By Miriam Rozen
Texas Lawyer
June 18, 2008

Exhibits that should not have gone to the jury room are at the center of a debate about whether there will be a do-over in a high-profile Dallas trial. The case involves five men who worked for the Richardson-based Holy Land Foundation, a now-defunct Muslim charity that federal prosecutors allege funded terrorists in the West Bank and Gaza — allegations the defendants deny.

On Oct. 22, 2007, then-Chief U.S. District Judge A. Joe Fish of the Northern District of Texas — who was presiding over United States v. Holy Land Foundation, et al. — declared a mistrial in the case. Fish, who took senior status on Nov. 12, 2007, transferred the HLF case to U.S. District Judge Jorge A. Solis, who has scheduled a retrial for Sept. 8.

But before that retrial begins Solis must decide if the prosecutors’ delivery to jurors of more than 100 pages of “non-admitted and demonstrative exhibits” — exhibits that should not have gone to the jury — should result in the dismissal of all of the indictments against five individual defendants on double-jeopardy grounds. In a May 30 motion to dismiss the indictments, the HLF defendants argue that had the government not given the non-admitted and demonstrative exhibits to the jury, the jurors “likely would have acquitted the defendants across the board.”

On June 17, prosecutors filed a response to the defense motion, stating that the presence of such exhibits in the jury room “was the result of an inadvertent mistake on the part of the government.” The prosecutors argue that the mistake was “not the type of prosecutorial action that warrants dismissal of the indictment on double jeopardy grounds.” The defendants’ claim that the jury would have acquitted each of them if jurors had not seen the exhibits “is pure speculation,” the prosecutors state in their response.

James T. Jacks, the first assistant U.S. attorney for the Northern District of Texas who is the lead prosecutor for the government in the HLF case, did not return two telephone calls seeking comment.

Dallas solo Marlo Cadeddu, who drafted the motion for the defense and represents defendant Mufid Abdulqader, a former HLF fundraiser, declines to comment citing a gag order in the case.

Two Dallas criminal-defense lawyers who are not involved in the case believe Solis faces some tough decisions given the defendants’ allegations about what the jury saw and how they reacted to it.

Dan Hagood, a partner in Dallas’ Fitzpatrick Hagood Smith & Uhl who is a former supervisory chief felony prosecutor with the Dallas County District Attorney’s Office, says Solis “will have to determine how the government’s demonstrative exhibits got before a jury.” Referring to the prosecutors in the case, he says, “It could have just been someone zigged when they should have zagged.” The reasons for the mistakes will be significant to Solis, Hagood says.

Clint Broden, a partner in Dallas’ Broden & Mickelsen who is a former assistant federal public defender in the Northern District of Texas, says Solis’ decision may hinge on whether the prosecutors acted intentionally.

Complicated Trial

In a 42-count indictment, the government alleges that over a six-year period, HLF and seven individual defendants (two of whom were not present for trial) funneled at least $12.4 million to Hamas, a Palestinian group the U.S. government has designated as a terrorist organization. The HLF defendants deny the allegations, saying the organization was a charity that sent money it raised to individuals and groups in the West Bank and Gaza for humanitarian purposes. The five individual defendants who were tried are Abdulqader; original HLF chairman Mohammad El-Mezain; former HLF executive director Shukri Abu Baker; former HLF chairman Ghassan Elashi; and former HLF New Jersey representative Abdulrahman Odeh.

On Oct. 18, 2007, after nine weeks of trial and 19 days of jury deliberations, the jury notified the judge that it had reached a verdict. Fish sealed the verdict sheets for four days because he was out of town. When Fish returned to Dallas on Oct. 22, 2007, and read the verdict sheets in court, he noted that Abdulqader had been acquitted on all counts, El-Mezain on all but one count, and Odeh on all but two counts. Fish then polled the jurors, three of whom said they disagreed with some of the panel’s decisions, so the judge sent them back to the jury room for further deliberations. Within hours, the jury returned to the courtroom without a unanimous decision except about El-Mezain, who they acquitted of 31 of the 32 counts against him. Fish entered a judgment of acquittal for El-Mezain for those 32 counts. As to all the other counts against the five men, the judge declared a mistrial because the jury was hung. [See “On Hold: The Decision-Making Behind the Wait for the HLF Verdict,” Texas Lawyer, Oct. 29, 2007, page 1.]

