Tampa Bay Coalition for Justice and Peace

Sept. 23, 2005
Judge allows web sites no one accessed

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. Court will resume Monday, October 3 with what is expected to be
the last week of the prosecution’s case.

Below is a recent account of these developments from the St.
Petersburg Times.

Al-Arian judge allows Web sites as evidence
http://www.sptimes.com/2005/09/23/Hillsborough/Al_Arian_judge_allows.
shtml