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Behind the HLF Verdict Wait

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    The Decision-Making Behind the Wait for the HLF Verdict Miriam Rozen Texas Lawyer 10-29-2007 http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1193389423795
    Message 1 of 1 , Nov 1, 2007
      The Decision-Making Behind the Wait for the HLF Verdict
      Miriam Rozen
      Texas Lawyer

      Chief U.S. District Judge A. Joe Fish, who presided over United States
      v. Holy Land Foundation, et al. in Dallas, says he believes in the
      maxim "justice delayed is justice denied." But after the foreperson
      sent out a note on Oct. 18 saying the 12-member jury had reached some
      unanimous decisions in the HLF case, Fish made a choice to wait four
      days before reading a verdict.

      Fish, who was in Florida at a judicial conference, waited until Oct.
      22 -- after he'd returned from his trip -- instead of relying upon
      another judge to take a verdict on Oct. 18.

      Paul D. Stickney, the assigned U.S. magistrate judge on the case, says
      that before Fish went on the trip, Stickney told prosecutors and
      defense lawyers that if jurors returned a verdict while Fish was gone,
      it would be sealed until he returned.

      The plan, particularly in light of some jurors' change of heart about
      their decisions, and the mistrial that resulted on Oct. 22, has
      prompted some criticism even though a mistrial could have occurred on
      Oct. 18.

      "I have never in my experience as a federal judge seen a verdict being
      held when a judge is there to take it," says Joe Kendall, a former
      U.S. district judge for the Northern District of Texas.

      George E. Dix, a professor at the University of Texas School of Law
      who has written extensively about criminal procedure, says he too was
      bothered by the wait. "It struck me at the time as an imposition on
      everybody ... I wondered if it had an impact on the outcome."

      Fish says U.S. District Judge Barbara M.G. Lynn was prepared to take a
      jury verdict on Oct. 18 and that she called him later that day to say
      she disagreed with his decision to wait. Lynn did not return a
      telephone call seeking comment before press time on Oct. 25, but Fish
      says, "I was surprised. In my experience, one judge doesn't tell
      another judge how to try a case."

      John Helms, a former Assistant U.S. Attorney for the Northern District
      of Texas, says he understands Fish's decision, but he believes the
      unusual circumstances surrounding the four-day wait led to chaos,
      confusion and possibly the mistrial instead of an acquittal for at
      least one of the defendants. "I think there was a valid reason why a
      judge who presided over a case that was this contentious would want to
      be present when the verdict was read, but it certainly looks as if the
      end result was good for the government," says Helms, a principal in
      the Dallas office of Fish & Richardson.

      United States v. HLF involved a four-month trial, but those four days
      compounded what was already a complicated case.

      In a 42-count indictment filed in November 2005, the government
      alleges that over a six-year period, Richardson-based HLF and seven
      individual defendants (two of whom were not present for trial)
      funneled at least $12.4 million to Hamas, a Palestinian group the U.S.
      government has designated as a terrorist organization. The HLF
      defendants deny the allegations, saying the organization is a charity
      that sent money it raised to individuals and groups in the West Bank
      and Gaza for humanitarian purposes. The defendants include Mufid
      Abdulqader, an HLF fundraiser; original HLF Chairman Mohammad
      El-Mezain; former HLF Rxecutive Director Shukri Abu Baker; former HLF
      Chairman Ghassan Elashi; former HLF New Jersey representative
      Abdulrahman Odeh; and the HLF entity.

      The trial began on July 16 and jurors started their deliberations on
      Sept. 19. During the week of Oct. 15, Fish had plans to attend a
      Florida judicial conference. Before Fish left, Stickney says he held a
      conference in his chambers at which he offered defense counsel and
      prosecutors two options regarding how to handle Fish's absence:
      Stickney could halt the jury's deliberations for the week or allow
      jurors to continue and, if they reached a verdict, seal it until Fish
      returned on Oct. 22. Stickney says both sides agreed to have the jury
      continue its deliberations, so he told them that would mean if the
      jurors returned a verdict, it would be sealed until Fish returned.

