The Ruling on Jose Padilla's Competence to Stand Trial:
The Judge May Have Been Right, But Legal and Moral Questions Persist

By ELAINE CASSEL

Monday, Mar. 05, 2007

Last week, U.S. District Judge Marcia Cooke ruled that American citizen Jose Padilla, who is now facing terrorism charges in Miami, Florida, is competent to stand trial.

In spite of the troubling legal and moral aspects of this case, Judge Cooke's ruling was in line with what many other judges would have done in her position.

Putting the Current Padilla Case in Context: A Bizarre History

In order to put the competence issue in context, it is necessary to review the long and unprecedented history of the U.S. government's cases against Jose Padilla. Cases involving Padilla have been before federal courts in New York, South Carolina, and now Florida, and back and forth to the U.S. Supreme Court on three occasions.

It all began with Padilla's arrest on May 8, 2002, at Chicago's O'Hare Airport, on a material witness warrant, issued by a New York federal district court in connection with a grand jury investigation into the September 11 terrorist attacks.

Donna Newman, a private attorney appointed by a New York City federal judge to represent Padilla, filed a motion to vacate the warrant. Before the motion could be decided, however, Padilla was moved, in the dark of night and without notice to Newman, to a Navy brig in Charleston, South Carolina. President Bush had named him an "enemy combatant." The government claimed, at the time, that Padilla was part of a plot to detonate "dirty bombs" and blow up apartment buildings in the U.S. (Later, as noted below, it developed that the government apparently could not prove these charges.)

Meanwhile, even though Padilla was in South Carolina, Padilla's attorneys fought for the release of their client in the New York district and appellate courts. Both courts ruled in favor of Padilla; the decision of the U.S. Court of Appeals for the Second Circuit can be found here. The government then sought review from the U.S. Supreme Court, arguing, among other things, that the New York courts had no jurisdiction due to Padilla's move to South Carolina. The Supreme Court agreed, and, in Rumsfeld v. Padilla, in June 2004, the Court decided, 5-4, to dismiss the case as improperly filed.

Padilla's attorneys then began anew in challenging Padilla's detention as an enemy combatant. They refiled their case in U.S. District Court in Charleston, South Carolina. The federal district court judge ordered Padilla charged or released within 30 days. The government promptly appealed. The U.S. Court of Appeals for the Fourth Circuit, the most politically conservative federal appeals court in the country, reversed the district court. (FindLaw columnist Joanne Mariner discussed this ruling in an earlier column.)

Of course, Padilla's attorneys appealed this ruling to the Supreme Court. Court watchers expected this to be a crucial test of the limits--if any--the high court would put on the Bush Administration's claim of sweeping wartime powers. Then, the case took a surprising turn.

Weeks before the Supreme Court was scheduled to vote on whether to accept the appeal, the government notified Padilla's attorneys that it was transferring him to Miami, Florida, to face criminal charges in federal court for involvement in a vague terrorist conspiracy. The indictment was devoid of any mention of dirty bombs or blowing up apartment buildings -- presumably because these prior claims could not be proven.

Even though Padilla's attorneys agreed to the transfer--after all, what they wanted for their client was a day in court--in an amazing move, the Fourth Circuit Court of Appeals refused to allow it. An angry Judge Michael Luttig -- an ardent Bush supporter who was reportedly short-listed for what became Justice Samuel Alito's seat on the Supreme Court -- accused the government of playing fast and loose with the facts and with the court. How could Padilla be an enemy combatant one day, and a criminal defendant the next? The government appealed the Fourth Circuit's order to the Supreme Court, which found no legal basis to thwart the Justice Department's request.

Meanwhile, the petition for review of the initial Fourth Circuit ruling -- upholding Padilla's "enemy combatant" detention -- was still pending before the Supreme Court. Indeed, it appeared that the reason the government transferred Padilla to Miami was in a bid to moot the chance review would be granted.

Doubtless, the government did so because it did not want to take the chance of another ruling like Hamdi v. Rumsfeld. There, writing for a 5-4 majority, Justice O'Connor famously stated that war is not a blank check for the president. Accordingly, the Court held that Yaser Hamdi (a dual citizen of the U.S. and Saudi Arabia captured abroad) could not be held indefinitely in a military brig as an "enemy combatant." (Shortly after the Court's ruling, the government released Hamdi, and flew him to Saudi Arabia -- an action that severely undermined the rationale for his detention, which had occurred based on the claim he was a highly dangerous enemy combatant.)

Unlike Hamdi, however, Padilla never got his day before the high court. In April 2006, only three Justices (four are needed) voted to grant the appeal. Two written opinions accompanied the decision to decline review. Both Justice Kennedy (who wrote in favor of the decision) and Justice Ginsburg (who argued that review should have been granted) focused on the potential mootness issue -- caused by the fact Padilla was no longer confined based on an "enemy combatant" designation.

The Incompetence Claim: Why Post-Traumatic Stress Disorder Is a Difficult Diagnosis on Which to Base An Incompetence Ruling

Since April 2006, the focus has shifted to Judge Clarke's courtroom. She dismissed some of the criminal charges against Padilla, finding them insufficiently supported by facts, only to have them reinstated by the U.S. Court of Appeals for the Eleventh Circuit.

Last week, with Padilla's case set for trial in April, Judge Clarke turned her attention to Padilla's claim that he was mentally incompetent to stand trial.

