Archive: May 2006

Texas Two-Step in a Death Penalty Case

If ultimately the Supreme Court puts a temporary end to the use of the death penalty in this country-- no, I'm neither predicting that or endorsing it-- no doubt it will be in part because of silly rulings like this one by the 5th U.S. Circuit Court of Appeals, which by a 2-1 vote yesterday refused to hear a condemned man's reasonable appeal on its merits. This is the same appellate court that has in the past shown a remarkably pointed disdain for its superiors in Washington and I would be very surprised if the Justices don't once again get involved to protect a defendant's constitutional rights from the cramped ruling of this stubborn lower court. This is not a case about a man's guilt or innocence. This is a case about what sort of defense a capital suspect may have. The man, James Jackson, confessed to murdering his wife...

By | May 31, 2006; 3:00 PM ET | Comments (1)

Don't Ask Alberto

The House Judiciary Committee wants U.S. Attorney General Alberto Gonzales to come before it to explain and justify the feds' decision to search the Congressional offices of Rep. William Jefferson and to seize materials there which may be used against the Louisiana Democrat. If past is prologue, Committee members might as well use the time they will devote to having Gonzales on the hot seat to play Brickbreaker on their Blackberrys. The Attorney General will provide a whole new layer of meaninglessness to an exercise that already has proven itself to be useless. Just as he did when questioned about the NSA domestic surveillance program, Gonzales will provide vague, incomplete and evasive answers replete with general legal standards that will tell neither Committee members nor the rest of us what truly went on inside the Justice Department before it authorized the FBI to raid the legislator's office. He will say,...

By | May 31, 2006; 9:32 AM ET | Comments (4)

Muhammad Convicted Again

In the least surprising verdict of the year, a Maryland jury has just convicted Beltway-area sniper John Allen Muhammad on six counts of murder for his role in the 2002 terror spree. The verdict will not change Muhammad's life in any meaningful way. He is already on death row in Virginia for his sniper crimes. In Maryland, he now will have six life sentences added to his tally.. Maryland prosecutors had a strong case against Muhammad even without the help of his former accomplice turned prosecution witness, Lee Malvo, whose testimony last week was credible and detailed and devastating to the Muhammad defense. No one, except maybe for the delusional Muhammad, thought his trial would generate an acquittal and I'm not even surprised it took jurors only 4 hours to make up their minds. Sometimes, a case is a slam dunk. This one was, with or without Malvo....

By | May 30, 2006; 3:15 PM ET | Comments (4)

Same Old Story in Hoffa Search

Need to do some large-scale digging in your yard but not willing to pay the cost? Willing to lose a little privacy for a short time in exchange for the thrill of being a part of history? Just call the feds and tell them that Jimmy Hoffa is buried in your backyard. Bingo, presto, the g-men will be all over your land, digging and searching, and when they come up empty your hole will be dug and your neighbors will be impressed. No need to thank me for the great idea. It's all part of the added value you get when you regularly read this blog. The latest Hoffa search boomlet was supposed to be different from all the rest. It was supposed to be the best lead the police had tracked in years. Finally, a lot of serious people thought, the former Teamster leader's body would be found and...

By | May 30, 2006; 2:00 PM ET | Comments (2)

Sometimes a Duck is Just a Duck

Judging from some of the comments about my post yesterday on the deadly attack on my CBS News colleagues, it is clear that many of you are eager to debate the war in Iraq and America's role in it. Makes sense to me. After all, if you aren't passionate one way or the other on what's happening over there what are you going to be passionate about? What's fascinating, though, and not a little unfortunate, is that so many of you dear readers were so quick to riff negative off my quite apolitical homage to my fallen co-workers. The post was supposed to share with you my sorrow at what happened to people I know, or to people my friends know. It wasn't intended to be a critique (or an endorsement) of our war aims or the means by which we are carrying them out. I was trying on Memorial...

By | May 30, 2006; 9:00 AM ET | Comments (6)

A Friend Fights For Her Life

There is nothing profound or provocative to say about the horrible news my friends and colleagues received today from Baghdad, where two CBS News journalists were killed and another seriously wounded in a bomb attack during a day of carnage in Iraq that won't soon be forgotten on either side of the Atlantic. There is only sadness, and anger, and frustration, and ultimately the realization that war among soldiers is bad enough, but war against civilians, including those who only want to report the news, is truly senseless and cruel. I did not know veteran cameraman Paul Douglas, or soundman James Brolan, but their premature deaths ought to remind all of us of the sacrifice that journalists around the world make every day to try to get news consumers a tiny glimpse into the truth. One was a father, the other a father and grandfather, and now they are both...

