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."
