Count I dismissed in the Jose Padilla case

BREAKING NEWS:

Judge Marcia Cooke has dismissed Count I of the indictment against Jose Padilla because it is multiplicitous. In other words, Count I represents the same offense that is also charged in Counts II and III. An indictment is multiplicitous when it charges a single offense multiple times, in separate counts. There are 2 reasons that multiplicitous counts may be prejudicial to a defendant: 1) the defendant may be sentenced twice for only one crime; and 2) multiplicitous counts may improperly prejudice a jury be suggesting that a defendant has committed several crimes, not one. Judge Cooke explained that because "in Counts I, II, and III, the government alleged one and only one conspiracy, with one and only one purpose and object for each of the conspiracy counts," Count I is multiplicitous and must be dismissed. (emphasis in original).

The government, of course, is still free to proceed with its case on Counts II and III. I would guess, however, that the government is going to appeal -- and quickly. Count I -- conspiracy to murder, kidnap, and maim persons in a foreign county, in violation of 18 U.S.C. 956(a)(1) -- is by far the most serious count, carrying a life maximum. Counts II and III carry far less serious maximum penalties (I believe each has a 10 year max on each, although I will check this). An appeal will delay indefinitely the current trial setting in January, so Mr. Padilla will have to spend more time in solitary confinement.

This was a very courageous order by Judge Cooke. The government for far too long has been charging the same crime many different ways for tactical reasons. The more counts in an indictment, the greater the chance a jury will find a defendant guilty of one of the counts. And under the sentencing guidelines, even if there is only a conviction of a single count, the judge can then consider all of the counts and allegations (even acquitted conduct) in calculating a guideline range. Perhaps this order, if affirmed by the Eleventh Circuit, will begin pushing back against this tactic.

In addition to dismissing Count I, Judge Cooke also found that Count II was duplicitious. A charge is duplicitous if it alleges two or more separate and distinct crimes in a single count. The dangers posed by a duplicitous counts in an indictment are three-fold: 1) a jury may convict a defendant without unanimously agreeing on the same offense; 2) a defendant may be prejudiced in a subsequent double jeopardy defense; and 3) a court may have difficult determining the admissibility of evidence. Although the Court made this finding on Count II, it was not dismissed. Instead, the government has until Friday to decide which of the two crimes charged (either the general conspiracy statute under section 371 or the terrorism statute, section 2339) to pursue. Obviously, the government will elect the more serious terrorism section. This decision will also, I'm sure, be appealed.

Most people will announce surprise at these rulings for one of two reasons -- first that Judge Cooke is a Bush appointee or second that counts are almost never dismissed on these grounds. As I have explained before, Judge Cooke is as fair a judge as there is. Judges cannot comment on their opinions. They cannot defend their opinions in the press. I hope that the bar stands up for Judge Cooke and explains these technical aspects of the law to the press. As for the second ground, simply because it does not happen a lot doesn't mean that it shouldn't or that it wasn't correct in this case. It would have been very easy to deny the motion. Judge Cooke should be applauded for doing what she believes is just and right, and compelled by the law, in a very difficult case with lots of political and media pressures. Now we'll get a definitive answer from the 11th as to whether prosecutors will be able to charge one crime as many ways as they can come up with...

UPDATE -- first article on the board goes to Jay Weaver, here.

Here is the Order.

Here is the CNN article.