Jose Padilla at the Half

The feds on Friday rested their less-than-overwhelming case in the terror support and conspiracy trial of Jose Padilla and his two co-defendants. The nub of it all? The onetime "dirty bomb" suspect's fingerprints are allegedly found on a terror camp application form. If jurors believe that he actually filled out the form, he could be convicted -- despite a startling dearth of other evidence suggesting he had anything at all to do with any sort of plot. The "star defendant" has become a "bit player" at his own trial, reports the Associated Press.

You go to trial with the evidence you have, to paraphrase a former Defense secretary, not the evidence you wish you had. Still, I'm not sure the government has anything to worry about. Never mind that there is little direct evidence linking the men to each other through a criminal conspiracy. Never mind that the wiretapped conversations, especially as they relate to Padilla, sound more like a Jack Black movie than a terror plot.

One of the key facts is that the feds were able to ensure that the trial reeks of Al Qaeda and Osama bin Laden -- U.S. District Judge Marcia Cooke surprisingly allowed jurors to see portions of a 1997 videotaped interview with bin Laden. That alone, I reckon, could be enough to send Padilla away for most of the rest of his otherwise hapless life.

What does Team Padilla do now? It figures out a way to explain those fingerprints on that form; it educates jurors about Padilla's religious beliefs; it tries to separate Padilla from his two co-defendants, who at this juncture seem like the senior partners in whatever was being discussed. Will it be enough to generate an acquittal for Padilla? I don't think so. Jurors in these sorts of cases tend to grab hold of the simplest explanation for a series of events, and the simplest explanation here favors the feds. Prints on a form? Trash talking the U.S.? Links to bin Laden's twisted philosophy? I'd be surprised if jurors will be looking for or will need a whole lot more.

By Andrew Cohen |  July 16, 2007; 8:09 AM ET
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Mr. Padilla, have you ever seen this form before? (Hands form to Mr. Padilla). "No". Later his prints are found on said form...

Posted by: Chris M | July 16, 2007 10:23 AM

These are the same jurors who gutted civil liberties like frightened sheep when the administration told them that if we don't kill them and their wives and children over there, the Winnebagos of Death might drive over here and steal the Bush cronies Anthrax!

Posted by: Detrick | July 16, 2007 09:23 PM

As our civil rights are abridged, there seems to be no limit or restraint in the feds' effort to silence, isolate or otherwise constrain all dissent. My concern for Mr. Padilla, the gullibility of the American people, and the disingenuousness of our leaders makes me want to vomit.

Posted by: Pamela | July 17, 2007 01:45 PM

As our civil rights are abridged, there seems to be no limit or restraint in the feds' effort to silence, isolate or otherwise constrain all dissent. My concern for Mr. Padilla, the gullibility of the American people, and the disingenuousness of our leaders makes me want to vomit.

Posted by: Pamela | July 17, 2007 01:45 PM

No need for anyone to vomit over this case. The evidence is largely circumstantial and not overwhelming but enough to convict Padilla beyond a reasonable doubt on the charge of providing material support to terrorists. The taped conversations between the co-conspirators establish the existence of a conspiracy. Padilla associated with these individuals. One of them mentions Padilla explicitly on tape and says he is "in the area" of Usama. (This is a co-conspirator statement, admissible for its truth, and considered by the law as reliable because it was made in furtherance of the conspiracy.) The government is entitled to put in evidence of who Usama is and what his and al Qaeda's cause is about. And found at an al Qaeda location, in Afghanistan (you didn't mention that, Andrew) is the terrorist application form (what will those terrorists think of next) with not one, not two, not three . . . but seven of his latents on it. The prints put him in Afghanistan, and the form establishes why he was there.

The government does not have to prove his involvement in a specific attack or plot. "Direct" evidence is not required. The jury will be instructed, as in all federal criminal cases, that circumstantial evidence may be given as much weight as direct evidence. The government might not get conviction on all counts, and Padilla might not be the terrorist poster boy that the Administration made him out to be for its own political purposes, but from what I have read, he ought to get convicted without any of us losing any sleep over it. He should be treated like any other drug dealer, mobster, or sex traveler that the feds prosecute -- give him his fair trial rights, and if he's convicted, he goes to jail. Perhaps the next Administration will realize that the fairness, relentlessness, and rectitude of our federal criminal justice system is among our most powerful weapons against international terrorists.

Lesson for dumb criminals: If you want to train to become a terrorist, skip the written application, see if they'll just take you based on an oral interview, and hope the lost tape doesn't show up on Andrew's blog:

UBL: Well Mr. Padilla, why do you want to be a terrorist?

JP: The U.S. is the great Satan and I want to cut its head off.

UBL: Very good. What sort of attributes do you think you would bring to this organization?