By | May 29, 2006; 4:30 PM ET | Comments (164)

Remembering Two Legal Giants

Two years ago this Memorial Day weekend, within hours of each other, we lost Archibald Cox and Sam Dash, two legal giants who made their mark most prominently during the Watergate saga a generation ago. In the two years since they have been gone, the level of constitutional angst about the government's war on terror and its other pet projects has increased by an order of magnitude and that has me wondering: where are the next crop of lawyers like Cox and Dash going to come from? Where are they now? Are they making their voices heard as best they can or are they lurking in the shadows, hoping to ride it out? And does the political and legal environment these days even contemplate or permit the rise to prominence and influence of men and women like Dash and Cox?...

By | May 26, 2006; 3:00 PM ET | Comments (1)

Why Defendants Shouldn't Testify

We now know even more than we did yesterday about what jurors were thinking when former Enron chief's Kenneth Lay and Jeffrey Skilling testified in their own behalf at their fraud and conspiracy trial in federal court in Houston. And what we have learned since the verdicts ought to remind every defense attorney out there why it is such a bad idea to allow the client to testify in a criminal trial. For example, one juror said of Lay: "He was very focused, but he had a bit of a chip on his shoulder that made me question his character." She did not explain how Lay's character would have anything to do with his passionate appearance on the witness stand. But, then, jurors aren't required by law to offer rational explanations for their perceptions. It's the defense that bears the risk of nonsequitors in the jury room....

By | May 26, 2006; 9:00 AM ET | Comments (2)

Why Skilling and Lay Were Convicted

Thanks to the candor of several jurors who spoke only moments after reaching their verdict in the huge fraud and conspiracy trial of former Enron executives Kenneth Lay and Jeffrey Skilling, we now have a decent sense of why the two men were convicted of virtuall all of the charges against them in federal court in Houston. It is not complicated. Several jurors said that they were impressed with and believed the testimony of two former Enron officials, Ben Glisan and Mark Koenig, both of whom pleaded guilty to Enron-related charges of their own and turn state's evidence against their bosses. Glison told jurors that Lay knew about massive problems at Enron and chose to ignore the news. Koenig told jurors that as investor relations chief for Enron he routinely lied about the company's financial health. Neither man's testimony, alone, would have been enough to convict Lay and Skilling. Together,...

By | May 25, 2006; 2:43 PM ET | Comments (16)

The Sales Pitch Ends for Enron Execs

From the wave of convictions this morning for Kenneth Lay and Jeffrey Skilling, it's fairly obvious now that federal jurors in Houston didn't believe the former Enron officials when they testified at length and under oath that they didn't engage in any fraud and didn't even know it was going on inside the company. It's a huge victory for prosecutors., a watershed case for them, and a crushing blow for the two defendants, who right up until the end thought they might be able to convince jurors that the apple wasn't rotten to the core. For the feds, they have the satisfaction of knowing that they have just a won a trial that wasn't nearly as easy as it appeared to be. Even though the trial took place in Houston, which bore the brunt of the Enron collapse, and even though the jury pool was full of people with nasty...

By | May 25, 2006; 12:25 PM ET | Comments (19)

Verdict Reached in Enron Trial

You heard it here first. There is a verdict in the fraud and conspiracy trial of former Enron Chiefs Kenneth Lay and Jeffrey Skiling. It will be announced at noon eastern. As soon as I have the skinny and get off the Radio, I'll give you some quick analysis....

By | May 25, 2006; 11:38 AM ET | Email a Comment

Enron Jurors Settling In

Jurors in the fraud and conspiracy trial of former Enron chiefs Ken Lay and Jeffrey Skilling are now into their second week of deliberations and yesterday gave hints that we should not expect them to reach a verdict soon. Apparently, and you probably shouldn't quote me on this, in addition to trial transcripts and an exhibit log, they have asked for canning jars, a Chia Pet, a flat-screen television, a copy of next fall's network primetime lineup, some throw pillows and paint samples. In normal circumstances, today, the jury's last day of scheduled deliberations before a long, holiday weekend, would be a natural decision day for a group of folks who must be drooling at the prospect of ending their ordeal. At the very least, you would think, the foreperson in the hope of wrapping things up, would try to arrange a vote before the end of the day to...

By | May 25, 2006; 9:45 AM ET | Email a Comment

Cheney, Witness for the Prosecution

Of course Vice President Dick Cheney is a likely witness in any perjury case against his former aide, I. Lewis Libby. He has personal information about a material part of a criminal case and it would malpractice on the part of Special Counsel Patrick Fitzgerald not to consider him as a potential witness. Now, whether the Veep ultimately makes it onto the witness stand or not at Libby's trial is another matter. Between now and then there are about a dozen things that could or would happen to prevent Cheney from starring in the case against his former employee. The first thing that could happen, of course, is that he could not be called to the witness stand at all. In the court filing that started last night's bulletin-o-rama on this story, all Fitzgerald was quoted by the Associated Press as telling the court was that "contrary to the defendant's...

