Sparks fly in Padilla sentencing hearing

Five months after terror-conspiracy convictions, prosecutors and the defense still battle over the evidence.

from the January 11, 2008 edition

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According to a prosecutor, the tape was played to inform the jury of "the kind of value system [the defendants] subscribe to." Defense lawyers say it was aimed at poisoning the jury against their clients.

The jury convicted on all counts. What remains unclear is exactly how much of the government's case the jury endorsed.

To determine appropriate sentences, Judge Cooke must determine the culpability of each man.

A presentence investigation report was prepared to help the judge make that determination. But the report, written by the US Probation and Pretrial Services System with the help of prosecutors, suggests that virtually every allegation the government raised at trial was proved beyond a reasonable doubt.

Defense lawyers dispute this and have been waging a paragraph-by-paragraph battle to rewrite the report.

In addition, there is sharp disagreement over the scope and seriousness of the crimes. Legal experts say this is one of the consequences of prosecutors using expansive conspiracy charges in a case relying on circumstantial evidence and with no cooperating insider witnesses.

This mounting disagreement was highlighted in a courtroom exchange between Michael Caruso, an acting federal public defender representing Padilla, and Assistant US Attorney Russell Killinger.

Mr. Caruso told the judge that Padilla should receive a lighter sentence for his relatively minor role. He said the indictment identifies a global conspiracy to wage violent jihad in places like Kosovo, Somalia, and Chechnya, and that his client played an insignificant part in it. The government's evidence shows only that Padilla traveled to the Middle East and at some point filled out an application to attend a training camp, he said, but the trial record shows Padilla never traveled to Kosovo, Somalia, or Chechnya.

"Jose was not central or essential," Caruso said. "The fighting went on without his involvement."

Despite government assertions that Padilla was a "star recruit," Caruso said, there is no evidence that Padilla took any affirmative step to help in someone's murder, maiming, or kidnapping.

Mr. Killinger responded that Caruso's claim was "astonishing."

"[Padilla] stands before the court as a trained Al Qaeda killer," Killinger said.

Caruso shot to his feet: "That's outrageous, Your Honor."

Killinger said the government would introduce evidence later in the hearing to prove that Padilla had "successfully graduated from the camp."

“The jury found that Padilla willfully, intentionally, and knowingly supplied himself to Al Qaeda,” the prosecutor said. “For him to say he is less culpable is tantamount to a hit man suggesting he is just a minor player in a murder-for-hire scheme. He is the instrument of the scheme itself.”

Caruso said two of the government’s own witnesses at trial established that many of the thousands of young Muslim men who attended training camps in Afghanistan did so out of a sense of religious obligation to protect the Muslim community, not to prepare to become terrorists and trained killers.

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