Tampa Bay Coalition for Justice and Peace

July 29, 2006

Dr. Al-Arian Appeals Judge’s Unconstitutional Sentencing

TAMPA-

Last Thursday, Peter Erlinder, an attorney for Dr. Sami Al-Arian filed a brief in the Eleventh Circuit Court of Appeals, arguing that the May 1 sentence by Judge James Moody was unconstitutional.

Following a six-month trial involving a multiple-count indictment, 80 government witnesses, and hundreds of exhibits, a jury found Dr. Al-Arian not guilty on the most serious charges and failed to reach a verdict on the remaining counts by a 10 to 2 margin favoring acquittal.

At the sentencing hearing almost three months ago, in a move that shocked those in attendance, Moody gave Dr. Al-Arian the maximum sentence of 57 months, despite recommendations by both prosecutors and defense attorneys to give him minimum time and ensure his imminent release. Dr. Al-Arian could have been released as early as May 23 under the low-end of the sentence. The maximum, however, added another 11 months, scheduling an April 2007 release date.

During the sentencing, Judge Moody gave a politically charged sermon riddled with factual errors and unproven allegations. According to the brief, “the Sixth Amendment right to a Jury Trial absolutely prohibits a sentencing Court from considering facts not found by the jury…and may never rely upon acquitted conduct that has been affirmatively rejected by the Jury.”

Moody, the brief stated, “was able to completely undermine the verdicts of acquittal and role of the Jury.” This attack on the jury’s verdict did not go unnoticed by jurors. “Our judicial system has changed drastically since 9/11, and it’s only human to confuse fact and emotion,” a juror named Ron told the St. Petersburg Times following the sentencing. “I can only say that the judge’s words today showed us he is human.” Regarding the plea agreement, Ron said: “They have so little on him that I’m disappointed. Most of us think he gave in because he was so sick of being in jail.”

The judge’s actions during the sentencing, in effect, “converted acquittal by the Jury into a form of public indictment, to which the Defendant could not respond, which resulted in another year in prison and prevented the rapid deportation following the guilty plea, with which the Department of Justice had also agreed,” the brief noted. “There can hardly be a clearer example of a sentencing Court imposing its will, rather than the Jury’s, on the outcome of a case.”

In light of the political attention generated by former Attorney General John Ashcroft’s press conference following Dr. Al-Arian’s 2003 arrest, and the high-profile given the case by the administration, “it is difficult to set aside the suspicion that the sentencing Court was playing to a political audience at the expense of the Jury in the case, and the Sixth Amendment more generally,” the brief stated.

Thus, the sentencing was a violation of the right to due process, which “requires that sentencing, no less than the trial itself, requires an absence of actual bias and must prevent even the probability of unfairness.”

Furthermore, Moody’s comments were in no way supported by information or recommendations in the pre-sentence report or the plea agreement, which included a statement by the Department of Justice that Dr. Al-Arian’s actions involved NO violence, NO victims, and NO support for a forbidden, “terrorist” organization.

Finally, though the Justice Department scrupulously complied with the terms of the plea agreement, Moody “denied Dr. al-Arian the benefit of his bargain, just as surely as if the Justice Department, itself, had reneged on the proferred agreement.” By relying on acquitted conduct in rejecting the government’s recommendation, without any other justification in the record for the judge’s allegations of misconduct, there is simply NO legitimate basis upon which to ground Moody’s rejection of the Justice Department’s recommendation, the brief stated.

In conclusion, the brief calls for overturning the judge’s sentence in favor of the agreed upon minimum sentence, in the interest of fairness. The reconsideration of the sentence should occur before a Court “whose impartiality is not reasonably subject to question.”

To access the brief in full, please email tampabayjustice@yahoo.com or
perlinder@WMitchell.edu.

For questions, please contact Dr. Al-Arian’s attorney, Peter Erlinder:
651-290-6384.; perlinder@WMitchell.edu

END.