By | May 25, 2006; 6:00 AM ET | Comments (10)

Overzealousness Hits Home for Congress

It's nice to see Congressional leaders all agog now that their own house was searched in the dead of night by officials of the executive branch. But where have those folks been for the past half year while revelation after revelation of overzealous surveillance against the rest of us has surfaced? I understand why it wouldn't be okay for the FBI to search the office of a member of Congress even under a valid warrant signed by a judge. But why isn't it similarly unacceptable, then, for the NSA to compile records of our telephone calls without a warrant or even any sort of post-hoc public explanation? House Speaker Dennis Hastert (R-Ill.) this morning demanded that FBI return the documents it seized from the work space of Rep. William Jefferson (D-La) over the weekend. That isn't going to happen without a court order-- stand by, Supreme Court-- but it ought...

By | May 24, 2006; 3:00 PM ET | Comments (3)

Muhammad Still Trying to Dominate Malvo

The older Beltway sniper is finally getting his chance to cross-examine the younger Beltway sniper and even just a few hours into the tense questioning it is clear that John Allen Muhammad still seeks to control and dominate his former mentee, Lee Boyd Malvo. Devoid of any legitimate legal questions that would undercut Malvo's devastating testimony against him yesterday, Muhammad instead is trying to humiliate his former partner in crime. "The last time we played basketball, who won?" Muhammad asked Malvo late yesterday afternoon. "You won," Malvo replied. "Who ran faster?" Muhammad asked. "You," Malvo said. "Who ran five miles faster?" Muhammad asked. "You," Malvo again replied. If you are wondering how and why this exchange has anything to do with the murder case against Muhammad in Montgomery County, Maryland, wonder no longer. It has absolutely nothing to do with the case and everything to do with one man's pathetic...

By | May 24, 2006; 11:00 AM ET | Comments (1)

Moussaoui Not Involved in 9/11? Duh

From the bulletins that kept appearing on my computer yesterday, you would have thought that it was big news that Osama bin Laden had apparently disclosed that Zacarias Moussaoui was not involved in the 9/11 terror plot. You would have thought it was something we hadn't heard before, or didn't know before, when in fact nothing could be further from the truth. We have known for years that Moussaoui was not involved in the planning or preparation for the terror attacks on America. The government long ago dropped the "20th hijacker" tag on Moussaoui because no evidence supported it and it became obvious during Moussaoui's trial that he never contacted any of the real hijackers while they were in America, never had any of them contact him, never knew anything about the flight route, or the targets, or any other relevant component of the conspiracy....

By | May 24, 2006; 8:30 AM ET | Comments (2)

The Sniper Saga Could Have Been Far Worse

If you believe Lee Boyd Malvo, the younger of the two Beltway snipers, the killing spree that took 10 innocent lives could have been a whole lot worse. Malvo has just told a Maryland jury that John Allen Muhammad, the triggerman of the shootings, planned to six shooting episodes a day for an entire month to be followed by a bombing campaign that would target schools and hospitals. We're going to "terrorize these people," Malvo quoted Muhammad as saying just before the deadly shootings began in 2002. Having pleaded guilty to murder, and already serving a life sentence under Virginia law, Malvo is appearing as the prosecution's star witness against his former co-defendant. And the story he is telling, if true, is chilling not just for its specificity but for the matter-of-fact way in which Malvo is telling it. Spurned by his parents, Malvo became a willing accomplice to Muhammad's...

By | May 23, 2006; 3:00 PM ET | Email a Comment

Lee Boyd for the Prosecution

Lee Boyd Malvo is testifying now for Maryland prosecutors against his former mentor and sniper cohort John Allen Muhammad in what surely will be the most dramatic if not the most important testimony of the latter's murder trial. For the first time publicly, and under oath, Malvo will recount the events leading up to the deadly shooting spree in 2002, for which he already is serving a Virginia life sentence (and for which Muhammad already is on Virginia's death row). Although I have never been a big fan of re-trying people who already are serving capital sentences, and even though last week I criticized prosecutors for putting the victims through another trial, I can see how Malvo's public accounting, alone, might begin to justify the time and expense it is costing Maryland to pile on punishment for Muhammad. Apart from destroying any defense case Muhammad may have ginned up for...

