On Friday, a U.S. Circuit Court judge in Virginia will either dismiss the criminal contempt case against former University of South Florida professor Sami Al-Arian or set a trial date.
If the judge's comments in court are any indication of how she's leaning, Al-Arian's business with the U.S. government is about to end and he will be one step closer to being deported to Egypt.
Judge Leonie Brinkema has called the case against Al-Arian "troubling" and under "a very significant cloud" because of prosecutors' failure to produce evidence from Al-Arian's 2006 plea deal negotiations that could show whether he is innocent of criminal contempt.
Brinkema's concerns over how prosecutors have handled the case echo those raised by Washington, D.C., federal judge Emmet Sullivan, who presided over the corruption trial of Alaska Sen. Ted Stevens. Sullivan said he had seen "troubling evidence" that prosecutors withheld evidence vital to the defense — in the Stevens case and in other cases.
"How can this court have any confidence whatsoever in the United States government to comply with its obligations and to be truthful to the court?" he asked.
It is a question being raised yet again on the eve of the Al-Arian hearing, not only by the judge but also by others.
"Is Al-Arian another Stevens?" asked John Wesley Hall, a 20-year ethics adviser to and president of the National Association of Criminal Defense Lawyers.
"If the Department of Justice took public action against prosecutors in Stevens and Al-Arian and other cases where evidence is withheld, the misconduct would decrease dramatically," Hall said.
In May 2006, five months after a Tampa jury deadlocked on nine terrorism-related charges against Al-Arian and acquitted him on eight, Al-Arian took a plea deal, pleading guilty to helping associates of a terrorist group in the occupied territories of Israel with immigration matters.
Five months later, federal prosecutors in Virginia subpoenaed Al-Arian to testify before a grand jury about an Islamic think tank in Virginia. But Al-Arian refused, saying the subpoena violated his plea deal because prosecutors had agreed that he would not have to testify again.
A federal judge in Tampa, another one in Virginia and an appellate panel disagreed with Al-Arian, because the plea agreement didn't spell out that he didn't have to testify.
As a result, Al-Arian was incarcerated more than a year beyond his sentence. Then prosecutors in Virginia indicted him on the more serious charge of criminal contempt, which brought the case before Brinkema.
She worried aloud that the judges who found Al-Arian guilty of civil contempt had not looked at evidence from the plea deal negotiations to see if his contempt was "willful." She explained that "one of the essential elements of a criminal contempt case is proof of willful violation of a legitimate court order." She said she needed details of the plea negotiations.
Al-Arian's Virginia attorneys in the criminal contempt case produced evidence of the plea negotiations in the form of sworn declarations from the defense attorneys who negotiated the deal. They said federal prosecutors in Tampa agreed that Al-Arian would not have to cooperate with the government.
Brinkema then asked the criminal contempt prosecutors in Virginia for sworn declarations from their Tampa counterparts to see whether they agreed with defense attorneys' description of what happened.
But Virginia prosecutors argued that what the Tampa prosecutors said in plea deal negotiations had nothing to do with them. Brinkema replied: "This is not one U.S. Attorney's Office versus another. You have the United States Department of Justice … involved at both ends."
Then Virginia prosecutors dropped a bomb: They said Tampa prosecutors knew that Virginia was going to subpoena Al-Arian to testify but did not tell Al-Arian's attorneys. They said Tampa prosecutors opposed the Virginia plan to subpoena Al-Arian — a revelation that suggested Tampa prosecutors knew it was a violation of the plea agreement but kept quiet.
The judge asked Virginia prosecutors: "You don't think that the prosecutors (in Tampa) had an obligation to alert defense counsel that this storm was brewing on the horizon?"
"No," responded Assistant U.S. Attorney Gordon Kromberg. Nor did he think he had an obligation to produce details of what happened in Tampa, in the form of prosecutors' sworn declarations.
By March of this year, the issue for Brinkema had become even larger than withheld evidence: What was at stake, she said, was "the integrity of the Justice Department when it gets involved in plea bargaining."
In late March, Al-Arian's attorney Jonathan Turley asked Brinkema to dismiss the criminal contempt charges.
"The court cannot force the Justice Department to bargain in good faith. However, it can prevent the Justice Department from making the court a vehicle of the abuse," wrote Turley.
Two weeks ago, Virginia prosecutors responded: "Even a Santobella (bait and switch) violation in connection with the negotiations in Florida would not bar prosecution for criminal contempt in Virginia."
The judge will decide that Friday.
Meg Laughlin can be reached at email@example.com.
February 2003: Sami Al-Arian is arrested and charged with links to terrorism.
June 2005: Trial begins in Tampa.
December 2005: Jury acquits him on eight counts and deadlocks on nine.
May 2006: Al-Arian takes a plea deal, saying he aided associates of a terrorist group with immigration matters. The judge sentences him to 57 months, most of which he has already served.
October 2006: Al-Arian is subpoenaed to testify before a grand jury in Virginia but refuses, saying it is a violation of what was negotiated for his plea agreement.
April 2008: He completes his sentence and a year added on because he refused to testify, and goes into an immigration detention facility to await deportation, likely to Egypt.
June 2008: He is charged with criminal contempt for refusing to testify. He could face up to 24 years if convicted.
September 2008: He is released on bail and placed under house arrest in Virginia.
March 2009: A Virginia prosecutor tells Judge Leonie Brinkema that Tampa prosecutors didn't tell Al-Arian's attorneys about the Virginia plan to subpoena him because "Florida didn't care what was going on in Virginia." Brinkema responds: "Aren't you almost admitting … that their overarching understanding was this plea agreement would end the involvement of Mr. Al-Arian with the United States government?"