Jeffrey Breinholt
-- In Part One, I discussed how the name of Islam has been invoked as a defense by Muslim defendants in many American court cases, perhaps in an effort to establish Shari’-ah law in this country. In today’s piece, I will outline how witnesses have sought this defense as well.
Islam has sometimes been invoked by witnesses who sought to avoid testifying against their fellow Muslims, and these claims have been going on for years.
When Charles Johnson killed his wife in New York in the mid-1980s, the first thing he did was go to the mosque to seek the protection of his fellow Muslims. They took him to see a lawyer. Later, he claimed what he described to them constituted privileged communications in an attempt to bar them from testifying. People v. Johnson, 115 A.D.2d 973, 497 N.Y.S.2d 539, N.Y.A.D. 4 Dept., 1985
In the murder prosecution of John Henry Britt in Oklahoma City in the 1980s, a witness named John Wesley Phillips refused to testify at trial, claiming it would violate his principles as a Black Muslim. The trial court allowed the prosecution to use Phillips' statement at preliminary hearing, contained in an official court transcript, in lieu of his live testimony at trial. Britt claimed that the decision by the court to allow it was prejudicial error. Britt v. State, 721 P.2d 812, 1986 OK CR 99, Okla.Crim.App.1986.
In the late 1990s in New York, Ihab Ali was held in contempt for refusing to testify to the federal grand jury investigating the terrorist attack in U.S. Embassies in East Africa. At the contempt hearing, Ali also testified that, as a Muslim, he did not believe in the killing of innocent civilians under any circumstances but that he felt that Muslims of Arab descent were discriminated against in the United States. As examples, he referred to major airlines' profiling Muslims of Arab descent prior to plane departures and described the movie, "The Siege," as stereotyping Muslims as terrorists and fundamentalists. This was a year before 9/11. With respect to his refusal to testify, Ali stated that it was his understanding that it would be a sin for which he could suffer in hell's fire if he were to testify in a way that did harm to himself or to innocent people. He also testified that he mistrusted the motives of the inquiry of the grand jury that he had a mistrust of the United States government.
A prominent Islamic religious leader, Imam Mohammad al Hanooti, testified for Ali as an expert witness on the tenets of the Muslim faith and stated in general that in this country there has been a perception of injustice held by Muslims because of the atmosphere since 1991. This causes them to "try to avoid any sort of involvement with the justice or with any investigation because they don't feel that everything is lawful and everything is done with justice." With respect to Islamic law, Imam al Hanooti made clear that a Muslim has an obligation to testify about crimes committed but that if the Muslim evaluates the situation and concludes that his testimony will "hurt" him or others he has a right not to give testimony. He testified that Islamic law does not consider causing someone to be punished for a crime they committed not causing "hurt" and that a Muslim who knows about another's crime should give testimony. "The only way he can abstain from testimony if he knows he will be hurt or others could be hurt in unlawful dimensions." This ploy did not save Ali. The court ultimately affirmed his civil contempt. In re Grand Jury Subpoena of Ali, Not Reported in F.Supp.2d, 1999 WL 595665 (S.D.N.Y. 1999).
Refusal to testify against other Muslims was an express term of a plea agreement, and religious discrimination is later alleged when one defendant did not receive benefit of credit for cooperation. U.S. v. Thomas, Not Reported in F.Supp.2d, 1998 WL 633981 (E.D.Pa.1998). Occasionally, when forced to testify, Muslim witnesses have chosen to commit perjury. State v. West, 419 So.2d 868, La.,1982.
Along the same lines, Muslims have claimed that their refusal to submit to body searches, predicated on reasonable suspicion, reflects religious prohibitions on being touched on certain part of their bodies, U.S. v. Spriggs, 30 F.3d 132, 1994 WL 396337, Unpublished Disposition (4th Cir. 1994).
Muslims have claimed that undercover stings in their neighborhood represented unconstitutional discrimination. People v. Quyyam, 172 A.D.2d 698, 568 N.Y.S.2d 965, N.Y.A.D. 2 Dept., 1991.
