READING BROSNAHAN'S MIND

Well, so far the ride has been pretty interesting.

Here we got this kid from Marin County who winds up being flushed out of a nowhere Afghan dungeon with his al-Qaeda buddies after some CIA guy gets killed.

The country wants Lindh's head. The administration's obliging. And I'm supposed to defend him.

Until now its been hoopla time. Demanding I be allowed to see him in Afghanistan. Complaining he's been denied counsel. Accusing the feds of coercing him. Arguing Lindh wasn't dangerous or a flight risk. Holding sidewalk press conferences. Trying to delay the trial. Claiming Lindh had nothing against America.

But now it's getting serious. The magistrate blew us out of court on the bail request. Saw through the smoke in a minute. Then the feds ambushed us with those damn emails. The kid blames the government for blowing up its own embassies in Africa. What a witness he'd make!

The government's got this ten count indictment. Mostly conspiracy. All they need is an agreement to commit a crime, and any act in furtherance by anyone. A couple dozen acts, they charge. And most of them he did. They really want to nail him. The Assistant US Attorney calls Lindh a committed terrorist who not only talked the talk, but walked the walk. Pretty good. Pretty effective. Spann's widow was in court, lobbying for the death penalty. His father spurned a conciliatory gesture from Lindh's father.

Let's say the government can prove what's in the indictment.

What's the defense? What have I got?

Let's start with the statements. The statements to CNN come in. With them and with the evidence the government has from other sources, that's probably enough to prove the conspiracy. Or more than one. With the statement to the Bureau in evidence, it's overkill.

So, even if the statements to the FBI are excluded, and they probably won't be, we're looking at a conviction. I don't need the TV talking heads to tell me that.

But if we make a strong suppression motion on all the statements, even if we lose it has potential juror educational value. Threats, coercion, bad food. Young kid.

OK, so we move to suppress all his statements. Some come in, maybe some don't. Either way, there's enough to go to the jury.

What then?

Lindh thought he was fighting against the Northern Alliance. Right. He really loved America. Right. Mental defect or disorder. Not according to the CNN reporter and video tape. Lindh was treated poorly by our troops in Afghanistan. Well, the government won't let the jury forget he was a captured fighter.

And none of this is a defense, anyhow.

We come back to the indictment.

Even if all Lindh's statements are suppressed, even to CNN, can the government prove that there was an agreement to commit at least one crime, that Lindh joined that conspiracy, and that someone, anyone, did something to further the agreement, even if Lindh didn't know it? If the answer is yes, the jury can convict.

And then there's the problem of putting Lindh on the stand. What can he say? Those damned overt acts are staring us in the face. How's he going to explain them? His intent can be inferred from the acts. Even if he committed half of the twenty or so.

This isn't like my teaming up with the Special Prosecutor to nail Cap Weinberger for Iran-contra. Or trying to sink Rehnquist's nomination for Chief Justice. Or even my political defense of that Irish murderer. No, we have here a pretty simple case. Lindh did what he did, and the government can probably prove it. If they do, he does a lot of time.

I'm a realist. So better keep blowing smoke, make a tough suppression motion, and look for a deal if the kid agrees. But then, he may not. Maybe he has the strength of his convictions.

That's not a great pun.