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In a recent criminal trial in Virginia, the prosecutor told the jury that the defendant couldn’t be trusted to tell the truth, that he would lie to their faces — all because of his religious beliefs. The defendant, an American citizen accused of supporting terrorism, was convicted. The religion in question, of course, was Islam. Now, the Virginia attorney representing Ali Al-Timimi is pushing for a new trial, saying that prosecutors secured the guilty verdict by appealing to religious bigotry against Muslims. The case illustrates the difficulty in prosecuting suspected terrorists who subscribe to a form of militant Islam, without airing tenets of the religion itself before a jury. And it raises the question of how far is too far when it comes to using a defendant’s religious beliefs as evidence of criminal intent. The issue will likely continue to confront judges as more cases against accused terrorists come to trial. Timimi’s lawyer, Edward MacMahon Jr., is seeking to overturn Timimi’s conviction, citing prosecutorial misconduct and the prejudicial impact of statements he says portrayed Islam as a violent religion. One specific objection: that Assistant U.S. Attorney Gordon Kromberg instructed the jury in his closing argument that Timimi, a devout Muslim, would lie to jurors because the jurors were “kafir” — or nonbelievers. Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia is likely to consider MacMahon’s motion when Timimi appears for sentencing July 13. Kromberg declined to comment, citing Justice Department policy. Bryan Sierra, a spokesman for the Justice Department’s Criminal Division, said that department officials would not comment on a pending case. In a court filing responding to MacMahon’s charges, Kromberg maintains that Timimi’s personal religious views were “directly relevant” to the case. “While such an argument may be unfairly prejudicial in a case involving a typical bank robbery, drug trafficking, or mail fraud, Timimi was charged with much different offenses,” the brief states. “In light of the charges against Timimi, the government’s arguments were directly relevant to his prosecution and fairly made.” But Georgetown law professor and civil rights advocate David Cole says mere relevance may not be enough to justify repeated references to a Muslim defendant’s religion during trial. Federal judges should exclude such evidence if its value is outweighed by the danger of unfair prejudice to the defendant, Cole says. “There has been a tremendous demonization of Islam since Sept. 11, and the sins of al-Qaida have been spread to Islam generally in popular culture,” Cole says. “The risk is that there is so much prejudice in the population at large that references to the Muslim faith end up clouding a jury’s ability to determine guilt or innocence.” US VERSUS THEM Since the attacks of Sept. 11, MacMahon, who also represents convicted terrorist Zacarias Moussaoui, has received a crash course in Islam. But during a recent interview, it was a story from the Old Testament — the violent tale of the Battle of Jericho — that was on the 44-year-old Catholic’s mind. According to the Bible, Joshua leads a force of 40,000 to take over the land of Canaan. After sending spies into a brothel to gather intelligence, the force conquers the city and slaughters its inhabitants, claiming the land as its own. “If I told the story to a crowd of Christians, would I be telling them to go lie or to kill or to seek out prostitutes? Would I be responsible for inciting a riot?” MacMahon asks. Such an argument would sound absurd in a federal courtroom, MacMahon asserts. No jury would believe it. But when it comes to the religion of Islam and how it is being portrayed in court, he says, it is a different matter. According to the government’s case, Timimi, a religious scholar and popular lecturer on Islamic issues, urged a group of Virginia followers in the days after the Sept. 11 attacks to join the Taliban and fight U.S. forces in Afghanistan. MacMahon says that jurors sitting in such trials who are unfamiliar with the religion may not recognize an argument that plays on their own biases. There were no Muslims on the panel that convicted Timimi. And, in fact, since Sept. 11, there has not been a single Muslim juror on a major terrorism case. Some experts say the culture gap between Muslim defendants and jurors may open the door to verdicts based on stereotypes. “A Muslim juror wouldn’t necessarily be more sympathetic, but there would be an opportunity for that juror to educate others about cultural differences and to dispel prejudices that might be expressed in the jury room,” says New York jury consultant Julie Howe. “Just like there can be racial prejudice, I think there is religious prejudice out there against Muslims, in particular since 9/11,” says Howe, who advised defense attorneys for Mohammed al-Moayad, a Yemeni cleric convicted in March 2005 of supporting al-Qaida and Hamas. “Some jurors are inclined to believe that Muslims are predisposed to violence.” The federal courts have repeatedly grappled with how racial bias affects juries. But when it comes to the sensitive issue of religion, experts say the line between acceptable trial rhetoric and prejudicial remarks can be a fuzzy one. Unlike race, an immutable physical characteristic, religious beliefs can factor into a defendant’s intent, motives and world view — concepts central to criminal prosecution. Timimi’s defense lawyers are basing their request for a new trial on statements Kromberg made in his closing argument, including the prosecutor’s final words to the jury: “If you’re a kafir, Timimi believes in time of war he’s supposed to lie to you. Don’t fall for it. Find him — find Sheik Ali Timimi — guilty as charged.” Another remark cited