They have increasingly claimed that they were unconstitutionally selected for law enforcement scrutiny because of their Muslim faith. U.S. v. Clark, 398 F. Supp. 341 (E.D. Pa. 1975); U.S. v. Jackson, 549 F.2d 517 (8th Cir. 1977); U.S. v. Darden, 70 F.3d 1507, 1995 WL 689372, 43 Fed. R. Evid. Serv. 321 (8th Cir. 1995); U.S. v. Al Jibori, 90 F.3d 22, 1996 WL 391217 (2nd Cir. 1996); State v. Issa, 2001 WL 1635592, 2001 -Ohio- 3910, Ohio App. 1 Dist., 2001; Smith v. State, 835 So.2d 927, Miss. 2002; U.S. v. Alemeh, 341 F.3d 167, 62 Fed. R. Evid. Serv. 327 (2nd Cir. 2003); State v. Madhobe, 2003 WL 1818928, 2003 -Ohio- 1793, Ohio App. 5 Dist. 2003; People v. Washington, 2004 WL 882065, Cal.App. 2 Dist. 2004; State v. Ahmed, 103 Ohio St.3d 27, 813 N.E.2d 637, 2004 -Ohio- 4190, Ohio 2004; People v. Wright,12 Misc.3d 1164(A), 819 N.Y.S.2d 212, 2006 WL 1525983, 2006 N.Y. Slip Op. 51024(U), N.Y.Sup., 2006; Al-Ali v. State, Slip Copy, 2006 WL 3831397, Tenn.Crim.App., 2006; U.S. v. Lewis, Slip Copy, 2006 WL 4385752 (D. Mass. 2006); Com. V. Miller, 897 A.2d 1281, 2006 PA Super 91, Pa.Super., April 24, 2006; U.S. v. Abdush-Shakur, 465 F.3d 458, 71 Fed. R. Evid. Serv. 470 (10th Cir. 2006); U.S. v. Awadallah, 457 F.Supp.2d 246 (S.D.N.Y. 2006); Olibrices v. State, 929 So.2d 1176, 31 Fla. L. Weekly D1552, Fla.App. 4 Dist., 2006.
Notice how many of these cases were issued after 9/11. If Muslims were indeed being selected for prosecution for unconstitutional reasons, one would expect that at least one of these claims was successful. None was.
The outer edges of selective prosecution claims were probably observed in the case of a Young American jihadist caught fighting for the Taliban, who claimed his indictment should be dismissed but the U.S. was prosecuting him because of his religious associations. This particular claim fell about as flat as Shiek Rahman’s argument a decade earlier. As the court noted:
Here, nothing in the Complaint or the Indictment suggests that Lindh's religious reasons for providing services to the Taliban motivated the government's decision to charge him with the offenses set out in Counts Eight and Nine. To the contrary, the serious offenses with which he is charged, i.e., conspiracy to murder U.S. nationals and aiding foreign terrorist states and organizations, are manifestly the reasons for his prosecution, not his religious affiliation. Given the gravity of the allegations, there is every reason to believe that Lindh would have been prosecuted even had he been, say, a Presbyterian, a Scientologist, or an atheist. Lindh's First Amendment argument, distilled to its essence, is that he has a constitutional right to associate with foreign individuals and groups and that Counts Two through Nine impermissibly infringe this right by criminalizing this association. The statutes and regulations on which the Counts rest amount, in his view, to the government's attempt to impose on him guilt by association.
This argument is specious. Lindh is not accused of merely associating with a disfavored or subversive group whose activities are limited to circulating inflammatory political or religious material exhorting opposition to the government. Far from this, Lindh is accused of joining groups that do not merely advocate terror, violence, and murder of innocents; these groups actually carry out what they advocate and those who join them, at whatever level, participate in the groups' acts of terror, violence, and murder.
U.S. v. Lindh, 212 F.Supp.2d 541, E.D.Va., July 11, 2002.
As I said, these cases are easy. The Muslims making these arguments typically lose. Yet they keep on ticking.
I believe that the more subtle signs that Muslims are trying to impose Islamic law in the U.S. are arguably present in the various cases where Muslim defendants challenged a jury selection process that did not result in a sufficient number of Muslim jurors to decide their fate U.S. v. Clark, 398 F.Supp. 341 (E.D.Pa., 1975), State v. Hodge, 248 Conn. 207, 726 A.2d 531, 1999 WL 167561, Conn., 1999, U.S. v. Shabazz, 1998 WL 744057 (D.Or. 1998); U.S. v. Salameh, 152 F.3d 88, 1998 WL 440473, 50 Fed. R. Evid. Serv. 602 (2nd Cir. 1998).
