Federal Judge Upholds Ghailani Conviction

MANHATTAN (CN) - U.S. District Judge Lewis Kaplan denied the defense's motion for a new trial or full exoneration of Ahmed Khalfan Ghailani, convicted of only one count of the 285 charges against him in connection to the bombings of two U.S. Embassies in Africa. The coordinated blasts killed more than 200 and injured thousands on Aug. 7, 1998.

Although acquitted of hundreds of murder charges and multiple conspiracy counts, jurors found that Ghailani conspired to destroy U.S. property, causing death.

In his 56-page opinion, Kaplan said that there was "clear," "sufficient," and "abundant" evidence tying Ghailani to the bombings of U.S. Embassies in Tanzania and Kenya, and suggested that the jury may have been too "lenient" and resorted to "compromise" in acquitting Ghailani of hundreds of other charges against him.

"The government may have suffered unwarranted acquittals in the face of persuasive evidence of guilt, in which case a new trial would be an undeserved windfall for Ghailani in consequence of a jury compromise, jury leniency or some other reason that favored him at the government's expense," Kaplan wrote.

Responding to defense arguments that the sole conviction could not be reconciled with 284 findings of "Not Guilty," Kaplan denied that jury's verdict had to be interpreted as inconsistent, and wrote that Supreme Court precedent allows inconsistent verdicts to stand.

"[If] there was any injustice in the jury's verdict, the victims were the United States and those killed, injured and otherwise devastated by these barbaric acts of terror, not Ghailani," Kaplan wrote.

Kaplan's suggestion of possible "victims" of a "lenient" jury's potential "compromise" stands in marked contrast to his lengthy praise of the jurors' careful and attentive deliberations immediately following the foreman's recitation the verdict.

"I and I think everyone else has been particularly struck by the manner in which you did your duty. You obviously paid close attention, you followed the evidence despite the fact that there was a lot of it and that fitting all the pieces together required quite a good deal of concentration and effort. Your requests during deliberations made it absolutely clear that you reviewed the evidence with great care and paid close attention to the law. You deserve a lot of credit for that.

"You have demonstrated also that American justice can be rendered calmly, deliberately and fairly by ordinary people, people who are not beholden to any government, not even ours. It can be rendered with fidelity to the Constitution. You have a right to be proud of your service in this case," Kaplan told jurors in November.

Elsewhere in his opinion, Kaplan dismissed defense arguments that he gave the jury an improper instruction and that the prosecution made "disingenuous" arguments that amounted to false evidence.

Defense attorney Michael Bachrach argued that Kaplan should not have instructed jurors on the concept of "conscious avoidance," which states that deliberately avoiding knowledge about an illegal conspiracy is tantamount to joining one.

The day before the verdict was announced, jurors asked Kaplan to clarify an aspect of this concept, and they delivered their verdict about seven hours after receiving his instruction.

During Thursday's hearings, Bachrach argued that there were no "red flags" that Ghailani knew that the U.S. Embassies would be bombed.

At the time, Kaplan replied, "Maybe the Swiss Embassies?"

In his decision on Friday, Kaplan wrote that "the evidence was more than sufficient to warrant a rational jury in concluding that Ghailani, even if ignorant of the specific bombing targets, was aware of a high probability that they included U.S. embassies and consciously avoided learning that fact."

Kaplan also determined that Assistant U.S. Attorney Michael Farbiarz said nothing wrong in arguing in his summations, "No dupe stays silent in the face of being involved in this type of thing."

The defense's appeal motion says that the argument was "disingenuous" because the government knew of other dupes like Hussein Abebe, who did not talk to the government for years after the attacks even though he sold the explosives used in the bombings.

(Before the trial, Kaplan barred Abebe from testifying for the government, on the grounds that the government learned about him through Ghailani's alleged torture in secret prisons, making the witness inadmissible under Fifth Amendment protections against self-incrimination.)

Kaplan's opinion criticized the defense for waiting until the filing of the appeal motions to criticize the government's summation.

Defense attorney Michael Bachrach said on Thursday that the defense did not object at the time because the grounds for an objection - based on a witness barred from testifying - may have prejudiced the jury against their client.

Other than its delay, Kaplan found the assertion of prosecutorial misconduct "unconvincing," and undeserving of a new trial.

Ghailani was arrested in Pakistan in 2004, and spent years in secret prisons before being transferred to Guantanamo Bay. He was the first former Guantanamo detainee to be tried in civilian court; he is being held in Manhattan Detention Center.

When he is sentenced on Thursday, Ghailani faces a minimum 20-year jail term, and the government will ask for life imprisonment.

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