Prosecutor Asks Judge to Reconsider: Will Third Time Be a Charm?
March 7, 2009 – Alexandria, VA – According to federal court briefs filed on Wednesday, Assistant U.S. Attorney Gordon Kromberg restated his request for the judge to overturn her order compelling prosecutors to turn over evidence regarding the 2006 plea negotiations. This marks the third time that the government has defied the court’s order, signaling a desperate move to avoid revealing the facts in the 2006 plea negotiations.
On February 5th, Judge Leonie Brinkema ordered the government to provide affidavits by prosecutors from Florida and the Department of Justice regarding their knowledge of the promises given to Dr. Al-Arian in those negotiations.
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Kromberg then filed a motion asking the judge to reconsider her decision, which she denied in a February 20th hearing, giving prosecutors one week to provide the evidence.
On the eve of the February 27th deadline, prosecutor Kromberg then asked for a five-day extension, which the judge granted. However, on the day of the new deadline – which came a month after the judge first ordered the evidence – the prosecutor defied the judge’s order, asking her once again to rescind it. In the March 4th filing, he argued that the evidence is irrelevant. The latest government filings also reveal a number of important facts: -Prosecutors in Virginia began the process of compelling Dr. Al-Arian’s appearance before a grand jury in the midst of the plea negotiations in early 2006. -Prosecutors from Florida and the Department of Justice who were involved in the negotiations objected to this move by Kromberg. -Virginia prosecutors conceded that, following the plea negotiations, both the defense and prosecution expected that Dr. Al-Arian would be sentenced to time served and immediately deported. -Virginia prosecutors then exploited the fact that the Judge in Florida gave Dr. Al-Arian the maximum sentence despite the government’s recommendation of time served. They pressed for the grand jury appearance even though the cooperation clause was explicitly removed from the plea agreement. -The filing also concedes that the standard cooperation clause, which was explicitly removed from the plea agreement, compels defendants to cooperate or testify in front of any grand jury upon the government’s request. These revelations raise a number of questions about the government’s conduct in Dr. Al-Arian’s case, among them: Why would the Florida prosecutors remove the cooperation clause from the plea agreement unless there was a clear promise that Dr. Al-Arian would not be compelled to cooperate or testify? Sworn statements by Dr. Al-Arian’s attorneys affirm that non-cooperation was central to the negotiations. Furthermore, why would the Florida prosecutors object to Kromberg’s attempts to compel Dr. Al-Arian’s grand jury testimony unless “non-cooperation” was part of the agreement?
Given these revelations, it comes as no surprise that prosecutors have continuously defied Judge Brinkema’s order and refused to submit their affidavits regarding the plea negotiations. As the judge noted during the February 20th hearing, “If somebody is unwilling to divulge something, they must have something to hide.” These latest events underscore the clear abuse of power by the government in this case. Not only has the Department of Justice extended Dr. Al-Arian’s imprisonment by over one year based on civil contempt, it has also insisted on prosecuting him on charges of criminal contempt, despite acknowledging that “no cooperation” was a crucial element of the deal between the parties. As Dr. Al-Arian’s former attorneys Bill Moffitt and Linda Moreno stated in their affidavits, this “bait and switch” tactic against Dr. Al-Arian, undermines confidence in good faith dealings with the Department of Justice in general. There will be a hearing in the case on Monday, March 9th at 11 a.m. sharp at the Alexandria Federal Courthouse. The courthouse (address below) is within walking distance from the King Street Station (Blue and Yellow Lines). Click here for metro schedules and maps. Click here for Google Maps for directions to the courthouse.
Albert V. Bryan U.S. Courthouse 401 Courthouse SquareAlexandria, VA 22314 All supporters and people of conscience are encouraged to attend. The judge is expected to rule on this crucial issue for a third time and set a new trial date. (See attached St. Petersburg Times and Associated Press articles on the latest development in the case.)
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