A second terror-support trial for the Holy Land Foundation for Relief and Development (HLF) promises to look very different from the one that ended Monday in a mistrial.
The presiding judge, A. Joe Fish, is expected to retire soon, meaning a second trial will have someone new on the bench. In addition, former prosecutors say it's likely the Justice Department will winnow down its presentation, with fewer counts charged and likely fewer men on trial.
The foundation and five individual defendants are charged with illegally funneling more than $12 million from their Richardson, TX-based foundation to Palestinian charities controlled by Hamas. The defendants say they were providing desperately needed relief supplies to Palestinians living in dire conditions.
After 19 days of deliberations, jurors hung on all counts against the foundation and four defendants. Jurors did acquit Mohammed El-Mezain on all but one count; that of conspiracy to provide material support to terrorists. Prosecutor James Jacks told the court Monday a second trial was forthcoming.
Many critiques of the government's case include references to the volume of material and the nearly 200 individual counts jurors had to sift through. The Justice Department used to have guidelines – "you ought to be able to get it done in 10 counts or less," said former federal prosecutor Andy McCarthy. He led the successful prosecution of blind Sheikh Omar Abdel Rahman and 11 others who conspired to bomb New York City landmarks kill a series of political figures.
That approach would have suited the one HLF juror to have spoken publicly thus far. William Neal, a 33-year-old Dallas art director, was interviewed by Dallas reporters Monday afternoon.
"It was confusion," he said. "I think they just put too much on us."
"You have that many charges, six defendants, two months of endless reading. Endless. I'm talking about there's days where I thought it was never going to end," Neal said.
Who to charge, and what crimes should be included, may be considered the most significant decisions in a prosecution.
The Wall Street Journal reported Tuesday that prosecutors may feel they relied too much on evidence and witnesses from Israel and made the case more complicated than necessary. It's not clear how it can be simplified and still prove the government's most significant claim – that charity money from HLF went to Palestinian committees controlled by Hamas.
Neal, who said he favored acquittals for all the defendants, said that link was never sealed. He noted that Hamas was designated by the U.S. government as a foreign terrorist organization, making transactions with it illegal. Likewise, Hamas political chief Khalid Mishaal was designated as a foreign terrorist. The fact that the zakat committees – the Palestinian charities at issue – were not designated proved influential in the jury room.
"If it's not on the list then it's not against the law," Neal said. "The prosecution tried to contend you don't have to designate everyone else because Hamas [is]. Then why do you have to designate Khalid Mishaal? If you just designated Hamas you shouldn't have to designate Khalid Mishaal because he's Hamas. So, you're going to tell me you don't have to designate zakat committees? No, that's a load."
The Dallas Morning News reported Neal "had difficulty calling Hamas a terrorist group. ‘Part of it does terrorist acts, but it's a political movement. It's an uprising.'"
It's the third trial in as many years involving support for Palestinian terrorist organizations that ended in frustration. Some groups with ties to HLF, such as the Muslim American Society and the Council on American-Islamic Relations are touting the outcomes as victories against what they perceive as government attacks on Islam.
But the prosecution of former University of South Florida professor Sami Al-Arian ended with his guilty plea to providing goods and services to a designated terrorist group. Al-Arian acknowledged what he long denied, that he was part of the Palestinian Islamic Jihad. He is a convicted felon and is still in prison, his term lengthened because of his refusal to testify in front of a grand jury investigation of a Muslim Brotherhood-linked think tank in Northern Virginia. In Chicago, Mohammed Salah was cleared of Hamas-support charges but convicted of lying in a Hamas-related civil case and sentenced to nearly 2 years in prison, which he will begin serving later this year. Salah's co-defendant, Abdulhaleem al-Ashqar, was convicted of obstruction of justice, and is expected to be sentenced next month. .
"We didn't get Gotti the first time we tried," noted one veteran prosecutor. "We had to go at him again and again."
One Muslim-American who opposes Islamist political efforts said a second trial is important to stem the ability of people to deceive well intentioned donors by routing funds to a terrorist organization.
M. Zuhdi Jasser, an Arizona physician and founder of the American Islamic Forum for Democracy, said a successful outcome is needed or cleverly devised organizations can create "enough degrees of separation to feign ignorance," leaving law enforcement powerless to stop them.
"While speech and faith practice is certainly protected by our First Amendment, it cannot insulate individuals from accountability for the financial support of organizations which execute and employ acts of terror," Jasser said. "I am counting on a retrial and on the DOJ making its case more convincingly and with less confusion."Our colleague Douglas Farah had some interesting thoughts on what we learned from the trial, as well.