      On Oct. 18, Stickney received a note from the foreperson stating that
      the jury had reached some unanimous decisions. The note read: "After
      extensive deliberation ... the jury has reached the following
      decisions: • Unanimous decisions ... all counts on one defendant •
      unanimous decisions on some of the counts on two defendants • We are
      unable to reach unanimous decision on any of the counts of three
      remaining defendants [including the HLF organization]."

      Stickney called Fish -- who was at a Florida airport about to board a
      plane to West Texas for another obligation -- and the two decided to
      follow the plan previously set out: sealing the jury's decisions until
      Oct. 22.

      Stickney says he spoke to prosecutors and defense lawyers together in
      his chambers and told them he would, as planned, wait for Fish to read
      the jury's decisions on Monday. Stickney says defense counsel said
      they wanted to hear the jury's decisions as soon as possible. Stickney
      then learned, he says, that Lynn was available and willing to take a

      Stickney says he asked both sides if either objected to Lynn taking a
      verdict. Stickney says First Assistant U.S. Attorney Jim Jacks, the
      only member of the prosecution team present, asked if he first could
      consult with his co-counsel, but Stickney does not recall either side
      objecting at that point to Lynn taking a verdict.

      Stickney says he called Fish again and told him that neither side
      objected to Lynn taking a verdict on Oct. 18. Fish says he agreed to
      allow Lynn to take the verdict since he believed neither side objected.

      Defense counsel left Stickney's chambers to make sure their clients
      were on their way to the courthouse, Stickney says. Lynn put on her
      robe, preparing to enter the courtroom, Stickney adds.

      But Jacks returned to Stickney's chambers, says Stickney, and told him
      that Jacks' co-counsel -- Barry Jonas, a trial attorney for the U.S.
      Department of Justice in the Counter-Terrorism Section, Assistant U.S.
      Attorney Nathan Garrett, and Elizabeth J. Shapiro of the DOJ's Civil
      Division in Washington, D.C. -- wanted to be present to hear the
      jury's decisions. Because they weren't present, prosecutors objected
      to Lynn taking a verdict that day.

      Stickney, with only Jacks in the room, says he called Fish a third
      time, and he recalls putting the judge on speaker phone. Stickney says
      he explained the prosecutors' objections to Fish.

      Fish recalls that Stickney put Jacks on the line and the prosecutor
      told Fish that he objected to a judge other than Fish taking a verdict
      that day.

      Fish says because the prosecution objected, he decided to return to
      his original plan and seal the verdict until he returned on Oct. 22.

      Meanwhile, defense counsel were preparing to enter the courtroom to
      hear the decisions. That's where they learned that Lynn would not hear
      the jury's decisions and they would be sealed until Monday, Stickney says.

      The jurors went home for the weekend.

      Stickney recalls that earlier on Oct. 18, one juror seemed upset and
      concerned about the jury's decisions. Stickney says she asked if the
      individual jurors would be polled.

      On Oct. 22, before the 10 a.m. scheduled proceeding, juror No. 7 wrote
      a note to the judge asking: "1. Are we going to be polled? 2. Does
      undecided mean (not guilty). If we are not going to be polled I would
      like to give my statement with the court reporter there on some of
      charges with the defendants will you please let me know. ..."

      At 10 a.m. when the jurors were seated in the courtroom, Fish called
      the proceeding to order. The foreperson told Fish of the jury's
      decisions: They had acquitted Abdulqader of all counts and acquitted
      El-Mezain and Odeh of some counts, but it remained deadlocked on all
      the charges against Ghassan, Abu Baker and HLF. The judge then polled
      the jurors.

      Three jurors told Fish that they did not agree with the verdict. In
      response, Fish asked the jurors to resume deliberations to work out
      their differences. Within 40 minutes, the jury returned to the
      courtroom, this time with a note from the foreperson stating: "Eleven
      out of twelve jurors have agreed that further deliberation will not
      change the results."

      Fish declared a mistrial. Before releasing the jurors, however, he
      re-polled the three who disagreed with the verdict and asked them
      questions about their decisions on specific counts against specific
      defendants. He learned that only one of the three disagreed with the
      jury's previous conclusions about acquitting Abdulqader on the 32
      counts against him, and all three agreed with acquitting El-Mezain on
      32 of the 33 counts against him. As a result, the judge entered not
      guilty verdicts on the 32 counts against El-Mezain.

