So Far, So Good For Lindh Prosecutors

John Walker Lindh, and the scales of justice, 2002
AP Legal Analyst Andrew Cohen attended Monday's hearings.
John Walker Lindh is 21 years old but looks maybe five years younger. He is very skinny and fairly tall, with jet black hair and glasses, and he looks like he should be in one of those youth-oriented Dell computer commercials. Only he's not surfing the 'Net or going out on Saturday nights with his Marin County buddies. He's in the Alexandria City Jail in pretty much a lock-down mode while he awaits his terror-aid trial in August.

Lindh's presence in federal court Monday was incongruous for many reasons, not the least of which is that he looks like he could be his lead attorney James Brosnahan's grandson.

The defendant wore a dark green prison jumpsuit while all the attorneys wore conservative suits. He stared straight ahead during the dismissal hearing — cut into two halves by a three-hour recess — while his attorneys furiously scribbled away at their notepads. And he alone among all the participants didn't participate in the banter at the counsel table before U.S. District Judge T.S. Ellis III entered the room.

But Lindh was just about the only person or thing during Monday's session not straight out of central casting. The prosecutors looked clean-cut and delivered their arguments in crisp, clipped fashion. The defense attorneys looked compassionate and made their points with emotion and fervor. The Virginia-based judge intermixed down-home humor with forceful analysis and the courtroom itself is a gorgeous combination of modern utility and Southern gentility.

If Lindh had not been there, it would have been easy to think from the gallery that the case was a civil dispute between two big oil companies.

It wasn't, of course. Lindh and Company were there to make their last pitch to Judge Ellis about the dismissal motions filed by the defense in this terror-aid case, and then to hear what the judge had to say about the issues.

The argument lasted about two hours and the judge gave as good as he took, especially on the issue of combat immunity. He is not, this Judge Ellis, a potted plant. He is an active, verbal, engaged judge who is likely to be willing and able to move the trial along at a fairly rapid rate. Whether you agree with his rulings or not, those are the sorts of qualities you'd want in a judge presiding over a high-profile case like this one.

Judge Ellis bought virtually every single prosecution argument and sided with the government on every single one of the defense motions brought against the Lindh indictment. He sided with the feds on the weak defense points — their change of venue request and their claim that Lindh's First Amendment rights had been violated — and he sided with the feds on the strong defense points — their claim that Lindh cannot be prosecuted under the doctrine of combat immunity and their attack on federal regulations which don't seem to apply to Lindh.

He sided for the most part with the government's assertion that President Bush has extraordinary authority and discretion to tweak the rules now to empower prosecutors to convict and he sided with the feds when they argued that they had not violated Lindh's constitutional rights by selectively prosecuting the so-called "American Taliban" after not prosecuted others who also may have violated the same laws and regulations.

It's hard to imagine a better result for the government and a worse result for Lindh.

Does Monday's rout presage big trouble down the road for Lindh?

Yes and no. Clearly Judge Ellis is not skeptical of the government's motives or actions and it's hard to pinpoint a single decision he's issued since he got the case that has gone decisively for the defendant. And it is usually very difficult for defendants to knock out claims from an indictment before those claims are adjudicated before a judge or jury, a presumption in favor of prosecutors that the judge acknowledged before he stuck it to the defense.

Lindh's lawyers also had to overcome the novelty of their arguments and Ellis' unwillingness to go out on a legal limb more than he absolutely had to. That's all bad news for the defense.

On the other hand, none of Monday's motions may matter in a month when the judge is called upon to resolve the most important pre-trial issue the case has to offer. If Judge Ellis tears out the guts of the government's case by suppressing from the jury Lindh's statements to military officials, no one on the defense side will even care that he gave them so little on Monday. And prosecutors won't care much about the good results they received during the dismissal stage if they are forced to pick up the pieces of their case in July, just one month before the trial begins.

The young man who looks like a kid decisively lost seven separate battles Monday but a dispute bigger than all of those seven combined is looming in July. We all will know better where this case stands after Judge Ellis makes his rulings on the admissibility of John Walker Lindh's statements after he was captured.

By Andrew Cohen