Federal prosecutors will try for a third time to persuade jurors that six men from an impoverished Miami neighborhood were a blossoming al-Qaida cell bent on destroying Chicago's Sears Tower to help ignite a war against the United States.
Prosecutors have indicated that they may change their approach for this week's trial after two juries didn't buy their case that the group's leader, 34-year-old Narseal Batiste, was trying to orchestrate a grandiose bloodbath. Jurors in both mistrials said they were skeptical Batiste could have chronic money woes and difficulty keeping a simple construction business afloat while at the same time planning to overthrow the government.
Some 30 months have passed since FBI agents swooped down on a Miami warehouse to arrest Batiste and his followers in a case President George W. Bush's administration pointed to as an example of its policy of preventing terror plots in the earliest stages possible.
Hung juries in other trials
But trials in 2007 and 2008 ended in hung juries for the six and a seventh man was acquitted after the first go-around. Another mistrial would make dropping the case more likely, a decision that would rest with President Barack Obama's new administration.
The two hung juries "certainly raise some doubt about whether a jury is going to reach a consensus in the future," said Douglas Keene, president of the American Society of Trial Consultants. "They do not represent the level of threat that people assume attaches to terrorists."
However, prosecutors say there's ample evidence of a sinister plot to try again. Jury selection is set to begin Tuesday.
First, they have some 15,000 FBI audio and video recordings that include Batiste darkly threatening to "kill all the devils we can" and comparing the U.S. government to "the Kingdom of Satan." And they say the men took to an allegiance oath to Osama bin Laden.
U.S. District Judge Joan Lenard has imposed a gag order on everyone connected with the case to try to limit media coverage that might influence jurors.
The star prosecution witness is Lebanese national Elie Assad, a paid FBI informant who infiltrated Batiste's group by posing as an al-Qaida operative. Assad arranged for the group to obtain the warehouse — fully wired by the FBI for video and sound — and led the men in the al-Qaida oath.
Batiste and Assad were recorded discussing the Sears Tower plot and a second one suggested by Assad involving attacks on FBI offices in Miami and other cities.
'This was imagination'
But Batiste testified at both previous trials that he was only playing along with Assad to get $50,000 for his business and a community outreach program.
"I wanted the money and support. That's the only reason I was there," Batiste testified. "This was imagination."
The group never obtained explosives, building blueprints or took other steps to mount attacks except taking photographs outside FBI and federal buildings in Miami.
One change by prosecutors will be greater focus on a Chicago-area gang that Batiste said on the tapes was an inspiration for his group: the Black P-Stones or El Rukns founded by Jeff Fort, who was convicted in 1987 of plotting with Libya to commit terrorism.
The accused men face up to 70 years in prison if convicted of all four charges, including conspiracy to support al-Qaida and to levy war against the United States. Batiste and his right-hand man, 29-year-old Patrick Abraham, have been jailed without bail since their June 2006 arrests. The other four were released on bail after the second mistrial.
Carl Tobias, a University of Richmond law professor who follows terrorism cases, said the Justice Department's early prevention strategy can backfire if investigators swoop in too soon to arrest people without sufficient evidence to prosecute.
However, "if the government waits too late, innocent people could be hurt," he said.