In the first part of the article which appeared yesterday I described how Osama Awadallah’s criminal case related to his interactions with one of the 9/11 hijackers was assigned to South Manhattan court of United States District Judge Shira A. Scheindlin who like Jesse A. Berman, the criminal defense lawyer who agreed to represent him, is Jewish. On Nov. 27, 2001, Judge Scheindlin granted Osama release on bond — the first judge in the country to grant bond to a Muslim-Arab swept up in Ashcroft’s now-public dragnet. Then in February, 2002, Judge Scheindlin did the unthinkable. She dismissed the indictment against Osama.

Judge Scheindlin did not believe that the material witness statue could be used to arrest a cooperating grand jury witnesses. Since Osama had been unlawfully detained, his grand jury testimony had to be thrown out. She also questioned the credibility of several government witnesses who had testified that Osama had not been cooperating with the authorities before his arrest.

The government immediately appealed the dismissal. And the far right launched a concerted attack against Judge Scheindlin. Bill O’Reilly called for her impeachment and for the next week railed against her every day on his show. Not even a federal judge would be spared the intolerance of the moment.

Jesse A. Berman then enlisted appellate counsel to assist him in responding to the government’s appeal. The case had also attracted the attention of the local chapter of the American Civil Liberties Union and the local criminal defense bar. The result was that several more of our Semitic cousins stepped forward to help Osama: Lawrence Mark Stern, Daniel J. Horwitz, Arthur N. Eisenberg, Jethro M. Eisenstein, Steven R. Shapiro, Lucas Guttentag, and Robin Goldfaden.

In spite of their noble efforts, the Second Circuit Court of Appeal reinstated the indictment. Osama would be facing trial in Judge Scheindlin’s courtroom after all.

Because he would be facing a team of federal prosecutors, Jesse enlisted the aid of two other lawyers to assist him in the trial. They were Liz Fink, a long-time criminal defense lawyer also based in South Manhattan; and Sarah Kunstler, a young lawyer who also happens to be the daughter of William Kunstler, the famous civil rights lawyer. Both Liz and Sarah are also Jewish.

Osama’s first trial for perjury was convened on May 31, 2006. By then, I had become a defense witness, testifying about Osama’s state of mind while imprisoned and the bruises and cuts I had observed on his body after his beating. During the trial, the prosecutors claimed that the workbook proved that Osama had lied when he had professed an inability to recall Khalid’s name. The defense responded that he was confused from physical and mental abuse and fatigue.

Unfortunately, once in the confines of the jury room eleven jurors collectively branded Osama as terrorist sympathizer because he was a Muslim-Arab. They refused to look at the evidence and simply voted to convict him. But their effort fell short. It takes twelve jurors to convict. One lone juror held out against the tsunami of prejudice that had swept through the jury room — he was a Jewish man. For six days he chided the other jurors for not weighing the evidence. And for six days, time and again, he refused to be swayed, cajoled, or pressured into voting “guilty.” The jury being hopelessly deadlocked, Judge Scheindlin declared a mistrial. Osama had been saved by a Semitic cousin.

The retrial was convened on Nov. 6, 2006. The prosecutors presented essentially the same evidence they had presented at the previous trial: The grand jury transcript and the workbook. But this time Jesse, Liz, and Sarah did things a bit differently. They worked harder to cull potential jurors whose prejudices would overwhelm their duty, and they presented more character evidence.

Mimi Pollack, the Jewish professor who had provided the workbook to the FBI, was called as a defense witness. She was very sympathetic to “Sam,” as she called Osama during her testimony. She put a human face on him, told the jury about his poor English skills in 2001, and opined as an experienced ESL teacher that stress would have denigrated his verbal skills even further. The jury really liked Mimi. Another professor of Osama’s testified about how helpful a student he had been while at San Diego State University, from which Osama had graduated with honors this past June.

And I testified again. This time Liz questioned me extensively about how another client of mine, a cooperating witness, had told the FBI all about Khalid Al-Mihdhar and Nawaf Al-Hazmi on Sept. 17, 2001, well before Osama’s grand jury testimony. And several of the government’s own witnesses had to admit that they had known the names of both of the Sept. 11 hijackers long before Osama testified before the grand jury.

Osama did not testify on his own behalf. He did not have to. When this jury began its deliberations, eight of them favored acquittal and four favored conviction. Five or so hours later, the vote was 12-0 in favor of acquittal. For the first time since Sept. 21, 2001, Osama was out of harm’s way. After the verdict, some of the jurors suggested to the prosecutors that they re-read the Bill of Rights, and others lamented that the government had wasted so much money on such a frivolous case. By the way, three more of Osama’s Semitic cousins had sat on the jury.

To most people, the obvious lesson of the case was that the justice system was still intact in South Manhattan. After all, a Muslim-Arab who had been acquainted with two of the 9/11 hijackers had gotten a fair trial just a few blocks from Ground Zero.

But to me, a far more important lesson was taught: Osama’s Semitic cousins had saved him. Jesse, Liz, Sarah, and the other members of the defense team had not hesitated to come to his defense; a courageous Jewish judge had applied the law to the facts in spite of the potential fallout on the far right; a lone Jewish juror held out for six days against a tide of prejudice sweeping through the jury room; and finally, Mimi had put a human face on “Sam.” To all of them, Osama and I say, “Shuk’ran,” Arabic for “Thank You.” And we urge all of our Arab brothers and sisters and our Semitic cousins to take a close look at Osama’s case. We two peoples can accomplish much more as friends than as enemies. (Concluded)

— Randall B. Hamud is an attorney at law based in San Diego, CA. He can be contacted at: [email protected]