Padilla replies to torture

We broke the Jose Padilla motions to dismiss based on torture and the Government's response. Padilla has now replied. I don't know how to link to stuff that I scan into my computer. Does anyone know how to do this? UPDATE -- Thanks to a helpful reader, HERE ARE ALL THE PLEADINGS. In any event, here is a synopsis of the evidence Padilla plans on presenting at the hearing on the motion (the Government opposes a hearing):
UPDATE -- Here is a NY Times article on the allegations and a picture of how Padilla was moved around while at the brig. And here is the AP article written by Curt Anderson in the Washington Post.

Although Mr. Padilla’s allegations, with nothing more, should merit an evidentiary hearing, Mr. Padilla does not anticipate reliance on merely his word in meeting his burden of persuasion in this motion. Attached as Exhibit “A” is an affidavit from Mr. Padilla affirming that all the factual allegations in his motion to dismiss the indictment for outrageous government conduct are true. Attached as Exhibit “B” is an affidavit from Dr. Angela Hegarty who has evaluated Mr. Padilla and concludes, to a reasonable degree of medical certainty, that Mr. Padilla was tortured during his detention as an enemy combatant and suffers from post-traumatic stress disorder as a result of the conditions of his confinement. Attached as Exhibit “C” is a memorandum from Dr. Stuart Grassian, a renowned expert on the deleterious effect of isolation, explaining the mental and physical problems that arise from prolonged isolation and sensory and sleep depravation. Attached as Exhibit “D” is a declaration from Andrew Patel, Esq., regarding his knowledge of Mr. Padilla’s conditions of confinement and the adverse reactions Mr. Padilla has suffered due to the conditions of his confinement, including an inability to assist counsel. Attached as Exhibit “E” are still frames from an unclassified video of Mr. Padilla being transported from his cell to other parts of the facility where he was confined. These still frames show Mr. Padilla being brought out of his cell with a mask and earmuffs and all manner of restraints. One of the stills provides a partial vantage of Mr. Padilla’s cell. In addition to the attached affidavits, Mr. Padilla will separately file a request for a § 5(a) filing pursuant to the Classified Information Procedures Act, 18 U.S.C. App. III, supporting the allegations made by his motion. Also, undersigned counsel have made a specific discovery request for information pertinent to Mr. Padilla’s conditions of confinement, including Mr. Padilla’s interrogation plan, all orders authorizing interrogation techniques employed against Mr. Padilla, and the identities of all persons who conducted interrogations of Mr. Padilla or were responsible for making determinations on Mr. Padilla’s condition of confinement. Finally, Mr. Padilla has also reiterated his demand that the government fully comply with this Court’s Order, DE 572, compelling the government to turn over records generated during Mr. Padilla’s confinement. This Court ordered the government’s compliance within thirty days of September 14, 2006. Id. As of this filing, almost eighty days have elapsed since September 14 and the government still has not fully complied with this Court’s Order.

Sal Magluta resentenced

Sal Magluta was resented yesterday to 195 years in prison. The case was set for resentencing becasue the 11th Circuit had reversed one of his counts of conviction. Magluta had asked for a de novo sentencing hearing, which the judge denied. There were also some late fireworks as Magluta's lawyers filed a motion to recuse the night before sentencing, which was also denied. Here is the Herald article about the sentencing.

This decision will certainly be appealed. It will be interesting to see how the 11th Circuit deals with the Booker issues on appeal where Willie Falcon, Magluta's partner, was sentenced to 20 years as part of a deal and Magluta got 195 years for proceeding to trial. Is this reasonable?

Here is an op-ed that Milton Hirsch and I wrote, which was published in the Herald, after Magluta's first sentencing hearing -- but before the Supreme Court breathed life back into the 6th Amendment in Blakely and Booker:

Miami's last cocaine cowboy rode into the sunset last week. Salvador Magluta, considered one of Miami's most notorious narcotics dealers, was prosecuted in federal court for having witnesses murdered and for laundering millions of dollars in drug proceeds. A federal judge then punished Magluta with a 205-year sentence. Magluta, 48, will live in prison till the day he dies. But Magluta was never convicted of the homicides for which he was sentenced. A jury of his peers found Magluta not guilty of the murders, and guilty only of the nonviolent money-laundering charges -- crimes that carry a maximum sentence of 20 years.

