The 12-member jury in the trial of six Miami men accused of planning an attack on Chicago's Sears Tower is deadlocked a second time, ABC News has confirmed.
Before lunch, the jury sent a note to the presiding judge, saying they could not reach verdicts on any charges on any of the six defedants. Invoking the Allen charge, U.S. District Court Judge Joan Lenard urged the jury to continue deliberating on the case, which already resulted in one deadlocked jury last December and the acquittal of a seventh defendant.
Last week ABCNews.com spoke with legal experts who said the outcome of this trial will put the credibility of U.S. efforts to crack down on "homegrown terrorists" at stake.
The case is "more hype than evidence," Neal Sonnett, past president of the National Association of Criminal Defense Lawyers, told ABCNews.com, and it's a viable argument that the government's informant "created the crime."
"Let's make sure there is some reasonable basis for believing that we are on the path of some real terrorists," University of Miami law professor Bruce Winick, who has been following the case, said.
The arrests of the men, from Miami's impoverished Liberty City neighborhood, in June 2006 gained national attention, with the Bush administration claiming the arrests were an important victory in the war on terror.
But serious questions of entrapment plagued the men's first trial.
"There was a problem with lack of evidence," said Jeffrey Agron, the jury foremen in the first trial. "There was talk of them wanting to do certain things, but when they raided their headquarters, they never found any literature dealing with jihad or with terrorism or bomb-making or destroying buildings," Agron said.
"They never found any material used for bomb-making or schematics of the Sears Tower or any other building," Agron also told ABCNews.com. "A number of jurors just didn't believe that these guys were really terrorists, that they were sort of brought into this scheme with the promise of money, and that they were really looking to get money, and they were pretending to be terrorists in order to get money from al Qaeda or somebody they thought maybe was connected to al Qaeda." Agron added some jurors also questioned the credibility of the FBI's informant witnesses.
Those same issues were raised in the retrial. As in the first trial, the six defendants are all charged with plotting with al Qaeda to overthrow the U.S. government by taking an "oath of allegiance" to the terror group and conspiring to carry out attacks on the Sears Tower and FBI buildings.
The men's loyalty pledges were secretly recorded by the FBI in March 2006. Elie Assad, an undercover FBI informant who went by the name Mohammed, posed as an emissary from al Qaeda and administered the oaths of allegiance. Assad also provided the men with boots and a video camera so that they could take surveillance pictures of government buildings in Miami and was the supposed financier of the alleged terror plot.
According to officials, the apparent leader of the group, Narseal Batiste, aka Brother Naz and Prince Manna, talked about destroying the Sears Tower in Chicago during a Dec. 22, 2005 meeting with the FBI informant.
Officials say Batiste later told the informant, "He wanted to wage a full ground war against the United States" in order "to kill all the devils we can" in a mission that would "be just as good or greater than 9/11" beginning with the destruction of the Sears Tower.
But as in the first trial, defense lawyers argued the men had no intention of carrying out the attacks, that they were extremely poor and only went along with Assad so that they could con him out of the thousands of dollars he had offered to provide.
"A number of jurors really believed that these guys were just scam artists looking to make money," recalled former jury foreman Agron, who himself did not believe the scam defense but said, "We just couldn't get around that."
Agron said he thought some of the men technically violated the law by providing material support to a terrorist organization, by taking the pictures of the U.S. government buildings and taking the al Qaeda oath but said, "You know whether these guys were real bad terrorist type of guys, you know, I think they probably weren't."
In closing arguments for the second trial, the Miami Herald quoted prosecutor Richard Gregory as telling jurors, "These are not people saying 'No.' These are people who are dedicated soldiers -- dedicated to overthrowing the United States."
"It's clear that these folks were just trying to get some money," legal expert Sonnett said. "They didn't have the wherewithal; they didn't have the training; they didn't have the experience; they didn't have the equipment to bring off a sophisticated plot to blow up the Sears Tower."
"I think there is a real issue of prosecutorial discretion here. Was this worth prosecuting a second time?" law professor Winick asked.
The 12-member jury is now in the 12th day of deliberations.