Judge Agrees with Defense To Revisit 2006 Plea
February 20, 2009 - Alexandria, VA - At a pre-trial hearing today, federal judge Leonie Brinkema denied a government motion requesting her to reconsider a previous ruling. At the last hearing, Judge Brinkema ruled that the government must provide information to the defense and the court regarding the original 2006 plea negotiations between the Department of Justice and Dr. Al-Arian's attorneys.
This latest hearing in Dr. Al-Arian's criminal contempt case marked the sixth anniversary of his arrest in Florida in 2003. *(for a very brief overview of the trial and plea negotiations, please see end of this press release)
Prior to the hearing, Dr. Al-Arian's attorneys submitted at least four declarations detailing the 2006 plea negotiations, and asserting the fact that non-cooperation was at the heart of the deal. Yesterday, the defense submitted the latest two detailed declarations (click here for the first declaration and here for the second) by Dr. Al-Arian's attorneys from the 2005 trial, Bill Moffitt and Linda Moreno. As these declarations reveal, the issue of cooperation was indeed central to the negotiations. The possibility of avoiding a trial or - later, after the trial was held - reducing Dr. Al-Arian's sentence if he cooperated was even broached by government prosecutors. In both instances, Dr. Al-Arian rejected those offers.
After denying the motion, Judge Brinkema gave prosecutors one week to comply with her order. She noted that, while the government was not required to produce their own declarations, failure to do so would result in the court having a "one-sided set of facts." She added that many people would assume, "If someone is unwilling to divulge something, then there is something they are trying to hide."
Judge Brinkema has repeatedly stated the importance of reviewing this information, especially in light of the fact that none of the previous courts which have addressed the matter ever held an evidentiary hearing to examine what was discussed during the plea negotiations. In a new response by the government, prosecutor Gordon Kromberg claims that in 2007, the defense rejected the government's request for a limited evidentiary hearing before the 11th Circuit Court of Appeals and that, therefore, the judge should not grant such a hearing now. Professor Jonathan Turley, attorney for Dr. Al-Arian, responded that the statement is "completely untrue" and that it "demonstrates why the court needs to get government declarations under oath." He added that the defense has always asked for "a full evidentiary hearing and only objected to a limited one."
Government prosecutors have tried to argue that the issue of cooperation in the plea agreement is irrelevant, while the defense contends that it is at the very heart of the case. Judge Brinkema said as much during the last hearing, ordering prosecutors to turn over their own evidence. Otherwise, she said, there remains "a hole in the case."
Kromberg further tried to argue that it does not matter what took place during the negotiations because Dr. Al-Arian "was never going to testify no matter what." Defense lawyers noted in return that it is uncontested that Dr. Al-Arian would never have entered into a plea bargain in the first place if cooperation were a condition, either explicitly or implicitly. As both of Dr. Al-Arian's previous attorneys Moffitt and Moreno made clear in their declarations, not only did the government agree to the removal of the cooperation clause, but defense attorneys specifically brought up both the Eastern District of Virginia and Kromberg's investigation in particular, during the plea negotiations.
The facts regarding the 2006 plea deal negotiations are central for the defense's arguments at the upcoming trial. In their pre-trial motions, the defense counsel contends that Dr. Al-Arian did not testify because he was assured by his attorneys that he would not have to cooperate or testify on the basis of the negotiations. Judge Brinkema said she would not rule on what evidence would be allowed at trial until she knows all the facts. She said that another hearing would be set to decide the remaining pre-trial motions, although Dr. Al-Arian's trial on criminal contempt charges is still scheduled for March 9th.
*On February 20, 2003, then-Attorney General John Ashcroft sensationally announced Dr. Al-Arian's arrest as a seminal event in the War on Terror. After the subsequent trial in 2005, government prosecutors failed to secure any convictions against Dr. Al-Arian which led Time Magazine to declare the case "one of the Justice Department's most embarrassing legal setbacks since 9/11". In early 2006, Dr. Al-Arian's attorneys negotiated a plea agreement with the government that Dr. Al-Arian would be deported as soon as possible and that their client would not be required to cooperate or testify before any other grand juries. Although the last term was not explicitly written into the plea agreement, a standard cooperation clause with the government was removed, and no government prosecutors have ever disputed this understanding.