Pyrrhic Acquittal
The Holy Land Foundation defendants aren't off the hook.

By David Feige

There was dancing outside the Earle Cabell Federal Building Monday, after a jury partially acquitted several defendants in the Holy Land Foundation terrorism financing case. After almost two months of testimony and 19 days of deliberations, the jury hung on all the counts involving two defendants, acquitted one defendant of almost all the counts against him, and appeared to clear two others, although the judge declared a mistrial in their cases. While there is no question that the government's failure to convict even a single defendant on a single charge should be a huge setback for prosecutors, it is a bit early to start the dancing.

The government's case was a sweeping, if ultimately unpersuasive, indictment of a charity organization that had been under scrutiny for about 14 years. It was also a legal stretch from the start. The indictment essentially conceded that the money HLF donated was used to build hospitals and aid the poor, yet it accused the charity and its officers and fund-raisers of aiding a terrorist organization by helping it spread its ideology and recruit members. Translation: Even those who support good works are guilty of terrorism if the good works make the terrorists look good.

Despite the testimony of witnesses like "Avi," an Israeli counterterrorism expert testifying under a pseudonym who could recite the names of Hamas members by heart, the jury utterly rejected the essence of the government's theory of prosecution. A brief review of similar cases, however, suggests that the case is far from over. The government is unlikely to find in the verdict a reason to question its approach, or to hesitate to bring these sorts of cases in the future. The reality of federal criminal prosecution is that even when juries are deeply skeptical of government overreaching, in the end, the relentless might of the government almost always leaves those it prosecutes bankrupt and incarcerated.

The case that unfolded in Dallas these last few months is vaguely reminiscent of another high-profile prosecution, that of Sami al-Arian, a former college professor accused of aiding Palestinian Islamic Jihad. Al-Arian, too, insisted on a trial—in his case a grueling six-month ordeal—and he too was acquitted, of almost half of the 17 counts against him, with the jury deadlocking (not convicting) on the remaining counts. What became of al-Arian? He is in federal prison. Rather than face the inevitable retrial, he pleaded guilty to a single count of making contributions to Palestinian Islamic Jihad and was sentenced to nearly five years.

Then there are Muhammad Salah and Abdelhaleem Ashqar, charged just a month after HLF's indictment, with using American banks to funnel money to Hamas. Like the HLF defendants, and like al-Arian, they were acquitted of all the major racketeering and financing charges against them. Nonetheless, Salah is serving a 21-month sentence for lying in an interrogatory (a legal questionnaire) in a civil lawsuit. Ashqar, who was convicted only of contempt of court, will be sentenced in Chicago on Nov. 8. Even though he was acquitted on the major substantive counts, and even though there is a 10-year maximum penalty for a criminal conviction for obstruction of justice, federal prosecutors are seeking a sentence of life in prison.

Finally, there is Mohamed Shorbagi. Shorbagi was a Georgia imam who pleaded guilty in a secret proceeding to giving money to HLF and then turned around and testified against the acquitted defendants in the Chicago case. And what did he get for his cooperation? A seven-year prison sentence.

What about the currently joyous defendants in the HLF case in the wake of their apparent victory? Well, at least one of them, Ghassan Elashi, will be celebrating from his cell—he's already serving a six and a half year sentence for export violations. And Mohammad Mohammad el-Mezain, who ran HLF's California office and was acquitted of 31 of the 32 charges, is not only still facing prison time, but actually the same life sentence as before. The government is planning to retry him on the single remaining conspiracy charge, which means that if a jury convicts on that count, the sweeping acquittals help him not one bit.

One might hope that the government's utter failure to obtain even a single conviction in a 197-count indictment in a major terrorism case would prompt a re-evaluation of the evidence and the case—particularly after prosecutors have come up short in several other prosecutions. But the verdict in Texas is unlikely to provoke any prosecutorial second thoughts whatsoever. The truth is that when our sentencing schemes render partial acquittals virtually irrelevant, we've already done substantial damage to our criminal justice system and our essential notions of fairness. The lesson of these terrorism cases is that any defense victory short of a total acquittal is a Pyrrhic one. The verdicts in Dallas are indeed a clarion rebuke to the government. But a win for the defense? Hardly.

David Feige is the author of "Indefensible: One Lawyer's Journey into the Inferno of American Justice".

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