Monday, April 09, 2007

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 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.


Anonymous said...

Wow- I didn't see the story anywhere else. It is going to be very interesting how the entire process pans out. Frankly, I was a bit shocked that he was allowed to come back to Miami to stay with relatives... but from what I understand ICE scooped Posada up pending a immigration hearing.

Anonymous said...

Padilla? No remedy? Talk about the creation of a legal fiction.

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Anderson said...

"if torture isn't outrageous government conduct, then what is?"

Well, as the judge points out, "Within the framework of this Order, the phrase ‘outrageous government conduct’ should be interpreted as a legal term of art and not defined in a conventional sense."

I'm completely unfamiliar w/ the relevant law, but apparently Padilla's lawyers failed to show how OGC had any precedent for application outside the entrapment context. So the conduct may well have been outrageous, just not "outrageous."

The logic is hard to beat. If I gun down some people in cold blood, & then the cops torture me once I'm in custody, why should I go free?

I would like to see Padilla file a Bivens suit with an equally thoughtful judge ... it would be interesting.

Anonymous said...

"No remedy" Spicoli? See the comments of Anderson above. I'm sure half the South Florida bar is lining up to represent Padilla in his civil suits against the Government.

Rumpole said...

I'm trying to see this from the other side. It's hard. With regard to the above comment about OGC and entrapment, I do not think the relevant law precludes a motion being granted based on OGC for searches, statements, etc. I think here the Judge didn't see a nexus between evidence and OGC and the remedy of dismissal.
Essentially, the order allows for suppression of evidence obtained by OGC but not dismissal, apparently regardless of the OGC. Something doesn't seem right about that.
However, don't you get the feeling that in someway, the higher-ups just want this case to go away? The more publicity, the worse the government looks. Anyway, the fight goes on.