MANHATTAN (CN) – U.S. District Judge Lewis Kaplan will hear arguments this month for a new trial or exoneration of Ahmed Khalfan Ghailani, who was convicted of only one of the 285 charges against him in the bombings of two U.S. Embassies in Africa. The coordinated blasts killed more than 200 people and injured thousands on Aug. 7, 1998.
Michael Bachrach, the lead author of the defense motion, argued that Ghailani deserved a new trial or full acquittal because the jury delivered an inconsistent verdict, the judge gave jurors an improper instruction, and one of the prosecutors made “disingenuous” arguments during closing arguments that amounted to “false evidence.”
But in its opposition motion filed Tuesday, Manhattan U.S. Attorney Preet Bharara wrote, “None of these is persuasive.”
Defense attorneys said that the sole conviction charge – conspiracy to destroy government property – does not make sense next to the hundreds of acquittals of destruction of the same Embassies.
It only made sense if one believes that the jury found that Ghailani destroyed some other property not mentioned at trial, his attorneys wrote.
But Bharara wrote that even assuming this were correct, the argument is “foreclosed by decades of Supreme Court and 2nd Circuit precedent,” which established that jury verdicts need not be consistent in order to stand.
(Oklahoma City bombing conspirator Terry Nichols also received an inconsistent verdict, consisting of manslaughter convictions and acquittals on murder charges. His former prosecutor Aitan Goelman said in an interview that defense attorneys tried to appeal on the same grounds, but the argument failed. “There’s no question they [argued] that. They did point to the acquittals,” Goelman said.)
In a previous Courthouse News interview with civil libertarian Karen Greenberg, she said the stronger arguments in the Ghailani appeal are the ones that seek a new trial is needed on constitutional grounds.
“[Judge] Kaplan is really wed to constitutional issues,” Greenberg said, citing his decision to bar a government witness from testifying because he allegedly was discovered by torturing Ghailani.
Ghailani’s attorneys argued in their appeal that his constitutional rights were violated twice during his trial, once by a government prosecutor and once by the judge.
The motion questioned Judge Kaplan’s decision to instruct the jury on concept of “conscious avoidance,” the concept that deliberately avoiding knowledge about an illegal conspiracy is tantamount to joining one.
The defense claims that Kaplan should not have given an instruction on the concept at all, since they said there would have been no “red flags” suggesting that Ghailani knew – or avoiding knowing of – any conspiracy “had the Embassies never been bombed.”
In her prior Courthouse News interview, Greenberg said that this is the defense’s strongest argument because “the point about conscious avoidance is real.”
Goelman only partly agreed. “The defense, in this case, is right about something. The law is that unless there’s evidence in the record to support that instruction, the judge shouldn’t give it. It’s not like reasonable doubt, where you get that instruction as a matter of course. If the evidence could not sustain a verdict based on conscious avoidance or willful blindness, then it shouldn’t be given,” Goelman said
Defense attorneys claimed at trial that Ghailani was a “dupe.” His attorney Peter Quijano began his summation by saying, “Ahmed did not know.”
The New York Times reported on the night of the verdict that Ghailani had confessed to the FBI about his role in the bombings, but said he did not realize that the items he helped purchase would destroy property or cause death until after he bought them.
He recalled “putting the pieces of the puzzle together” before the bombing, and regretted failing to step forward when he learned about the Tanzanian deaths, the Times reported.
The defense said such statements were coerced and inadmissible.
The government never tried to submit them into evidence.
In the motion, Bharara argued that given Ghailani’s association with Al-Qaeda operatives, his purchase of trucks and gas cylinders, and his eventual flight from Africa to Pakistan, “‘Red flags’ were everywhere to see.”
Goelman added: “You can always count on the government asking for a conscious avoidance instruction.”
Bharara called the allegation of “foul play” by a prosecutor during rebuttal summation “meritless.”
During his rebuttal summation, Assistant U.S. Attorney Michael Farbiarz said, “No dupe stays silent in the face of being involved in this type of thing.”
Farbiarz was rebutting defense attorney’s Peter Quijano characterization of Ghailani as a “dupe” and “fall guy.”
The motion for acquittal claims that Farbiarz’s statement was “akin to a Napue violation,” citing a case in which judgment was reversed based on false evidence.
“Even if the jury had found that Ghailani had some knowledge of what was about to occur … the argument that no one who was duped would remain silent and fail to immediately go to the police, was blatantly misleading, and not something that the government should have been permitted to comment upon,” the motion states.
The defense motion says the comment was “particularly inappropriate in this case, since the government was well aware that there were in fact many similar dupes that – unbeknownst to the jury – figured out after the fact what had occurred but did not then immediately report to the police.”
The most notable dupe, the defense said, was Hussein Abebe, the barred government witness who stayed silent for years about his role in the bombings. Had he been permitted to take the stands, the defense said, the government would have been unable to try “capitalizing with disingenuous arguments.”
Goelman described that argument as: “‘The government shouldn’t be taking inconsistent positions before this court.’ It’s an interesting argument,” Goelman said, but “I think it’s unlikely to change the outcome.”
Bharara said there was nothing inconsistent about Farbiarz’s rhetoric, let alone something that would amount to a Napue violation. “There has been has no suggestion that any false testimony was elicited at trial,” Bharara wrote.
He added that “a dupe as deeply implicated as Ghailani would have things to tell the police about the plot that are not comparable to what was known to a person (like Said Salim Omar, or Hussein Abebe) who simply participated in selling a single item to a single plotter.”
The government’s opposition motion also argues that the defense did not object to Farbiarz’s argument during rebuttal summation or tell the judge after the summation outside the presence of a jury.
If the government’s summation were improper, Bharara wrote, legal precedent mandates that the “summation [must be] so extremely inflammatory and prejudicial that allowing the verdict to stand would seriously affect the fairness, integrity or public reputation of judicial proceedings.”
But Bharara said that is not the case, and that there was “nothing inappropriate” about Farbiarz’s remarks.
Greenberg said the specific defense arguments could resonate with Kaplan, who is a “thinker” and “not end-oriented.” He is mindful of the legal precedent the Ghailani case can establish, she said.
Goelman said the judge’s desire to have more terrorism cases tried in civilian court could outweigh his constitutional concerns.
“If you look at the ruling excluding the Abebe testimony, it seems that Judge Kaplan is invested in having this ‘test case,’ this terrorism case in civilian court and having it go well,” Goelman said.
For many politicians and political commentators following the Ghailani trial, a civilian terrorism trial that goes “well” is one that metes out heavy punishment; the government wants Ghailani to serve a lifetime sentence.
Ghailani’s attorneys seek a new trial, or barring that, a lighter sentence that takes into account his alleged mistreatment in secret prisons.
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.
Judge Kaplan set the hearing on the defense’s appeal motion for Jan. 20. If he denies the motion, sentencing will be on Jan. 25.