I generally don’t comment in the threads to your terrific work on the Padilla. Since I typically do not have a chance to read your articles until the next morning, I assume no one will see my caboose comments; however, just in case. . .

Thank you. I’ve thoroughly appreciated reading your articles at FDL. This subject is a judicial nightmare and you are doing a great service by coving it.

Actually, nightmare does not begin to describe this travesty. This case is also an indictment of our national cowardice. We are facing a (im)perfect storm. On one stormfront, there is a pervasive national anxiety caused by our crippling and oh-so-credible fear of brown people coupled with 24/7 media fed panic over their terrorist brethren’s plans for an oh-so-imminent mass scale vaporization TO BE UNLEASHED ON THE US ANY MINUTE NOW! (tap.tap.tap. on the shoulder, BOO!). On the other stormfront, we have a deepening and conservatively hardwired hysterical phobia of the rule of law and disdain for our bill of rights. Both fronts constantly fed by Republican weathermen.

Jose Padilla is the defendant of record. However, each day this travesty continues, history records another conviction against the U.S. for criminal disregard of our constitutional heritage and our fearful dismissal of human and civil rights. I almost wish we could plead a collective defense of insanity, but the intentional and willful top-down conspiratorial disdain for our laws and history makes that impossible.

No matter what the verdict in the Padilla trial, this case’s indictment of the United States for abandoning the rule of law to adopt a mentality of fear will stay on our record. The last six years are not subject to appeal.

sláinte,
cl

Essentially this trial applies an ex post facto standard. What Padilla did in 1998 was not a crime until 2001. Short of having substantial evidence that he actually engaged in combat against the US I can’t see how the application is relevant as documenting guilt.

He could have joined to fight the Northern Alliance…or the Iranians…or the Russians if they returned…IN AFGHANISTAN.

In order to suggest that Padilla was intent on fighting the US they’d need to show that when he applied he already knew that the Taliban or Al Qaida was going to attack the US…that he was, in fact, aware of such plans.

Kaplan went off the deep end before and was reversed by the 2nd Circuit, and this time he is wrong again. He is correct only in that the government acted in a morally despicable manner by requiring KPMG to cut off payment of fees to the (former) partners as part of KPMG’s deal with the government. But morally despicable conduct is not the same thing as unconstitutional conduct.

It is dirty pool to take steps to deprive criminal defendants of the funds to pay for a good attorney, but prosecutors do that all the time. Examples I have witness first hand: 1) Forfeiture proceedings where all of the defendant’s assets are sought to be civilly forfeited to the government, 2) Having the IRS do a “jeopardy assessment” to collect taxes of the defendant and then IRS seizes all of the defendant’s assets. Then the defendant gets charged with a non-tax crime. The prosecutors telling KPMG that they must cut off payment of fees to its (former) partners as part of a deferred prosecution agreement is no different in a constitutional sense than are the the two other examples discussed above. The constitution gives you the right to an attorney if you are a criminal defendant. It does not give you the right to the attorney that costs a bundle or even to an attorney who understands the leaky tax shelter.

There is no way that the KMPG prosecution is being intentionally botched by prosecutors. KMPG asked for trouble by taking a scorched earth approach in their dealings with IRS. Congress got involved. KPMG still acted very arrogantly, qualitatively more arrogant than its competitors, and paid the price.

Pursuing a criminal tax case as a prosecutor, particularly one involving a leaky Big 4 Accounting firm tax shelter, is complicated and difficult, even where the defendants do not generate any sympathy. This is particularly true if the prosecutor does not have a very strong substantive tax background.

“If Kafka were alive, he’d dream of the bizarre and call it DOJesque.”

Mary…
;0)

Fyodor D. anyone?

President Gregor M.

Yankees lose and Boston wins. Big MItch bummed out.

I see and I see it was the Court of Appeals which makes it something very, very serious, at least to this non-lawyers head.

Mary…
;0)

Fyodor D. anyone?