JP: I was a gang member in Chicago. So I'm pretty good with gang signs. I've got this Arabic semaphore thing going where I can relay messages from one hillside to the next, like, about where the great Satan is, that kind of thing. Wanna see?

UBL: No, that's okay. What about bombing, are you into bombing at all?

JP: Oh, I'm big into bombing. My friends and I used to set off M-80s on Division Street on the Fourth of July. You give me a coffee can, four M-80s and some radioactive waste, and I'll give you a dirty bomb.

UBL: When can you start?

JP: The gang is going to ask for two weeks notice. After that, I'll need to pack up and move. Does al Qaeda reimburse for moving expenses?

UBL: Are you kidding, of course we do, we cave in to market pressures just like everybody else. But when you return the U-Haul van, don't ask for the deposit back, OK? (Extends hand.)

JP: (Shaking hands.) Well great, I'll see you in hell, then. (Both laugh.)

UBL: Yes, see you in hell. (Chuckles.) (JP walks out of the cave; UBL turns to AAZ.)

UBL: He's a funny guy, that Jose.

AAZ: Yeah, a little goofy, though.

UBL: Yeah. Kill him.

Posted by: ExAUSA | July 17, 2007 09:34 PM

Good one, Ex -- both the legal analysis and the satire.

Posted by: Bukko in Australia | July 18, 2007 04:00 AM

Ex the dialogue was very funny, but as a general principle, circumstantial "evidence" should be given as much weight as direct? I'm not a lawyer, but how can that be? If evidence isn't solid, what use is it, should be given as much weight as something incontrovertible, and on basis to hand down a punishment?

Posted by: Tex | July 18, 2007 11:51 AM

Having sat on two federal juries in conspiracy cases that both ended up hung, I can tell you that proving conspiracy is not an easy thing to do. If all the government has on Padilla is a piece of paper with some smudged fingerprints, and a few taped phone conversations, it shouldn't be very hard for Padilla's attorneys to muddy up the waters on that evidence. Since they anticipated carrying this trial into August, I imagine they will have managed to produce enough reasonable doubt to lead to an acquittal.

And, in truth, I don't necessarily see that as a bad thing. Padilla may be as bad as they say he is, but the fact is, his rights as an American were trampled on for four years. What he seems to be guilty of is hanging around with the wrong people. This is a confused and probably not too bright young man who became a trophy for the Bush administration but failed to live up to their billing. So, to cover up their mistakes, they locked his sorry butt away for three years without charge. Now they're trying to convict him, not of the sensational charges they claimed he was guilty of, but a simple conspiracy without a plot! The judge ought to dismiss the case outright as a waste of the taxpayers time.

Posted by: John | July 18, 2007 02:57 PM

This case, and the governments handling thereof, is so tainted as to be laughable...if not for the dangerous precedent is will surely create: A U.S. citizen can be detained without an attorney, indefinetly...until the government can dream up some kind of charge. No matter that the charge is thinner than tissue paper. We just show video footage of our national boogyman - footage that has absolutely no bearing on the case - and viola...case closed.

Possible good news: since we are acting like a third world nation, maybe we can apply for aid from the World Bank.

Posted by: Kevin | July 20, 2007 02:16 PM

This case, and the governments handling thereof, is so tainted as to be laughable...if not for the dangerous precedent is will surely create: A U.S. citizen can be detained without an attorney, indefinetly...until the government can dream up some kind of charge. No matter that the charge is thinner than tissue paper. We just show video footage of our national boogyman - footage that has absolutely no bearing on the case - and viola...case closed.

Possible good news: since we are acting like a third world nation, maybe we can apply for aid from the World Bank.

Posted by: Kevin | July 20, 2007 02:16 PM

This administration has long acted as if there's no world outside their walls, and only some judges have dared to differ. History will reward them, if these troubled times do not.

Posted by: jhbyer | July 21, 2007 11:20 PM

Tex, I've been busy and haven't been back to the blog, but perhaps it's not too late for you to read this in answer to your question.

The law treats direct and circumstantial evidence the same because both may have equal probative force, depending on the circumstances. The classic example, used often by prosecutors in a closing argument, involves snow. Testimony from the witness who saw the snowfall is direct evidence of it having snowed. The witness who didn't see the snowfall, but who awoke to snow when there had been none the the night before, supplies circumstantial evidence of the snowfall. The law doesn't want the fact-finder to discredit the circumstantial evidence simply because it is circumstantial.

Instead, juries are supposed to evaluate each piece of evidence, and the evidence as a whole, to decide how good it is. Is it enough to prove the defendant guilty beyond a reasonable doubt? Direct evidence can have flaws, too; witnesses' memories are imperfect, or their testimony can be tainted by bias or interest. The idea is that the jury considers all of the evidence and asks itself if the case is proved or not.

