Not so fast...

We earlier discussed how the Justice Department was trying to avoid a showdown on the Presidential powers debate in the Supreme Court re Padilla by charging him here in the Southern District of Florida. The Government counted on the fact that the Fourth Circuit would approve of the transfer to this district to face charges. But the Fourth wasn't so happy about the fact that its ruling was based on allegations far more sweeping than those alleged by the Government in its indictment here.

Judge Luttig has asked for the following question to be briefed: "Whether, if the government's motion is granted, the mandate should be recalled and our opinion of Sept. 9, 2005, vacated as a consequence of the transfer and in light of the different facts that were alleged by the President to warrant Padilla's military detention and held by this court to justify the detention, on the one hand, and the alleged facts on which Padilla has been indicted, on the other." The government has until Dec. 9 to file its new brief on that issue. Padilla's lawyers are to file their brief a week later, by Dec. 16.

Lyle Denniston has this analysis over at ScotusBlog.com:

The Fourth Circuit had upheld Padilla's detention on the basis of more serious claims of wrongdoing than the charges contained in the new criminal indictment. The government contended, in seeking to justify his detention, that he had been
planning to release a radioactive bomb in a terrorist plot in this country. The
new indictment levels charges of joining in a terrorist "cell" of activity to support global terrorism efforts. The indictment describes a quite minor role for Padilla.
If the government has no interest in pursuing the more serious charges, for whatever reason, the Fourth Circuit may believe that its September ruling has been undercut. This will become clear after it acts following the new briefing. In the meantime, the Justice Department has until Dec. 16 to file its response to Padilla's appeal to the Supreme Court. The Circuit Court's order may complicate that proceeding, because it will not have ruled on the transfer motion, and the possible withdrawal of its September ruling, by Dec. 16. The government, of course, would be free to ask for a further extention of time to file its response.

No word yet on how this will affect the ongoing Southern District case.

New state court gossip blog

Just wanted to point you all to a fun new blog about the state court justice building in Miami, called Justice Building Blog. Its author is Rumpole, who describes himself* this way:

In order to allow a free and fun discussion of the Justice Building, and because from time to time I need to get my clients a bond, I have assumed the identity of that famed English Defense Attorney Rumpole of the Bailey. What I can reveal is that I am a practicing criminal defense attorney in Miami, Florida who has the same high opinion of Judges, Prosecutors, Civil Lawyers, and stuffed shirts as my fictitious alter ego.

I've been asked who the author is and have even been asked if it was me. I don't know who it is and it certainly isn't me.

*Although I use the male pronoun, for all we know Rumpole could be a woman. See, e.g., Article III Groupie, A/K/A AUSA David Lat.

Congrats to . . .

Michael Caruso on being named the Chief Assistant Federal Defender for the Southern District of Florida. Michael is one of the finest lawyers I know.

Moving day...

Hope you all had a nice Thanksgiving weekend. The weather in Miami was 75 and sunny all weekend. Today is my first day at the new office, in the Alfred I. duPont Building. In a couple hours I'm taking off to Savannah on business and won't be back until Thursday. I'll do my best to post while I'm there and if not, my co-blogger -- Anonymous -- promises to post.

Bench trial = $60 million

After a bench trial, Judge Gonzalez awarded $60.9 million to a couple whose son suffered severe brain damage when he was born in a Jacksonville Navy hospital two years ago. It is the largest verdict ever under the Federal Tort Claims Act. (I wonder if it is the largest bench trial verdict.)

A couple of interesting points -- first, the case was originally assigned to Judge Graham who had to transfer the case because of Wilma. Second, the law has changed since the filing of the suit so that damages are now capped at $1 million. More coverage here and here. Plaintiffs lawyers were Ervin Gonzalez and Deborah Gander.

Good article on Padilla...

... can be read here on law.com (by Carl Jones).

Marcia Cooke in the spotlight

I've received a bunch of emails from out-of-towners asking about Judge Cooke, the newest judge in this District, and drawing interest because she is the judge assigned to Jose Padilla's case. One of the comments asks whether the government was "judge-shopping" and others like Prof. Froomkin have flat out said that the government specifically selected Judge Cooke by adding Padilla to a superceding indictment. Perhaps DOJ looked at Judge Cooke's resume and saw that she was a Bush appointee and a former AUSA and thought that she would be a push-over for the feds. Froomkin (who I doubt has ever appeared before her) goes so far as to say "the government should not expect a hostile bench." If this is what the government thought, it is dead wrong. Judge Cooke -- to put it in Chief Justice Roberts' words -- calls a strike a strike and a ball a ball, and will not be pushed around by the government. She is known in this community as a fair judge who listens carefully to both sides and calls it right down the middle. She is well liked by criminal defense attorneys and prosecutors alike. (In the interest of full disclosure, I have tried two lengthy trials in front of Judge Cooke.) In addition, I have posted about this case pre-Padilla here.

The interesting aspect of the case for me is that it shows true weakness by the President. Perhaps the administration lost confidence in its legal arguments due to the Supreme Court next week. Combine this with the recent polls and perhaps the feds figured this was an easy out. We'll see...

On a separate note, isn't Miami always the center of this poltically charged stuff -- Elian, Bush v. Gore, Padilla, and so on. Finally, via How Appealing: "Prepared Remarks of Attorney General Alberto R. Gonzales at the Press Conference Regarding the Indictment of Jose Padilla": You can access them online here, while the indictment itself can be viewed at this link. And the memorandum from President Bush authorizing the transfer of Jose Padilla from the control of the U.S. Military to the control of the U.S. Department of Justice is here.

Jose Padilla charged in Miami

Jose Padilla, the so-called "dirty bomber", has been charged in a 11 count indictment in Miami. Attorney General Alberto Gonzalez is expected to announce the charges during an 11 a.m. ET news conference.

As you may recall, Padilla had filed a cert petition with the Supreme Court seeking review of the question of whether "the President has the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial."

A response to the petition from the Justice Department was due next Monday. Interesting timing.

UPDATE (by DOM)-- There's lots to read about this interesting case. Check out ScotusBlog for detailed analysis. Also, in response to the comment, Judge Cooke is handling the case. Here is the indictment. I know Ken Swartz represents one of the co-defendants named Hassoun. I'm not sure if anyone has entered an appearance for Padilla yet. Anyone?