Judge Allows Defense to File Motion to Dismiss
Says Justice Department’s Integrity at Stake
Tampa Bay Coalition for Justice and Peace
March 9, 2009
During the hearing earlier today, Assistant U.S. Attorney Gordon Kromberg argued for the fourth time that the entire issue of the 2006 plea agreement is irrelevant to the criminal contempt charges. The judge has repeatedly rejected that argument, reaffirming on Monday that the “record is incomplete” and that the government’s response poses more questions than answers. Judge Brinkema stated that there was “enough smoke” in the facts of the case that needed to be cleared up.
By the end of the hearing, the judge said she was granting the defense’s request to file for a complete dismissal of the charges because “the integrity of the Justice Department cannot be compromised.”
The judge began the hearing by asking Kromberg how he became aware of the plea agreement on March 1, 2006, despite the fact that it was filed under seal in Florida the previous day, and was only known to the parties involved. Evading the question, the prosecutor simply stated that he was able to call Dr. Al-Arian to testify once the Florida judge imposed the maximum sentence, a move that extended his imprisonment by eleven months. Judge Brinkema agreed with lead defense counsel Jonathan Turley that the plea agreement could not be breached by the government simply because Dr. Al-Arian received a longer sentence.
Judge Brinkema also pointed out that, contrary to the prosecution’s assertions, the issue of the plea agreement has never been resolved since no other court has ever granted a hearing to examine all the evidence. After Kromberg concluded his statement to the court, Professor Turley noted that new facts had come to light in the government’s recent court motion that had not been previously disclosed. Specifically, none of the courts that have addressed the issue of the plea agreement were made aware of an internal split within the Department of Justice on whether Dr. Al-Arian should be called to testify in Virginia. It has since come to light that prosecutors in Florida objected to efforts by Kromberg to compel Dr. Al-Arian’s testimony. Professor Turley concluded by saying that now was the time for the court to consider these new facts and allow the defense to argue for the dismissal of the charges.
In granting the motion, the judge expressed her disappointment with the prosecutors’ persistent refusal to present clear statements about their conduct during the plea negotiations. She said that there are serious questions about whether the government conducted bad faith dealings with the defense that could now result in Dr. Al-Arian’s imprisonment. Before someone could be forced to give up their individual liberty, she said, these issues should be resolved. She suggested that although prosecutors had not offered their own affidavits on the plea negotiations, she was “reading between the lines” that there was “a meeting of the minds” that the intent of the plea agreement was to conclude Dr. Al-Arian’s business with the U.S. government once and for all.
Although Judge Brinkema was originally expected to set a new trial date during today’s hearing, she instead gave the defense ten days to submit a motion to dismiss the charges. Prosecutors will then have ten days to respond.
An estimated twenty-five people, some hailing from as far as Tampa, Florida, attended the hearing today to express their support for Dr. Al-Arian. The Tampa Bay Coalition for Justice and Peace would like to extend its appreciation to those individuals who have consistently stood up for justice in Dr. Al-Arian’s case, led by Dr. Al-Arian’s legal counsel, Professor Turley from George Washington University and William Olson and P.J. Meitl from the law firm of Bryan Cave.