Slip of the lip

The slip of the lip (if that's what it was) from FBI agent Kerry Myers was the most dramatic moment of the trial so far.

Sami Al-Arian's defense attorney, William Moffitt, was hammering Myers on Aug. 23 about his testimony, in which he'd walked jurors through weeks of wiretapped phone conversations and intercepted faxes.

Moffitt then tried to make a point he's made publicly before — that the Palestinian Islamic Jihad focused its terror operations in Israel and the Occupied Territories, and — unlike Al-Qaeda — not the United States. This distinction is part of a tactic to distance his client from any link to 9/11.

Has the Palestinian Islamic Jihad ever attacked outside of Israel? Moffitt asked.

The PIJ threatened to attack America on three occasions, Myers answered. He added that PIJ's leaders, first Fathi Shikaki and later Ramadan Shallah, threatened the states with violence.

Then Myers dropped his bombshell.

One terrorist act was actually planned against our nation, he testified. The plan "was interdicted," Myers added. Moffitt seemed stunned for a moment. "When was that?" Moffitt finally asked.

Myers hesitated a beat and responded, "It's classified."

The small audience in the courtroom, including some of Al-Arian's supporters and family, gasped and laughed in exasperation. They'd been down the road before with "classified" information, which was used to deport Al-Arian's brother-in-law, Mazen Al-Najjar.

But the issue of the classified terrorist attack plans, coupled with ongoing questions of juror misconduct and a flap over expert testimony, have again raised the question: Can Al-Arian and his three co-defendants get a fair trial?

Myers' testimony about the classified report no doubt sank in with jurors, who were intently listening and taking notes at the time, which was the start of the defense's cross-examination and fairly dramatic stuff. The judge met with attorneys at his bench and the line of questioning ended. After testimony concluded that day, he warned Myers not to answer questions that could lead to classified information, and he warned defense attorneys not to ask "open-ended questions."

Within days, Judge James S. Moody Jr. met with prosecutors about the report's classified nature, and then reviewed the report. He later provided a summary of the report to all the defense attorneys, while providing the full report to the only two on the defense team with security clearance. None chose to question Myers further about the report, with Moffitt referring to the plot as "a rogue operation undertaken by a member," according to the Tampa Tribune.

Moody quickly halted Moffitt's public assessment of the report, and neither defense nor prosecution motions regarding it were granted. The jury was simply left with the specter of a secret report about a plot to attack America.

Myers took the Stand on July 26, 2005, providing a running narrative that explained the codes used in hours of wiretapped telephone calls the defendants made and received. He told jurors, for instance, that the Arabic word for "chickpeas" was code for Hamas, "cake" meant bomb and "dates and sesame seeds" really meant shrapnel put into explosive devices.

But after weeks of his testimony, as they began their cross-examination, defense lawyers said they discovered that Moody had not considered Myers an expert witness but instead a summary witness. The distinction is critical because an expert witness could offer his or her opinion on the meaning of evidence, while a summary witness would merely summarize for jurors what they were about to hear on a wiretap. That misunderstanding drew a quick motion for a mistrial from Fariz's attorneys.

"…The government has heightened the confusion, and prejudice, to the defense by ostensibly having Agent Myers testify simultaneously as an expert witness, summary witness, and case agent," assistant federal public defender Allison Guagliardo wrote. "If the defense counsel were misled and confused, then there is a significant likelihood that the jury was as well."

Moody denied the defense motion.

The latest problem for the defense involves allegations that one juror made anti-Palestinian remarks to other jurors. It began with a note more than three weeks ago from an anonymous juror to the judge: "Could you just remind the jury to keep their opinions to their self?"

Defense lawyers have pushed for the dismissal of the opinionated juror, who in court denied trying to influence anyone or making inappropriate remarks beyond asking fellow jurors harmless questions.

But two jurors told the judge that the offending juror had called two organizations linked to Al-Arian "fronts" for the Palestinian Islamic Jihad.

Moody questioned jurors twice and ended the inquiry without taking action, prompting Moffitt to protest. The St. Petersburg Times, which has followed the juror misconduct story closely, quoted Moffitt as asking Moody, "You have to take some action, and that action has to consider first and foremost the rights of the defendants. We can't be cavalier about this. The government is asking to put these defendants in prison for life."

Moody eventually cleared two jurors involved in the conversations and withheld judgment on the one who made the comments.

The trial is in its 15th week.

This article appears in Sep 14-20, 2005.