MANHATTAN (CN) – Jurors in Ahmed Khalfan Ghailani’s terrorism trial on Tuesday asked Judge Lewis Kaplan about the scope of “conscious avoidance.” The judge acknowledged prosecutors’ concern that his answer could impose “a heavier burden of proof.” Kaplan said he would answer the jury’s question today, in a manner “consistent with law and common sense.” Kaplan’s charging instructions stated that Ghailani could be found guilty of conspiracy if the jury believed he knew, or consciously avoided knowing, that he was joining “an agreement to accomplish an alleged illegal purpose.” Jurors asked whether this “alleged illegal purpose” had to relate specifically to each conspiracy count, or rather “illegal activity in general.”
“They’re paying attention,” Kaplan responded, adding, “I have pondered this problem even before we charged.”
Ghailani, the first Guantanamo detainee to be tried in a civilian court, is accused of helping to plan and execute two U.S. Embassy bombings in Africa that killed more than 200 people on Aug. 7, 1998. He faces 285 counts, including murder and conspiracy.
Jurors’ precise, dispassionate note on Tuesday was a stark contrast to the note a juror sent the judge on Monday, asking to be replaced. That juror asked to be exchanged for an alternate because she felt she was being “attacked” for her “conclusion.”
The Monday note stated: “Your Honor, Judge Kaplan. At this point am secure and I have come to my conclusion but it doesn’t agreed with the rest of the juror. My conclusion it not going to change. I feel am been attack for my conclusion. Therefore am asking you if there is any way I can be excuse or exchange for an alternate juror.”
Judge Kaplan refused her request for replacement, and denied a defense motion for a mistrial.
On Tuesday afternoon, a juror sent a long and grammatically impeccable note asking for legal guidance so specific that it surprised even Kaplan in its detail.
“They’re paying attention,” an impressed Kaplan responded, adding, “I have pondered this problem even before we charged.”
Throughout the trial, the defense has called Ghailani a “dupe” for al-Qaida. Defense attorney Peter Quijano argued during summations that the case boiled down to whether Ghaliani knew he was helping to execute the Embassy attacks.
Quoting Clarence Darrow, Quijano said, “Conspiracy is the crime of thought.”
During deliberations, defense attorney Steve Zissou said that the most recent case law, out of the 2nd Circuit, demonstrates that conscious avoidance must relate to the charges of a trial.
“Proof that the defendant knew some crime was committed was not enough,” Zissou said, citing the ruling in U.S. v. Morgan.
Kaplan asked both parties to submit proposals regarding the instruction.
Prosecutors asked that jurors be instructed that they could consider whether Ghailani “had an understanding that the conspiracy was of a generally unlawful nature.”
The defense asked that jurors be told that “the defendant must have actually known the precise objective of the conspiracy defined in each specific count.”
Kaplan made his own proposal, which he said “tried to steer between the two.”
As the parties debated the precise language in the last sentence, deliberations closed for the day.
Kaplan closed by saying, “I will have the evening to reflect on those six words.” He said he would instruct the jury in a way that is “consistent with law and common sense.”
If convicted, Ghailani faces life imprisonment, though Judge Kaplan noted that he is subject to indefinite detention as an enemy combatant even if he is acquitted. Deliberations continue today.