"We have conduct that shocks the conscience."

That was Chief Assistant Federal Defender Michael Caruso (who should be the next PD after Kathy Williams becomes a judge) at the Jose Padilla oral argument in Atlanta discussing the treatment of his client at the Navy brig:

Convicted terrorism plotter Jose Padilla's attorneys asked an appeals court on Tuesday to throw out his conviction, arguing that he was the victim of "outrageous governmental conduct."

Padilla gained notoriety when he was accused in 2002 of plotting to blow up a radioactive "dirty bomb," though those claims were eventually dropped. He was later convicted along with two others in an unrelated terrorism plot.

Padilla's lawyer told the 11th Circuit Court of Appeals that his client should have been granted an evidentiary hearing before the 2007 trial that would have proved he was being mistreated by the government.

***
In court filings and during arguments Tuesday, Padilla's attorney Michael Caruso contended there should have been an evidentiary hearing before the trial that would have proven he is the victim of "outrageous governmental conduct." He said his client was mistreated and tortured on a Navy brig, charges that federal officials have repeatedly denied.

"There can be no dispute that we have that here - extremely prolonged isolation, psychological and physical abuse, prolonged interrogation," said Caruso. "We have conduct that shocks the conscience."

It will be interesting to see what the Court does on this very sensitive case...

In other news:

SFLawyer covers the Federal Bar lunch here.

The Florida Bar is investigating a number of RRA lawyers (via Miami Herald).

And Scott Rothstein was before Judge Cohn today explaining that because he has known his lawyer Marc Nurik for 30 years (Nurik later said this was an exaggeration), he didn't think there could be a conflict:

Also, prosecutors said that Nurik could have exculpatory information since he worked with Rothstein.

But Rothstein told Cohn that he has no reservations about keeping Nurik as his attorney.

``I believe in his loyalty,'' Rothstein said.

When Cohn asked Rothstein if Nurik may attempt to protect other employees at the firm who prosecutors said may have criminal culpability, Rothstein said:

``I've known Mr. Nurik for 30 years, Judge. I don't believe that is a possibility for him.''

After the hearing, Nurik said that 30 years was an exaggeration -- he said he met Rothstein when he was a student in his trial advocacy class at Nova Southeastern University law school.

Government: No actual conflict with Mark Nurik

Here's the government's response to Judge Cohn's inquiry regarding whether Marc Nurik is under investigation: he's not. The government explains that he isn't a target or subject in the investigation. But it says:

The government perceives two areas in which Mr. Nurik’s representation of the defendant presents a potential conflict of interest which must be addressed. In examining potential conflicts of interest, the Court’s “goal is to discover whether the defense lawyer has divided loyalties that prevent him from effectively representing the defendant.” United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994). As a former employee of RRA, which has been designated as the Enterprise through which criminal conduct was conducted herein, Mr. Nurik has, at a minimum, professional relationships with other employees of RRA who do have apparent criminal culpability in the case, which could conceivably interfere with the undivided loyalty that Mr. Nurik owes to the defendant.

Secondly,* because Mr. Nurik was an employee at RRA, he may personally be in the position to provide exculpatory evidence on the defendant’s behalf, which would be prohibited if Mr. Nurik persisted in his representation of the defendant.

It is the government’s position that, in the instant case, because the aforesaid constitute potential, rather than actual, conflicts of interest, the defendant may waive those conflicts at a properly-conducted Garcia hearing.

*My question -- is "secondly" a word? Or is it just, "second"?