By ELAINE SILVESTRINI

December 21, 2008

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TAMPA – The criminal contempt case against Sami Al-Arian may collapse because of the actions of the federal prosecutor who brought the charges in Virginia, two low professors say.

The prosecutor added language to what otherwise would have been a routine immunity order without notifying the judge who later signed the order, according to documents in federal court. Consequently, the legal experts said, Al-Arian may have been within his rights to refuse to testify before a federal grand jury, and his criminal contempt prosecution may not stand.

A judge could rule in January on defense motions to dismiss the charges.

Al-Arian, a former University of South Florida professor, was prosecuted in Tampa on federal terrorism-related charges in 2005. After jurors acquitted him on some charges and deadlocked on the rest, Al-Arian struck a deal with prosecutors and pleaded guilty to a charge of providing assistance to the Palestinian Islamic Jihad, a terrorist organization.

While he was serving his prison sentence, Al-Arian was subpoenaed three times to testify before a federal grand jury that was investigating Islamic charities in Virginia. Arguing that his Tampa plea deal protected him from having to cooperate with prosecutors, Al-Arian refused to testify.

Judges ruled against Al-Arian and ordered him to testify. Al-Arian was prohibited from invoking his Fifth Amendment right not to incriminate himself because he was granted immunity – the government agreed not to use his testimony against him.

Pending Criminal Charges

Such immunity orders are routinely issued to compel grand jury testimonies from witnesses who would otherwise have a constitutional right not to testify. When such orders are given, witnesses who still refuse to testify can face prosecution for contempt. And that’s what happened to Al-Arian, who was jailed on civil contempt charges and later indicted on federal criminal charges, which are pending.

But the immunity order issued in the Al-Arian case was different from other cases.

Assistant U.S. Attorney Gordon Kromberg altered the language in the order, departing from language dictated by law, according to court documents. Kromberg made the same changes to an immunity order issued for another witness called to testify before the same grand jury as Al-Arian.

Such orders usually provide that no testimony given under the grant of immunity can be used against the witness in any criminal case, “except a prosecution for perjury, giving a false statement, or for otherwise failing to comply” with the order. Kromberg added more exceptions, providing that the witness’s testimony could also be used in a prosecution for obstruction of justice or for criminal conduct after the testimony was completed.

Kromberg failed to notify the judge who signed the orders that he had made the additions. He later was chastised by the judge, according to a transcript of the hearing filed in federal court.

Judge Gerald Bruce Lee told Kromberg he was “disturbed” by the prosecutor’s actions and asked whether he was “trying to set a trap.”

Kromberg insisted he was improving the legal language and giving extra legal protection to the would-be witnesses. But he said no other prosecutors he knew of made similar changes to immunity orders, and the Justice Department had decided not to submit similar immunity orders.

Charles Rose, a law professor at Stetson University, said if he were Al-Arian’s attorney, he would have strongly advised him not to testify with the immunity order he was given. The order put Al-Arian at high risk of criminal prosecution, no matter what he did, Rose said.

“This was in no way done for the benefit of the defendant,” Rose said.

One reason is that obstruction of justice is not a clearly defined crime, Rose said. Prosecutors have a lot of leeway in deciding when to bring such charges. With obstruction of justice added to the immunity order, the prosecutor could decide Al-Arian was obstructing justice if the prosecutor didn’t like Al-Arian’s testimony before the grand jury.

Al-Arian’s attorneys have filed motions to dismiss the criminal contempt charges against him, partly because of the changes to the immunity order. A hearing is scheduled Jan. 16 in Virginia.

Lawyers Tell Judge Of Changes

Rose and fellow Stetson professor Bruce Jacob said the judge relied on the integrity of the prosecutor when he signed the immunity orders. The judge signs thousands of such orders and expects lawyers to notify him when changes are made to the language, the professors said.

“I don’t think it rises to the level of misconduct, professional misconduct on the part of the attorney who drafted it that way, but I think it’s an indication of someone who lost their objectivity in their duties as an officer of the court,” Rose said of the prosecutor. “I would not be surprised to see some sort of relief given to Mr. Al-Arian. … He might have the criminal charge dismissed.”

Jacob said he thinks the prosecutor might be in hot water.

“I think it probably rises to the level of an ethical problem,” he said. “You shouldn’t put something in front of the judge that you’ve changed without telling him that you’ve changed it. … Obviously, the judge, reading the transcript, the judge was upset. To me, the judge was kind of fooled by the prosecutor.”

Al-Arian has completed his sentence for the Tampa charge and is supposed to be deported under the terms of his plea agreement. But he is living with his son in the Virginia area, barred from leaving the country while the contempt charges are pending.