Judge Answers Jurors’ Questions on Burden of Proof in Ghailani Trial

MANHATTAN (CN) - U.S. District Judge Lewis A. Kaplan clarified his jury instructions Wednesday regarding the government's burden of proof for the charges against Ahmed Khalfan Ghailani, the first Guantanamo detainee to be tried in a civilian court. Kaplan told jurors that, for a conviction on the conspiracy charges, the government "must prove that the defendant intentionally associated himself with the conspiracy to further the accomplishment of at least one of the illegal objectives charged in the indictment."

Ghailani is accused of helping to plan and execute two U.S. Embassy bombings in Africa that killed more than 200 people and injured thousands on Aug. 7, 1998. He faces 285 counts, including murder and conspiracy.

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.

According to Kaplan's original charging instructions, Ghailani can 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."

On Tuesday, jurors sent the judge a note asking whether this "alleged illegal purpose" had to relate specifically to each conspiracy count, or rather "illegal activity in general."

After reflecting on defense and government arguments overnight, Kaplan returned a two-page instruction that he read to the jury, stating, in part, "Proof that the defendant knew that some crime would be committed is not enough."

The language is similar to the defense's summary of what it called the most recent case law out of the 2nd Circuit, U.S. v. Morgan. That case, however, was not cited in the judge's official ruling.

Two rulings cited yesterday by the government, U.S. v. Svoboda and U.S. v. Tropeano, were cited by the judge.

After some debate about removing a sentence the judge and prosecutors called "repetitious," both parties agreed with the ruling, which concluded, "In other words, the government must prove that the defendant intentionally associated himself with the conspiracy to further the accomplishment of at least one of the illegal objectives charged in the indictment."

"It may prove that any one of those objectives was known to the defendant either because he in fact knew of that objective or because he consciously avoided knowledge that the purpose or purposes of two or more of the conspirators included that objective," Kaplan said.

If convicted, Ghailani faces life in prison, though Judge Kaplan noted that he is subject to indefinite detention as an enemy combatant even if he is acquitted. Deliberations continue this afternoon.

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