Judge Denies Padilla Motion to Dismiss Based on ‘Outrageous Government Conduct’

As usual SDFLA blog has the story first, Judge Cooke denies Jose Padilla's motion to dismiss for outrageous government conduct.

Judge Cooke did something interesting last night: she avoided the need for an evidentiary hearing on Padilla's claims that he'd been tortured by the Navy by taking them as true for the purposes of deciding this motion. Even taking those factual claims as true, however, the Judge denied the motion. Of the reasons given, the third strikes me as the strongest and most interesting:

Mr. Padilla fails to explain why suppressing governmental use of any evidence obtained from him at the Naval Brig is insufficient for purposes of this trial. In his motion, Padilla acknowledges that the government has already averred not to seek introduction of any of the Naval Brig evidence at trial. Despite summarily rejecting this remedy as “clearly inadequate,” Padilla fails to support this contention or explain why his requested remedy is more appropriate. In fact, in his motion, Padilla relies heavily on United States v. Toscanino, 500 F.2d 267 (2d. Cir. 1974), a case where the Second Circuit sanctions this very approach. …

Mr. Padilla fails to present a cognizable claim of outrageous government conduct entitling him to dismissal of the indictment. The objectionable conduct Padilla claims violated his due process rights occurred during his military detainment in isolation of the crimes charged. Padilla also fails to adequately explain why excluding any unlawfully obtained evidence would not be an appropriate remedy in this case. Applying the exclusionary rule to bar inclusion of any illegally obtained evidence would sufficiently satisfy due process concerns. This may ultimately be a moot point since the government has averred not to utilize any Naval Brig evidence in its case. However, should the government decide to make use of any such evidence, an appropriate hearing will be scheduled to determine to what extent it is admissible.

As this decision comes after a ruling that Padilla is competent to stand trial, the argument that something about the (alleged) torture makes him unable to participate properly in his own defense is already off the table.

In summary, as I understand it, the Judge isn't exactly saying whether the government's conduct here was or was not outrageous, but rather that even assuming the truth of the allegations that it was, the only relief to which Padilla is entitled in his criminal defense is exclusion (or, amazingly, a hearing on exclusion!) of any evidence gathered while he was being held and tortured. (Claims for, say, monetary relief for illegal detention would be an entirely separate civil proceeding.)

That said, I think that to the extent Judge Cooke is relying on her reading of Toscanino for the proposition that exclusion of evidence obtained by torture is a sufficient remedy for the most outrageous government conduct, that is neither an obviously correct reading of that decision nor an obviously correct decision on first principles either. Indeed, Toscanino is pretty opaque on the question of relief, since the facts on the alleged illegal conduct had yet to be developed, and really only stands for the proposition that a defendant alleging such conduct is entitled to a hearing to present his claim to the court. At least in my quick reading of that case, what the relief should be is left pretty wide open, especially in light of this passage:

… the Supreme Court’s expansion of the concept of due process … now protects the accused against pretrial illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on its part. Although the issue in most of the cases forming part of this evolutionary process was whether evidence should have been excluded (e.g., Mapp, Miranda, Wong Sun, Silverman), it was unnecessary in those cases to invoke any other sanction to insure that an ultimate conviction would not rest on governmental illegality. Where suppression of evidence will not suffice, however, we must be guided by the underlying principle that the government should be denied the right to exploit its own illegal conduct, Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and when an accused is kidnapped and forcibly brought within the jurisdiction, the court’s acquisition of power over his person represents the fruits of the government’s exploitation of its own misconduct. Having unlawfully seized the defendant in violation of the Fourth Amendment, [FN4] which guarantees “the right of the people to be secure in their persons … against unreasonable … seizures,” the government should as a matter of fundamental fairness be obligated to return him to his status quo ante.

…we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights. This conclusion represents but an extension of the well-recognized power of federal courts in the civil context to decline to exercise jurisdiction over a defendant whose presence has been secured by force or fraud.

How one applies this language to Padilla is no easy question, since he was arrested in the US, not forcibly dragged here from abroad. It is possible to read the case the way the Judge did, but I think it's also possible read it to allow a greater remedy. The question is exactly whether “suppression of evidence will … suffice,” or whether this is a case in which more is required to vindicate “the underlying principle that the government should be denied the right to exploit its own illegal conduct.”

The issue is now clearly presented for the inevitable appeal.