      Because there is a gag order in place, none of the prosecutors or
      defense lawyers can comment. Through spokeswoman Kathy Colvin, U.S.
      Attorney Richard Roper of the Northern District and Jacks declined

      Marlo Cadeddu, a Dallas solo who represents Abdulqader, declines
      comment, as do Joshua Dratel, a New York solo who represents
      El-Mezain; Nancy Hollander, a partner in Freedman Boyd Daniels
      Hollander Goldberg & Ives in Albuquerque, N.M., who represents Abu
      Baker; Linda Moreno, a Tampa, Fla., solo, and John Cline, a partner in
      the San Francisco office of Jones Day, who represent Elashi; and Greg
      Westfall, a partner in Fort Worth's Westfall Platt & Cutrer who
      represents Odeh.


      Dallas solo Braden W. Sparks, a former assistant district attorney in
      Dallas, says, "I think Judge Fish should have taken that verdict right
      away and put everybody out of their misery." He also believes Fish and
      Stickney should not have discussed the procedural issue of how and who
      would receive the jury's decisions without the defense counsel
      present. "If you are going to talk to one side, you've got to talk to
      the other side in a decision of that magnitude," he says.

      Tim Evans, a criminal defense solo in Fort Worth who formerly
      represented Elashi, also questions the four-day wait. He worries that
      even though judges instruct jurors not to talk about the case outside
      the jury room, jurors might find that hard to do after they've reached
      a decision.

      "It seems very unusual that the verdict wouldn't be taken when it was
      returned just because government lawyers voluntarily absented
      themselves from the proceedings. I can't see what it would have hurt
      to take advantage that Judge Lynn was ready and willing and able. With
      an unsequestered jury, why would you want the jury to go out and talk
      to others?"

      Fish does not believe the conversation with Stickney, Jacks and
      himself, without the defense lawyers present, caused any harm. In
      waiting four days to read the verdict, Fish says he believes he
      adhered to his original plan to keep it sealed until he returned to

      Stickney says that conversation was an extension of a discussion to
      which the defense had been a part of moments before. Events were
      moving quickly and he had to communicate quickly with Fish. He says
      Fish ultimately did not change his initial position.
      For Kendall, now a partner in the Dallas office of Provost Umphrey,
      the wait raises questions. Why would a judge keep defendants, their
      families and a jury waiting when another judge was available to hear
      the decision? he asks.


      The American Police State
      Posted on Oct 29, 2007

      By Chris Hedges

      A Dallas jury, a week ago, caused a mistrial in the government case
      against this country's largest Islamic charity. The action raises a
      defiant fist on the sinking ship of American democracy.

      If we lived in a state where due process and the rule of law could
      curb the despotism of the Bush administration, this mistrial might be
      counted a victory. But we do not. The jury may have rejected the
      federal government's claim that the Holy Land Foundation for Relief
      and Development funneled millions of dollars to Middle Eastern
      terrorists. It may have acquitted Mohammad el-Mezain, the former
      chairman of the foundation, of virtually all criminal charges related
      to funding terrorism (the jury deadlocked on one of the 32 charges
      against el-Mezain), and it may have deadlocked on the charges that had
      been lodged against four other former leaders of the charity, but
      don't be fooled. This mistrial will do nothing to impede the
      administration's ongoing contempt for the rule of law. It will do
      nothing to stop the curtailment of our civil liberties and rights. The
      grim march toward a police state continues.

      Constitutional rights are minor inconveniences, noisome chatter, flies
      to be batted away on the steady road to despotism. And no one, not the
      courts, not the press, not the gutless Democratic opposition, not a
      compliant and passive citizenry hypnotized by tawdry television
      spectacles and celebrity gossip, seems capable of stopping the
      process. Those in power know this. We, too, might as well know it.

