DBR on Brian Andrews

Julie Kay covers the Brian Andrews story in today's DBR. Here's a snippet:

Prosecutors asked a Miami federal judge Thursday to investigate how a South Florida television station obtained a government video of an alleged ringleader of the “Miami Seven” discussing possible terrorist attacks on high-profile buildings. The government made its request one day after U.S. District Judge Joan Lenard refused a defense attorney’s attempt to block WFOR-TV from broadcasting portions of the video for a news story late Wednesday. In court papers, Assistant U.S. Attorneys Jacqueline M. Arango and Richard E. Getchell said the videos were supposed to be part of a sealed record. They asked the judge to conduct a hearing to determine whether a sealing violation had occurred. ***

After learning of the television station’s plans to air portions of the videos Wednesday night, Batiste’s attorney, Ana Jhones of Miami, filed a request for a temporary injunction to prevent the broadcast. “The extent of the discovery obtained is unknown; however, undersigned counsel learned that CBS News obtained all of the video and perhaps some of the audio that have been generated by the government in this case,” Jhones said in her motion. “Undersigned counsel is unsure as to how CBS News obtained this discovery, which is not a matter of public record.” Jhones did not return calls seeking comment before deadline Thursday. None of the other defense attorneys joined in Jhones’ request. Miami criminal defense attorney Gregory Prebish declined to say whether Jhones asked him to join the request to keep the video off the air. Prebish, who represents Augustin, said he is angry that the TV station aired the tapes, particularly since he says the defense attorneys haven’t received all the tapes and discovery yet. The reason: The lawyers, all government-appointed, have not gotten approval to buy the tapes and cannot afford them. “We don’t even have these tapes yet, due to budgetary problems,” said Prebish. “The costs of the tapes are exorbitant.” He declined to state the exact cost. Brian Andrews, a reporter for the station, obtained dozens of discs which contain surveillance video made by federal undercover agents during their investigations.

Leaking...

Narseal Batiste's new appointed lawyer, Ana Jones, came out swinging today -- filing an emergency motion to keep Channel 4 from running a story about the video and audio clips from the discovery in the Miami 7 "terrorism" case. Reporter Brian Andrews, during the story, says that Channel 4 obtained over 20 CDs containing the video, audio, and still pictures. The story doesn't say how he got this material, but this (copying numerous CDs) is usually the way the Government discloses discovery to the defense. I can't imagine the defense gave these materials to the press, so I leave it to you to figure out who did.

I haven't seen Jones' motion, so I don't know the grounds she alleged to keep the news from running a story, but Judge Lenard denied the motion from the bench and the story ran tonight on Channel 4. Here it is. The video is on the right side of the page. Or click here.

UPDATE -- perhaps I spoke too soon. After this report aired, the Government filed a motion asking Judge Lenard to conduct an inquiry as to who on the defense leaked the discovery. The motion says that it did not leak and that the copy service has only released the discovery to the defense lawyers... I still say no way the defense leaked. So based on the Government motion, I predict the copy service, despite its protestations, made a mistake and distributed it.

No appeal yet

As far as I can tell, the Government has not yet filed an appeal from the Padilla order. I thought that it would happen immediately, as happened in the NSA case where the Government filed a notice of appeal the very next day.

Nothing really new to report in the District. If you have any news or topics you want discussed, please email me.

In the meantime, back to a sentencing memo I have to write...

Count I dismissed in the Jose Padilla case

BREAKING NEWS:

Judge Marcia Cooke has dismissed Count I of the indictment against Jose Padilla because it is multiplicitous. In other words, Count I represents the same offense that is also charged in Counts II and III. An indictment is multiplicitous when it charges a single offense multiple times, in separate counts. There are 2 reasons that multiplicitous counts may be prejudicial to a defendant: 1) the defendant may be sentenced twice for only one crime; and 2) multiplicitous counts may improperly prejudice a jury be suggesting that a defendant has committed several crimes, not one. Judge Cooke explained that because "in Counts I, II, and III, the government alleged one and only one conspiracy, with one and only one purpose and object for each of the conspiracy counts," Count I is multiplicitous and must be dismissed. (emphasis in original).

The government, of course, is still free to proceed with its case on Counts II and III. I would guess, however, that the government is going to appeal -- and quickly. Count I -- conspiracy to murder, kidnap, and maim persons in a foreign county, in violation of 18 U.S.C. 956(a)(1) -- is by far the most serious count, carrying a life maximum. Counts II and III carry far less serious maximum penalties (I believe each has a 10 year max on each, although I will check this). An appeal will delay indefinitely the current trial setting in January, so Mr. Padilla will have to spend more time in solitary confinement.

This was a very courageous order by Judge Cooke. The government for far too long has been charging the same crime many different ways for tactical reasons. The more counts in an indictment, the greater the chance a jury will find a defendant guilty of one of the counts. And under the sentencing guidelines, even if there is only a conviction of a single count, the judge can then consider all of the counts and allegations (even acquitted conduct) in calculating a guideline range. Perhaps this order, if affirmed by the Eleventh Circuit, will begin pushing back against this tactic.

In addition to dismissing Count I, Judge Cooke also found that Count II was duplicitious. A charge is duplicitous if it alleges two or more separate and distinct crimes in a single count. The dangers posed by a duplicitous counts in an indictment are three-fold: 1) a jury may convict a defendant without unanimously agreeing on the same offense; 2) a defendant may be prejudiced in a subsequent double jeopardy defense; and 3) a court may have difficult determining the admissibility of evidence. Although the Court made this finding on Count II, it was not dismissed. Instead, the government has until Friday to decide which of the two crimes charged (either the general conspiracy statute under section 371 or the terrorism statute, section 2339) to pursue. Obviously, the government will elect the more serious terrorism section. This decision will also, I'm sure, be appealed.

Most people will announce surprise at these rulings for one of two reasons -- first that Judge Cooke is a Bush appointee or second that counts are almost never dismissed on these grounds. As I have explained before, Judge Cooke is as fair a judge as there is. Judges cannot comment on their opinions. They cannot defend their opinions in the press. I hope that the bar stands up for Judge Cooke and explains these technical aspects of the law to the press. As for the second ground, simply because it does not happen a lot doesn't mean that it shouldn't or that it wasn't correct in this case. It would have been very easy to deny the motion. Judge Cooke should be applauded for doing what she believes is just and right, and compelled by the law, in a very difficult case with lots of political and media pressures. Now we'll get a definitive answer from the 11th as to whether prosecutors will be able to charge one crime as many ways as they can come up with...

UPDATE -- first article on the board goes to Jay Weaver, here.

Here is the Order.

Here is the CNN article.

"5 charged with organizing Cuban migrant smuggling trips"

Read the Herald AP article here.

I'm out -- have a nice weekend.