(Written with Brad Jacobson [1]. Part 5 of a series [2].)

The law is filled with all kinds of nooks and crannies.

In federal court cases, it is illegal for the prosecution to go “judge shopping.” Which judge presides over a case is supposed to be determined by a spin of the wheel. It is, however, possible to judge shop simply by indicating one case is related to another already in the court system.

Two pathways existed to further prosecution of Jose Padilla: indict him on separate charges or via a superseding indictment to an ongoing case. The ongoing case, involving Adham Amin Hassoun of Ft. Lauderdale and Kifah Wael Jayyousi of Detroit, had already been assigned a judge, one the prosecution believed was a sure thing -- Marcia G. Cooke.

So instead of indicting Padilla on his own account, he was added via a superseding indictment to the ongoing case of Hassoun and Jayyousi. The charges in this indictment lacked so many of the alleged criminal elements that originally inspired President Bush to designate Padilla an “enemy combatant,” they became known around the courthouse as “Padilla lite.”

Why was the prosecution so confident Judge Cooke would do its bidding?

Cooke began her legal career as a public defender and registered Democrat, but later became a Republican (where there were better pickings), eventually making a good impression on then Florida governor Jeb Bush, to whom she reported directly while operating as Florida’s chief inspector general. It was Brother Jeb who recommended that Brother George appoint Cooke to the Federal bench, making her one of the few blacks appointed to a position of consequence during the president’s eight-year term. (There was speculation that Cooke had dreams of becoming the first black woman to be appointed to the Supreme Court.)

Her relative inexperience (only three years on the bench), and her willingness to play the supporting role the government sought, made her ham-handed from the very start of the trial.

In an extraordinary move, Cooke had her overbearing marshals obstruct reporters from doing their job by, in effect, granting “observer status” to reporters. They could sit quietly and take notes but were actively and physically prevented, during recess, from asking any question of a prosecutor or defense attorney, even the correct spelling of the name of a witness.

Cooke made two attempts at appearing to have some independence: the first was to rule that Padilla could not to be brought into her courtroom in chains and shackles. While her thug-like marshals had totally intimidated the press, the spectacle of a manacled Padilla might have been too on-message. Thus, this ruling, which stood, actually may have aided the prosecution, shielding it from overplaying its totalitarian hand.

Her second attempt (possibly made for the same reason) occurred early in the proceedings: she dismissed the most serious charge in the indictment – conspiracy to murder, kidnap and maim people overseas -- saying it was “duplicative” of other charges in the case.

But the result would set the tone for the remainder of the trial.

The prosecution immediately appealed to the ultra-conservative 11th Circuit Court of Appeals, which responded almost instantaneously, reinstating the charges in a swift and public way. The message to Cooke was clear. It would be her last significant ruling for the defense (arguably, until she rejected the prosecution’s wish to sentence Padilla for life).

Judge Cooke’s highly questionable courtroom extended to the jury as well.

An often overlooked event, which in more equitable proceedings might have led to a mistrial, occurred just prior to the July 4th recess: the Miami jurors filed into the jury box -- first row,
second, and third. But in what could only be a clear signal of its lack of impartiality, the first row of jurors that day were dressed all in red, the second row all in white, and the third row all in blue. This overt act, antithetical to a democratic judicial process, should have made any respectable judge livid and any responsible media outlet vocal. But it did neither.

Thus, it was no surprise this jury of red, white and blue -- having been denied the facts about the government’s ever changing charges, Padilla’s torture and illegal imprisonment, along with the denial of his other constitutional rights – such as the right to a swift trial -- took only a day and a half to review and consider three full months of testimony before finding Padilla and the other two defendants guilty on all counts.

Meanwhile, some in the legal community have defended Cooke, citing she was handed a difficult, high-profile case and that her final verdict, denying prosecution’s attempt to put away Padilla for life, showed a deserved leniency.

But this argument does not account for the fact that once the prosecution failed to provide that mysteriously missing 88th videotape (of Padilla’s interrogation at the Naval brig in South Carolina), Judge Cooke had the option of dismissing one or more of the charges against him. Yet she never exercised it, even after she had previously attempted to throw out the most serious charges against Padilla at the beginning of the trial. After Padilla’s gross mistreatment by the government – physical, mental and legal – which Cooke herself cited when she ultimately rejected the prosecution’s desire to lock him away for life, dismissing one of the charges after that 88th videotape happened to go missing would have been the just action to take.

Moreover, while Judge Cooke denied her jurors any knowledge of Padilla’s hellish abuse at the hands of the government or of the government’s series of legal bait and switches, she did cite these state abuses while rendering her sentence. Even if such maneuvering is an example of one of those nooks and crannies in our legal system, where is the justice in this? Why should a judge be ruling on something about which her jury is completely in the dark, about which might have meant the difference between freedom and nearly two decades of incarceration for a U.S. citizen whose constitutional rights were violated in a shockingly unprecedented manner.

Undoubtedly, a fair trial would have impelled Cooke to mete out justice that included more than a rebuff to the government’s suggested draconian prison term, a relatively stingy display of mercy for a man who, on the basis of charges that were never proven, had been treated worse than an animal for three and a half years by his own country.

The travesty of justice in this case also extends to those foot soldiers in Bush’s Justice Department who have thus far dodged any accountability for Padilla’s nightmarish journey.

John Ashcroft, who brought the “dirty bomb” charges, currently earns tens of thousands of dollars for his lectures. James Comey, who introduced the blowing-up-apartment-buildings charges, is now General Council for Lockheed Martin Company, earning hundreds of thousands in salary and hundreds of thousands more in stock options. Alberto Gonzales, who presented the conspiracy charges, is now disgraced, working at home, developing a trust fund to help pay for his legal expenses to defend against charges of perjury and improperly tampering with a congressional witness.

Jose Padilla will spend the next 17 years and four months of his life in prison (the prosecution’s appeal notwithstanding), where he will likely further descend into madness.