Posted on 07/08/2010 2:49:36 PM PDT by jazusamo
With all the battering prosecutors have taken recently from judges who worry they are too cavalier with the rights of defendants, it’s worth noting a disputed case where the prosecutors apparently got it right – but the judge won’t admit it.
In early 2009, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia appeared poised to dismiss a criminal contempt of court case against a confessed supporter of the Palestinian Islamic Jihad terrorist group.
In a Feb. 20, 2009, hearing, Brinkema harrumphed about the government’s contempt case against former University of South Florida professor Sami Al-Arian, saying there was a “significant cloud over this criminal prosecution” and making other remarks that made her skepticism clear.
But a year and a half later, she has never ruled. Why?
Some background first.
The defendant, Al-Arian, somehow managed to turn himself in a free-speech martyr, despite a mound of wiretap and other evidence showing he’d been part of the political brain trust behind Islamic Jihad, which waged a deadly campaign of suicide bombings in an attempt to derail the 1994 Oslo peace accords between Israel and the Palestinians.
In 1995 President Bill Clinton issued an executive order banning assistance to the group, which the U.S. later formally designated a Foreign Terrorist Organization.
But prosecutors in a 2005 trial failed to convince a jury to convict Al-Arian. He was acquitted on eight of 17 counts, with the jury failing to reach agreement on the others.
In 2006, rather than face the possibility of a re-trial, Al-Arian agreed to plead guilty in the Middle District of Florida to one count of helping Islamic Jihad members secure U.S. visas. His attorney, William Moffitt, who has since died, went to Washington to finalize the plea agreement, meeting with then-Criminal Division chief Alice Fisher, according to an affidavit Moffitt submitted.
Later, prosecutors in the Eastern District of Virginia tried to call Al-Arian before a grand jury to offer testimony in a related terrorism-financing case. Al-Arian refused, saying he’d struck an unwritten side deal with prosecutors in his 2006 plea agreement that ended his obligation to cooperate further with the government. The U.S. charged him with contempt and denied any side deal had been struck.
In a series of hearings in Alexandria, Va., in early 2009, Brinkema made a lot of unflattering noise about the prosecution’s contempt case. Although Al-Arian’s plea agreement was silent on the question of whether Al-Arian would have to provide further testimony in related cases, Brinkema wondered openly whether there had been any “winks and nods” by prosecutors leading Al-Arian to believe he indeed had no more obligation to assist investigators.
Further complicating matters was the prosecutor, Gordon Kromberg, who had made unflattering remarks in the past about Muslims. Brinkema’s distaste for Kromberg was palpable.
“I think the integrity of the Justice Department and the integrity of the criminal justice plea bargaining process is too significant to” let the matter drop, she said in the February 2009 hearing.
But in April 2009, Kromberg filed a response that demolished the defense argument. He cited the transcript of Al-Arian’s 2006 plea hearing before a federal Magistrate Judge in Tampa, Thomas B. McCoun III.
McCoun repeatedly questioned Al-Arian about any “inducements” he had with prosecutors outside the written agreement that convinced him to plead guilty, the transcript showed. Al-Arian raised only one: The government had agreed to expedite his deportation in exchange for the guilty plea.
Al-Arian said not a word, under repeated questioning, about any understanding of a side deal to exempt him from giving further testimony in other terrorism-related cases.
Fifteen months later, what do we have from Brinkema? No ruling. Just the sound of crickets.
Al-Arian today continues to live in the Washington, D.C., area, under court supervision. It’s unclear when, if ever, Brinkema intends to rule. The case in which the U.S. sought Al-Arian’s testimony, meanwhile, is long over.
The judge should just admit it: Prosecutors were right. Al-Arian wasn’t telling the truth about his plea agreement.
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U.S. District Court Judge, Eastern District of Virginia, at Alexandria. Albert V. Bryan Courthouse, 401 Courthouse Square, Alexandria, Virginia, 22314-5798. 703-299-2116.
Judge Brinkema recently presided in two Internet related cases which received wide publicity, Urofsky v. Allen and Mainstream Loudoun v. Loudoun County Library.
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In the Loudoun case website operators and authors whose web pages may have been blocked asked the federal court to prevent the county public library from using Internet blocking software on public access computers in the library. All plaintiffs alleged that use of the software violated their First Amendment right to freedom of speech. Judge Brinkema agreed, and found the library's policy unconstitutional. The library decided not to appeal.
The Congress is very likely to pass a bill requiring schools and libraries receiving e-rate subsidies to use filtering software. In the inevitable legal challenge, the ACLU will rely heavily on Judge Brinkema's November 23, 1998 Opinion in the Loudoun case.
In the Urofsky case several Virginia state employees challenged the constitutionality of a state statute barring state employees from using their computers at work to view porn. Judge Brinkema agreed, and held the statute unconstitutional. Virginia appealed, and Judge Brinkema was reversed by a unanimous Opinion of a three judge Court of Appeals panel.
Education:
Work Experience.
U.S. District Court Judge.
In early 2009, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia appeared poised to dismiss a criminal contempt of court case against a confessed supporter of the Palestinian Islamic Jihad terrorist group. In a Feb. 20, 2009, hearing, Brinkema harrumphed about the government's contempt case against former University of South Florida professor Sami Al-Arian, saying there was a "significant cloud over this criminal prosecution" and making other remarks that made her skepticism clear... The defendant, Al-Arian, somehow managed to turn himself in a free-speech martyr, despite a mound of wiretap and other evidence showing he'd been part of the political brain trust behind Islamic Jihad, which waged a deadly campaign of suicide bombings in an attempt to derail the 1994 Oslo peace accords between Israel and the Palestinians.
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