Thursday, November 1, 2007

[wvns] Behind the HLF Verdict Wait

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


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
verdict.

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
comment.

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.

THE ORIGINAL PLAN

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
Dallas.

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
http://www.truthdig.com/report/item/20071029_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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