tampabay.com

Changes sought in questionnaire for Al-Arian jury

Prosecutors want to know more about the background of potential jurors in a retrial of Sami Al-Arian and a co-defendant.

By MEG LAUGHLIN
Published February 1, 2006


TAMPA - The proposed changes in the jury questionnaire for the retrial of Sami Al-Arian and Hatem Fariz suggest what federal prosecutors think went wrong the first time.

At the terrorism-related trial, which concluded in early December, there were no guilty verdicts. All verdicts of the 12-person jury were acquittal and mistrial counts. To change the outcome for a second trial, which may take place in June, prosecutors hope to dig more into prospective jurors' backgrounds.

They want to question the jury pool about religion, their own intelligence and views on expert witnesses, in order to increase the odds of convictions.

Prosecutors wouldn't comment on the proposed changes to the juror questionnaire.

But Al-Arian's attorney, Bill Moffitt, did.

"It appears the prosecution is blaming the jury for what happened in the first case, and, as a person who tried that case and saw that jury, I resent what prosecutors seem to be saying," he said.

Among the 30 pages of proposed questions:

"What is your religion? What is your spouse's religion?"

Had there been questions about religion before the first jury was picked, federal prosecutors and defense attorneys might have felt differently about the Vietnamese-American juror on the front row.

Neither side objected to her presence. She had family in the military currently serving in Iraq, which had government appeal. Defense attorneys liked that she checked "yes" when asked if a person could "criticize the United States and still be patriotic." When asked to explain on the form, she wrote: "You don't have to agree with your government's policy to love your country."

But neither side knew she was married to an Orthodox Jewish man, or that she followed the teachings and practices of that religion.

Defense attorneys, whose clients were accused of raising money for the violent activities of Palestinian Islamic Jihad against Israelis, would probably have wanted her off the jury. And prosecutors would have wanted to keep her.

Another proposed question asks prospective jurors to assess an area of their own intelligence:

"Have you any problems or concerns about your ability to remember complex information?"

Moffitt didn't like the question.

It suggests to jurors, he said, that if they don't see government evidence adding up to guilt, it's their own fault, because they can't handle complex information.

After the first trial, jurors said otherwise. They described their meticulous attention to the complexities of the evidence, as well as jury instructions and dates of "terrorist designations" for Palestinian Islamic Jihad.

They said that it was their understanding of that complex information - not a lack of it - that led them to acquit on counts and hang on others.

A third question explored juror reaction to expert witnesses:

"If you heard expert opinions ... that may (or may not) conflict with your own knowledge in these areas, could you decide this case based solely on the evidence you heard in the courtroom or do you think you would rely on your own experience, expertise or knowledge in this area?"

Moffitt worries that question might make jurors think they have to believe expert witnesses, which is not the case.

"This question is adverse to the jury instructions," he said.

Before the first panel deliberated, the judge instructed jurors to decide the credibility of a witness based on their own criteria.

In the end, prosecutors blame the failed case on juror "misunderstanding and confusion."

Defense lawyers say the evidence wasn't lost on the jury. It just wasn't there.

That said, both sides agree that jury selection can make or break a case. It is, however, an imperfect science.

The juror who follows the tenets of Orthodox Judaism would have surprised everyone.

She voted for acquittal on all counts "based on the lack of evidence."