A first look at US case against Padilla

Jose Padilla has been held in solitary confinement for five years, enduring what experts say is some of the harshest treatment of any convicted criminal in the US. Yet he has not been convicted of a crime.

On Monday, federal prosecutors will attempt to convince 12 jurors that Mr. Padilla is a criminal and that he deserves to remain behind bars for the rest of his life. In their opening statement to the jury at the start of an expected four-month trial in federal court here, prosecutors will for the first time publicly reveal their blueprint for the government's case against Padilla.

His alleged crime: becoming a willing recruit to participate in a violent Islamic holy war. Specifically, Padilla, a US citizen who converted to Islam in the 1990s, is charged with signing a "Mujahideen Data Form" and attending an Al Qaeda training camp in Afghanistan. He also made comments on the telephone overheard and recorded by US intelligence officials that prosecutors say are evidence of a criminal conspiracy.

For their part, defense lawyers for Padilla Padilla and two codefendants will use their opening statements to the jury to present a different story.

Much of the government's case is based on innuendo and misunderstandings about Muslims, they have said. The government seeks to capitalize on fear and distrust of Islam in the wake of the Sept. 11 attacks. Defense lawyers are expected to urge the jury to put aside any emotions about terrorism, keep an open mind, and carefully examine the character and quality of the government's evidence.

The Padilla trial is attracting international scrutiny, in part to see whether the high-profile terror trial will be conducted like any other public trial in federal court.

The case raises other questions as well.

Can the government make its case without jeopardizing sensitive intelligence sources and methods? Will the defense have a fair opportunity to investigate and challenge government methods in the war on terror used against their client?

Some legal analysts suggest that the criminal justice system isn't an appropriate forum to wage a war on terror. Others say the civilian court system is robust enough to prosecute terrorism suspects.

His history in custody

Padilla was held without charge as an enemy combatant for three years and eight months. Military interrogators questioned him about his alleged involvement in a plot to detonate a radiological "dirty bomb" in the US and about his suspected knowledge of Al Qaeda. After his indictment in November 2005, Padilla was transferred to the criminal justice system and is being held in pretrial detention in a special isolated, high-security wing of the Federal Detention Center in Miami.

Because Padilla's military detention and interrogation were conducted in violation of a string of his constitutional rights – such as his right to remain silent and consult counsel, and his right to due process – government officials have acknowledged that information obtained by the military would most likely be excluded from the trial. As a result, federal prosecutors have been forced to cobble together their case from evidence obtained through other means.

Despite Padilla's notoriety as the alleged "dirty bomber," his indictment does not mention that suspected plot. Thus, the government's case against Padilla appears to be thin, some legal analysts say.

Monday's opening statement offers prosecutors their first real opportunity to demonstrate the scope of their case. Their opening statement will offer jurors a preview of the government's evidence and attempt to establish in the jurors' minds the seriousness of the alleged crimes.

"It is almost like a pep rally about your case to the jury, so that when you've completed your opening you want the jurors to want to convict the defendant," says Bruce Zimet, a south Florida trial lawyer and former federal prosecutor.

"A lot of people start making up their minds or start leaning very early in the case," Mr. Zimet says. "It is really first impressions and images of the case that come out in the opening statement, and for the prosecution it is incredibly important."

On the other side, it is equally important for defense lawyers to try to take the sting out of the government's opening. But defense lawyers generally adopt a completely different strategy for their openings. Instead of offering a comprehensive point-by-point response to each piece of government evidence, defense lawyers frequently try to zero in on a few key weaknesses in the government's case.

"You want to have two or three issues that really, really nag at the jurors and make them think maybe we just can't convict here," says Faith Gay, a trial lawyer in New York and Miami, and a former federal prosecutor.

Zimet and Ms. Gay add that both sides must be careful not to promise in the opening something they can't deliver during the trial.

Important first words

The opening statements in the Padilla case could be decisive, analysts say.

"You can win the case on the opening statement," says Fred Haddad, a south Florida defense lawyer who served temporarily as counsel for one of Padilla's codefendants, Adham Hassoun.

Mr. Haddad says that if he were still in the case he would use his opening statement to educate jurors about the history of Islam and the culture of devout Muslims that generates "this closeness that you will see, this unyielding affinity to Allah."

Haddad used the same approach while a defense lawyer in two south Florida cases involving attempts to smuggle weapons to the Irish Republican Army. In both cases, he says, jurors initially sided with the British government that IRA supporters were terrorists.

"But by the time the jury is educated as to the history and everything else, jurors invariably recognize what is baloney and what is not, and what is serious and what is not," Haddad says. In both IRA cases, his clients were acquitted of the most serious charges and served relatively light prison sentences.

"I think this jury is going to become very acclimated to what the thoughts are of [the defendants], and what really happened," he says. "And I think the government is going to have a very tough road."