By | May 23, 2006; 11:00 AM ET | Email a Comment

Another Attack on the Judiciary

It's hard to go a day without coming across another story of another frantic attempt by conservative politicians to intrude upon the province of judges. And today's story comes from Colorado, where supporters of an initiative to impose term limits upon the state's judiciary have been allowed to begin to collect signatures to get the measure on the ballot this November No other state requires such limits, the Denver Post's Howard Pankratz is reporting this morning, and there is a really good reason for that: it's a terrible idea. The catalyst for Colorado's initiative is John Andrews, the former state Senate President, who apparently believe believes that treating judges like politicians will make judges less like politicians. Why is he pitching term limits? "We have seen outrageous instances of judicial lawmaking, not only at the federal level but at the state level-- really an increasing problem for decades now." You...

By | May 23, 2006; 8:40 AM ET | Comments (4)

Light a Candle for Barbaro

Let's go off-topic for a moment, let's give the law a rest for a few more hours, because all I have been able to think about since Saturday afternoon is what happened to Barbaro, the magnificant thoroughbred race horse who broke down in front of all the world during the running of the Preakness Stakes. In one moment, the horse went from being a legitimate contender for racing's Triple Crown, at the top of his sport, to being crippled-- and perhaps fatally injured. Even though it's a story about a horse, the story of Barbaro's rise and sudden fall is a story that slaps us in the face and reminds us all how fragile is the balance between life and death, success and failure. That's why everyone is still talking about Barbaro, two full days after that awful race, and no one is talking about the winner of the Preakness,...

By | May 22, 2006; 5:45 PM ET | Comments (1)

Prosecuting journalists won't work

In normal circumstances, you would consider yesterday's comments by the Attorney General of the United States to be mere cage-rattling. No way, you would tell yourself, all things being equal, that the federal government is going to start to prosecute journalists for publishing classified information that they obtained legally. There just isn't enough upside. The federal laws are terribly vague and, even if they weren't, there is that amendment, the first one, that ought to serve even among conservative judges, as a bulwark against punishing free speech and a free press. In short, the legal basis for going after journalists is almost as bad as the political fallout that would ensue. But these are not normal circumstances and all things are not equal. The folks who are now threatening to prosecute reporters are the very same folks who have one high-profile terror law issue after another since September 11, 2001....

By | May 22, 2006; 3:00 PM ET | Email a Comment

John the Sublime

Good for United States Supreme Court Chief Justice John G. Roberts, Jr., who told the graduating class at Georgetown Law School yesterday that he and his fellow Justices ought to strive for more consensus in their rulings and fewer 5-4 nail-biters. "Division should not be artificially suppressed," Roberts told the students (as reported by the New York Times), "but the rule of law benefits from a broader agreement. The broader the agreement among the justiices, the more likely it is a decision on the narrowest possible grounds." That's the sort of statement that probably would get unanimous support in theory from the Chief Justice's colleagues on the Court. In practice, however, well, we'll just have to wait and see. It may be years before Roberts has the sort of magnetic force any Chief Justice needs to herd those eight other cats at the Court....

By | May 22, 2006; 8:30 AM ET | Comments (4)

Nino Jumps Ugly at Congress Over Foreign Law

This is a great story to end the week. United States Supreme Court Associate Justice Antonin Scalia made headlines again recently but it's not what you think. He didn't get in trouble, or make an offensive gesture, or go hunting with another litigant in a case before him. This time, Justice Scalia scolded his fellow conservatives in Washington for trying to undercut the Supreme Court's authority. Speaking to the National Italian American Foundation, Scaliia told Congress to halt its efforts to try to ban the Supreme Court, or any federal court, from applying foreign-law principles to domestic rulings. "It's none of your business," the Justice said through the crowd to Congress. "No one is more opposed to the use of foreign law than I am, but I'm darned if I think it's up to Congress to direct the court how to make its decisions." "Let us make our mistakes," the...

By | May 19, 2006; 4:30 PM ET | Comments (6)

While Nation Burns, Congress Fiddles With Marriage

With gas prices and the budget soaring, immigration bringing hundreds of thousands of people to the streets, the war in Iraq shaky and vital questions unanswered about the Administration's role in domestic surveillance, our Congress Thursday naturally focused on an issue that is more about symbolism than substance. The Senate Judiciary Committe Thursday voted along party lines to send to the full Senate a constitutional amendment banning same-sex marriage. The move came a few days after a Georgia judge threw out a state initiative that banned same-sex unions because of a problem with the way the ballot was written. The Committee's actions curiously wasn't big news either in Washington or in New York. My national edition of the New York Times had a wire report on page A21 and the Washington Post put it on page 3. That's because experienced political reporters and editors know that the amendment has no...