Part of what makes this strategy such an attractive one for Muslim litigants is that the challenge has already been established in racial cases, based on the recognition that juries can be racially biased and we need some measures to assure that they are fairly composed. Muslims occasionally seek disqualification of the non-Muslim judge. U.S. v. Watson, 1988 WL 36490 (E.D.La. 1988); U.S. v. Darden, 70 F.3d 1507, 1995 WL 689372, 43 Fed. R. Evid. Serv. 321 (8th Cir. 1995); State v. Madhobe, 2003 WL 1818928, 2003 -Ohio- 1793, Ohio App. 5 Dist., 2003. They sometimes assert that certain legal rulings reflect cultural bias. U.S. v. Baker, 1999 WL 163631 (E.D. Pa. 1999); Schultz v. Elremmash, 615 So.2d 396, La.App. 5 Cir., February 25, 1993; Muhammad v. Muhammad, 622 So.2d 1239, 1993 WL 290415 Miss 1993.
The premise of these arguments is that only fellow Muslims can be trusted to judge their peers. Taken to the next level, we would have all Muslim juries, or Muslim judges trained in Islamic law, to resolve intra-Muslim controversies. Other ethnic enclaves do not make this claim, which make their challenges to jury selection qualitatively different from those of Muslims.
The notion that disputes within the United States involving Muslims should be left to the Muslim communities, to the exclusion of traditional American law enforcement, is a well known attribute of the Black Muslim groups. Consider this event from the 1970s, described in a recent American court opinion:
The turning point in Tommy's life was the murder of Alice and Jamie Brewer in 1975. Alice helped a mentally retarded and schizophrenic family member, Arnold Hughley, with cooking, shopping and finances. According to Bernard King, Black Moslems visiting the neighborhood teased Hughley with a rubber snake. Hughley grabbed a gun from his house and killed one of them. The police arrived and a huge crowd gathered. Black Moslems pulled up in a vehicle with a loudspeaker and announced to the crowd that no one should talk to the white police; they would seek their own justice for the killing. No one would talk to the police.
The Black Moslems sought out the family and friends of Hughley for retribution. Alice and Jamie Brewer were abducted by men wearing ski masks. Neighbors witnessed the abduction. The Brewers' bodies were found a week later, shot and burned in an abandoned car in Alabama. The police arrested some Black Moslems returning to Tennessee with guns that matched the shells found at the scene. A photo lineup, which included pictures of those arrested with the guns, were shown to witnesses, who identified the men as having been in the neighborhood prior to the abduction posing as census workers going door to door asking questions about the Brewers and their friends and family. The arrested individuals were released for lack of evidence and the case was never prosecuted. Two other persons who associated with Hughley were also abducted and killed. Their bodies were found in Georgia. Four houses, including Bernard's and Vicki's, were firebombed.
The injustice of the Brewers' murders overwhelmed Tommy King. His whole attitude toward life changed. He could not understand why the Brewers, who lived such good lives should have been murdered, and he who had lived a bad life should still be living. After the killings, Tommy would tell Bernard that he had seen and talked to "Mama." Bernard tried to convince him it was not possible, but he insisted he talked to "Mama." When Tommy worked at the Brass Register Restaurant in 1979, Bernard received phone calls from Tommy's boss asking him to come because Tommy was seeing and hearing something that others could not see or hear. Tommy insisted he was seeing "Mama" and was having a conversation with her. Tommy began using drugs to an even greater extent than before. His relationship with the mother of his young son ended just before the robbery and shooting in Columbia.
Tommy was Tommy King, the defendant in the opinion that contains this quote, who was ultimately prosecuted for murder. The opinion dealt with whether he should be executed. King v Bell, 392 F.Supp.2d 964 (M.D.Tenn. 2005). Another unhappy ending in a scenario where Muslims are responsible for policing their own communities. I am not making this stuff up. Anyone who doubts that can check the law books.
As a said, the "I am a Muslim" defense is often easy to spot, and the bigger challenge is identifying it when the signs are more subtle. The cases described above are easy examples of courtroom jihad: of attempts to impose Shari’ah law in America, and the court generally had no trouble doing the right thing, as long as we are cognizant of what is happening. I will save those more difficult cases for a later article.
As always, the view expressed in the article are the author’s own, and do not reflect those of the Department of Justice.
http://www.familysecuritymatters.org/terrorism.php?id=1385173
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