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The Legal Year In Review

Attorney Andrew Cohen analyzes legal issues for CBS News and
Unless you discovered that the feds were monitoring your domestic email and phone calls without a warrant, or you were swindled out of millions by a con man so smooth he had a waiting list of victims, or you were a same-sex couple valiantly trying to get married, chances are you didn't pay very much attention to the world of the law in 2008. If you tuned out the legal scene this year consider yourself blessed: you didn't miss very much.

While the nation's attention was riveted by the transcendental presidential campaign and then the fierce economic crisis the law crept quietly along. Ten years removed from the Starr Report and the start of the Clinton impeachment proceedings, we have just endured (or enjoyed, depending upon your point of view) one of the least demagogic in the law since O.J. Simpson got into his white Ford Bronco and forever changed the way we absorb news from the courts. No mountains moved. No seas changed. Only a few tides turned.

But lest my wonderful bosses at CBS News think my beat is all wrapped up and doesn't need any further analysis or perspective let me quickly add this: even a relatively boring year in the law still offers a righteous blend of mischief and karma, incompetence and evil. And the lull of the legal year gone by may be gone by January 20, 2009, the day a new administration takes over America's legal war on terrorism. That's a development that promises not just significant policy changes but also new information and insight about how the Bush Administration got us from September 11, 2001 to where we are today.

Not being able to predict precisely what will occur during the new and exciting (and busy, dear bosses, busy!) year, I am left instead at this time to sift through the events and issues that marked the annals of the law in 2008. The Supreme Court, for example, made its biggest news of the year when it finally decided a case that defines the contours of the Second Amendment. Along ideological lines, in a 5-4 decision authored by Justice-hunter Antonin Scalia, the Court ruled that there is, indeed, an individual, constitutional right to bear arms. But the Justices also declared that there may be certain lawful restrictions placed upon gun rights. This means more Second Amendment cases all over the country in the months and years to come.

The Justices also did in 2008 what they had done three times previously during the Bush Administration; they blocked the White House and the Congress and the Pentagon from fully implementing a set of stark (and in some cases senseless) military tribunal rules that gave terror suspects (at Guantanamo Bay, mostly) almost no shot at a reasonably fair trial. How the Obama Administration finally deals with these detainees-there is talk now of sending some to Europe-will be a big story in 2009. And so will the results of the first federal appeals from the detainees which are only now wending their way through the court system.

The current Attorney General, meanwhile, was precisely the sort of decent caretaker needed to help begin to restore the credibility of a Justice Department soiled by the ruinous tenure of Alberto Gonzales. Michael B. Mukasey will perhaps best be known as the Attorney General who fainted on camera during a speech in November to the Federalist Society in which he was making the same, tired arguments about terror law that got us into this mess in the first place. He was back at work the very next day his tribunes were quick to tell us. Alas, reports The New York Times, federal stock fraud prosecutions dropped sharply in the eight years of the Bush Administration.

2008 was the year in which the law finally caught up to O.J. Simpson after he was convicted of a "robbery" that read more like a really good Marx Bros. skit. It was the year in which a sitting vice president, Dick Cheney, admitted to authorizing the crime of torture (in the form of water-boarding). And if you are looking for crossover themes between this year and next look here, to the issue of torture, and whether the new administration intends to do anything about the growing call for some sort of inquiry into what top Bush officials knew and when they knew it.

2008 was a year in which authorities in West Texas, acting on a dubious tip that was probably a hoax, swooped in on the Yearning for Zion Ranch and removed 439 children before being forced to return many of them back to family and sect leaders. It was a year in which the California Supreme Court declared same-sex marriage constitutional, a ruling which prompted a state-wide vote to outlaw the practice (and another round of lawsuits). And it was a year in which answers finally came to poor John and Reve Walsh, who lost their son, Adam, 27 years ago in a murder that spawned "America's Most Wanted" television show which in turn helped solve hundreds of crimes.It was a year in which pitcher Roger Clemens testified before Congress that his pal Andy Pettitte had "misremembered" certain facts about claims of steroid use. It was a year in which the federal government indicted several Blackwater security guards after the mercenaries opened fire on Iraqi civilians in 2007. It was a year in which an overzealous prosecutor in California sought (and succeeded, for the moment) in criminalizing false statements posted on a MySpace site. And loud avenger Nancy Grace had a big ratings hit on cable when the body of poor little Caylee Anthony was discovered.

It was a year which saw some relief come to Charles Dean Hood, a death-row inmate whose lawyers finally convinced the courts in Texas to look into allegations that their client's judge and prosecutor were sleeping together during his trial. And it was a year in which Americans once more proclaimed their support for the death penalty and a concomitant reluctance to actually choose it (or enforce it) as a sentencing option. "Only" 111 capital murderers were sentenced to death in 2008, according to the Death Penalty Information Center, and that's the lowest number since capital punishment was reinstated by the Supreme Court in 1976.

It was not a good year for politicians, especially governors and U.S. senators. New York Governor Eliot Spitzer lost his job and all of his credibility as a tough-on-crime reformer when he involved himself with a call girl. For Spitzer, the only good news is that he likely won't face charges for his crimes. The same cannot be said for "Rudyard Rod" Blagojevich, the odd and embattled governor of Illinois, who would have tons of time to bone up on his Kipling poetry if he's convicted of the bribery and corruption charges just laid against him by U.S. Attorney Patrick Fitzgerald.

Unseemly greed and illegal sex were not limited to New York and Chicago, however. It rocked and roiled the nation's capital and then gusted over to the Upper Midwest. In Washington, D.C., Sen. Ted Stevens (R-Alaska) was convicted of making false statements on a financial form and then promptly lost his reelection bid. Meanwhile, Sen. Larry Craig (R-Idaho) spent most of the year trying to weasel out of a guilty plea he made in connection with allegations that he solicited gay sex in a public bathroom at Minneapolis-St. Paul airport. And former White House press secretary Scott McClellan shocked no one when he confesses that he helped his bosses lie to the American people about certain vital policy decisions. Nice.

So I say: Good Riddance to 2008. Once Team Obama gets settled in the White House, and once the markets are off the front pages every day, it will be nice to see blanket coverage again of good old-fashioned legal events, issues and scandals. Thanks to our seemingly endless supply of creepy politicians and zapped out celebrities I am quite confident you'll be hearing more from me in 2009 than you have these past 12 months. Whether that's a good thing or a bad thing, I suppose, is entirely up to you. Happy holidays.
By Andrew Cohen