Judge Cooke Dismisses 1/3 Padilla Indictment

See the Miami Herald Judge throws out terror charge in Padilla case, and The Order (pdf).

As usual, SDFL Blog has the juicy details:

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. …

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 … 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. …

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.

And there’s lots more good stuff where that came from.

This is a big win for Padilla and his legal team, and a very gutsy decision by Judge Cooke. But from what I know of the case — it looks like she did the right thing. And the government’s case still looks weak, although the very weakest elements are gradually being pared off…

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