In a heated pre-trial hearing before the Eastern District of Virginia today, federal Judge Leonie Brinkema postponed the criminal contempt trial of admitted terrorist-supporter Sami Al-Arian until the U.S. Supreme Court rules on a separate appeal. The appeal, filed July 30, challenges the 11th Circuit Court of Appeals ruling that Al-Arian's 2006 plea agreement did not grant him the right to refuse to testify before a grand jury investigating terror financing by a Virginia-based think tank.
Al-Arian was charged in 2003 with conspiring to provide material support to the Palestinian Islamic Jihad (PIJ), a designated terrorist group. Jurors acquitted Al-Arian on eight of the 17 counts against him but deadlocked on the others, including racketeering and conspiracy. In April 2006, Al-Arian agreed to plead guilty to one of those hung counts – conspiracy to provide goods and services to a terrorist group.
Al-Arian has argued that his plea agreement ruled out any cooperation with the government and has repeatedly refused to testify before a federal grand jury investigating the International Institute of Islamic Thought despite a grant of immunity and repeated court orders. That led to a two-count criminal contempt indictment in June.
The 4th Circuit Court of Appeals rejected his argument about the plea deal when Al-Arian was found in civil contempt, and the Supreme Court, in April 2007, declined to hear his appeal of the 4th Circuit's ruling. The 11th Circuit issued a similar opinion in January which led to the Supreme Court appeal filed last month.
Al-Arian's defense argues that the lower court refused to consider evidence that the prosecutors violated Dr. Al-Arian's 2006 plea agreement in ordering him to testify before a Virginia grand jury.
Al-Arian's attorney Jonathan Turley explained in a recent blog posting:
"Dr. Al-Arian has asked for an evidentiary hearing to establish that he was expressly promised by the Justice Department that he would not have to cooperate in any way after his plea agreement. Indeed, he accepted a longer sentence to secure that concession. The final standard cooperation language was indeed removed from the agreement, but the court refused to consider evidence outside of the agreement showing that the removal of the language was due to an express promise by the government."
A Supreme Court decision on this appeal should be been handed down expeditiously, Judge Brinkema said. The Supreme Court could affirm the 11th Circuit ruling, remand it, or reverse it, so any ruling she might give before that decision could be rendered moot, she said, explaining the trial's delay.
Federal prosecutor Gordon Kromberg challenged the decision, suggesting that the implications of the ruling could compromise the court's ability to enforce compliance with its orders, and set a precedent that people can refuse to testify until the U.S. Supreme Court makes them.
In a separate matter, Kromberg apprised the judge today of what he believed was a specific and unethical defense strategy to personally "attack the prosecutor." Kromberg referred to recent comments made by Mike Gravel, a former two-term senator from Alaska and presidential candidate, at a pro-Al-Arian forum attended by the Al-Arian family in Washington D.C. a week ago. At the event, Gravel called on protesters to stalk Kromberg and his family in order to get the criminal contempt charges dropped.
Kromberg also cited Turley's running commentary on the criminal proceedings posted on the attorney's blog as deceptive and, beyond that, a violation of federal court rules that forbid public comment on ongoing criminal prosecutions. Turley denied that his blog comments were in reference to the case, but rather that his remarks were in regard to Kromberg's "reputation" that exists beyond the confines of Al-Arian's trial.
Brinkema urged Turley to discontinue his posts and warned that if there is evidence that either side's "personal investment has become too emotional" will prompt her to "direct that counsel be changed." Immediately following the hearing, Turley removed his blog postings and attempted to minimize the influence of his commentary on the public by saying they were only intended to "make filings available to reduce the calls to our staff from the media and the public."
Brinkema closed the hearing by warning Al Arian's supporters that protesting Kromberg's role in the case will not help Al-Arian's plight, and that any assumption that the removal of Kromberg as prosecutor will aid Al Arian's case is "naïve and foolish."