The defendant has various protections here, four of which warrant discussion here:

First, he can't stand trial on the felony charge unless 12 of 23 grand jurors decide in the secret grand jury proceeding that the government has shown probable cause. Generally this isn't hard for the government to do, but my experience with grand juries is that they aren't the pushovers that Philip Arenella and others have said they are. No grand jury I ever appeared before would indict a ham sandwich just because I asked. The prosecutor does have total control over the evidence the grand jury hears, and the format in which it hears it, and it is a one-sided presentation. But grand jurors do ask questions and they do resist being treated as a rubber stamp. The prosecutor who walks in with a very weak case risks getting no-billed. Getting no-billed is such a humiliation that many AUSAs have arranged protections for themselves -- they ask grand juries to give them the courtesy of stopping deliberations if they are headed toward a no-bill. The grand jury foreperson will grant this courtesy by coming out and telling the prosecutor that the grand jury has questions about certain parts of the evidence or presentation. The government may or may not come back with more evidence but it knows not to ask for the indictment unless the problem is corrected. While I agree that the ability to arrange this sort of courtesy is itself a demonstration of prosecutorial control over grand juries, it is also a reflection of the grand jury's very real power and independence.

Second, at trial, you have an Article III federal judge who hears the evidence and decides whether it ought to go to the jury at all. Another horror show for a prosecutor is to be "Rule 29-ed." To have the judge toss a count, or all counts, before the defense even puts on a case. Some judges deny these motions in close (weak) cases and leave it to the jurors to acquit. If they come back guilty, the judge can toss the verdict as being without adequate evidentiary support. Judges come in all kinds, liberal or conservative, bright or slow, brave or cowardly. But most of them are independent and have integrity, and most resent prosecutors who try to push them around.

Third, you have the jury. It's hard to convince 12 people of someone's guilt beyond a reasonable doubt. So it should be.

Fourth, you have a panel of Article III appeals judges. If the district judge should not have allowed a weak case to go to the jury, the defendant can ask the appeals court to reverse that decision.

The prosecutor who puts insufficient circumstantial evidence before grand juries or petit juries, or federal judges, does so at his or her peril.

Posted by: ExAUSA | July 23, 2007 12:08 AM

ExAUSA: Thanks for taking the time for the explanation for a layman.

What you describe as circumstantial and direct (directly seen, but recalled later) is fine as far as knowing whether it snowed. There is no question in either instance of the fact, whether one saw it directly or not. Yes, as you mention, there are some restraints in place (though one shouldn't have to go to the time and expense of hoping for an appeal when a case is decided on spurious grounds; this must happen). Still I can imagine "circumstantial" could become anecdotal or even fanciful (as different from the snow example, where whether one's senses were directly involved or not doesn't change the certainty of the fact; one didn't say it snowed based on hearing someone far away say they heard that, or seeing it depicted in a movie) and holes are quite possible. One can put any imcomplete set of details together (not even mentioning perceptions or lies) to give a picture/pattern not to mention a malleable impression that is false. I strongly believe passing sentence is an AWESOME responsibility (the person physically has to serve it, and I don't know how retroactive "compensation" could be sufficient if there is a false sentence)and shouldn't be a based on throwing out accusations (I'm sure it has been done to include lying, or making up a narrative just because it is a narrative/pattern and looks like it fits together),or just consensus. I am amazed (surprisingly not infrequently)when I see what "arguments" some prosecutors actually put out in actual cases, which even to one who knows nothing of a case can tell are deliberate fabrications with no attempt even to give any factual substance. My response is incredulity as in, "that is supposed to pass for an argument?"

Posted by: Tex | July 23, 2007 02:30 PM

Tex, the government sometimes overreaches, and this was true long before the Bush Administration. Juries and judges provide one check. The political accountability of the party in power is supposed to provide another check, but that is less true under this Administration. Another check lies with the defense bar, and ultimately people like you, who ought to scream long and loud when the cause of justice is in some way prostituted.

You should draw some comfort at the fact that by and large, the core career prosecutors in Main Justice and in management levels at the U.S. Attorneys' offices are a committed, mature group and understand their roles, and the limits on their power. It is unfortunate that so many of those persons now are extremely demoralized at the Department's leadership, or lack thereof. Things are not as bad as you fear, though, and I reiterate that from what I read of the Padilla case, it sounded like a righteous prosecution, at least on the charge of lending material support to terrorists.

Posted by: GJO'L | July 23, 2007 03:02 PM

Tex, the government sometimes overreaches, and this was true long before the Bush Administration. Juries and judges provide one check. The political accountability of the party in power is supposed to provide another check, but that is less true under this Administration. Another check lies with the defense bar, and ultimately people like you, who ought to scream long and loud when the cause of justice is in some way prostituted.

