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Case too complex to get a conviction

A juror says the case against Sami Al-Arian left them overwhelmed. Now prosecutors have to decide whether to try again.

Published December 8, 2005

[Times photo: Chris Zuppa]
Sami Al-Arian's wife, Nahla, left, and daughter, Laila, head into a Hillsborough County jail to visit him. He remains in custody after Tuesday's verdicts.
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TAMPA - After the first full day of jury deliberations in the Sami Al-Arian trial, the forewoman left the courthouse feeling overwhelmed.

"So much evidence to be matched with so many counts and complicated jury instructions. I didn't know how we'd ever get it done," said forewoman Jeannie, who asked that her last name not be used.

The 12 jurors ultimately spent hours reading transcripts of wiretapped conversations, bank records, intercepted faxes.

Most of them had trouble seeing a crime, or even a plan to commit one. They saw no hard evidence of a conspiracy linking Tampa and the bloody streets of Israel. And so the case against Al-Arian and three co-defendants fell apart, ending in acquittals and mistrials.

Now, as federal prosecutors decide whether to retry Al-Arian and Hatem Fariz, jurors' views about the complexity of the case and the way it was presented could influence that decision.

Prosecutors' next step is the subject of much speculation among legal experts and former federal prosecutors, as well as defense attorneys in the case.

Al-Arian and three co-defendants stood trial in federal court, charged with financially aiding Palestinian Islamic Jihad, a Middle Eastern terrorist group that has taken credit for more than 700 killings in Israel and the occupied territories.

Of 17 counts, the jury acquitted Al-Arian on eight and deadlocked on nine. Co-defendant Fariz was acquitted on 25 counts, with mistrials on eight counts. The jury found co-defendants Ghassan Ballut and Sameeh Hammoudeh not guilty on all counts.

Fort Lauderdale criminal defense attorney Bruce Udolf, a former federal prosecutor, says the decision to retry or not could go either way, because in some ways the government may be in a stronger position, but in other ways it is in a weaker position.

A strength: "Federal prosecutors can now talk to the two defendants who were acquitted and possibly get important information to improve their case," said Udolf.

A weakness: "The jury returned substantial acquittals, and 10 of the 12 wanted to acquit on most of the counts that ended in mistrial. If this many jurors had reasonable doubt, you have to be concerned about insufficient evidence."

The most serious of the remaining charges against Al-Arian is the first count, which accuses him of conspiring to commit racketeering activities. A conviction on this count, if prosecutors retry the case, could mean decades in prison.

Charles Shanor, Emory University law professor specializing in national security, said prosecutors may have thrown too much at jurors when they sought convictions on 51 counts.

"It looks a bit like a kitchen sink," he said. "If the government can really focus its case - and therefore jurors in a subsequent trial - that might lead them to proceed."

But they might want to wait, Shanor said.

"Let it sit," he said. "Reassess. Think about it. And then if you decide to proceed, it's even possible they might reach some deal with Al-Arian and his lawyers."

Al-Arian's co-counsel Bill Moffitt offered a different perspective.

"To think about retrying this case, or getting back into it after the ordeal the government and defendants have been through, begins to sound like retribution," he said. "The government should take what the jury is telling them to heart."

The jury forewoman said that two jurors held out for convictions on count one against Al-Arian, leading to a mistrial on that charge.

The two jurors, she said, believed Al-Arian had to have had a criminal plan to launder money because there was no indication that he paid taxes. Other jurors argued that taxes were not an issue in the case.

"But to the two holdout jurors, they appeared to be," said the foreman. "Beyond that, the rest of us didn't know what they were relying upon."

Evidence showed that Al-Arian transferred hundreds of thousands of dollars in and out of four accounts in the early 1990s.

But an FBI agent testified that the agency could not trace the final destination of the money and, hence, could not prove a crime.

The other mistrial charges against Al-Arian include racketeering, money-laundering and providing material support for PIJ.

The latter is an accusation that Al-Arian brought PIJ members into the country, provided them with travel and immigration advice, made false statements to bypass U.S. immigration laws and operated a fundraising network for PIJ.

For Udolf, the Fort Lauderdale criminal defense attorney, the Al-Arian case recalls another prosecution.

Udolf prosecuted the mayor of Hialeah, Raul Martinez, three time in federal court between 1991 and 1996. It involved the same racketeering conspiracy charge that hangs over Al-Arian's head.

The government finally dropped the case after three mistrials.

"By the time it was over, I respected the guy," said Udolf. "We made his life totally miserable and he had a lot of guts."

Sometimes, said Udolf, you have to question if it's worth it on a lot of different levels.

In deciding the Al-Arian verdicts, he says, jurors "showed an extraordinary level of nuanced understanding of what the case was really about, against the backdrop of the law."

He believes government attorneys need to realize this.

"But I've been there before, and I bet they dig in their heels and retry it," he said.

-- Times researcher Cathy Wos contributed to this story.

[Last modified December 8, 2005, 04:00:51]

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