Attorney Andrew Cohen analyzes legal decisions for CBS News and CBSNews.com.
Even as they prepare for what ought to be the final official chapter in the saga of John Walker Lindh, prosecutors and defense attorneys are sticking with their basic stories about the so-called "American Taliban." Sure, both sides agreed on July 15 to a plea deal and a 20-year recommended sentence for Lindh. But that doesn't mean that both sides agree on how the story of John Walker Lindh ought to be spun.
On the eve of Lindh's sentencing hearing, government attorneys continued to remind U.S. District Judge T.S. Ellis III -- and the public -- that Lindh got to the unenviable position he finds himself in now because he made "a series of deliberate and lawless choices ... choices that broke the laws of the United States." Lindh's recommended sentence is "without question, a severe sentence," prosecutors argue, "but one that is entirely warranted, justified and appropriate under all the circumstances."
And then, just to ensure the judge and the public got the message, federal officials on Thursday apparently leaked to the press interesting details of Lindh's initial interrogations -- details that surely won't endear Lindh to the American public or Judge Ellis. Lindh apparently told military officials and FBI, shortly after he was captured in Afghanistan, that he had met Osama bin Laden and that the September attacks on America were designed to be the first of three campaigns against the U.S. that would include biological weapons and possible attacks on nuclear facilities.
Meanwhile, as they prepare for their final court hearing on behalf of an unpopular client, Lindh's attorneys continued to remind the judge and the public that "Mr. Lindh is not a convicted terrorist, nor does he pose a threat of terrorist violence"; that he "has fully and forthrightly accepted responsibility for his actions"; and that he "has provided and continues to provide full cooperation with the United States government in ongoing investigations."
And if they were to answer the last-minute leak by the feds, they'd probably remind the judge and the American people that the information Lindh gave last December, before he was even charged, showed even that he was willing to cooperate with his fellow countrymen and that, in the written words of one interrogator, he "showed remorse and signs of regret." What better proof, the defense would argue, the John Walker Lindh today regrets what he did and wants to help make it right.
So now Lindh's fate rests with Judge Ellis and the question, really, is how much work the judge is interested in creating for himself. When the parties structured their deal this summer, they agreed to a painstakingly specific analysis under the Federal Sentencing Guidelines as to what Lindh's sentence ought to be. In other words, prosecutors and defense attorneys didn't just pull the 20-year recommended sentence out of the air. They agreed to the term and then justified it legally and formally using the same guidelines Judge Ellis must use in approving or rejecting the 20-year-term.
So if the judge wants to go easy on himself, he will simply accept the parties' recommendation based upon the analysis already performed for him by government attorneys and Lindh's lawyers. After all, if 20 years for Lindh satisfies the feds and can be supported by a reasonable analysis under the guidelines, why should the judge quibble with the result? But if the judge wants to interject himself into the deal, if he thinks a gross injustice is being perpetrated by one side or the other, he can perform his own analysis under the guidelines and come to a different conclusion about what Lindh's prison term ought to be.
That doesn't mean Lindh will be getting out of jail anytime soon or spending the rest of his life in prison. All it means, really, is that Judge Ellis could alter Lindh's sentence a few years in one direction or another. I wouldn't bet on this happening. Judges usually defer to negotiated deals between sophisticated lawyers, especially when the deal involves a lengthy prison sentence to begin with. I would be surprised if Lindh gets anything other than the 20-years the parties agree upon. Then again, I was surprised that a deal was made in the first place, so you just never know.
Another interesting dynamic to watch for during what figures to be a short hearing is what the judge says about Lindh himself. One of the reasons Lindh's lawyers were so interested in reaching a deal with the government was their fear that Judge Ellis was about to rule against Lindh on the matter of the suppression of vital government evidence. The judge had ruled against Lindh on virtually every other pre-trial issue raised to that point in the case and had mentioned, just a few days before the deal was announced, that he was leaning again toward the government's position. We should find out at the sentencing hearing whether the defense's fear of a pro-prosecution judge was justified or not.
If the judge comes down on hard on Lindh and calls him a terrorist, the defense ought to feel a bit better about the deal they've made. And if the judge shows a manner of sympathy toward Lindh that he never showed during any of the pre-trial proceedings, the defense may wonder whether it was not better off rolling the dice and going to trial. It would have been a jury trial, of course, but Judge Ellis obviously would have had an enormous impact on what evidence the jury would have been allowed to hear.
And then there is the possibility that Lindh himself will say something to the court and the world before Judge Ellis announces the sentence. Lindh already spoke at length with the judge in open court on July 15 during the plea colloquy that took place when the deal was announced. But this time, Lindh could actually say what he wants to say instead of simply answering Judge Ellis' questions.
Will Lindh apologize for his role with the Taliban? Will he apologize to Johnny Spann, the father of CIA agent Johnny Michael Spann, who was killed during the prison uprising last December shortly after Lindh's capture? Will Lindh denounce the Taliban and al Qaeda? Or will he re-affirm his faith in Islam?
The sentencing result may be fairly preordained, but the sentencing process Friday in federal court in Alexandria, Virginia promises to be fairly fascinating.
By Andrew Cohen