In their May 30 motion seeking dismissal of the indictments, the defendants allege that after the close of evidence during the first trial, Jacks and defense lawyer Theresa Duncan, an associate with Freedman Boyd Hollander Goldberg & Ives in Albuquerque, N.M., who is one of the lawyers representing Baker, conferred with each other to determine, based on the judge’s record of the trial, which exhibits had been admitted as evidence. Both sides then collected their exhibits and sent them into the jury room, the defense motion states. “Assuming the government intended to deliver to the jury only those exhibits that both sides had agreed had been admitted as substantive evidence, the defense did not review all the government’s exhibits to verify that there were no non-admitted or demonstrative exhibits,” the defense motion states.

Duncan did not return a telephone call seeking comment.

The defendants allege in their motion that before jury deliberations began the prosecutors told defense counsel that they had not given non-admitted or demonstrative exhibits to the jurors. On Sept. 26, 2007, six days after deliberations began, the jury foreperson sent a note to the judge stating: “A jury member wants to know if the demonstrative exhibits are in the jury room. He does not believe the power points and some other exhibits are demonstrative and not actually evidence.” The defendants allege in their motion that after the government assured the judge that no demonstrative exhibits had been sent to the jury, Fish sent the following instruction back in response to the foreperson’s inquiry: “The demonstrative exhibits are not in the jury room. All of the exhibits in evidence are in the jury room.”

After Fish declared the mistrial, he allowed prosecutors and defense counsel to question the jurors. As alleged in the defendants’ motion, only then did defense counsel learn that the jury had in “its possession during deliberations a number of the government’s demonstrative exhibits that were not supposed to go to the jury.” Specifically, the defendants allege in their motion, the prosecutors had given jurors 19 non-admitted or demonstrative exhibits, including a 20-page PowerPoint display that illustrates the government’s theories of the case and contains diagrams with arrows that point from photos of the defendants up to photos of Hamas leaders.

“Had the government not given [those exhibits] to the jury, the jury likely would have acquitted the defendants across the board,” the defendants argue in their motion. The “government misconduct,” the defendants allege, conveyed a tactical benefit to the government and therefore mandates dismissal of all of the indictments on the basis of double jeopardy.

To back up their allegations, the defendants attached to their motion a declaration by the jury foreperson. In the affidavit, the foreperson writes:
There was some disagreement among the members of the jury regarding whether some exhibits that were in the jury room were in evidence and could be considered by us in reaching a verdict. I and several other jurors recalled the Court’s instructions that demonstrative exhibits were not evidence in the case. Other jurors were adamant that the demonstrative exhibits were evidence and could be considered by the jury in reaching the verdict. Those jurors favored conviction. On September 26, 2007 because of disagreements among the members of the jury, I sent a note to the Court asking whether the demonstrative exhibits were in the jury room.

The judge’s response, the jury foreperson writes, “[G]ave considerable ammunition to the jurors favoring conviction who said that these exhibits proved the defendants were guilty.”

In their response, the prosecutors contend that not only did Fish act properly when he declared a mistrial but that the defendants consented and agreed to that mistrial. Jacks, who authored the government’s response, writes that “counsel for the government was informed by other members of the government trial team that the government exhibits had been reviewed and it was believed that there were no extraneous materials among the exhibits sent to the jury.” The government’s response continues: “Such a statement is not intended to excuse the government’s failure to prevent extraneous materials from reaching the jury room, merely to explain it.”

In their response, the prosecutors point out that defense counsel also allowed one “extraneous exhibit,” a transcript of a videotape that was admitted into evidence, to go back to the jury room.

The prosecutors stress that at the time of the jury foreperson’s Sept. 26, 2007, inquiry to the judge, the government lawyers believed no demonstrative exhibits had been given to the jury.

Moreover, the prosecutors argue in their response that “it is improper to ask a juror to express an opinion about the effect of those extraneous materials on herself, much less the other jurors.” The prosecutors write:
The defendants claim that the government caused the mistrial is simply not supported by the record. Their argument that the government intentionally created or manipulated the situation is even more lacking in foundation. The defendants contention that, but for the presence of extraneous materials in the jury room, the defendants would have been acquitted across the board can only be explained as an attempt to win the argument through exaggeration of the true situation as it existed at the time of mistrial.