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Well, about half the charges got thrown out yesterday before the evidentiary hearing. That's a good start. Of the five charges against the defendants, Judge Damrell dismissed counts 4 and 5, as well as three of the four objects of the conspiracy charged in count 1. See Memorandum and Order, 11/12/10. That leaves counts 2 and 3 and a weakened count 1. In short, the order struck the charges that the defendants violated the Neutrality Act (count 5) and that they agreed to transport explosives from the United States (count 4). It also cripples count 1, which charged a conspiracy to commit four separate crimes. In layman's terms, a conspiracy is just an agreement by two or more persons to commit a criminal offense. One can be convicted of a federal conspiracy offense even if the object crime never took place and sometimes even when the "crime" amounts to little more than just talk. In his ruling yesterday, the judge struck three of the four crimes the prosecutors say the defendants conspired to commit in count one, leaving only an alleged conspiracy to violate the Neutrality Act. Here's Denny's description of the Court's 44-page order in today's Sacramento Bee, 11/13/10; see also AP Story, 11/13/10.
What does it mean? On one side, it is a big victory for the defense. Courts rarely dismiss criminal charges before trial. Speaking for myself, the Court's order is as good as the defense could reasonably have expected before next year's evidentiary hearing. The prosecution must still face a daunting, multi-week evidentiary hearing on the defense's other motions to suppress and to dismiss for outrageous government misconduct. After the testimony at those hearings, the Court may still decide to throw out all the wiretap evidence, which would prevent the prosecution from proceeding on the remaining charges. On the other hand, the charges left standing are still very serious. Counts 2 and 3 carry a maximum possible sentence of life imprisonment and count 3 carries a mandatory minimum sentence of 25 years in prison. The defense won one important legal battle, but not the war. The bigger fight will be at the evidentiary hearing next year.
First, the government has to decide how it will proceed. It might choose to appeal the counts that were dismissed. That would suspend all proceedings in the district court and shift the legal battle to the Ninth Circuit Court of Appeals for the next year or more. In my opinion, the judge's decision is well-reasoned and is likely to be upheld on appeal. The prosecution might also try to correct the flaws the judge found in the dismissed counts by filing, yet again, another superseding indictment with new allegations and language. But I believe most or all of the dismissed charges cannot be fixed. The problem is not in the way the government charged the counts; rather, it is that no crimes were committed in those counts. If the government does file a fourth indictment in this case to try again to fix the deficiencies in the dismissed counts, it will inevitably lead to another round of motions to dismiss and delay further a case that is already more than three years old. Alternatively, the U.S. Attorney's Office could decide to accept the judge's decision and proceed to the evidentiary hearing next year, followed by a jury trial if any of its case is left standing. Or, best case scenario, the Court's action might spur prosecutors to recognize the inherent flaws in their case and now decide it is not worth proceeding on the remaining charges.
So that's where things stand for now. The Department of Justice must decide whether it is worth the time, manpower, and taxpayer money to continue to pursue a prosecution that almost no one outside of their office seems to feel is justified.
But it's not my call.