No Conviction, Mistrial for Holy Land Foundation

On Oct. 22, a federal jury in Texas deadlocked on all charges against the Holy Land Foundation (HLF) and most of the charges against five of its leaders. All were accused of supporting terrorism. The former board chair and endowment director, Mohammed el-Mezain, was acquitted of 31 of 32 charges against him, with the jury deadlocking on the remaining charge. The government has indicated that it will retry the case. It will face the same problems it faced in this trial: secret evidence that unraveled when subjected to scrutiny and the fact that none of the charities HLF was accused of funding are on government lists of terrorist organizations.One juror later told the Associated Press [1] that the jury was split on charges against the chief executive, Shukri Abu Baker and former chairman Ghassan Elashi, who were seen as the leaders, but most found little evidence against el-Mezain, former fundraiser Mufid Abdulqader or HLF's New Jersey representative, Abdulrahman Odeh. The juror, 33-year-old William Neal of Dallas, said the case "was strung together with macaroni noodles. There was so little evidence."

The unusual case had an unusual ending. The jury reported that it had reached a verdict on Thursday, Oct. 18, but Judge Joe A. Fish, who presided over the trial, was out of town. At a hearing the next day, a substitute judge sealed the verdict until Monday morning. When the forewoman read the verdict Monday morning, she said the Holy Land Foundation and Abdulqader were found not guilty on all counts, and el-Mezain and Odeh were acquitted on most counts.

But when Fish polled the jury, three members said they did not agree with those verdicts. As a result, the judge sent them back for further deliberations. After almost an hour, 11 of 12 jurors said they could not reach a unanimous decision, and Fish declared a mistrial on the deadlocked counts. The jury forewoman told the Associated Press [2], "When we voted, there was no issue in the vote. No one spoke up any different. I really don't understand where it is coming from."

The defendants were charged with money laundering, material support of terrorism and conspiracy. The jury had a complicated job, with the six defendants facing up to 36 counts each, requiring 197 separate decisions on guilt or innocence. The jury instructions and verdict form were so large Fish said, "It looks like the phone book for a small city." They deliberated for 19 days, what appears to be a Texas record.

The government case against HLF has changed since December 2001, when the group was designated as a supporter of terrorism, shut down and had its assets frozen. At that time, President Bush, accompanied by Attorney General John Ashcroft and Treasury Secretary Paul O'Neill, issued a statement [3] that read, "Hamas has obtained much of the money that it pays for murder abroad right here in the United States, money originally raised by the Holy Land Foundation." However, by the time of the trial, prosecutors no longer claimed HLF provided support to Hamas or paid for violent acts. Instead, prosecutors admitted all the money went for charitable aid but said the local charities that delivered the aid to Palestinians were controlled by Hamas, which got a public relations benefit as a result.

If HLF had been convicted for working with local charities that are not listed as terrorist organizations, no U.S. charity could protect itself from prosecution by using government watch lists for guidance about who to work with. In addition, ensuring that all funds are spent only on aid would provide no legal protection. Legal expert David Cole of Georgetown University Law School told the New York Times [4], "It suggests the government is really pushing beyond where the law justifies them going."

Other reactions to the case include a statement from Muslim Advocates, the charitable arm of the National Association of Muslim Lawyers, which said, "American Muslims also believe that our justice system works best when laws are applied fairly. The Justice Department's tactics in this trial, however, did not meet this standard. In an Aug. 15, 2007 letter [5] to then-Attorney General Alberto Gonzales, Muslim Advocates and the National Association of Criminal Defense Lawyers objected to the Department's public release of a list of over 300 American Muslim individuals and organizations labeled as 'unindicted co-conspirators' but who had neither been charged with a crime nor legal recourse to challenge the allegation. This disclosure violated the Department's own policies, as well as principles of fair play and equal treatment. We are still awaiting a response to that letter. If the federal government decides to retry this case, Muslim Advocates urges the Justice Department and its prosecutors to abide by constitutional principles of fairness, due process, and equal treatment under the law."