In support of this claim, the defense's mental health experts testified that Padilla was suffering from post-traumatic syndrome (PTSD), an anxiety disorder suffered by people exposed to an extreme trauma.

People with PTSD experience three different kinds of symptoms: reliving the trauma through flashbacks and dreams; becoming upset when faced with reminders of the traumatic event; and avoiding reminders of the trauma by self-isolation and emotional detachment.

PTSD is a weak diagnosis on which to hang an incompetence defense. The Supreme Court made clear in 1985, in Ake v. Oklahoma, that to be deemed competent to stand trial, a defendant need only be able to understand the charges against him, the possible penalty if he is convicted, the adversarial nature of the legal process, and be able to assist his attorneys in his defense.

Padilla's attorneys have focused on that last requirement -- Padilla's ability to assist them in his defense. They have said that, for example, Padilla was reluctant to discuss the case with them, and that he shut down, refused to talk to them, and appeared panicked or distraught when they attempted to question him. They have reported that he sometimes seemed unable to distinguish between them and his government prison guards and interrogators, at whose hands he said he was repeatedly tortured. They added, as well, that he refused to listen to tapes of his prison interrogation -- tapes that will be a significant part of the prosecution's case against him at trial.

Judge Cooke nevertheless found that Padilla was competent to assist in his defense. It was clear that her own observations of Padilla in her courtroom factored into her decision. She noted that over the months he had been in her courtroom, he had appeared attentive to the proceedings and his attorneys. She

also referred to an affidavit he signed concerning his claims of torture. Padilla's attorneys could not have ethically presented the affidavit to the court, had Padilla not been the source of the affidavit, and read and understood what he was signing. Finally, it may have affected the judge's decision that, on the first day Padilla appeared before her, she was able to order that his chains and shackles be removed, as he appeared to be no threat to courtroom safety, and this has continued. Indeed, his prison guards have testified that he is a docile prisoner.

The Kind of Defendants That Are -- And Are Not -- Found to Be Mentally Incompetent

That Padilla looked and acted "competent" points out the practical realities relating to a claim of incompetence. Only a handful of defendants are found incompetent. When they are, it is generally obvious, even to an untrained observer, that they are mentally ill. R

egardless of the psychiatric label, a defendant who appears to be in his "right mind" -- that is, one who is well behaved, and is neither hallucinating nor talking gibberish -- simply is not going to be found incompetent.

Consider the case of Russell Weston, who in 1998 stormed the U.S. Capitol building with a .38 caliber handgun. He was on a mission, he said, to dismantle the "Ruby Satellite System" that was spreading a deadly disease. He shot and killed two police officers because, he said, they were getting in the way of his reaching the controls of the system. However, he explained, they only appeared to be dead; they would wake up when he gave the order.

Weston was found incompetent, and ordered to be medicated in order to regain competence. To this day he is hospitalized in a North Carolina federal prison hospital, still being medicated. Even the government's experts say that Weston will likely never be competent to be tried.

A more recent example is Andrea Yates, the Texas mother who murdered her five children by drowning. (I discussed the Yates case in a prior column.) She was originally found to be incompetent because she was diagnosed as being profoundly depressed reported auditory hallucinations. She was hospitalized, medicated, found competent, and tried within three months.

Neither Padilla's diagnosis nor his demeanor fit the stereotype of an incompetent defendant.

Will Judge Clarke Dismiss the Case Based on Egregious Government Misconduct?

Still pending, before Judge Cooke, is Padilla's motion to dismiss the charges based on the government's egregiously inhumane treatment.

Affidavits from Padilla and his attorneys detail outrageous conditions of confinement, particularly while he was held as an "enemy combatant," and not yet charged with a crime. Allegations not disputed by the government include long periods of sensory deprivation, interspersed with periods of extreme noise and constant bright lights to deprive Padilla of sleep; solitary confinement for now more than five years; and denial of access to an attorney for two years. The government disputes Padilla's sworn allegations of physical torture that include beatings, injection with mind-altering drugs, and denial of medical treatment.

If Padilla's motion to dismiss on these grounds were granted, it could benefit the hundreds of prisoners at Guantanamo Bay, Cuba, who have been held in similar conditions for more than five years, too. But there is little chance, in my view, that the motion will be granted.

In the 1973 case of U.S. v. Russell, the Court's opinion -- written by then-Justice Rehnquist -- conceded that there could, in theory, be an instance where government mistreatment of a criminal defendant is such an outrageous deprivation of due process that the charges against him should be dismissed. Yet besides this, there is little precedent to support Padilla's request.

Moreover, even if Judge Cooke were to dismiss the charges -- for she has indicated she is appalled by the conditions of Padilla's confinement -- the government would doubtless appeal to the Eleventh Circuit, and Judge Cooke likely would be reversed again.

I predict that some day the Supreme Court will hear the merits of Jose Padilla's case. It will not be able to stand on technicalities forever. Whatever it does decide about the constitutionality of the way Padilla has been treated by his own government for years, the

decision will have profound importance to every American who presumes, perhaps wrongly, that rights of due process, the rule of law, and fair play--long held to be hallmarks of our justice system--still mean something today.


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. Her textbook, Criminal Behavior (2nd ed., in press, Erlbaum), explores crime and violence from a developmental perspective. Her book, The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was published by Lawrence Hill in 2004.

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