Saturday, July 26, 2008

TEXAS LAWYER report on Holy Land Foundation prosecutorial abuses

With liberty and justice for some?
HLF Prosecutors: No Reason Defense Cannot Be Ready for Retrial
By Miriam Rozen
Texas Lawyer
July 24, 2008

A defense request to postpone the retrial in United States v. Holy Land Foundation, et al. has federal prosecutors and defense lawyers throwing verbal punches at each other.

In July 15's "Defendants' Joint Motion for Extension of Time for All Remaining Pre-Trial Deadlines and Trial," the five individual defendants asked U.S. District Judge Jorge A. Solis of the Northern District of Texas to postpone the retrial. They allege the 5th U.S. Circuit Court of Appeals has not paid most of the legal fees for four of the defendants' court-appointed lawyers since October 2007 when a mistrial in the case was declared. The defendants also allege the 5th Circuit has not paid or approved expenses related to defense preparations for the Sept. 8 retrial.

On July 21, the government filed its "Opposition to Defendants' Joint Motion for Extension of Time for All Remaining and Pre-Trial Deadlines and Trial." In it they argue that the defense request should be denied."The defendants state that they cannot adequately prepare for trial without proper funding. Based on their prior preparation for their first trial, however, and by eliminating obviously wasteful expenditures, there is no reason why defense counsel cannot effectively represent their clients at the upcoming trial," the government lawyers write.

Then came the defendants' July 23 "Reply to Government's Response to Defendants' Joint Motion for Extension of Time for All Remaining Pre-Trial Deadlines and Trial." In the filing the defendants state that the government "would make itself the arbiter of what trial strategy the defense should pursue and what resources are adequate for the defense of the case. This is plain wrong, unfair and unconstitutional."

Attached to their reply are declarations written by four criminal-defense lawyers -- William Reagan Wynn, a partner in Fort Worth's Kearney Wynn Law Firm; E.X. Martin, of counsel at Dallas' Jones Allen & Fuquay; and Gary Udashen and Bruce Anton, partners in Dallas' Sorrels, Udashen & Anton -- each of whom state that they could not be ready for trial in the timeframe and circumstances alleged in the defendants' pleadings.

In the HLF case, federal prosecutors allege the five individual defendants, all of whom formerly worked for HLF, a now-defunct Richardson-based Muslim charity, used the organization to help fund terrorists in the West Bank and Gaza. The defendants, all of whom deny the allegations and have pleaded not guilty, were tried last year, but on Oct. 22, 2007, then-Chief U.S. District Judge A. Joe Fish of the Northern District of Texas declared a mistrial in the case. Fish, who took senior status on Nov. 12, 2007, subsequently transferred the HLF case to Solis. [See "On Hold: The Decision-Making Behind the Wait for the HLF Verdict," Texas Lawyer, Oct. 29, 2007, page 1.]

Fees, Please

In their July 15 motion, the five defendants argue that because of the nonpayment of legal fees and expenses, the defense is not prepared for retrial. Four of the HLF defendants are indigent and are represented by court-appointed lawyers pursuant to 18 U.S.C. ยง3006A. The defendants note in the motion that they are intentionally addressing the funding issues in "vague terms as necessary to protect the attorney-client privilege." They do not provide specific numbers on the requested amounts. [See "HLF Defendants Allege Court-Appointed Attorneys' Fees Unpaid," Texas Lawyer, July 21, 2008, page 1.]

Karen Mitchell, U.S. district clerk for the Northern District of Texas, says the court-appointed defense lawyers have been paid about $2.41 million for all costs related to the HLF case so far, which includes $1.6 million for attorney and paralegal fees including out-of-pocket expenses for the first trial; $16,521 for attorney and paralegal fees including out-of-pocket expenses for the upcoming second trial; $191,172 for expert fees and expenses for the first trial; $458,718 for interpreter and translator fees for the first trial; $31,423 for transcripts for the first trial; $100,376 for airfare for the first trial; $5,979 for airfare for the upcoming second trial; and $1,887 in duplication fees for the first trial.

The court-appointed lawyers in the case are: Nancy Hollander, John W. Boyd and Theresa Duncan of Albuquerque, N.M.'s Freedman Boyd Hollander Goldberg & Ives who represent Shukri Abu Baker, the former HLF executive director; Joshua Dratel of the Law Offices of Joshua Dratel in New York City who represents Mohammad El-Mezain, the original HLF chairman; Marlo Cadeddu, a Dallas solo who represents Mufid Abdulqader, a former HLF fundraiser; and Greg Westfall, a partner in Fort Worth's Westfall, Platt & Cutrer who represents Abdulrahman Odeh, HLF's former New Jersey representative.

