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.

End.