Prosecutors Shred Ex Post Facto Protections in HLF Trial

By Harold Knight
Holy Land Foundation Trial

Suppose for a moment the State of Texas decided to end one of the menaces to our society—one that is responsible for many deaths and an enormous amount of property loss every year—talking on a cell phone while driving. Then, by executive order of the governor, the state police were given the authority to start going through the phone records and the driving records of people who were suspected of having talked on their cell phones while driving before the law was passed. Soon the state would be prosecuting Texans, not for talking on their cell phones under the new law, but because they talked on their cell phones before the law was passed. Drivers would be indicted because they SHOULD HAVE KNOWN that some day such conversations would be made illegal. Absurd? Ridiculous?

That is what a preponderance of the evidence in the Holy Land Foundation trial is all about; the judge has allowed the prosecution to enter evidence of supposed wrong-doing (note I say “supposed” wrongdoing) in the HLF’s dealings with certain entities that were not illegal at the time of those dealings. A financial transaction that took place in 1989 cannot be deemed illegal under an executive order signed by President Clinton in 1995. Or can it? That seems to be the substance of the government’s case against the Holy Land Foundation so far.

Editor’s Note: “Every law, which makes criminal an act that was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution.” (Ex Post Facto at FindLaw)–gm