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Federal District Court Judge Marcia Cooke has made a decision that Jose Padilla’s lawyers and others believe will cause a mistrial. At worst, should Padilla be convicted, it will be the Judge’s ruling that will play a significant role in a probable reversal by the Supreme Court, even one that has turned so sharply to the right.

While it may or may not be a legal blunder, Judge Cooke’s decision is a moral error.

Judge Cooke agreed to a prosecution request to play for the jury a 1997 CNN taped interview with Osama bin Laden. Judge Cooke excised what she said were the most inflammatory 13 minutes from the 20 minute tape, so the jury will hear only 7 minutes of this manipulative terrorist spouting his self-serving narrative. The reason for the jury to review the 7 minutes of Osama is the prosecution has taped phone conversations between two of the defendants, Adham Amin Hassoun and Kifah Wael Jayyousi, celebrating the contents of the interview, even, according to prosecutor John Shipley, rejoicing over bin Laden’s incendiary words.

This is what is driving Padiila’s attorney, Andrew Natale a tad crazy. There is no evidence, repeat, no evidence that Padilla ever heard or saw the bin Laden interview. “How the heck can we defend against something he’s never seen, never discussed, never had anything to do with?” Natale asked. Good question.

Let’s examine the reasons why Judge Cooke’s ruling violates the idea of a “fair” trial.


1. It is unduly prejudicial.

In legalese this translates to the question — does the value of the contents outweigh the obviously harmful effects on Padilla’s case: the jury hearing from the very man who brought 9/11 to the United States, Osama bin Laden, and then hearing two of the defendants, Hassoun and Jayyousi, via the phone tap, extolling bin Laden’s words.

While Judge Cooke says she will inform the jury that there is no evidence that Padilla ever heard or saw the interview, can Judge Cooke’s words overcome the understandable disgust if not downright hatred bin Laden’s presence will engender in the jurors? Judge Cooke’s words pale in significance and power as compared to looking and listening to bin Laden, the man responsible for 9/11 and then hearing Hassoun and Jayyousi delighting in bin Laden’s words.

2. It is guilt by association.

There they are. All three defendants are locked together in the courtroom, all three locked together in the conspiracy charges. The jury can take them in with a single glance. Birds of a feather. If Padilla is guilty of anything in connection with the bin Laden tape interview, it is the guilt of association.

Hassoun and Jayyousi believed bin Laden’s words were wonderful. There’s Padilla, sitting next to them. It’s obvious. Or so the prosecution hopes. Guilt-by-association. Thought crime. Thought crimes or crimes of guilt-by-association were rampant in the 1950s but they have been a thread throughout the history of this nation, beginning with the Puritans and their demands for absolute unanimity in a country filled with uncertainty, surrounded by savages. There was safety in numbers even if in small numbers. There was security in the certainty of lockstep conformity. That was the thread that Arthur Miller captured so well in his play The Crucible, a thread in the very fabric of this nation.

All it took to exploit that threat was a casual statement by a Junior Senator from Wisconsin.. “I have in my hand..a list of 205 – a list of names that were known to the Secretary of State as being members of the Communist Party and who, nevertheless, are still working and shaping policy in the State Department.” Prejudice and guilt-by-association were the words of the day. A trial wasn’t needed; the McCarthy accusation sufficed .

3 It is irrelevant.

How relevant is the bin Laden tape to the trial in Miami? It’s a 1997 CNN interview with bin Laden in eastern Afghanistan in late March of 1997. Obviously Padilla is not involved in the conversation. He wasn’t even involved in discussing it with Hassoun and Jayyousi years later. Padilla never saw the interview.

4. It is unfair speculation.

What is the jury seeing? Only a small portion of an interview which has absolutely nothing to do with Hassoun, Jayyousi or Padilla. Even though Hassoun and Jayyousi discussed the interview, it has nothing to do with them but produce speculation, unfair speculation.

5. It is dangerous precedent.

Just because someone agrees with someone’s politics doesn’t mean that they are an active supporter of that individual or guilty of a crime. Today, a number of Muslim and non-Muslim people agree with all or some of what Bin Laden said in his interview. They might have stated that belief on the phone or even in public. This doesn’t make them criminals.

The trail is unfair on five counts. There is only one reason for prosecutors Brian Frazier, John Shipley, Russell Killinger and Stephanie Pell to introduce the tape of the bin Laden: to instill fear and prejudice in the jurors.

I’m surprised Judge Cooke would want the jury to bring back a verdict based on fear and prejudice. It’s one thing to change political parties and to cave to the conservative Fourth Circuit Court of Appeals, but quite another to follow in the footsteps of the Junior Senator from Wisconsin.

(with Rachel M. Koch)

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