Tampa Bay Coalition for Justice and Peace

May 19, 2005
Dr. Al-Arian’s Jury Selection Reveals Excessive Bias

Tampa— Following three days of jury selection in the trial of Dr. Sami Al-Arian, it became apparent that the concerns of defense attorneys were realized, as many jurors demonstrated extreme bias. The possibility of receiving a fair trial in the Tampa Bay area became increasingly difficult as the poisoned atmosphere made itself more apparent during questioning of potential jurors.

BACKGROUND

Months ago, 500 local individuals in Tampa and the surrounding areas received long and detailed questionnaires in order to gauge their opinions on everything from Arabs and Muslims, to the Palestinian- Israeli conflict, and Dr. Sami Al-Arian’s case in particular. Of the 328 questionnaires that were returned, an overwhelming majority of them demonstrated varying degrees of bias, racism, xenophobia, ignorance, and misinformation on these issues. Dr. Neil Vidmar of Duke University Law School submitted a report on behalf of the defense that studied these responses and confirmed that a fair trial would not be possible with such strong sentiments against Dr. Al- Arian.

Click here for the pdf version of the change of venue motion: http://www.flmd.uscourts.gov/Al-Arian/8-03-cr-00077-JSM- TBM/docs/2096857/0.pdf

Among the many shocking responses was one individual who suggested that Dr. Al-Arian be injected with sodium pentothal to “get the truth out of him.” Another called for the death penalty to be invoked against him, with no trial. Others were filled with hateful words, some that appeared racially charged. Most were directly affected by the deluge of media coverage –overwhelmingly negative— over the past several years.

Other opinions were colored by the 2004 U.S. Senate race, first the democratic primary between Peter Deutsch and Betty Castor, and then the general race between Castor and republican Mel Martinez. Both campaigns revolved around Castor’s time as president of the University of South Florida, and proceeded to assume guilt on the part of Dr. Al-Arian. It signaled a historic moment in American politics, that a judicial case that had yet to even reach trial was already being used as political ammunition. The presumption of innocence, a cornerstone of the American judicial process, was completely absent from the debate.

Of those 328 questionnaire responses, over half of them were dismissed following defense objections, but a large number of the remaining 157 potential jurors expressed considerable bias in their responses as well, sometimes as much or equal to individuals that were dismissed for that reason.

Concluding that no fair trial could be held in Tampa, defense attorneys responded to the pervasive prejudice in the jury pool with a motion for a change of venue, in the hopes that any other part of the country might not reflect the same degree of personal hatred for Dr. Al-Arian, due to the intensive media campaign against him in the Tampa area. Dr. Vidmar provided much data to support this contention based on research done in Tampa and other areas. Judge James Moody decided, however, that he would not consider the defense request to move the trial out of Tampa’s poisoned atmosphere until the jury selection process was complete.

JURY SELECTION

On May 16, 2005, the first group of over 150 potential jurors arrived to Tampa’s Federal Courthouse to be questioned by the government and defense attorneys. The process, expected to be condensed over three days, began swiftly as the Judge instructed the jurors of their responsibility to be fair, impartial, and set aside their prejudices. Thereafter, groups of five jurors were let into the courtroom at a time and questioned about their views. A considerable number expressed a number of different issues they had with service in this case, with some displaying the courage to admit they would not give Dr. Al-Arian and his co-defendants a fair trial because of their strong views against him. Among some of the views that were expressed:

•A large number contended that they could not afford Dr. Al-Arian his Fifth Amendment right. Any decision by the defendants to exercise that right by not testifying would be held against him. Frequently, jurors expressed the sentiment that “if they have nothing to hide, they would testify.” Or “that would lead me to believe they are guilty.” Most potential jurors who expressed these views were dismissed, but some were retained, despite defense objections, since the individuals reluctantly stated that they would ultimately have to follow the judge’s orders and not hold a defendant’s decision not to testify against him.

•Many potential jurors expressed the sentiment that they would be more likely to find the testimony of government agents or law enforcement officials more credible than other people, often based on their personal relationships with these individuals, or having had careers in the government or law enforcement themselves. While some of these jurors were dismissed as a result, others were kept despite defense objections.

•More than one juror expressed a strong belief in the concept of guilt by association, expressing the view that Palestinians, by virtue of their association with others of the same culture or ethnicity, should be held responsible for the actions of others, even if they had not directly participated in any illegal activity themselves.

•A major concern for defense attorneys was the large number of people who seemingly could not give Dr. Al-Arian the presumption of innocence. Though many were courageous enough to admit fully that they believed he was guilty despite not seeing any evidence, and were subsequently dismissed, an equal number hesitated to admit that they would not make good jurors though they were inclined to believe many of the charges. Many repeated the statement that “they would not arrest him unless they had something on him,” “our legal system does not simply arrest people for no reason,” or “where there is smoke, there is fire.”

•Many potential jurors had a direct involvement in some of the issues involved, whether by their service in the military, or some who had friends and family members serving in the Middle East. Others were directly affected by the 9/11 attacks, and nearly all expressed the view that the attacks shaped their views on many of the issues. Few of these individuals were dismissed, despite some of them displaying strong emotional outbursts regarding their experiences.

•Other jurors displayed particular adverse views regarding Arabs, Muslims, Palestinians, and the Middle East conflict, including numerous anti-Arab and anti-Muslim statements, or assertions that Palestinians were responsible for the 9/11 attacks, and some even believing that Dr. Al-Arian was personally responsible for 9/11.

•One juror admitted to having supported Israel and worked in fundraising for Israeli causes, but was vocal in her belief that her deep commitment to her causes would not affect her ability to be a fair juror in a case to which the Palestinian position was central (she was retained in the jury pool). A number of other jurors expressed their strong religious beliefs regarding the conflict, some stating that they were “biblically tied” to the land, but stated that they would not allow their religiously based worldview to affect their judgment. Despite many defense objections that such a separation was hardly possible, most of the calls for removal were denied.

Overwhelmingly, the media appeared to have colored an incredibly negative view of Dr. Al-Arian, even from individuals who had very little exposure to the case in the press. References to talk radio, Fox News, its program The O’Reilly Factor, the Tampa Tribune, and other media outlets were replete throughout the three days of juror questioning. Many credited these media organizations with forming their opinions –often strong ones—against Dr. Al-Arian. When asked how they responded to his arrest, many expressed that they were “shocked” and “outraged” at the events in Tampa, and the possibility that “terrorism had come to America.” Others wondered “how he could have been teaching our children,” and many explained that they were fearful.

In the end, despite the overwhelming majority of potential jurors expressing sentiments of bias on their questionnaires or during questioning, 90 jurors were selected out of the possible 157 as qualified to serve on the jury.

Today, court will resume to select 12 jurors and seven alternates out of the list of remaining jurors. Defense attorneys for the four defendants receive a combined 15 strikes to use while the government reserves the right to strike nine individuals.

Though it has advanced to the final stages, the process of jury selection has not resolved any of the concerns that Dr. Al-Arian could receive a fair trial in Tampa. The prevalence of juror bias, community pressure, and intense negative media coverage will not allow for a fair consideration of the facts and will give the government an unfair advantage and a low threshold for proving its case beyond a reasonable doubt. Furthermore, the government has already indicated that it intends to use a large amount of inflammatory and prejudicial materials as evidence, including a recent controlled explosion of a Tampa City Bus conducted and videotaped by local government agents to present to jurors as simulation of a terrorist attack.