By | May 19, 2006; 2:00 PM ET | Comments (5)

Law Firm Charged with Payola to Plaintiffs

It's the sort of story that surely will trigger the inherent skepticism and cynicism that many people already feel toward lawyers, law firms and the legal system in general. In Los Angeles Thursday, a federal grand jury indicted the country's top class-action securities law firm, Milberg Weiss Bershad & Schulman and two of its partners mail fraud, racketeering conspiracy, money laundering conspiracy and obstruction of justice. According to the feds, the law firm paid individuals on the sly to serve as plaintiffs in huge class-action lawsuits. One client and his family, reports the New York Times, served as plaintiffs for the firm in about 70 cases and received about $2.4 million in kickbacks. The law firm and its partners deny the allegations. If true, though, they represent a devastating revelation not just about the firm, which is probably done regardless of how this plays out, but about how these big...

By | May 19, 2006; 9:00 AM ET | Email a Comment

Will There Be a Jimmy Hoffa Trial?

I feel as though I should write about today's developments in the investigation into the disappearance of Jimmy Hoffa not because there is big news to report (at least not yet) but because one day I would like to be able to tell my grandchildren that I "covered" the story even though Hoffa went missing when I was nine years old and living in Canada. The "news" is that the feds are digging up land in Michigan near where Hoffa disappeared in July 1975 after receiving the "best lead" they've had in years in the case. Apparently, according to the feds, they now believe there was a lot of suspicous activity at Hidden Dreams Farm (you just can't make this stuff up) on the day that Hoffa went poof into the wind. For legal analysts and true-crime journalists, the Hoffa mystery is like the Kentucky Derby and Super Bowl Simpson...

By | May 18, 2006; 4:45 PM ET | Comments (1)

A Life Wasted for Lionel Tate

The last time you probably heard about Lionel Tate, the sad pre-teenager was getting from the criminal justice system a second chance at living a productive, happy life. Convicted at the age of 12 of murdering a 6-year-old girl with a wrestling move he had seen on television, Tate won his appeal by convincing his judges that he had not understood the charges against him. He then cut a deal with prosecutors, pleaded guilty to a lesser charge, and was freed from prison and put on probation. At this point, you would think, the young man would have had the fear of God instilled in him to put to right the mistakes he had made. But it was not to be for Tate. Two years ago, a judge gave Tate yet another chance after he was found with a knife. Five more years were added to his probation but Tate...

By | May 18, 2006; 2:00 PM ET | Comments (1)

Let Ward Churchill Sue

Ward Churchill, the controversial and outspoken University of Colorado professor whose academic peers earlier this week concluded that he plagirized and fabricated material, now is threatening to sue the school if it fires him. While I am usually the first person to advise high-profile litigants to settle their civil differences quickly in the interest of saving time, money and pyschic trauma, in this case I believe the school should fire Churchill and then say to him about a lawsuit: bring it on! There are some legal battles that are worth waging no matter how much they cost or how long they take or how much litter they leave on the landscape. And the fight over academic integrity at CU is one of those battles. Does Churchill have first amendment rights? Absolutely. Does he have a right to contest the conclusions against him? Sure. But CU also has legal rights to...

By | May 18, 2006; 9:00 AM ET | Email a Comment

Sitting on the Dock of the Bay

When a jury in a high-profile case is deliberating it is both the best and the worst time to be a legal analyst. It is the best time because you are desparately needed by your reporter colleagues who are getting pressured by their editors and producers to "move the needle" on a story that isn't showing any public sign of needle-moving. And it is the worst time because you get asked all sorts of stupid, unanswerable questions. Jury deliberations are secret for a reason and the best advice I can give those of you interested in the Enron trial is to relax, kick back, and allow the process to play itself through. Just wait. The truth (or at least a verdict) shall one day be revealed. And the same can be said for the burgeoning legal dispute over those telephone records that USA Today says are being transferred from a...

By | May 17, 2006; 5:00 PM ET | Email a Comment

Now the Enron Jury Gets its Turn

Imagine yourself as a juror in the federal fraud and conspiracy trial of former Enron chiefs Ken Lay and Jeffrey Skilling. For nearly four months, four days a week, you have had to sit in a courtroom and listen to lawyers, accountants, business executives and the judge argue about the meaning of this, that and the other. You have missed work, lots a lot of money in wages or salary, and have had to keep from sharing your unique experience with the most important people in your life. You've been told where to go, and when, and you've haven't been able to do much about it. Oh, and you know that whatever you decide about Houston's most important case ever your friends and neighbors are going to have plenty to say about it. But now that all changes. Now the women and men of the Enron jury hold all the...

By | May 17, 2006; 1:18 PM ET | Comments (2)

Saddam For the Defense?

