DALLAS ó The federal government's strategy for prosecuting alleged terrorist fund-raising in America is faltering after jurors failed to agree on most charges against five officials of what was once America's largest Muslim charity, the Holy Land Foundation for Relief and Development.
After 19 days of jury deliberations, Judge Allen Joe Fish declared a mistrial yesterday on the bulk of the charges. His action followed a morning of confusing proceedings in which the jury returned written verdicts of not guilty on some counts, but three jurors told the judge that they disagreed with at least part of what was recorded on the verdict forms.
"The law gives me no choice but to declare a mistrial as to all counts of the indictment as to which no unanimous verdict was reached," the judge told a courtroom packed with security personnel, journalists, and family members of the accused.
The defendants, Ghassan Elashi, Shukri Abu Baker, Mufid Abdulqader, Abdulrahman Odeh, and Mohammed El-Mezain, each faced more than two dozen counts, including conspiracy to provide material support to a terrorist group, namely Hamas, conspiracy to evade an embargo, and money laundering. Some individual counts carried potential prison terms of up to 20 years, meaning that the men faced the possibility of life in prison if convicted.
The verdict forms indicated that Mr. Abdulqader was not guilty on all counts, Mr. El-Mezain was not guilty on all counts but one conspiracy charge, and Mr. Odeh was not guilty on all counts but the two conspiracy charges. The verdict sheets said the jury could reach no agreement about the guilt or innocence of the two highest-ranking foundation officials in the dock: Elashi, the foundation's chairman, and Mr. Abu Baker, the charity's secretary and chief executive officer. The jury failed to reach any verdict on the Holy Land Foundation itself, which was also charged as a defendant.
Judge Fish then polled the individual jurors, whose identities have been shielded by the court. The forewoman quickly confirmed that she agreed with the verdicts. But when the judge asked the next juror whether she joined in the verdicts, she replied, "No." In all, three jurors initially repudiated the verdicts, while the nine others accepted the decisions.
The forewoman said she was taken aback by the dissent. "When we voted, there was no issue in the vote. No one spoke up any different. I really don't understand where it's coming from," she told the judge.
Judge Fish sent the jurors out to discuss whether further deliberations might produce unanimity. After 45 minutes, they returned with a note saying all but one of them considered further discussions to be fruitless.
The judge then polled the dissenting jurors again, citing the possibility of "some ambiguity" in his earlier question about agreeing to the verdicts. The follow-up queries elicited continuing disagreement about Messrs. Abdulqader and Odeh, though the dissenters seemed to agree with the listed not guilty verdicts for Mr. El-Mezain.
The judge then declared a mistrial on all counts, except for those where Mr. El-Mezain was found not guilty. Asked by Judge Fish whether the government would retry the case, the lead prosecutor, James Jacks, answered, "Yes, your honor, my expectation is we will."
Families and supporters of the accused were initially muted in their reactions to the developments, but the confusion eventually turned to jubilation as the crowd gathered at the courthouse assessed the outcome as a defeat for the government.
The defendants and their attorneys were cheered as they emerged from the courthouse. Amid cries of "Allahu Akbar," at least one of the defendants, Mr. Abu Baker, and a lawyer for Mr. Odeh, Greg Westfall, were hoisted into the air on the shoulders of those celebrating. Elashi's daughter, Noor, hailed her father as a "humanitarian" and civil rights hero in the mold of Rosa Parks.
The trial's muddled result is a blow to the Justice Department, which had highlighted the Holy Land Foundation case as one of its marquis efforts to disrupt the flow of money to terrorist groups.
In 2004, the attorney general at the time, John Ashcroft, personally announced the indictment in the case. "This prosecution sends a clear message: There is no distinction between those who carry out terrorist attacks and those who knowingly finance terrorist attacks. The United States will ensure that both terrorists and their financiers meet the same, certain justice," he said.
The outcome yesterday is sure to lead to second-guessing of the prosecution strategy, as well as comparisons to recent trials in Illinois and Florida that reached similarly mixed conclusions. In February, a jury in Chicago acquitted two alleged Hamas activists, Mohammed Salah and Abdelhaleem Ashqar, of conspiring to support terrorism, but convicted them of obstruction of justice. In 2005, a six-month-long trial of a former college professor, Sami Al-Arian, and three others ended with no convictions.
Al-Arian won acquittals on eight charges, while jurors could not agree on nine others.
Prosecutors have acknowledged the setbacks, but also point to victories on terrorism-support cases brought in Virginia and New York.
The prosecution in the Holy Land Case seemed streamlined, with just 10 witnesses taking up about five weeks on the stand, far less than prosecutors initially suggested.
Some critics complained that the case relied too much on an Israeli intelligence official who testified under a pseudonym and in a courtroom cleared of spectators at the request of the American and Israeli governments. The official, referred to as "Avi," testified that the Palestinian charities, or "zakat" committees, which Holy Land supported with more than $12 million, were actually fronts for Hamas.
"This was an Israeli trial tried on American soil," a spokesman for groups supporting the defendants, Khalil Meek of the Hungry for Justice Coalition, said yesterday.
A former terrorism prosecutor, Andrew McCarthy, said the case may have foundered not on the credibility of "Avi," but the defense's countering testimony from a former American consul general in Jerusalem, Edward Abington Jr. Mr. Abington, who is a paid lobbyist for the Palestinian Authority, painted a more benevolent picture of the zakat committees and asserted that Israel's assertions about documents it seized were unreliable.
"I can't think of anything worse for the government's case than for a State Department official to come in and undermine it," Mr. McCarthy said.
Mr. McCarthy also said the Holy Land prosecution may have suffered from the fact that most of the evidence predated the September 11, 2001, attacks. "This case, and Al-Arian, showed that we have a history of treating terrorism very differently before 9/11 and after 9/11," he said.
Judge Fish left in place a gag order precluding the defendants and their lawyers from speaking publicly about the case. However, the judge, who is scheduled to take senior status later this year, indicated that he will not preside over any retrial.
Al-Arian's mixed verdict prompted negotiations in which he agreed to plead guilty to a single terrorism-support charge. Prosecutors are likely to have less leverage over Holy Land's former chairman, Elashi. He is already serving a prison sentence of more than 6 1/2 years following his conviction in another case involving shipments of computer equipment to Libya and Syria, as well as the transfer of money to a top Hamas official who is one of Elashi's cousins, Mousa abu Marzook.
Still pending before the court is a request from the Council on American-Islamic Relations to strike a list of unindicted co-conspirators filed by prosecutors in the case. Cair contends that the designation violated the group's rights and Justice Department procedures. Prosecutors said the designation was justified by the evidence that emerged at trial about ties between Cair and the defendants.
Cair officials warmly embraced the defendants after yesterday's mixed verdicts.