Friday, November 27, 2009

Why the gov't could lose this case

BY the real-world standard of how lawyers act, Attorney General Eric Holder's professed certainty about his decision to try Khalid Sheik Mohammed and his co-defendants in federal court is strictly (pardon the expression) "bush."

It's an old adage among litigators that you're not a real trial lawyer until you've won an unwinnable case and lost an unloseable one.

Lawyers in private practice know -- and make sure their clients know -- that litigation is a chancy business. That, of course, is a major reason why private disputes are overwhelmingly settled before (or during) trial and why most criminal cases are also "settled" by plea agreement.

Holder insisted in his Senate testimony that "failure is not an option" -- that a conviction in the federal court trial of KSM and his co-defendants is assured. No responsible lawyer in private practice would ever make that kind of statement to a paying client.

Murphy's Law applies as fully to trials as to any other human endeavor -- maybe more so. To start with, there's the little requirement that a jury be unanimous -- and in a capital trial, that it be unanimous twice.

Does any lawyer worth his salt ever guarantee to a client that the 12 members of a jury will surely all vote the same way -- much less that they'll do so twice? When Holder was a partner in the white-shoe Washington firm of Covington & Burling, did he give his fancy private clients that kind of advice? Don't bet on it.

Then there's the unpredictability of what evidence will be found admissible. There has never been a trial of the sort Holder has committed the government to: against foreign fighters captured in foreign countries, detained and questioned when the country seemed in imminent jeopardy of attack from them and their ilk -- and whose counsel in the last eight years have succeeded in creating a narrative that the previous administration treated them brutally and otherwise unlawfully.

What possible basis could Holder have for his claimed certainty about just what kind, and how much, of the evidence against KSM and his co-defendants will be deemed "untainted" in this entirely unprecedented circumstance? No lawyer advising a private client -- much less a $1,000-an-hour Covington & Burling partner -- would give such an assurance in a million years, even about a run-of-the-mill trial of a run-of-the-mill case.

Holder's certainty that a federal-court trial is more likely to be favorable to the government than if the defendants were tried before a military commission is also baseless.

Put aside the simple fact that Holder turned down the offer (made even before he took office) from KSM and his co-defendants to plead guilty in a commission proceeding -- so there was a 100 percent "chance" of conviction there.

Even if that hadn't happened, how could a conscientious lawyer ever be certain -- to the point of giving sworn testimony before Congress -- that the outcome in one entirely unprecedented proceeding will be better than the outcome in another entirely unprecedented proceeding?

Again, you can be sure that's not the way Holder expressed himself when he was making the big bucks at Covington.

The truth is that there are no unloseable cases and so no basis for Holder's assurances. The only two things any experienced lawyer would know for sure are that a federal trial will give KSM & Co. the widest possible latitude in presenting their defense, and that their counsel are bound to use that latitude to put the Bush administration on trial.

Is it just a coincidence that this means that, when Holder's present client seeks re-election, the media coverage of this trial will enable him to run against his predecessor yet again?

There's another old adage: Politics makes strange bedfellows.


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