You don't see this every day. The Associated Press is reporting this morning that former Iraqi dictator Saddam Hussein will be allowed to testify as a witness for one of his co-defendants in the case. The reason? The co-defendant, Taha Yassin Ramadan, told the judge he has no other witnesses to call on his own behalf to refute charges that he was not in the Iraqi town of Dujail in 1982 when, prosecutors say, the government massacred some of its citizens. You'd never see this occur in an American court but that doesn't mean it shouldn't be happening in this trial in Baghdad. In the U.S. it is inconceivable that a capital defendant would not have any witnesses to call other than another capital defendant. Such a situation almost automatically would raise questions about the competency of the lawyers in the case (both sets of attorneys!) But why not let...

By | May 17, 2006; 8:45 AM ET | Comments (3)

Lay Feeling the "Spear of Government"?

Michael Ramsey sounds like Houston when he talks in court and clearly part of the defense strategy on behalf of his client, Ken Lay, is to try to reconnect the city with the man who once was its symbol and now is its shame. So when the ailing Ramsey hauled himself out of his chair Tuesday to deliver a thundering closing argument on behalf of the former Enron Chairman, you just knew the jury of eight women and four men at this federal fraud and conspiracy trial were going to hear fire and brimstone, Texas-style. And they did. "When the spear of government stops to touch living flesh," Ramsey told jurors, "we are proud of our liberty... There may be a court in America that bends to political pressure but it's not this court. There may come a day when an American jury yields to a media mob but it's...

By | May 16, 2006; 10:00 PM ET | Comments (2)

Ken Lay's Drama Defense

Ken Lay's attorneys want his jurors to know that the former Enron Chairman already has suffered greatly from the grisly fall of his beloved and once falutin' company. They want the jury to imagine Lay, the once-genial face of the company, "locked in a cage" in prison for the rest of his life having lost hundreds of millions of dollars because of his misplaced trust in the company. This "I'm a victim, too" defense is bold, almost brash, and it tells us that Team Lay feels it needs to play the emotion card despite a fairly week prosecution case against their client. Lay's attorney Bruce Collins has echoed many of the same things his predecessor at the podium, Daniel Petrocelli, offered on behalf of his client, Jeffrey Skilling. Like Petrocelli, Collins reminded jurors of the lack of documentary proof in this complex financial case. And, like Petrocelli, Collins attacked the...

By | May 16, 2006; 4:45 PM ET | Comments (2)

Petrocelli for the Defense at Enron

Daniel Petrocelli, Jeffrey Skilling's attorney, is as smooth as the other side of the pillow. He is in the middle of his closing argument right now in the fraud and conspiracy trial of Skilling and former Enron Chairman Ken Lay and Petrocelli got right to his best point-- the lack of any significant paper trail linking his client to any of the fraud that occurred at Enron. "Documents don't lie, people do," Petrocelli told jurors early on in his argument, and the videotapes and documents introduced at the trial are "Jeff's best witnesses." He wants jurors focusing upon what Skilling said publicly about Enron and not upon what government witnesses accuse him of saying privately. And he wants jurors during deliberations to sort through the written evidence in vain looking for the "gotcha" text that would doom Skilling. Petrocelli knows-- and he knows the jury knows-- that no such text...

By | May 16, 2006; 11:15 AM ET | Comments (1)

Duke, Duke, Duke, Duke of Oil

Prosecutors and their shills around the country must be fuming at the way the Duke lacrosse case is playing out on cable television and online. Defense attorneys in the sexual assault case are handling reporters like looms, spinning the stories they want spun to skew public perceptions about the alleged victim in the case, her story and just about every other part of the saga. So far, it has been a virtuouso performance by the defense and if law-and-order types don't like it, they have no one to blame but themselves. That's because prosecutors and the police invented prejudicial pre-trial publicity. From the "perp walk" -- where the media are encouraged to get the shot of the suspect in handcuffs that is designed to be played endlessly on television -- to the secret disclosure of incriminating information such as a confession, it's the government that has for years and years...

By | May 16, 2006; 7:00 AM ET | Comments (76)

The Longest Night for the Enron Defense

It was by all accounts a brutal day for Ken Lay and Jeffrey Skilling, the last of the Mohicans at Enron. They were maligned and derided for about four hours by a federal prosecutor who skillfully asked jurors to put themselves in the position of the defendants as they managed Enron into the world's biggest bankruptcy case. The best blog by far about the trial is the one offered by the Houston Chronicle, whose reporters are all over the trial in a way you rarely see any more in high-profile cases. The Chronicle highlights a brief part of the closing statement by government attorney Karen Ruemmler that I think is particularly interesting, especially if you haven't been following the trial very closely as it has lumbered along. Ruemmler had taken the jury back to September 2001, when the Wall Street Journal was asking Lay questions about an off-the-book partnership named...

