Padilla leak brings angry Fed response

Published: Tuesday, January 23, 2007 at 6:01 a.m.
Last Modified: Monday, January 22, 2007 at 11:49 p.m.

MIAMI — The leak of transcripts of Jose Padilla's intercepted telephone conversations by a defense lawyer to The New York Times violated a court order and could jeopardize selection of an impartial jury, federal prosecutors said Monday.

"There is no question that the disclosure was calculated and deliberate, with the effect of exposing potential jurors to evidence before it is introduced at trial when both sides will have the opportunity to argue its significance," prosecutors said in court papers.

U.S. District Judge Marcia Cooke has scheduled a hearing Wednesday on the issue, the latest in a string of complications to arise in the case of the alleged al-Qaeda operative.

Padilla, a 36-year-old U.S. citizen and former Chicago gang member, is charged with being part of a North American cell that provided cash, supplies and recruits to Islamic extremists. Originally accused of plotting a radioactive "dirty bomb" attack after his 2002 arrest, Padilla was designated an enemy combatant by President Bush and held without criminal charge on a Navy brig for 3 years.

He was added to an existing Miami terrorism-support case in late 2005 during a legal battle over the president's wartime detention powers. The dirty bomb allegations are not mentioned in the Miami indictment.

Three Miami-based public defenders representing Padilla — Michael Caruso, Anthony Natale and Orlando do Campo — admitted in court papers that "one of Jose Padilla's counsel" provided the transcripts to a Times reporter for a story published Jan. 4. The lawyer responsible was not identified.

Padilla also is represented by attorney Andrew Patel of New York, but his name does not appear on the document acknowledging responsibility for the leak.

The seven transcripts were covered by a June 21, 2005, order by Cooke prohibiting dissemination of "sensitive" evidence. The transcripts were declassified telephone intercepts on which Padilla's voice is heard that were obtained under the Foreign Intelligence Surveillance Act.

Prosecutors contend that their disclosure violates Florida Bar and American Bar Association rules governing attorneys' professional conduct. Penalties for such violations vary greatly, from jail time in extreme cases to a judicial reprimand.

The defense lawyers said in their own court papers that disclosure of the transcripts was "born of confusion" about the judge's order. Because the 2005 order had been replaced in 2006, not everyone on Padilla's team understood that the rules regarding sensitive material still applied.

Prosecutors, however, cast doubt on the argument, noting that Assistant U.S. Attorney Russell Killinger said in a letter when the transcripts were turned over to the defense on Jan. 23, 2006, that they were "sensitive discovery materials" covered by Cooke's original order.

Prosecutors accused defense lawyers of "whipping up a media frenzy" that could taint the pool of prospective jurors.

A spokeswoman for The Times declined comment. None of the four defense lawyers responded to e-mail messages seeking comment about the latest government claims.

The Padilla trial had been scheduled to start Monday but was delayed until April, in part to allow time for a mental competency evaluation. Two mental health experts hired by Padilla's lawyers say he suffers from post-traumatic stress disorder stemming from his long isolation in military custody and is unable to adequately assist in his own defense.

Padilla's lawyers claim he was tortured while in the brig and are seeking dismissal of the charges on that basis. Pentagon and Justice Department officials have denied those.

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