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The Legal Year That Was

Attorney Andrew Cohen analyzes legal issues for CBS News and

2002 was supposed to generate contour and definition in the legal war on terror.

It also was supposed to be a calm year at the Supreme Court and a ho-hum year for domestic trials and celebrity justice.

What we got instead were deals and delays in the big terror cases, a scintillating pair of Supreme Court terms, and, well, Malvo, Muhammed and Winona.

When the curtain rose on 2002, John Walker Lindh, Zacarias Moussaoui and Richard Reid all were scheduled to stand trial in federal court on terror-related charges. Through the prism of these three cases, we all were destined to learn more about the terror attacks on America and their aftermath.

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We also were likely to learn a great deal about how the criminal justice system, from its bailiffs to its jurors, reacted to terror cases in the post-9/11 world.

Instead, we got very little in the way of a public vetting. Lindh, the American Taliban, pleaded guilty to two charges in July and got 20 years in prison. Reid, the shoe-bomber, pleaded guilty and awaits a likely sentence of life in prison. And Moussaoui, the alleged terror conspirator, saw his trial delayed twice.

Lindh and Reid aren't talking and the witnesses against them aren't, either. Moussaoui, meanwhile, now has a late spring trial date. But there is a very good chance it'll never happen. In order to avoid having to give him access to other alleged terrorists, the government may opt instead to transfer him to military custody and prosecute him before one of President Bush's tribunals.

As 2001 turned into 2002, it also seemed clear that the Supreme Court would be called upon to resolve some of the broader legal issues raised by the war on terror.

Can the President unilaterally declare an American citizen an "enemy combatant" and order the military to hold that person without charges and the right to speak to his attorney?

Can the Justice Department close off public immigration hearings?

Are the most aggressive provisions of the USA Patriot Act - the anti-terror legislation enacted in haste in the weeks after the attacks on New York and Washington - constitutional?

Instead, however, the cases representing these issues still haven't made their way up to the High Court. Federal appeals courts have begun to tackle the cases of Yaser Esam Hamdi and Jose Padilla, the two "enemy combatants" whose cases will help define the President's law enforcement authority.

Other appellate courts have begun to address anew the scope of the meaning of "public" trials in an age of terror. The government has won most of these initial court battles, but it has lost some, too. One year from now, we all ought to know a lot more about whether the administration has overreached in its efforts to re-balance the mix between freedom and security; privacy and surveillance.

That's not to say the Supreme Court Justices have been twiddling their thumbs, waiting for monumental issues to meet them. In many ways, 2002 was an extraordinary calendar year for the Court.

At the end of last term, the Court approved the use of a school voucher program in Ohio, one that doesn't take money directly from public coffers and puts it into private schools but comes close. The Court this spring also outlawed the death penalty for mentally retarded killers, finding that society had turned its back on the practice over the course of a generation.

This fall, the Court took on (or agreed to take on) cases involving affirmative action, three-strikes laws, cross-burning statutes, abortion protests, anti-sodomy statutes, sex-offender registration laws and a few more death penalty cases.

By the time the current Court term ends, in June 2003, it may well be remembered as one of the most important of the Rehnquist era -- and that's discounting the possibility that 2003 will be the year in which the Court is asked to resolve those terror law issues noted above.

Then there are the modern-day Leopold and Loeb, John Lee Malvo and John Muhammed, the alleged Beltway snipers. No single law-related story captured the nation's attention in 2002 like sniper shootings and the hunt for the person or people doing the killing. And once Malvo and Muhammed were captured, no single story within the criminal justice system generated as many interesting questions as did the story involving where and how they would be prosecuted.

We now know that both men will be tried in Virginia, under state law, while Maryland and Alabama and the District of Columbia and federal prosecutors wait in the wings.

Muhammed goes on trial in October 2003. Malvo likely will go to trial around the same time.

Next year at this time, you can bet we'll all be talking about how their trials played out; how their jurors were selected; and about how their judges ensured fair trials.

Which brings me, alas, to Winona Ryder. Easily the least significant story I have ever had to cover, Ryder's shoplifting trial in California became a sort of anti-O.J. symbol of justice in that state.

Thousands of such cases each year never make it to trial. But prosecutors took the actress to trial in part to teach the rest of the country a lesson about shoplifting, as if there aren't more important lessons the criminal justice system can dole out.

Once Ryder was convicted, a store official even actually testified as a "victim" during sentencing. Who says tabloid justice isn't alive and well in a time of terror?

Have a great 2003.

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