Duka Brothers Have Their Say

By George Anastasia
For Bigtrial.net

They wanted to tell their side of the story in their own words and their lawyers wouldn't let them.

That's the argument brothers Dritan, Shain and Eljvir Duka offered in federal court today in a last ditch attempt to have their convictions and life sentences vacated in the Fort Dix terrorism trial.

With friends and family members rallying outside the federal courthouse in Camden and amid tight security, a day long series of hearings -- each brother had his own -- played out in the fourth floor courtroom of Judge Robert Kugler, the same judge who had presided over their trial eight years ago and who had sentenced each to a term of life plus 30 years.

"Free the Dukas now," supporters chanted from behind gated barriers set up in front of the courthouse as dozens of law enforcement officials from Homeland Security, the Camden County Police Department and the Sheriff's Department stood watch. The rally included dozens of placards decrying the convictions and proclaiming, among other things, "Islamaphobia Convicted the Dukas Brothers" and "Innocent Until Proven Muslim."

"We hope this time they see it the right way," Ferik Duka, the father of the three brothers, said as he stood in the cold outside the courthouse. "God willing. There is no way they intended  to do (what the government alleged.)"

That, as always, has been the fundamental issue in the case.

Were the Dukas and their two co-defendants, Mohamad Shnewer and Serdar Tatar, homegrown terrorists who had embraced jihad and were planning an attack on the Fort Dix military complex? Were they the infamous Fort Dix Five? Or were they young, naïve Muslim-Americans entrapped by overzealous government informants wearing body-wires who turned idle and hollow rhetoric into a conspiracy?

While emotions ran high outside the courthouse, the legal proceedings inside amounted to "he said, he said" arguments with all three brothers claiming they wanted to take the stand but were coerced by their lawyers not to. In turn, their former defense attorneys, called as government witnesses, testified that none of the brothers ever expressed a desire to testify.

The hearings, which began around 9:30 a.m. ended shortly before 6 p.m. Judge Kugler reserved ruling on the petitions after lawyers for the three brothers asked for time to file additional briefs. Those documents are due on Feb. 12. Kugler is expected to rule a short time later.

All three brothers, who were brought back from federal prisons in different parts of the country, appeared dressed in olive green prison jump suits with their wrists in handcuffs and their ankles linked in chains. Each nodded and smiled to friends and family who had taken up seats in the fourth floor courtroom.

The brothers, ethnic Albanians who had come to the United States as children and who were living in Cherry Hill at the time of their arrests, were targeted after a clerk at a Circuit City store reported to authorities that they had left a video to be copied that showed them firing weapons and shouting "God is great" at a firing range in the Poconos.

The Dukas would later say the video was from a vacation they had taken. The FBI launched an investigation and insinuated two informants into their social circles. Those informants recorded dozens of conversations that were used to support the conspiracy charge. One of the informants also arranged for the sale of 10 rifles and assault weapons to the Dukas. That "sale" capped the investigation and triggered the arrests that came down in May 2007.

Dritan Duka, the first to testify today, sounded the themes that were repeated throughout the session. He said that he wanted to take the stand to explain what he had said on the tapes, but that his lawyer, Michael Huff, had told him not to. He said Huff also told him that he was unprepared to put him in front of the jury during the trial.

"I believed I would have to get on the stand to explain myself," said Dritan Duka, 37, later adding that "the jury needed to hear what I got to say."

But Huff said his client never asked to testify. Huff, like the other defense attorneys, said everyone in the defense camp thought that was the wisest move.

"I think he could have done nothing but hurt himself," the defense attorney said, adding that all the defense lawyers and all the defendants agreed on that strategy.

Defense attorneys Troy Archie and Michael Riley, who represented Eljvir and Shain Duka, testified in similar fashion. All three attorneys were court-appointed and all three said the consensus was that any defendant who took the stand would be subject to grueling cross-examination that would allow the prosecution to replay damaging audio tapes and videos that had been introduced as evidence, including videos from radical Muslim leaders extolling violent jihad.

The videos, found on a computer owned by Shnewer, were played during the trial. They included depictions of beheadings and shots of American soldiers being gunned down. On at least one audio tape made by an informant, some of the defendants could be heard cheering the actions.

That, said Michael Riley, was one of his key concerns and one of the reasons he believed his client should not take the stand. He said Shain Duka never asked to testify.

The tapes "were damning," Riley said, and the videos "were devastating."

Riley said the defense strategy was to raise questions about the roles and motives of the informants who made the tapes and to try to show that the defendants were manipulated into making comments that appeared conspiratorial.

"The government's case was based primarily on words," he said. 

He said when, during trial preparation, he had asked Shain Duka about some inflammatory comments Duka had made, his client replied, 'I said it, Riley, but I didn't mean it."

Riley said he believed any benefit that might have come from his client taking the stand would have been outweighed by the fact that it would have provided the prosecution the opportunity pto revisit the audio and video evidence and replay it for the jury.

The prosecution also pointed out that each defendant was asked in open court by Judge Kugler if he  understood that he had the right to testify even if his lawyer had urged him not to. Each defendant, according to trial transcripts, said he understood and said he had opted not to take the stand.

But today all three brothers said they felt coerced by their lawyers and also were taken aback when all three attorneys said they were unprepared to put them on the stand. The defense attorneys denied that was ever said.

Deputy U.S. Attorney William Fitzpatrick, the lead prosecutor at the trial, also underscored the govenment's position when he asked each defendant about his motive for filing the habeas corpus (Rule 2255) petition that was the basis for today's hearing. The defendants claimed ineffective counsel and argued their constitutional right to a fair trial had been denied.

Fitzpatrick noted that the petitions came after the Third Circuit Court of Appeals had upheld the convictions and the U.S. Supreme Court had refused to consider the case. In none of those appellate motions, the prosecutor said, had the question of be denied the right to testify been raised.

"Isn't it true that unless you prevail on this petition you will serve the rest of your life in prison?" he asked Dritan Duka.

Duka responded that while that might be the prosecutor's opinion, "Only God know what the future holds. I am innocent and, God willing, it will be proven."

Shain Duka, responding to the same line of questioning, told the prosecutor, "You can say, do I have a motive to lie? Yes. But am I lying. No."

George Anastasia can be reached at GeorgeAnastasia@bigtrial.net.