A Trial Too Far

Friday, May 2, 2008

ASOUTH FLORIDA courtroom was the setting for a remarkable scene last week. After failing to win a single conviction in two lengthy trials, a Miami federal prosecutor announced that he would put on trial -- for a third time -- six defendants charged with offering material support to al-Qaeda.

It is not unusual for prosecutors to retry a case once if a jury deadlocks. But a second retrial is exceedingly rare and is usually reserved for murder cases. A third trial on terrorism-related charges appears to be unprecedented and raises serious questions about whether prosecutors are more concerned with saving face than seeking justice.

Seven men were indicted in Miami in 2006 in what has become known as the Liberty City Seven case. The men were videotaped pledging fealty to al-Qaeda with an oath administered by a confidential police informant. Prosecutors said the apparent leader of the group, Narseal Batiste, in referring to Americans, said he wanted to "kill all the devils." The informant had offered to pay $50,000 for the group's participation in a plot to blow up federal buildings in Miami and the Sears Tower in Chicago. One Justice Department official said at the time of the indictment that the terrorist plot was more "aspirational than operational"; police were unable to find explosives or other materiel that would indicate that the defendants were serious about carrying out the plot.

The men have twice been tried before different juries in federal court in Miami. The first jury acquitted one defendant among the original seven and deadlocked on the fate of the remaining six. The second jury did not reach consensus on any of the remaining defendants.

Law enforcement officers and prosecutors have a difficult and thankless task when they try to preempt terrorist attacks. If they learn of possible plots and fail to stop them, they will be held accountable for failing to protect the public. Yet when they step in to disrupt what they believe to be a plot in the making, they risk charging people who may have expressed sentiments repugnant to the vast majority of Americans but who have done nothing illegal.

In an interview with the Miami Herald, the jury foreman in the second trial said Mr. Batiste would have been convicted but for one holdout juror; this revelation gives some legitimacy to a retrial of this defendant. The Justice Department should consider dropping or reducing charges brought against the others in exchange for their cooperation against Mr. Batiste. But the department should tread carefully. The more prosecutors appear to insist on repeat trials when they don't like the outcomes, the more the legitimacy of the system is eroded.

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