By | May 15, 2006; 8:15 PM ET | Comments (1)

A Tough Day for Ken and Jeff

As expected, federal prosecutors are blasting away at former Enron executives Ken Lay and Jeffrey Skilling as their corporate fraud and conspiracy trial ventures into closing arguments. The government attorney leading the charge so far, Kathy Ruemmler, is saying all the right things as she tries both to shore up the credibility of her own witnesses and shred into the defense offered by the two leaders of the failed company. Best lines so far? The Houston Chronicle's fabulous online trial site (I gave you the link above) offered this from Ruemmler: "Why do you have to spin something if you are telling the truth? You don't. All of these documents tell us without a reasonable doubt" that losses were being hidden by Lay and Skilling. And this: "In this courtroom, the cover stories have been blown. You've heard the tricks, the real deal, not what the pretty documents said," referring...

By | May 15, 2006; 3:00 PM ET | Comments (1)

Supreme Court Trawl

The United States Supreme Court this morning made a few moves that folks will likely be talking about for the rest of the day. So here's the morning line on what the Justices were up to. In one instance, reports the AP, the Court refused to get involved in a controversial Washington state case about a gay woman's right to seek parental rights over a child she had helped raise with her domestic partner. The effect of the Supreme Court's action-- or inaction-- is to let stand a Washington Supreme Court ruling that recognized the woman's rights as a "de-facto" parent and the effect of that will be felt by judges in other states when the issues arises before them. One state's court rulings are never binding on another. But they can be persuasive. And my guess is that when enough states have chimed in on this issue, pro or...

By | May 15, 2006; 11:30 AM ET | Email a Comment

Sniping at the second Muhammad trial

Good morning. I hope y'all had a safe and happy weekend. My mother, the one without the computer, didn't get one this Mother's Day but she did get plenty else, including, but not limited to, a visit and flowers from her only son. Closing arguments begin today in the fraud and conspiracy trial of former Enron chiefs Ken Lay and Jeff Skilling and I'm offering up for review and discussion two full-length and different takes on what to expect. A little later today, as the closings actually get underway, I'll post more on what prosecutors actually are saying about the hear-no-evil, see-no-evil, do-no-evil executives. In the meantime, though, it's worth focusing a bit on another high-profile trial in which a defendant is trying to game the legal system while prosecutors push ahead with a case that should not have been pursued. Just a few weeks after Zacarias Moussaoui's epic trial...

By | May 15, 2006; 9:00 AM ET | Comments (2)

The Blog Fairy and What I've Learned So Far

It has been only three days since my first official blog -- I can almost remember it like it was yesterday. But it is not too early to offer a few bits of feedback to you after reading so much of your feedback to me. Remember, this is from someone who until very recently didn't pay a whole lot of attention to the nitty-gritty details of blogging. First, just because I have the honor of writing a blog for a major news outlet doesn't mean I have to be dogmatic, or doctrinal, or otherwise fit into some legal or political box. If I do my job right, those of you who agree with me on one day with disagree with me on the next. I will not always bash the President or praise his critics. Or vice versa. And I certainly hope to surprise you from time to time with...

By | May 12, 2006; 2:00 PM ET | Comments (3)

Moussaoui Jurors Mouthing Off

We have known since we read their verdict form last Wednesday that jurors in the Zacarias Moussaoui terror conspiracy trial were a complex and contradictory lot. Eleven of them, for example, didn't consider Moussaoui "incarcerated" on 9/11 even though he was sitting in a Minnesota jail at that time. And despite clear language in the form that said it to be true, only five of them predicted that Moussaoui would remain in prison for the rest of his life even if he were spared a death penalty. They were like a box of chocolates, those jurors, and we just never knew what we were going to get. What we are getting this morning is news from the the jury foreperson that only one juror stood between Moussaoui and a death sentence. According to Timothy Dwyer's piece in the Post, the dissenting juror "never explained his vote" and frustrated the other...

By | May 12, 2006; 10:30 AM ET | Comments (5)

What Do You Want Bush to Say on NSA?

Unlike many of his fiercest critics, I don't blame President Bush for his vague remarks Thursday about the latest kerfluffle in the saga of the National Security Agency's efforts to monitor the activities of both friend and foe. I watched the President's speech live, and I read the transcript later, and it dawns on me that he said precisely all there is to reasonably say about a program that by its nature precludes a great deal of public debate. This is spying we are talking about, after all. So what else but nothing could the President truly say in candor that wouldn't destroy his Administration's policy choices when it comes to domestic surveillance? By this I don't mean to suggest that I believe the program has enough legislative or judicial oversight -- how can anyone really tell? -- and I certainly don't mean to imply that even with the proper...

