Lawyers Evaluate Mistakes As Prosecution Considers Al-Arian Retrial
Published: Dec 19, 2005
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TAMPA - Their theory fell flat, their expert witness may not be available a second time, and a jury already rejected their best evidence.
As prosecutors and Justice Department officials decide whether to retry Sami Al-Arian and Hatim Fariz on charges of conspiracy to support the Palestinian Islamic Jihad, they face new hurdles to salvaging their case.
A jury acquitted Al-Arian on eight charges Dec. 6 but could not reach unanimous verdicts on nine other charges, including three conspiracy counts. Jurors deadlocked on eight counts against Fariz and acquitted him of 25 others.
"They've got to make a judgment as to whether they really think they can win this," said UCLA law professor Norman Abrams, author of the 2003 casebook "Anti-terrorism and Criminal Enforcement."
A second trial might focus on fewer charges - one or two counts prosecutors think give them the best chance to succeed, he said. They also might be inclined to try deporting Al-Arian, a permanent resident, because the chance of success is better. Fariz is a U.S. citizen.
Much of the post-trial analysis has emphasized the number of charges and volume of evidence prosecutors used. Defense attorney Stephen Bernstein, whose client Sameeh Hammoudeh was acquitted of all charges, agreed there was too much.
"If I could have designed the prosecution," Bernstein said, "I couldn't have done a better job for the defense."
They placed hundreds of translations into the record, from secretly intercepted telephone calls and faxes among the defendants. FBI intelligence agents gathered the evidence for years but were not allowed to share the contents with criminal investigators.
A court ruling changed that in fall 2002, a few months before Al-Arian and the other men were indicted.
Many exhibits appeared to offer little insight into the grand conspiracies charged, and one juror said he found that many amounted to little more than gossip.
"They took information that was previously unavailable, and they didn't give any thought as to how it just didn't fit in," Bernstein said. "I thought they overused it."
A second trial would have dramatically fewer translations, in part because two of the original defendants have been acquitted, and their calls wouldn't be relevant to what is unresolved. Prosecutors probably would pare their exhibits, seeking a tighter presentation.
"It still boils down to whether they have the evidence of it," Abrams said. "The first jury didn't think so."
Meanwhile, there could be a problem finding a suitable expert witness who could explain the Palestinian Islamic Jihad's history and ideology. There are few American experts on the group. Matthew Levitt, a former FBI analyst and director of terrorism studies for the Washington Institute for Near East Policy, testified in June.
Last month, he became the Treasury Department's deputy assistant secretary for intelligence and analysis in the Office of Terrorist Financing and Financial Crime. It isn't clear whether prosecutors would try to use a government official as an expert witness.
A Treasury Department spokeswoman said no law prohibited it but would not say whether Levitt could be available.
Economic Theory
Levitt said the men engaged in "economic jihad," trumpeting Islamic Jihad attacks and raising money here to support the organization, leading to additional attacks. He pointed to videotaped appeals citing Koranic verses telling Muslims that if they cannot fight, giving financial support to those who do is equally important.
It did not seem to resonate with jurors. Most of the documented wire transfers in evidence involved people associated with a charity called the Elehssan Society with branches in Gaza and the West Bank.
Charity Function
Ziad Abu Amr, a Palestinian parliamentarian and prosecution witness, testified that the Elehssan Society is part of the Islamic Jihad. But he emphasized its charitable nature, providing financial support to people and running everything from camps to kindergartens.
Jurors pointed out that the charity was licensed by the Palestinian Authority and indicated that they could not convict the defendants based upon money sent to Elehssan or people affiliated with it. They said they saw no evidence that the money went to anything other than charity.
Several jurors said they think Al-Arian was an Islamic Jihad member, even serving on its governing board, the Majlis Shura. But each pointed to jury instructions that said "mere membership" in an organization is insufficient to find that someone entered into a criminal enterprise.
In a retrial, prosecutors would have to convince jurors that service on the governing board is a management role, said Reuven Paz, director of the Project for the Research of Islamist Movements in Israel.
"Political leaders are involved in military policy," Paz said. "They might not be involved in fixing the targets," but they do help determine how often the group may try to wage attacks and whether to hit military or civilian targets.
The evidence tying Al-Arian to the board comes from calls and faxes intercepted in 1994. The stale nature might have minimized the significance to jurors, Abrams said.
That won't change in a second trial.
"I think they have a hard challenge because they're not going to have any different evidence," Abrams said.