by the defense team targeted one of Timimi’s key witnesses. The witness testified that Timimi never told followers that Muslims had an obligation to wage war against the United States. In his closing, Kromberg told jurors not to believe the witness because he had also testified that he considered Shiite Muslims nonbelievers who should have their heads lopped off. MacMahon says Kromberg’s remarks were gratuitous — no one in the case was charged with committing such acts of violence. MacMahon further argues that the comments created an us-against-them atmosphere in the Alexandria, Va., courtroom. “It is clear to counsel that the point that the government was trying to make to the jury was that Muslims are religiously obligated to wage war against the United States, to lie, and to kill,” MacMahon states in his motion for a new trial. Kromberg maintains that his remarks never referred to Islam in general but only to Timimi’s beliefs. In a June 20 brief responding to MacMahon’s claims, Kromberg states, “It is an insult to Muslims in America and around the world for Timimi to claim that the beliefs he . . . [holds] are shared by Muslims generally.” Even before the start of Timimi’s trial, Kromberg and MacMahon wrangled over whether prosecutors would be allowed to tell jurors that Timimi had stated a view that Muslims could lie to the enemy if they were at war. MacMahon sought to bar the testimony, citing a federal rule of evidence that explicitly prohibits lawyers from using witnesses’ religious beliefs to undermine their credibility. But in a pretrial motion, Kromberg argued that Timimi’s willingness to lie was not technically a religious belief but a political one, and that his statements should be admissible because they proved bias. In addition, Kromberg said that the evidentiary rule was inapplicable because Timimi did not testify at his trial. Brinkema ruled from the bench, siding with the government. Henry Klingeman, a former federal prosecutor in New Jersey, says it would be unfair to prevent government lawyers from using a defendant’s own statements as evidence simply because those statements deal with religious subjects. “I think this is going to be an issue that we see a lot of in the future,” Klingeman says. “In a case where a defendant is saying, ‘I’m peaceful because I’m a religious person’ and placing their own religious views at issue, it would seem to me that lawyers should be permitted to inquire about those views.” MATTERS OF FAITH Indeed, legal experts say, there is often no way to effectively prosecute those who support terrorist organizations without examining their religious beliefs. “It’s a very serious issue in these trials because terrorists are cloaking themselves in pseudo-religion,” says Jeffrey Addicott, director of the Center for Terrorism Law at St. Mary’s University School of Law in San Antonio. “By and large, prosecutors have acted very judiciously,” Addicott adds. “They understand this is a war on an extreme sect that cloaks its acts in religiosity and does not represent the vast majority of Muslims.” But MacMahon is not the only defense lawyer who questions the government’s emphasis on Islam during terrorism trials. INFLAMMATORY TERMS USED One common gripe from the defense bar is prosecutors’ frequent use of Islamic terms like jihad and “fatwa,” which have negative connotations in America. Another is the use of expert witnesses to school jurors in the history of Islam, much like a prosecutor might use an expert witness to provide background on the Mafia in an organized-crime case. “Essentially, many jurors’ first experience learning about Islam would be from the prosecutor,” says Detroit civil rights lawyer Shereef Akeel. “They don’t have any reference points to assess the prosecutor’s credibility.” Akeel, who sat in the courtroom during the 2003 terrorism trial of four Detroit-area residents, says he was disturbed by prosecutors’ frequent use of the phrase “economic jihad.” “Rather than focusing on the elements of a crime, they cloud it by sprinkling the facts with these foreign terms that seem frightening to a person not familiar with the religion,” Akeel says. To prevent religious bias from affecting jury deliberations, jury selection in terrorism trials is particularly rigorous. Not only must prospective jurors answer scores of questions about their feelings toward Islam and the Middle East, they also are asked to state their own religion — a question that is ordinarily considered irrelevant. In the Timimi case, prospective jurors were asked nearly a dozen questions related to religion, including their personal religious preference, the religion they were raised in, and how often they attend religious services. They also were asked if they knew any Muslims or had any familiarity with Islamic practices. Jury consultant Marjorie Fargo, who was hired by Timimi’s defense team, says that the vast majority of those who filled out jury questionnaires in the case associated the word jihad — a term she says was “bandied about” during the trial — with violence or terrorism. “In the Muslim religion, you can wage a jihad against anything, and because there was lack of understanding on that, it could possibly affect a juror’s interpretation of the evidence,” Fargo says. MacMahon says he would have preferred to keep Timimi’s religious beliefs out of the trial altogether. “If prosecutors had wanted to try the case based solely on what happened, they could have,” MacMahon says. “Instead, we learned about the Koran and all these religious concepts. It never stopped.” MacMahon adds, “The effect of it, and the exact reason the government does it, is that the defendant has to defend himself against an aura of criminality that is unrelated to the actual events of the case.”

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