You should draw some comfort at the fact that by and large, the core career prosecutors in Main Justice and in management levels at the U.S. Attorneys' offices are a committed, mature group and understand their roles, and the limits on their power. It is unfortunate that so many of those persons now are extremely demoralized at the Department's leadership, or lack thereof. Things are not as bad as you fear, though, and I reiterate that from what I read of the Padilla case, it sounded like a righteous prosecution, at least on the charge of lending material support to terrorists.

Posted by: ExAUSA | July 23, 2007 03:02 PM

Don't disagree with most of what you say, and am not enough versed in the Padilla case to make an opinion.Just noting that I don't think that things are "as bad as I fear", but basing on non-government cases which I have noticed in the papers, and general points about the real possibility for abuse. Safeguards I'm sure exist, but I've read some outrageous defense and prosecution sides(can't recall the cases offhand, sort of glossed over when read more than 2 or 3 instances)in the paper which one would think would never get to that stage of argument, and if the guarantees worked so surely, people innocent of a charge would never be convicted.

Posted by: Tex | July 23, 2007 03:52 PM

I wish I could tell you that wrongful convictions never happen, but they do. Usually, though, they result from one or more factors that contribute to a breakdown, such as:

-- Inadequate resources allocated to representation of the indigent. Result: poor quality of counsel, particularly in retrograde jurisdictions.

-- Irresponsible prosecutors. Result: Subtle and not-so-subtle forms of misconduct occur. Prosecution witnesses get improperly influenced. Scientific evidence gets spun or shaded or outright distorted. Other evidence, such as eyewitness identification (one of the most unreliable forms of evidence), is given too much weight. The prosecutor forgets his or her role as an arbiter of justice and tilts the playing field toward conviction.

-- Use of jailhouse snitches. This resulted in the wrongful conviction and death sentence of an Illinois man who was later exonerated. These snitches are notoriously unreliable and really shouldn't be used except perhaps for the most unusual circumstances in which their reliability can be assured.

-- Dishonest cops who lie, coerce confessions, or exaggerate or manufacture witness accounts. In one well-known case, Chicago police were told that a gang member named "King George" had murdered a young girl and nearly beat to death her brother. They found a kitty-corner neighbor named George and got the brother to identify him through a very suggestive procedure. George was the editor of his high school paper and was on his way to a successful life -- until he was jailed on this phony charge. He was released only because an honest cop forced the disclosure of hidden police "street files" that established his innocence. His experience in jail changed him. He wound up a exotic dancer in the Detroit area. The honest cop became an outcast for the remainder of his police career.

-- Use of junk science (such as hair or fiber evidence), dishonest lab witnesses, or experts who are plain wrong, such as the one who testified that a fire was arson because the break pattern on a window at the house represented "crazed glass," a condition associated with arson. That was a bogus theory later debunked, but not before it resulted in a wrongful conviction.

-- Lack of an independent judiciary. The number one quality in a good judge is courage. But many don't have any.

If you really are interested in this sort of thing, I recommend reading Barry Scheck's book, "Actual Innocence," and if you don't have that much time to invest, go to the Chicago Tribune's website and find the link to special projects or series. There you will find a series on a defendant executed by Texas for a crime he plainly did not commit. The case was a sort of horror show of the system gone wrong.

Posted by: ExAUSA | July 24, 2007 10:54 AM

Strange and not pleasant tales, but reality, ExAUSA. The point about prosecutors tilting the playing field toward conviction in our "adversarial" and competitive system of justice is one impression I get too often from the papers. Thanks a lot for the further elaboration and the reference. I'd think it is a subject that certainly warrants spending some time.

Posted by: Tex | July 24, 2007 12:10 PM

I add, I am amply aware there are plenty of miscreants out there. Punishing someone falsely (some even try to say well the defendant must have done something bad at some other time, so is now getting theirs), however, I don't find acceptable,ever.

Posted by: Tx | July 24, 2007 12:23 PM

Thanks, and I had forgotten, but in the crazed glass case, the expert said it was indicative of the use of an accelerant, but fire science since has established that the phenomenon happens when WATER is sprayed on the glass as the firefighters are PUTTING OUT THE FIRE! With this key evidence debunked, the prosecutors talked about the other evidence they had, including a jailhouse snitch. As for the defendant, he's long gone -- Texas executed him, too. He went to his death maintaining his innocence on the charge that he started the fire that killed his family. In this case his innocence hasn't been established, but the proof of his guilt has crumbled.

In the other Texas case, the one highlighted in the Tribune series, the paper established that the gas station robbery and murder for which the defendant was executed was in fact done by someone else.

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