St.Petersburg Times
Sept. 23, 2005
by Meg Laughlin

Link: Click here
TAMPA– The trial of Dr. Sami Al-Arian reached a new low last week when Judge James Moody made a controversial decision allowing the prosecution to use web sites as evidence.

Defense attorneys for Dr. Al-Arian and three other men spent more than two days detailing their objections to the government’s use of Internet materials as evidence in the trial. Among the long list of arguments against the inclusion of these materials were the following:

– The government’s introduction of new evidence at this late stage in the trial constituted a violation of basic rules of discovery, since these materials were not included in the two and a half year pre-trial phase for adequate preparation by the defense. In fact, they were only turned over days before they were to be introduced in court.

– The authenticity of the web sites, which the government alleges to belong to the Palestinian Islamic Jihad, cannot be verified. Prosecutors acknowledged this fact, and as a result, no defense team can adequately cross-examine what is essentially hearsay evidence, considered inadmissible by normal legal standards.

– None of the defendants had any role in the creation or maintenance of any of these web sites. In fact, as Dr. Al-Arian’s attorney, William Moffitt, pointed out, of the nine computers seized from Dr. Al-Arian’s home and offices, the government has not alleged that he ever visited any of these web sites, let alone knew of their existence.

In fact, much of the Internet evidence recovered by the government from these web sites dates to 2004, a year after Dr. Al-Arian’s arrest, while he was being held in solitary confinement in Coleman Federal Penitentiary (needless to say, with no Internet access). In short, there is absolutely NO connection between Dr. Al-Arian and the content on these sites.

– Although two co-defendants are alleged to have previously visited one web site, the government seeks to introduce web content from at least seven web sites, meaning that at least six of these sites have no demonstrable link to any defendant in the case.

– The government’s attempt to introduce inflammatory material from these sources is highly prejudicial, defense attorneys argued, with no evidentiary value toward proving its case. Furthermore, it is a violation of First Amendment rights to introduce constitutionally protected speech as evidence of criminal conduct.

– Even the government’s technical experts did not expect to demonstrate the authenticity of the web sites or explain their source and any link to the case. In one instance, a site was shown to have been hijacked and maintained from Taiwan.

In spite of these and a myriad of other reasons argued passionately by the defense teams, Moody ruled that prosecutors could introduce the web site content to jurors. The defense was given one week to allow their own computer forensic expert to study the new evidence. While many court observers were dismayed by this development, it was the latest in a string of disappointing decisions which many believe are simply an attempt to bolster the prosecution which has not proven its case after four months of trial and only one week left to go.