Padilla Loses - Five Years is "Speedy" Enough

Just because he has been incarcerated almost five years doesn't mean Jose Padilla is not getting a speedy trial. At least that's what the District Court in Miami ruled on March 23, 2007. The judge bought the Government's argument that the 3 1/2 years he was held without charges should not count against the Speedy Trial requirement contained in the Sixth Amendment to the Constitution.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Unfortunately for Padilla, and any of the rest of us who may find ourselves in the same situation, that quaint Constitutional provision doesn't mean you can't be held for one, two, three years, heck, indefinitely, without trial. It only means that if the Government ever decides to charge you with something, then at that point they have to start obeying the rules. As reported by AP,

U.S. District Judge Marcia Cooke agreed with prosecutors that Padilla's years in isolation at a Navy brig did not count because he had not yet been charged.

The criminal charges came when Padilla, a U.S. citizen accused of being an al-Qaida operative, was added to an existing Miami terrorism support indictment in November 2005. Only then did the clock start for the Sixth Amendment's right to a "speedy and public trial," Cooke said.

"I agree that the law in this case is that a criminal trial proceeding begins with the filing of the criminal process," Cooke said. "Mr. Padilla has been promptly brought to court in that matter."

(I have not found a link to the decision yet, but will update when I do.)

This is not a really unexpected decision since the Court of Appeals had issued an opinion in September, 2005 that his detention without charges was legal. But this latest opinion is another sharp stick in the eye of American Justice and Constitutional rights.

I should explain my real problem with this decision. I suspect that the judge was slavishly following the precedents which say that the right to speedy trial attaches only after charges are filed. Fine. But this case is different from the usual ones and those precedents could be distinguished.

Here we have a man who was arrested and detained for 3 1/2 years without any charges having been filed against him. All during this time he is portrayed as this highly dangerous individual who was on the verge of killing thousands. After 3 1/2 years he was finally transferred from military detention and charged, but only after it became likely that he was about to get a Habeas Corpus hearing. To make matters worse, when the charges against him were actually filed, no mention was made of the alleged reasons for his initial incarceration. Lastly, during much of this period he has been held in solitary confinement and possibly tortured.

Sure a judge can just look at the precedents and tell him he is out of luck. Or, the judge could simply blow the whistle on this outrageous conduct and say that enough is enough. The Government will not be allowed to treat basic principles of justice as if they are written on an etch a sketch board which can be erased and rewritten at the whim of his jailers.

Where is an "activist" judge when we need one?