Why the gov't could lose this case

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.