In mid-2011, attorneys submitted a strong case for the reversal of the Holy Land Foundation convictions. The 31,265-word, 149-page appeal cites over 150 references to cases, laws, rules, sentencing guidelines, executive orders and other authorities. The appellate issues delivered in the brief include:
- The fact that the court barred the defense from learning the names of two government witnesses, one of which was the government’s key witness in the trial. According to the brief, this action violated the defendants’ Fifth Amendment right to due process and Sixth Amendment right to confront witnesses against them.
- The fact that the court allowed highly prejudicial hearsay evidence in the trial. One source of the hearsay evidence was a witness who admitted to sending money to Hamas, cheating his employer out of $610,000 in a scam unrelated to HLF, cheating on his taxes and lying to the FBI. This witness, who did not appear in the first trial, was testifying as part of a plea deal with prosecutors in exchange for significantly reduced charges and sentence.
- The fact that the court admitted unfairly prejudicial evidence with little or no relevance to the charges in the case. This evidence included exhibits about Hamas suicide bombings, testimony about Hamas killing collaborators with Israel, a video of demonstrators stomping on and burning the American flag and other such imagery — none of which had any connection to the defendants.
- The fact that the court allowed highly prejudicial and irrelevant opinion testimonies in the case. These opinions included erroneous legal opinions and erroneous religious opinions from government witnesses.
- The fact that the court denied the defense access to evidence the prosecution had access to. Instead, prosecutors were allowed to cherry-pick what evidence the defense could review.
- The fact that the court refused to allow the defense to review statements the government recorded or intercepted under the purported authority of FISA.
The appeal was accompanied by an amicus brief from the National Association of Criminal Defense Lawyers. The NACDL brief focused on the Sixth Amendment issues of disallowing secret witnesses and the Confrontation Clause’s requirement that defendants be allowed to face their accusers. In their brief, the NACDL wrote:
“In the view of the NACDL, because a defendant’s right to confrontation of witnesses includes the right to know the identity of the witness, the convictions here must be reversed.”
The appeal was also accompanied by an amicus brief from David Cole of Georgetown University Law Center and J. Craig Jett of Burleson, Pate & Gibson. The Cole brief focused on Fifth Amendment due process violations and material support issues. The 20 organizations that joined the brief as interested parties are:
American Friends Service Committee
The Carter Center
Christian Peacemaker Teams
The Constitution Project
The Nathan Cummings Foundation
The Fund for Constitutional Government
Global Greengrants Fund
Grantmakers Without Borders
The Humanitarian Law Project
Islamic Relief USA
The Peace Appeal Foundation
The Rockefeller Brother Fund
The Samuel Rubin Foundation
Tikva Grassroots Empowerment Fund
The Urgent Action Fund for Women’s Human Rights
In December, 2011, the Fifth Circuit Court dismissed the appeal, and in February 2012, the full panel of the Fifth Circuit denied the petition for a rehearing. The defense attorneys are currently working on taking the case to the Supreme Court.