Holy Land Foundation and its Leaders Petition for Re-hearing on Dismissal of their Appeal

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January 17, 2012

The Holy Land Foundation (HLF) and its leaders have both filed petitions for re-hearing of their appeals from criminal convictions for material support of terrorism and other charges. The Fifth Circuit Court of Appeals dismissed their appeals in December 2011. The petitions argue that the court should grant a re-hearing because the case involves legal questions of exceptional importance. The court generally rules on petitions for re-hearing within 30 days. 


HLF was convicted without counsel and without putting on a defense. As a result, all its assets were forfeited to the U.S. government at sentencing. After the trial resulted in conviction of all defendants, the trial judge appointed Prof. Ranjana Natarajan of the University of Texas' National Security Law Clinic to represent HLF for purposes of the appeal, over the objections of the government. The appeals judges dismissed the appeal for lack of jurisdiction, saying the trial court should not have appointed counsel.
Natarajan submitted HLF's petition for re-hearing on Dec. 21, 2011, arguing that the court should appoint an attorney for appeal purposes. She noted that:
"It is undisputed that HLF, a non-profit charitable corporation, was convicted and sentenced, and had millions of dollars forfeited, after a trial at which it had no counsel. It is also undisputed that no corporate representative made a knowing, intelligent waiver of counsel on behalf of HLF. As such, the trial involved Constitutional error of the greatest magnitude and had no known precedent." 
The Sixth Amendment protects the right to counsel and the right to confront evidence. As a nonprofit corporation rather than a living person, HLF could only assert its rights through counsel.
 HLF was unrepresented at trial because its original attorney, who represented both HLF and its board chair, withdrew from representing HLF before the trial due to the potential conflict of interest between the two. No steps were taken to provide HLF with representation at trial, and it was later convicted. 
In the request for re-hearing, Natarajan noted that "Courts routinely take steps to protect litigants who are unable to vindicate their own rights through disability not of their making. In civil cases, courts appoint counsel, guardians ad litem, or next friends to protect the rights of civil litigants who are unable to participate in proceedings ….Courts also appoint third parties such as special masters and receivers when necessary to aid in the administration of justice." She also noted that in criminal cases "Courts appoint standby counsel for self represented defendants" and indigent defendants.

Attorneys for HLF's leaders who were also convicted at trial filed their petition for re-hearing on Jan. 4, 2012. The petition sets out three questions of exceptional importance:
  1. Did the appeals panel of judges err when they held that the trial court made four errors in admitting evidence but that the errors were harmless (and therefore would not affect the convictions)? The defendants argued that this was an error that ignored evidence presented by the defense, "gave no weight to the government's use of improperly admitted evidence" and overlooked the fact that "these four errors marked the principal differences between appellants' firs trial, which did not produce a single guilty verdict on any count, and the second trial, which produced guilty verdicts on all counts…"
  2. "Did the government's presentation of an anonymous expert witness, whose name was withheld even from defense counsel, violate appellants' Fifth Amendment right to due process and Sixth Amendment right of confrontation?"
  3. Did the court use the proper legal reasoning in allowing an exception to the rule against admitting hearsay evidence?