      The Bush administration, which froze the foundation's finances three
      months after the Sept. 11, 2001, terrorist attacks and indicted its
      officials three years later on charges that they provided funds for
      the militant group Hamas, has ensured that the foundation and all
      other Palestinian charities will never reopen in the United States.
      Any organized support for Palestinians from within the U.S. has been
      rendered impossible. The goal of the Israeli government and the Bush
      administration—despite the charade of peace negotiations to be held at
      Annapolis—is to grind defiant Palestinians into the dirt. Israel,
      which has plunged the Gaza Strip into one of the world's worst
      humanitarian crises, has now begun to ban fuel supplies and sever
      electrical service. The severe deprivation, the Israelis hope, will
      see the overthrow of the Hamas government in Gaza and the
      reinstatement of Palestinian President Mahmoud Abbas, who has become
      the Marshal Pétain of the Palestinian people.

      The Dallas trial—like all of the major terrorism trials conducted by
      this administration, from the Florida case against the Palestinian
      activist Dr. Sami al-Arian, which also ended in a mistrial, to the
      recent decision by a jury in Chicago to acquit two men of charges of
      financing Hamas—has been a judicial failure. William Neal, a juror in
      the Dallas trial, told the Associated Press that the case "was strung
      together with macaroni noodles. There was so little evidence."

      Such trials, however, have been politically expedient. The
      accusations, true or untrue, serve the aims of the administration. A
      jury in Tampa, Chicago or Dallas can dismiss the government's assaults
      on individual rights, but the draconian restrictions put in place
      because of the mendacious charges remain firmly implanted within the
      system. It is the charges, not the facts, which matter.

      Dr. al-Arian, who was supposed to have been released and deported in
      April, is still in a Virginia prison because he will not testify in a
      separate case before a grand jury. The professor, broken by the long
      ordeal of his trial and unable to raise another million dollars in
      legal fees for a retrial, pleaded guilty to a minor charge in the
      hopes that his persecution would end. It has not. Or take the case of
      Canadian citizen Maher Arar, who in 2002 was spirited away by Homeland
      Security from JFK Airport to Syria, where he spent 10 months being
      tortured in a coffin-like cell. He was, upon his release, exonerated
      of terrorism. Arar testified before a House panel this month about how
      he was abducted by the U.S. and interrogated, stripped of his legal
      rights and tortured. But he couldn't testify in person. He spoke to
      the House members on a video link from Canada. He is forbidden by
      Homeland Security to enter the United States because he allegedly
      poses a threat to national security.

      Those accused of being involved in conspiracies and terrorism plots,
      as in all police states, become nonpersons. There is no
      rehabilitation. There is no justice.

      "He was never given a hearing nor did the Canadian consulate, his
      lawyer, or his family know of his fate," Amnesty International wrote
      of Arar. "Expulsion in such circumstances, without a fair hearing, and
      to a country known for regularly torturing their prisoners, violates
      the U.S. Government's obligations under international law,
      specifically the Convention against Torture and Other Cruel, Inhuman,
      or Degrading Treatment or Punishment."

      You can almost hear Dick Cheney yawn.

      The Bush administration shut down the Holy Land Foundation for Relief
      and Development six years ago and froze its assets. There was no
      hearing or trial. It became a crime for anyone to engage in
      transactions with the foundation. The administration never produced
      evidence to support the charges. It did not have any. In the "war on
      terror," evidence is unnecessary. An executive order is enough. The
      foundation sued the government in a federal court in the District of
      Columbia. Behind closed doors, the government presented secret
      evidence that the charity had no opportunity to see or rebut. The
      charity's case was dismissed.

      The government has closed seven Muslim charities in the United States
      and frozen their assets. Not one of them, or any person associated
      with them, has been found guilty of financing terrorism. They will
      remain shut. George W. Bush can tar any organization or individual,
      here or abroad, as being part of a terrorist conspiracy and by fiat
      render them powerless. He does not need to make formal charges. He
      does not need to wait for a trial verdict. Secret evidence, which
      these court cases have exposed as a sham, is enough. The juries in
      Tampa, Chicago and Dallas did their duty. They spoke for the rights of
      citizens. They spoke for the protection of due process and the rule of
      law. They threw small hurdles in front of the emergent police state.
      But the abuse rolls on. I fear terrorism. I know it is real. I am sure
      terrorists will strike again on American soil. But while terrorists
      can wound and disrupt our democracy, only we can kill it.



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