulted their specially protected policy of child murder."

My view of why the feds backed down is not dissimilar — just a bit more diffuse. I'm not sure it's as much a "pro-life" juror that prosecutors were wary of in any of the potential Rudolph prosecutions. I think it was more a general concern about "anti-government" jurors who would have been (and who probably still are) both suspicious of federal authority and sympathetic toward Rudolph and his particular brand of politics. Rudolph, remember, was described as a modern-day "Robin Hood" during his years in the wild. He is a man who generated "Pray for Eric Rudolph" signs in North Carolina upon his capture. He is a man who created sentiments like the one expressed by Hoke Henson, quoted by The New York Times a few years ago as saying he didn't see Rudolph "bomb nobody ... You can't always trust the feds."

But whether it is a pro-life juror or an anti-government juror, the fact that the feds would back off this notorious terror case for fear of a possible jury holdout (or anything else, for that matter) is stunning. We have been told since Sept. 11, 2001 that the federal government would never waver, never falter, and never stop short of delivering to terrorists the justice they deserve. But now, suddenly, federal prosecutors aren't willing to trust an American jury in a case involving domestic terrorism involving hundreds of victims? Now, suddenly, the feds are afraid of taking a murder case to trial even when a law enforcement official (Robert Sanderson, an off-duty cop at the clinic in Birmingham) has been killed? Now, suddenly, we're afraid of putting a nasty, racist like Rudolph in the dock of justice because some people think he is a hero? Some people thought McVeigh was a hero, too, and look where he is now. Since when does our federal government go easy on a guy who murders in anti-government fervor?
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.
Whether Rudolph is right about the abortion angle, whether I am right about the anti-government angle, or whether the truth lies somewhere in the middle, the about-face from the feds is startling. The deals formalized Wednesday say a lot more about the potential jury pools in Alabama and Georgia than they do about Rudolph. They say a lot more about politics in this country right now than they do about the particularly cowardly nature of Rudolph's crimes. And they say a lot more about the current leadership at the Justice Department than they do about the justice of it all. I just don't get how prosecutors can look at a woman like Emily Lyons (who can't look back because she was blinded and disfigured by one of Rudolph's bombs) and tell her that justice was done through these deals. Lyons, according to wire reports, "wept in the Birmingham court when Rudolph offered an abbreviated confession. 'He sounded so proud of it,' she said. 'I feel he is not being punished enough for what he did.'"

Just hours before Rudolph released his view of the world, federal prosecutors offered their own spin on things. "Today Eric Rudolph's reign of terror ended in courts of law and justice," U.S. Attorney David Nahmias declared from Atlanta. "It ended with certainty, immediacy, finality, and protection of public safety ... There can be no doubt anymore about who was responsible for those crimes, and no uncertainty about the results of long and complex trials. Eric Rudolph is guilty today. There will be no further delays in obtaining justice for the public and the many victims of his terrorist acts. Eric Rudolph is guilty forever more. There will be no long appeals."

That's all true. But this government spin ignores the fact that Rudolph's reign of terror actually ended in June 2003, when he was finally apprehended after evading one of the largest individual dragnets in world history. It ignores the fact that there was strong and clear direct and circumstantial evidence against him — certainly stronger and clearer than some of the junk evidence prosecutors routinely toss before jurors in criminal cases. It ignores the fact that many of Rudolph's victims do not see this result as justice. And the very language of the announcement arguably would justify the federal government's acceptance of a plea deal in every criminal prosecution.

Every plea deal brings with it certainty and finality. Every plea deal obviates the need for long appeals. Every plea deal avoids a long trial. But, for good reason, not every case ends with a plea deal. Sometimes, prosecutors make the tough call to bring a case to trial even though there is no guarantee of victory. Indeed, recent history is replete with examples where federal and state prosecutors took cases to trial they might have been better advised to plead out. For example, the aforementioned Nichols was re-tried in Oklahoma last year even though it was painfully obvious to any reasonable observer that any death sentence he might have received would have been voided by the federal courts. Sometimes, for political and even moral and ethical reasons, you just have to take a case to trial. Sometimes the trial itself, never mind the result, is what justice is all about.

But the feds didn't take their good cases against Rudolph to trial. They did what they have refused to do on countless occasions in the past. They failed or they refused to fight the good fight. Someone should be forced to answer for that. And if the answer, when it comes, is that Rudolph's analysis is correct — that a murderer caught the break of a lifetime (literally) because of the current state of abortion politics in Georgia or Alabama or Washington or anywhere else — then the politicians and the lawyers who signed off on these deals ought to be forced, at a minimum, to say so to what's left of Emily Lyons' face.

By Andrew Cohen