Judge refuses to reinstate key Padilla terrorism charge

By CURT ANDERSON
AP Legal Affairs Writer

09/14/06 "AP" -- -- MIAMI -- A federal judge refused Thursday to reinstate a key terrorism charge in the case against alleged al-Qaida operative Jose Padilla and two other defendants, raising the possibility of delays in their trial if prosecutors appeal the ruling.

U.S. District Judge Marcia Cooke ruled in August that a charge of conspiracy to "murder, kidnap and maim" people overseas must be dismissed because it duplicated other charges in the same indictment. Cooke said at a hearing Thursday that she stands by that decision.

"I do not think I am in error in this case," Cooke said. "These are so similar that a reasonable jury could be confused."

The dismissed charge is important because it is the only one in the indictment that carries a potential life sentence. Padilla and the others remain charged with two terrorism material support counts, but a life sentence is only possible if prosecutors can prove that support conspiracy led directly to someone's death.

Prosecutors are likely to ask the 11th U.S. Circuit Court of Appeals to review Cooke's decision, which could delay the planned Jan. 22 trial date. Cooke asked prosecutors to expedite any appeal in an effort to stay on schedule.

Padilla, a 35-year-old former Chicago gang member and convert to Islam, is charged along with his co-defendants with being part of a North American support cell for violent Muslim extremists worldwide. Padilla was arrested in 2002 and held for 3{ years as an enemy combatant, initially for what U.S. officials called a plot to detonate a radioactive "dirty bomb" inside the United States.

He was added late last year to an existing Miami terrorism case amid a high-level legal battle over whether President Bush had constitutional authority to hold him without charge during wartime. The Miami indictment does not mention the "dirty bomb" allegations, claiming only charging that Padilla was an al-Qaida recruit and attended a training camp in Afghanistan.

On the dismissed conspiracy charge, prosecutors argued that it did not duplicate a second, material-support conspiracy charge in the indictment against Padilla and co-defendants Adham Amin Hassoun and Kifah Wael Jayyousi. Even if it did, prosecutors said the time to deal with that issue was at sentencing, if they are convicted.

"All the court has to do is not punish the defendants twice," assistant U.S. attorney Brian Frazier said.

But defense lawyers disagreed, saying that multiple charges have psychological impact on jurors by making a defendant appear more guilty. And, they said, jurors presented with long indictments sometimes will choose to compromise by acquitting on some charges and convicting on others.

"That creates, in the minds of the jury, a bias," said Jeanne Baker, one of Hassoun's attorneys.

In siding with the defense, Cooke found that prosecuting all three terrorism charges would violate the Constitution's ban against double jeopardy, or forcing a defendant to face the same charges twice.

In other rulings, Cooke:

--Ordered the government to turn over medical records from Padilla's military custody. Defense lawyers want to see if Padilla was given any drugs that might raise questions about his competency or whether there was any misconduct committed by interrogators.

--Refused a defense request for a list of people who attended an al-Qaida camp at the same time Padilla allegedly did in 2000. The judge said that information was exempt from disclosure because it was internal investigative material.

--Rejected for similar reasons a defense request for identities of others who filled out al-Qaida applications that were found along with one prosecutors say was Padilla's in a binder in Afghanistan. Prosecutors intend to call as a witness a member of the so-called "Lackawanna Six" cell in upstate New York to testify that he filled out a similar form.

--Allowed Hassoun's wife to testify via video hookup from Beirut, Lebanon, about the actions FBI agents took before searching their home in suburban Sunrise in 2002. Defense lawyers say she fears arrest if she and her three children return to the U.S. Hassoun, who is allegedly Padilla's recruiter, claims the FBI search was illegal and that evidence seized should be thrown out.

Copyright © 2006, The Associated Press