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Like it or not, Al-Arian verdict a testament to our system of justice

By HOWARD TROXLER
Published December 8, 2005


Five points about the Sami Al-Arian verdict:

(1) That's why they hold the trial.

There's a sports cliche that goes, "That's why they play the game." All the words spoken beforehand do not matter.

Despite all the news conferences and the rhetoric over the Al-Arian case, sooner or later the U.S. government had to present its evidence to a jury composed of free, independent American citizens.

Those citizens heard the evidence and did not find a single count of guilt. It was striking to hear the jurors describe afterward how they had tried to heed the law and the standards for reaching a verdict.

As long as the power to decide guilt or innocence in America rests with the citizens, and not with the government, this is still a free nation.

(2) How many places could this have happened?

We don't have to celebrate this verdict. We don't even have to like it. Neither does accepting the outcome mean endorsement of the murders and violence committed by the Palestinian Islamic Jihad.

But what we surely ought to celebrate is that such a verdict was still possible in America, only four angst-ridden years past the attacks of Sept. 11, 2001.

This verdict shows we don't have to spin America to the world, or plant news stories, or pay people for PR. We don't have to suspend our Constitution or try to get around it. All we have to do is be faithful to the principles our country was founded upon and tell the truth.

(3) The verdict does not mean the Justice Department was wrong to prosecute.

When an acquittal occurs in criminal trials at any level, whether for jaywalking or first-degree murder, some folks make the same claim: that the verdict proves the charges should never have been filed.

But an acquittal does not automatically mean that. The prosecutors' job is to say, "We think this person committed a crime." The jury's job is to decide whether it is proven. In a healthy system, there are always going to be acquittals.

Yes, prosecutors are supposed to consider the likelihood of proving the case when they file charges. It would be unethical to file a charge that they knew they couldn't prove.

But in this case, the mere fact that the jury was hung on several charges shows that the government had a strong enough case to convince at least some of the jurors. The feds were, at least, inside the ballpark.

(4) The verdict does not mean USF was wrong to fire Al-Arian. Neither does it mean he should be hired back.

Again, there's a different standard at work. You do not have to commit a federal crime to get fired from a university. Neither is being acquitted an automatic argument for reinstatement.

To be sure, the University of South Florida was wimpy in the way it handled Al-Arian's case. The school did not, when it could have, fire the computer science professor for using the school as cover to play footsie with international terrorists.

In the end, they fired him for being controversial, and that was the wrong reason. Still, if I were president Judy Genshaft, I would invite him to sue rather than rush to find new office space for him.

(5) What's the point of trying him again on the charges that hung the jury?

Every trial lawyer knows that in a close case, you could put the same evidence in front of 10 different juries and get a conviction only seven times, or five, or one.

On the surface, this seems to reflect poorly on our system, making it look like a random crapshoot. But it isn't. The vast majority of cases are clear-cut. Usually, only the toughest cases to prove make it to a jury in the first place.

The test in any trial is not whether any jury would ever convict, but what this jury will do. Otherwise, we should just let the government keep holding trials over and over until it gets the result that it wanted.

The feds have done their job against Al-Arian. A jury did not find the charges proven. There are many threats both in the world and here at home. I hope the Justice Department remains diligent, vigorous and unbowed. But as for throwing the same case up against a new jury in hopes it will stick to the wall better next time, there are better uses of our time.

[Last modified December 8, 2005, 12:19:04]


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