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Attorney General argues reference to ISIS was not prosecutorial misconduct

May 1, 2018

Indiana Attorney General Curtis Hill is asking the Indiana Supreme Court to review a case involving two Middle Eastern immigrants and references to terrorism which raises both a question of prosecutorial misconduct and an issue of first impression.

The Indiana Court of Appeals overturned Moussa Dahab’s conviction in Moussa I. Dahab v. State of Indiana, 20A03-1706-CR-1369.  In a split decision, the majority found the Elkhart County prosecutor violated Evidence Rule 403 by making inadmissible and unfairly prejudicial statements by suggesting a possible link between the defendant and the Islamic State.

Also, the appellate court found the prosecutor violated Evidence Rule 409 when she elicited testimony that Dahab was ordered by a court to pay Rafed Alsaad’s medical bills.   

Dahab was convicted of Level 5 battery with a deadly weapon for hitting Alsaad, his work supervisor, in the head twice with a metal pipe. As he struck Alsaad, Dahab used foul language and said, “This is ISIS.”

Before trial, the defense attempted to get the terroristic statement barred. But the state countered that the statement was relevant because it helped established that Alsaad, an Iraqi refugee who fled his country after being threatened for aiding the U.S. government, was afraid of Dahad. Elkhart Superior Judge Kristine Osterday decided to delay a ruling on the mention of any foreign terrorist groups, wanting to “see how the facts play(ed) out.”

The trial court ultimately allowed Alsaad to testify as to the comments Dahab made. Also, in closing arguments, the prosecutor mentioned Dahab’s remarks, saying, “Was he part of ISIS? Who knows. That was what he said. Who knows if that’s what it really was or if that’s what he knew would scare Rafed Alsaad.”

While noting it appreciated the prosecuting attorney’s zeal, the Court of Appeals held the “drumbeat of ISIS references” and the admission that Dahab had to pay Alsaad’s hospital expenses violated fair trial standards.
“No defendant is guaranteed a perfect trial; however, every defendant is constitutionally guaranteed a fair trial,” Judge Michael Barnes wrote for the majority. “That did not happen here.”

Judge Cale Bradford dissented. He argued the actions of the prosecutor did not rise to the level of prosecutorial misconduct. The challenged evidence, he said, was harmless in light of the other unrelated evidence of Dahab’s guilt.

In its petition to transfer, Hill's office urged the Indiana Supreme Court to affirm Dahab’s conviction.

The Attorney General argued the Elkhart prosecutor did not deliberately introduce inadmissible evidence to maliciously prejudice the defendant. Rather, the trial court allowed the evidence of Dahab’s reference to ISIS to be included in the prosecution’s case and the defense did not object.

Citing Tompkins v. State, 669 N.E. 2d 394 (Ind. 1996) and Block v. State, 265 Ind. 569, 571, 356, N.E.2d 683 (1976), Hill maintained, “There is no doubt that linking violence and terror groups to Middle Eastern immigrants can be inflammatory, but that is precisely why Dahab chose to do just that when battering Alsaad. This Court has sanctioned that use of a defendant’s abhorrent and inflammatory statements when they are relevant and part of the story of the crime.”  

Also, the Attorney General described the appellate court’s ruling on admission that Dahab had to pay Alsaad’s hospital bills as one of first impression.

The Court of Appeals found the medical information was inadmissible. However, Hill argued the introduction of a court order that an individual pay medical expenses does not fall under Rule 409, which prohibits proving liability for an injury by introducing evidence of paying or offering to pay for medical care.

In addition, the Attorney General pointed out that even the appellate panel noted there was not much legal precedent on the issue.

“The importance of this issue being open means that the deputy prosecutor did not introduce this evidence under a clear prohibition against its inadmissibility,” Hill wrote. “When the admissibility of a piece of evidence is an undecided legal question, then it is not possible for it to be introduced for the deliberate purpose of unfair prejudice.”     

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