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judge-judy.jpgThere is something terribly wrong with the federal judicial system when a United States District Court Judge appointed by President George W. Bush can joke about a defense attorney’s request for directed verdict of not guilty in a case where the defendant before her might possibly spend the rest of his life in jail.

There also may be something terribly right with the federal judicial system when a United States District Court Judge appointed by President Clinton can write a 64 page memo with 190 footnotes dismissing fraud charges because the Justice Department prevented the defendants from putting on a defense on their own behalf.

In the Padilla first case, Judge Marcia Cooke appears to have walked a tightrope pulled taut by the zeal of the Justice Department. While she refused to have Padilla appear in her courtroom in handcuffs, she also made it clear that she wasn’t interested in how Padilla had been treated for three and a half years in a Naval brig where he suffered from systematic sensory deprivation at the very least and possibly other forms of torture. The judge was certain this treatment didn’t render him mentally unfit to stand trial. From there it was mostly downhill for Padilla and his two co-defendants, Adham Hassoun and Kafah Jauuouisi charged with conspiracy to “commit acts of murder, kidnapping, and maiming outside the United States.”

Meanwhile in New York, U.S. District Court Judge Lewis A. Kaplan — not known as a civil libertarian –has gutted what the government claimed at one time was the largest criminal tax case in U.S. history “against 16 former partners at KPMG LLP and two others accused of designing and selling fraudulent shelters to wealthy individuals,” wrote Wall Street Journal reporter Paul Davies.

At one recent hearing, Judge Kaplan said the government had turned the case into “a holy mess for itself.” On July 26, he ruled that federal prosecutors violated the Fifth Amendment rights of two former KPMG partners by “deliberately” coercing them to speak with investigators before they were indicted; he barred the statements from being used at trial. A week earlier, he delayed the trial by four months, citing government delays in turning over information to defense lawyers, and the unresolved legal fee dispute. Judge Kaplan is considering imposing sanctions on the government and hinted that he could dismiss the case.

This is how Judge Kaplan characterized the prosecution in the first paragraph of his lengthy memo :

The government threatened to indict, and thus to destroy, the giant accounting firm, KPMG LLP (“KPMG”). It coerced KPMG to limit and then cut off its payments of legal fees of KPMG employees. KPMG avoided indictment by yielding to government pressure. Many of its personnel did not. They await trial, four of them deprived of counsel of their choice and most of the others unable to afford the defenses that they would have presented absent the government’s interference.

Days later Judge Kaplan dismissed charges against 13 defendants from the accounting firm KPMG.

Now, compare Judge Kaplan’s remarks to Judge Cooke’s remarks at the conclusion of the prosecution’s case against the three defendants as detailed by the AP’s Curt Anderson.

Defense attorneys insisted the government evidence did not prove the existence of such a conspiracy. Padilla attorney Michael Caruso pointed out that Padilla’s voice is heard on only a handful of the intercepted phone calls and is never overheard discussing any type of violence.

“There’s not an agreement by Mr. Padilla to commit a murder. If there was a plan, he was not a willing participant,” Caruso said.
Hassoun lawyer Jeanne Baker contended that her client was interested “with passion” in assisting Muslims in conflict zones such as Chechnya, Bosnia and Somalia but mainly for humanitarian reasons. She said that Hassoun has no connection to al Qaida and that FBI intercepts in which he urges others to travel to battle areas did not necessarily mean they had violent intent.

That brought a rejoinder from the judge.

“Well, he wasn’t telling people to go there to open lemonade stands,” Cooke said.

It’s possible Judge Cooke may be auditioning to be the next Judge Judy or, failing that, auditioning for a seat on the Supreme Court next to Justice Antonin Scalia, who, a new study concludes, is 19 times as funny as Justice Ruth Bader Ginsburg.

(with Christopher Austin)

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Lewis Z. Koch

Lewis Z. Koch