Defendant Ghassan Elashi, a former HLF chairman, has retained solo Linda Moreno of Tampa, Fla., and John D. Cline, a partner in the San Francisco office of Jones Day.James T. Jacks, the first assistant U.S. attorney for the Northern District of Texas, is the lead prosecutor in the HLF case, assisted by Barry Jonas and Elizabeth Shapiro, assistant U.S. attorneys in Washington, D.C.Lawyers on both sides cannot comment on the case because of a court-imposed gag order.

According to the "Guidelines for the Administration of the Criminal Justice Act and Related Statutes" on the Administrative Office of U.S. Courts' Web site, U.S. circuit court chief judges have responsibility for overseeing payments made to appointed counsel when those fees exceed the compensation maximums set by the Criminal Justice Act (CJA), currently $7,000 for a federal criminal felony trial.

Not From Texas

In their July 21 response, prosecutors argue that the defendants are using "a situation of their own creation as a sword to delay this trial."

Specifically, the prosecutors contend the defendants have relied upon out-of-state appointed lawyers rather than local appointed counsel, generating additional travel expenses. In addition, the prosecutors note two of the defendants, Baker and El-Mezain, secured "at least two court appointed attorneys, a right reserved only for cases where the defendants are eligible for the death penalty."

The prosecution adds that Elashi, who has retained counsel, has asked for the trial delay as well but "never explains how his ability to prepare for trial has been hampered when his attorney fees are not dependent on CJA funding."

The prosecutors object to a reference in the defendants' July 15 motion to the costs of the prosecution. In a footnote, the defense had written "according to information defense counsel have received, estimates of the cost of this prosecution range up to fifty million dollars." But in their July 21 response, the government lawyers say "the defense counsel's unfounded speculation regarding the costs of prosecution is completely wrong, highly misleading, and appears designed solely for the consumption of the media. We can state with a high degree of confidence that the costs of this prosecution are but a small fraction of what the defense has speculated without citation, factual basis, or support."

Kathy Colvin, a spokeswoman for the U.S. Attorney's Office for the Northern District, refers requests about the government's costs of prosecuting and investigating the HLF case to the FOIA and Privacy Unit at the Executive Office for U.S. Attorneys in the U.S. Department of Justice in Washington, D.C. William G. Stewart II, assistant director of the FOIA and Privacy Unit, does not believe a complete accounting of investigation and prosecution costs is ascertainable, because those figures involve multiple government agencies.

In their July 23 reply, the defendants state, "Because it was unable to obtain a single conviction on a single count as to a single defendant after full consideration of all its evidence by a jury and fearing another defeat, the prosecution now seeks to deny the defendants the ability to mount a defense by denying them and their lawyers the resources and time necessary to provide a constitutionally adequate defense."

"[T]he prosecution does not get a voice in the district court's appointments of counsel for indigent defendants," the defendants write, noting that at the first trial three members of the prosecution team were from out of state. "For the government to take issue with the costs of the defense based on the fact that two of the defendants have non-local lawyers is thus the height of hypocrisy," the defendants' reply states.

In a footnote, the defense's reply notes that Hollander's and Dratel's appointments followed a "common occurrence in federal court." Initially El-Mezain and Baker retained Hollander and Dratel, but the two defendants were subsequently unable to raise money to pay for a defense. As a result, pursuant to the CJA, the U.S. District Court appointed Hollander and Dratel to represent Mezain and Baker. Both lawyers are "highly experienced advocates in terrorism cases," the defense footnote explains.The defense further alleges that prosecutors have cited no authority that gives them standing to determine what portion of the defense Elashi, who has retained counsel, should pay.

About the estimated $50 million cost of the prosecution, the defendants note in their reply that the government has declined to identify the actual cost of a 14-year investigation spanning three continents, and they argue that such figures are "undoubtedly relevant." In a footnote, the defendants offer "a back-of-the-envelope" calculation of the cost of investigation and prosecution of the case. Extrapolating from the U.S. Department of Justice's 2007 budget and a New York University School of Law analysis of average costs for prosecuting terrorism cases, the defense calculates the DOJ's costs on the HLF case so far could be at least $40 million.