Is the Holy Land Foundation Trial Heading Toward a Mistrial?

By Dennis Lormel

Is the Holy Land Foundation (HLF) case headed toward a mistrial? If so, how does that impact the government with respect to pursuing terrorist financing cases? Likewise, do prosecutors retry the HLF case? These questions were posed to me today by a reporter covering the HLF trial.

With respect to the jury deliberations, the jury has been out for nearly one month. The judge has replaced one juror and reportedly one juror would not vote on a verdict. This was an extremely complex case to present. The length of jury deliberation attests to the complexity of the evidence being considered. A hung jury is a real possibility. This could result in the judge declaring a mistrial.

In the broad context of how the government pursues future terrorist financing cases, regardless of whether there is a mistrial, acquittal or conviction in the HLF matter, the government must assess the merits of each such case individually. Prosecutive decisions must be made on a case by case basis. If evidence is sufficient to warrant a trial, the government has an obligation to pursue prosecution either through a negotiated plea agreement or by virtue of trial.

In terms of future investigative and prosecutive methodologies, the government should establish a task force of highly experienced investigators and prosecutors who possess specific experience in document intensive financial investigations, as well as personnel with intelligence investigative experience. The task force should thoroughly review and assess a series of prior investigations and trials to identify investigative and prosecutive techniques that were successful and less than successful. This after action review or “hot wash” should lead to revised investigative and prosecutive methodologies and strategies.

In terms of the HLF case, the government was right to bring this case and should be commended for doing so, regardless the outcome. The government knew going in that they had an extremely complex and challenging case to present. As I wrote in an article on July 19 2007, “(t)he bottom line is that HLF did in fact fund HAMAS. HAMAS is a masterful organization at exploiting and manipulating charities for financial and logistical support, as well as for recruitment and marketing, in the sense of winning the hearts and minds of the Palestinian people.”

Proving willful intent on the part of the subjects of this investigation has been a difficult challenge. This is the underlying issue for the prosecution and is the focus of jury deliberations..

Should a mistrial be declared, outside of a compelling circumstance not to, prosecutors should move for a retrial. Based on a review of trial transcripts, self assessment, peer critique and post trial jury interviews, considerable information will be gained from a standpoint of lessons learned, which will shape future prosecutive strategy.

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