By | May 12, 2006; 7:00 AM ET | Comments (6)

Shame On Them Is Right

"Shame on us," Senate Judiciary Committee ranking member Patrick Leahy (D-Vt) said today as he held up a copy of USA Today's phone-record story, the one that prompted the President of the United States to trot himself out in front of reporters and say, well, say nothing that helps explain why the government in the name of fighting Al Qaeda is contracting with phone companies to catalogue billions of phone calls made by regular old Americans. Shame on Congress is right. Only one branch of government can proactively perform a check on what the NSA is doing at the behest of the White House. Only one branch can force the executive branch to justify its massive and logically-suspect dragnet. Only one can require those telephone companies to publically explain why their customers were not informed of the data collection, much less defended from it. And yet that branch is both...

By | May 11, 2006; 3:15 PM ET | Comments (60)

NSA Defines "Above the Law"

One day after the Justice Department's Office of Professional Responsiblity gave up trying to investigate the National Security Agency's domestic spying program, USA Today fronted a story about how the government is amassing billions of phone call records made by tens of millions of Americans. If there are appopriate checks and balances in place to ensure that the program and its cousins are being run legally, they are not nearly as apparent as they need to be....

By | May 11, 2006; 11:15 AM ET | Comments (132)

Tote Bag Trauma

In my unending search to offer you the finest legal analysis ever, I considered writing about three stories this morning. First, I considered writing about the Justice Department's decision to stop an investigation into the White House's domestic spying program because the National Security Agency isn't cooperating with the investigation. Then I considered writing about the big front-page story this morning in USA Today about how the government has collected billions of telephone records from presumably all of us in an effort to identify calling patterns that the feds say will help fight terrorism. In the end, though, I couldn't pass up the story about the guy in California who is suing the California-Anaheim-Los Angeles Angels because the team didn't give him a red nylon tote bad during a Mother's Day promotion last year. See? I've got your back....

By | May 11, 2006; 8:30 AM ET | Comments (4)

Here Come the Judges (again)

After a shaky truce, the political war over federal judges is heating up again in advance of the Congressional elections this fall. A battered White House sees a winning political hand in pushing the nominations of what it claims are "original intent" jurists with strong conservative philosophies. Emboldened Democrats meanwhile see an opportunity to take a stand against judicial nominees they believe are mere political hacks. It's a sub-theme to the elections that is going to evolve right up until the first Tuesday in November....

By | May 10, 2006; 6:00 PM ET | Comments (3)

Gitmo's Gotta Go

Britain's top lawyer said publically today what more and more lawyers, judges, diplomats and politicians are saying privately-- that the continuing existence of the US prison camp in Guantanamo Bay is "unacceptable." British Attorney General Lord Peter Goldsmith in a speech said "the historic tradition of the United States as a beacon of freedom, of liberty, and of justice deserves the removal of this symbol."...

By | May 10, 2006; 2:30 PM ET | Comments (17)

Background Checks for Prom Dates

It was only a matter of time, right? The Boston Herald reported yesterday that high school officials have banned a student's 19-year-old date from attending prom because the latter has a prior marijuana conviction. Apparently, school officials at Dennis-Yarmouth Regional High School in Cape Cod relied upon a state background check system designed to identify ex-cons before they serve as academic volunteers with access to students. And at  least two young men, who were volunteering only for an evening of revelry with their girlfriends, got caught in the trap. Not surprisingly, the young woman who is the subject of the Herald piece, and her mother, are ticked. They also are out about $500 for the prom dress, the limo and makeup. The ACLU, meanwhile, thinks the whole thing is illegal-- and you can just smell the coming lawsuit and request for an affirmative injunction. School officials aren't saying much. Local pols are taking sides on the issue....

By | May 10, 2006; 10:00 AM ET | Comments (24)

If you read this you'll make history

Good morning everyone and welcome to the historic launch of my first-ever blog. I want to thank the good folks at WashingtonPost.com for the brilliantly put-together grand opening party. I would also like to thank my agent, and my agent's agent, and her spokesman, and all the little people I trampled over to get this prestigious gig. My mother always wanted me to write for the Washington Post and today she gets her wish. Now, if only she had a computer......

By | May 10, 2006; 6:00 AM ET | Comments (55)

About Andrew Cohen

Andrew Cohen is the legal editor and chief legal analyst and commentator for CBS News and its hundreds of television and radio affiliates. He is a contributing essayist for CBS News' "Sunday Morning" program and is regularly featured on CBS Radio's "The Osgood Files." Besides writing the Bench Conference blog for washingtonpost.com, Cohen is an occasional op-ed contributor to the Post, as well as to the Los Angeles Times, the New York Times and USA Today. A former attorney, Cohen graduated from Boston University in 1988 and from B.U.'s law school in 1991....

By Michael Corones | May 10, 2006; 6:00 AM ET | Email a Comment

 

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