October 28, 2005
St. Petersburg Times
by Meg Laughlin

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TAMPA – As the prosecution rested Thursday in the trial of Sami Al-Arian, his attorney, Bill Moffitt, stood up to begin the defense.

Or so those in the courtroom thought.

Moffitt stunned the room: “On behalf of Dr. Al-Arian, the defense rests.”

Prosecutors quietly voiced surprise. Journalists rushed out to file stories. After five months of prosecutorial evidence, there would be no defense witnesses, no testimony for Al-Arian.

During a break, Moffitt explained: “Because there is a document called the U.S. Constitution – unless we’re about to repeal it – it protects Dr. Al-Arian’s right to speak, and the government has not proven that Dr. Al-Arian has done anything but speak. … The fact that Dr. Al-Arian is a Palestinian deprives him of no civil rights.”

Later, Moffitt’s hand was strengthened by a decision from the presiding judge about what the jury would be told about rights of free association.

A former USF professor, Al-Arian and co-defendants Sameeh Hammoudeh, Hatem Fariz and Ghassan Ballut are accused of using Islamic charities as fronts in a conspiracy to finance terrorist attacks by Palestinian Islamic Jihad. The organization has claimed responsibility for killing hundreds of people in Israel and the occupied territories.

Two of the co-defendants, Hammoudeh and Fariz, plan to put on witnesses in defense next week. That is expected to take about two weeks.

“It will be our job to humanize the defendants for the jury,” said Kevin Beck, one of Fariz’s three attorneys.

Attorneys reacting to the defense team’s decision agreed it was a good call. Several former federal prosecutors, turned defense attorneys, said that sometimes the best defense is established through government witnesses.

“The defense has already been established during cross-examination,” said Tampa attorney John Fitzgibbons.

“That can be a very good defense strategy,” said Miami defense attorney Neal Sonnett. “The burden is the government’s and the burden never shifts.”

Sometimes a defense lawyer can make all the points he needs while the prosecution is putting on its case, he said. “Cross-examination can sometimes be more enlightening than direct examination.”

And so, with the exception of closing argument, no words will be offered in Al-Arian’s defense, except for jury instructions.

At the end of the day Thursday, U.S. District Judge James S. Moody Jr. agreed with Al-Arian’s defense attorneys that a paragraph, crucial to their reliance on the First Amendment, should be included in the general jury instructions.

It deals with the most serious charges against Al-Arian – that he conspired to provide material support for the violent activities of Palestinian Islamic Jihad in Israel and the occupied territories.

The judge said jurors would be told they could decide it is not a crime to participate in the legal activities of an organization such as the Palestinian Islamic Jihad, even if that organization carries out criminal activities.

This explanation is of vital importance to Al-Arian’s defense because his attorneys have repeatedly said that he aided the legal activities, the charitable and political work of Palestinian Islamic Jihad, not the violent work.

Prosecutor Cherie Krigsman argued that “this exquisite division of labor” in the Palestinian group, which defense attorneys keep pointing out, is a ruse.

She said it didn’t matter if defendants supported the charitable or political arm of the group because “the PIJ had murder as its primary goal.”

Krigsman also said that even if defendants supported Palestinian Islamic Jihad charities they were still guilty of criminal activity because the charities “were a way of winning the hearts and minds of the people as part of the PIJ terrorist strategy.”

Moffitt said that prosecutors were going to argue that association with the the group and advocacy made Al-Arian guilty, because they had nothing else.

“They can’t argue acts because they have no acts. All of his actions were nonviolent,” said Moffitt.

Moody responded dryly: “We’re working on jury instructions, not your closing argument.”

Eventually, though, the federal judge agreed to insert a paragraph in the jury instructions that draws a line between the legal and illegal activity of the Palestinian Islamic Jihad.

It begins: “Our law does not criminalize the mere membership in an organization of a person who is in sympathy with the legitimate arm of the organization.”

Linda Moreno, Al-Arian’s co-counsel, said later that this addition was “very important” to Al-Arian’s defense because “it means the government has to show more than Dr. Al-Arian’s association with Palestinian Islamic Jihad.”

Moreno concluded, “This instruction goes to the heart of our theory of defense.”