The jury's verdict notwithstanding, the judge decided that Magluta was responsible for the homicides and sentenced him accordingly. In a watershed 1997 opinion, the U.S. Supreme Court ruled that federal judges, in imposing sentence, may ignore jury verdicts of acquittal and determine whether defendants have done wrong. The Herald applauded the punishment, and the new U.S. attorney claimed that such a sentence sends a message about justice. It does indeed: The message is that prosecutors can lose and still win, that a jury no longer stands between an accused American and a life sentence.

The jury is a special American institution and has been, until recently, the heart and soul of our criminal-justice system. The jury stands between arbitrary rule and the citizenry, and is a shield against overzealous government. Our Founding Fathers recognized that even an independent judiciary was not enough to protect us against abuses of power. They didn't trust judges to mete out justice on questions of guilt or innocence. To determine the answers to these questions, the Founders wanted the commonsense judgment of citizens. Acting upon the court's 1997 ruling, prosecutors and judges have found ways to end-run jury verdicts and the jury system itself. Judges sentence defendants convicted of lesser charges as though they had committed other, more-serious crimes, even in the face of a not-guilty verdict by a jury. Based on inconclusive evidence, or even rejected evidence, a judge is free to send a man to jail for life. Not guilty doesn't mean anything anymore. Conviction is optional. It is the jury verdict that separates America's legal system from that of so many other nations. All countries, even the worst, have laws, judges, lawyers. Most have trials -- or what are called trials -- and many even have juries. But in too many of those countries a verdict is a foregone conclusion: the prosecution having indicted, the jury is simply a rubber stamp. In Magluta's case the jury's verdict was treated as irrelevant, and because it was Magluta no one cared.

As Justice Felix Frankfurter famously warned: ``It is easy to make light of insistence of scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.''

Back to work

Welcome back to work after the long weekend!
Not much going on in the Southern District of Florida. If you have any news, please email me: domarkus -- at -- hotmail dot com.
In the meantime, here's an interesting article from the weekend about Justice Scalia, "the civil libertarian" by Scott Turow. One of the money lines: "Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases."
Will Alito and Roberts follow suit?

Turkey day news and notes

Some of the commenters are expressing frustration that I didn't post the verdict in the Jack Maxwell trial. In my defense, I was traveling over the weekend and just missed the coverage in the Herald, which was buried in the local section. BTW, it was guilty on all counts. Sheesh!

In another case we've been covering, Judge D has ruled (in a 14 page Order) on the Government's motion to have its witnesses wear "light disguises." He splits the baby, allowing the light disguises but requiring the feds to turn over the names of the witnesses and allowing cross-examination on the observation posts (which the Government did not want). I can't wait to see what they actually wear to Court. The Order says they can wear makeup, wigs, and facial hair -- as long as the jurors can see their eyes...

Finally, a reader who attended the potrait hanging for former AG Ashcroft writes in from the road: "...[T]he event was very nice, and it was interesting to see Gen. Aschroft sitting in the Great Hall directly underneath the nude statute he had covered up during his tenure with large drapes. The tall statute of the woman on the right of the stage has one breast exposed (a la Janet Jackson). When the current AG introduced Aschcroft, he was pretty funny about it. He said that the contrasts between him and the former AG were pretty obvious, starting off with: 'You know, several members of the media have commented on the different styles between John and me. And I suppose that's true. For example, John likes blue drapes. I happen to like a more open look.'"

Happy Thanksgiving

This is one of the few working days this year where there is no traffic on US1.... I'm not even in town to enjoy it. I hope all of you have a Happy Thanksgiving. If you are looking for a little reading: 1) The Government filed its appellate brief if Padilla; and 2) the trial started for the two brothers in the American Maritime Officers union case and only Sonnett gave opening statement while Haddad reserved. Last Thanksgiving, we were talking about similar items.