Jose Padilla trial to start

The lawyers about to start trying the Jose Padilla case must have that nervous stomach feeling that all trial lawyers get the night before... There's nothing like a criminal trial. The stakes are as high as they can be. The pressure is through the roof. Nothing in the law is more exciting and exhilarating... And the biggest trial in the Nation starts tomorrow in Miami. United States of America v. Jose Padilla. Start your engines.

Our local beat is of course all over the start of the Jose Padilla trial.

"Padilla terror trial is ready to unfold; After five years in detention, Jose Padilla will finally have his day in court as jury selection begins Monday in a high-profile terrorism trial in Miami": This article appears today in The Miami Herald.

The South Florida Sun-Sentinel reports today that "5 years later, Padilla terror case closer to trial."

And The Associated Press reports that "Padilla Jury Selection Opening."

"Sports agent guilty in Cuban ballplayer case"

That's the headline in today's Herald re the smuggling trial of Gustavo Dominguez. The same jury found Roberto Yosvany, charged with operating the boat, not guilty of the conspiracy and smuggling charges.

I won't really be able to post much today or this weekend as I won't have computer access....

Trial dogs...

There isn't a better District to be a lawyer (or to be a blogger!) -- we've got the most interesting cases and the most trials. Jose Padilla starts Monday and I've been writing a bunch about that. But right now, there are two other very high profile trials proceeding.

The first is the Kenneth Wilk cop-killing death penalty trial before Judge Cohn. From reading the coverage (Vanessa Blum is covering it almost every day -- here's the latest article -- and here is Nikki Waller's coverage), it looks to me like the defense may need to focus on saving this man's life instead of going for the NG. It's a very difficult decision in a DP case -- do you go full guns blazing for the NG and perhaps alienate the jury or do you try to keep the jury sympathetic enough to your client so that they don't want to kill him. I've never done a death penalty case before (unlike Wilk's very experienced DP lawyer Bill Matthewman) so thankfully I haven't had to make that crazy hard decision.

Then we've also got the Gustavo Dominguez, sports agent smuggling case going on in Key West before Judge Moore. The Defendant has taken the stand (according to today's Herald). There is no better drama than that. It's also the most difficult decision a defense lawyer makes in any trial. Apparently the defense is that Dominguez paid the drug smuggling convict $225K not to help smuggle but because he was afraid for his and his family's life. If the jury believes him, he'll walk. If they don't, bye bye. Forget about reasonable doubt when the Defendant testifies.

Where else can you get this kind of great stuff?

Judge Cooke denies Jose Padilla's motion to dismiss for outrageous government conduct

Judge Cooke issued a blockbuster ruling late tonight, denying Jose Padilla's motion to dismiss for outrageous government conduct -- without conducting a hearing. She says she need not conduct a hearing because she is denying the motion on legal grounds, accepting all allegations made by Padilla regarding torture as true.

UPDATE -- HERE IS THE ORDER (thanks to Discourse.net for posting -- I still haven't figured out how to do that!)

Here is the rationale from the concluding paragraphs of the 12 page order (lots of lengthy footnotes omitted):

First, the fact that the governmental conduct occurred at a time and place removed from the crimes charged makes the remedy Padilla is seeking considerably more attenuated and arbitrary. Short of resorting to a ‘two wrongs make a right’ judicial process, it is difficult for this Court to ascertain how the remedy sought emanates from the infirmity defendant describes. This is considerably distinguishable from a government entrapment scenario, where the crime that the defendant is charged with is the crux of the outrageous government conduct claim.

Second, the outrageous conduct occurred while Padilla was under military control at the Naval Brig in Charleston, South Carolina. At this time, Padilla was being held under Presidential orders in connection with his enemy combatant status and had not been charged with the crimes he is currently facing. This further attenuates Padilla’s outrageous government conduct claim. Even if Padilla’s due process rights were violated while being held at the Naval Brig as an enemy combatant, he fails to explain how this violation should result in the dismissal of distinct crimes that he was not charged with at that point.

Third, Mr. Padilla fails to explain why suppressing governmental use of any evidence obtained from him at the Naval Brig is insufficient for purposes of this trial. In his motion, Padilla acknowledges that the government has already averred not to seek introduction of any of the Naval Brig evidence at trial. Despite summarily rejecting this remedy as “clearly inadequate,” Padilla fails to support this contention or explain why his requested remedy is more appropriate. In fact, in his motion, Padilla relies heavily on United States v. Toscanino, 500 F.2d 267 (2d. Cir. 1974), a case where the Second Circuit sanctions this very approach. Padilla’s Motion concedes that “the court in Toscanino noted that many cases involving due process violations center on unlawful government acquisition of evidence and that, in those instances, the proper remedy would be the exclusion of the tainted evidence.” Def. Mot. at 11.

Mr. Padilla fails to present a cognizable claim of outrageous government conduct entitling him to dismissal of the indictment. The objectionable conduct Padilla claims violated his due process rights occurred during his military detainment in isolation of the crimes charged. Padilla also fails to adequately explain why excluding any unlawfully obtained evidence would not be an appropriate remedy in this case. Applying the exclusionary rule to bar inclusion of any illegally obtained evidence would sufficiently satisfy due process concerns. This may ultimately be a moot point since the government has averred not to utilize any Naval Brig evidence in its case. However, should the government decide to make use of any such evidence, an appropriate hearing will be scheduled to determine to what extent it is admissible.

I'm sure the government is breathing a big sigh of relief this morning. The last thing it wanted were these allegations to be aired in open court. What I'm wondering is -- if torture isn't outrageous government conduct, then what is? Perhaps we should just do away with the doctrine altogether. Padilla now how issue #1 -- and a very interesting one at that -- for his appeal if he loses at trial.

UPDATE -- MSM is catching up. The AP report is here.

"Judge rules high school club can meet pending outcome of lawsuit"

That's the CNN headline about Judge Moore's ruling:

A high school club that promotes tolerance of gays must be allowed to meet while a lawsuit is pending, a federal judge ruled.

U.S. District Judge K. Michael Moore ruled Friday that Okeechobee High School must grant the same privileges to the Gay-Straight Alliance that it grants other clubs, as mandated by the federal Equal Access Act.

The American Civil Liberties Union sued the Okeechobee school board in November on behalf of the high school's Gay-Straight Alliance after school officials said the group was a "sex-based" organization that would violate its abstinence-only education policy.

In his 12-page ruling, Moore wrote that the group and its founder, high school senior Yasmin Gonzalez, have "demonstrated a substantial likelihood of success" on their claim that the school violated federal law when it prohibited the club from meeting.