“Very Light on Facts”

From Holden:

That’s how U.S. District Judge Marcia Cooke has described the Bush Assministration’s case against Jose Padilla.

The U.S. government’s high-profile terror case against Jose Padilla and two other Muslims has suffered another serious setback as their Miami trial looms in January.

U.S. District Judge Marcia Cooke threw out the first count in the indictment — that the threesome conspired to murder, kidnap and maim persons in a foreign country — saying it repeated the main alleged “conspiracy to advance violent jihad” in two other charges.

“There can be no question that the government has charged a single conspiracy offense multiple times, in separate counts, when in law and in fact, only one [alleged] crime has been committed,” Cooke wrote in an eight-page ruling released to prosecutors and defense lawyers on Monday.

“The danger raised by a multiplicitous indictment is present in the instant indictment,” she wrote, stressing that it violates the “double jeopardy” clause of the Fifth Amendment of the Constitution — the prosecution or punishment of a defendant twice for the same offense.

The judge’s ruling — a major pretrial victory for defense attorneys Kenneth Swartz, Jeanne Baker, William Swor, Michael Caruso, Orlando do Campo, Anthony Natale and Andrew Patel — was the latest blow to the government’s case. The first count in the indictment carried a maximum penalty of life in prison.


The indictment was originally filed in 2004, but Padilla, a former Broward resident, wasn’t added until last November because the U.S. military had been holding him as an “enemy combatant” on allegations of being a “dirty bomber” bent on setting off a radioactive device on U.S. soil. That allegation is not part of the Miami indictment.

In January, federal authorities brought Padilla to Miami under heavy guard, shackled hand and foot, helicopters flying overhead.

But earlier this summer, as both sides prepared the case for trial, Cooke said the government’s evidence appeared “very light on facts.”

Last month, Cooke ordered Miami federal prosecutors — for the second time — to provide more details to make their case against Padilla, Hassoun and Jayyousi, all charged with supplying money and recruits for Islamic extremists abroad.

Cooke said the prosecutors’ initial response was “insufficient.”

Last week, Cooke rejected another request to reconsider her order.

Cooke had ordered prosecutors to supply evidence of transcripts of phone wiretaps that show the “manner and means” of the trio’s terror conspiracy — including “descriptions of the time, place, circumstances, causes, etc.” of their activities. She had set a deadline for early August to turn over that information to defense attorneys, who maintain the indictment lacks incriminating evidence.

In a July 7 letter, assistant U.S. attorney Russell Killinger restated some of the evidence in the indictment and added a few more details — but not enough to satisfy the judge.